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This work approaches the issue of democratic deficit from the angle of accountability, seen in contemporary society as an essential element of democratic government. It looks at differing understandings of the concept in the Member States and at various techniques — political, legal, and managerial — by which accountability can be assured. These include the Parliament as well as national parliaments but extend to less familiar institutions, such as the European Court of Auditors.

This book provides an analysis of the administration of the European Union and the legal framework within which that administration operates. It examines the multifarious approaches, techniques, and structures of public administration in order to systematize and assess the solutions they offer to political, social, and economic problems. The legal framework of administration is examined from the standpoint of how it meets the demands of specific policy objectives established by democratically accountable decision-makers. Administrative law structures and many of its underlying principles have developed in an evolutionary and isolated manner in each policy area. While aware of the diversity of specific areas, this book takes an overarching approach, setting out the common rules and principles that constitute the general body of EU administrative law. By integrating the disciplines of political and administrative science, and administrative law, the book offers a rich explanation and critique of the complex executive framework of the EU.

The prominence of the Advocate General is one of the most distinctive and controversial features of the European Court of Justice. The Advocate General and EC Law is the first comprehensive study of the Advocate General and his role in the development of EC Law. In Part I, the book examines the history of the role, the questions over its future, and the role's importance in the procedures of the Court. In Part II, the book analyses the contribution of some of the most influential Advocates General to the development of specific aspects of Community law, including Francis Jacobs on intellectual property, Walter van Gerven on discrimination, and Jean Pierre Warner on competition procedure. In Part III, the book explores the contributions of a range of Advocates General to specific principles of Community Law, including state liability, direct effect, and the concept of citizenship. This book offers a unique perspective on politics of the European Court of Justice — one of the driving forces behind closer European integration.

The 1999 Treaty of Amsterdam expanded significantly the legal competence of the European Union for combatting discrimination. Traditionally, EU law has concentrated on discrimination between women and men and discrimination on the grounds of EU nationality. However, Article 13 EC created a new legal space for the Union to regulate discrimination on the ground of racial or ethnic origin, religion or belief, disability, age, or sexual orientation. This book aims to improve our understanding of the evolution of European Union law in the field. To this end, it considers the development of EU law and policy in respect of two specific grounds of discrimination — race and sexual orientation. It provides an account of the debate within the institutions and Member States, analysis of relevant case law from the Court of Justice, and coverage of the anti-discrimination directives adopted in 2001. The book further considers the relationship between national and European anti-discrimination law. A survey of national anti-discrimination statutes is presented in order to identify the variety of legal traditions that exist in this field. The diversity of these legal cultures impacts significantly upon the scope for and nature of EU anti-discrimination legislation. The author concludes by reviewing the principle factors that have influenced the evolution of EU anti-discrimination law and applying this to an analysis of the prospects for future development.

This book addresses two problems surrounding the interpretation and application of Article 81 of the EC Treaty: what is competition and how does Article 81 ensure that competition is protected? After over forty years of application and a period of modernisation, decentralisation, and reflection, it is possible to understand Article 81 and what it seeks to achieve. The book's aim is to reveal the intellectual order and rational structure underlying the law so as to enable the reader to understand Article 81 in a clear and rigorous manner. This is done by breaking Article 81 down into its constituent elements and examining the function that each element serves. Arguing that jurisdiction rests on a public/private distinction, both the substantive and the justificatory rules are cast to generate obligations appropriate for private actors to perform. Actors and activities falling within the scope of Article 81 are subject to the substantive element prohibiting contrived reductions in output. Since output reduction can co-exist with cost reduction/innovation, and given that these latter features are desirable, cost reduction and innovation operate to justify infringement of the substantive obligation. Thus this book argues that output, cost and innovation are the only legitimate issues in an Article 81 analysis. It is in this sense that the monograph is concerned with the boundaries of Article 81 EC.

This empirical study of the interaction between law, adjudication, and conflicts about behaviour at work argues that individual employment rights are Janus-faced, simultaneously challenging, and sustaining existing distributions of power between management and employees. The central finding is that labour and equality rights, as currently legislated, implemented, and enforced in the UK, overall enhance the status-quo by supporting a good deal of traditional workplace hierarchy and marginalizing more plural, collective workplace ways of being. This is rooted in a paradox that individual rights are quite easily minimized, sidelined, and defused in employer-dominated environments, while more receptive organizations are at particular risk of individualized conflict that is damaging and disruptive. Behind this is a massive, growing number of working people who are left to cope alone with workplace problems and a tiny number who litigate, finding themselves in an alienating, often unsatisfying ordeal. While managers in theory benefit from this dynamic and are often responsible for workplace problems, they can face parallel isolation as shock absorbers for conflict between collective employer power and individual employee interests. At the broadest level this is a story of law supporting individualism through a process of individualization. It concludes that individual labour and equality rights should be recast to stimulate the expression and reconciliation of different points of view in their implementation and enforcement across the range of organizations. Without such innovation, the use of law to emancipate at work must represent an ongoing loss, not only for those directly affected by problems and conflict at work, but for society as a whole, and the many who hope for more just distributions of power, in working life and beyond.

Governments spend huge amounts of money buying goods and services from the private sector. How far should their spending power be affected by social policy? Arguments against the practice are often made by economists — on the grounds of inefficiency, and lawyers — on the grounds of free competition and international economic law. Buying Social Justice analyses how governments in developed and developing countries use their contracting power in order to advance social equality and reduce discrimination, and argues that this approach is an entirely legitimate and efficient means of achieving social justice. The book looks at the different experiences of a range of countries, including the UK, the USA, and South Africa. It also examines the impact of international and regional regulation of the international economy, and questions the extent to which the issue of procurement policy should be regulated at the national, European or international levels. The role of EC and WTO law in mediating the tensions between the economic function of procurement and the social uses of procurement is discussed, and the outcomes of controversies concerning the legitimacy of the integration of social values into procurement are analysed. Buying Social Justice argues that European and international legal regulation of procurement has become an important means of accentuating the positive and eliminating the negative in both the social and economic uses of procurement.

This book analyses the legal and economic implications of the European Commission's plans to form a Capital Markets Union (CMU) in Europe, which will have a major impact on financial markets and institutions both in the region and beyond. A detailed introductory chapter provides a broad overview of the various aspects and challenges of the CMU proposals, whilst thematically grouped chapters cover the following areas: (i) general aspects, (ii) Brexit, (iii) financing innovation, (iv) raising capital on the capital markets, (v) fostering retail and institutional investment, (vi) leveraging banking capacity to support the wider economy, (vii) facilitating cross-border investing, and (viii) comparative aspects of capital market integration. The book provides high-quality analysis of the legal and economic issues in a practical context.

This book provides an account of European competition law from the perspective of its coherence, in the context of modernization. Coherence is defined as consistency towards a clearly defined objective, in this case identified as the internal market. In addition, the performance on the variables efficiency and legitimacy is charted. While the focus is on antitrust, the book also examines merger and state aid control, as well as the sectoral regulatory frameworks for energy and electronic communications. For each of these the book looks at objectives, rules, and exceptions, as well as the way in which enforcement is organized. The findings are that the objectives of EU competition law are fairly straightforward as are the rules, but that the available exceptions vary widely between the different instruments and are disputed. Within antitrust and sectoral competition law enforcement is coordinated effectively between the EU Commission and networks of national (competition) authorities and can be deemed a success. For merger and state aid control a centralized model persists instead that resembles that of antitrust prior to modernization. Among future charges in the interest of coherence, legitimacy, and effectiveness of harmonization of remedies and procedure (now largely in the realm of national law) is likely.

At the heart of the European Union is the establishment of a European market grounded in the free movement of people, goods, services, and capital. The implementation of the free market has preoccupied European lawyers since the inception of the Union's predecessors. Throughout the Union's development, as obstacles to free movement have been challenged in the courts, the European Court of Justice has had to expand on the internal market provisions in the founding Treaties to create a body of law determining the scope and meaning of the EU protection of free movement. In doing so, the Court has often taken differing approaches across the different freedoms, leaving a body of law apparently lacking a coherent set of foundational principles. This book presents a critical analysis of the European Courts' jurisprudence on free movement, examining the Court's constitutional responsibility to articulate a coherent vision of the EU internal market. Through analysis of restrictions on free movement rights, it argues that four main drivers are distorting the system of the case law and its claims to coherence. Examining the judicial development of principles that define the scope of EU free movement law, this book argues that sustaining case law coherence is a vital constitutional responsibility of the Court of Justice.

The EU legal order sits above a diverse mix of 27 national legal systems, with some 23 different languages. Amongst such diversity, how can the unity and coherence of the European legal system be guaranteed? Is there a common understanding between lawyers from different national backgrounds as to the meaning and application of EU law? In addressing these issues the idea of ‘common concepts’ has played a crucial role. It is argued that the unity of the system is guaranteed by the consistent application of certain core principles shaping the law. Believers in common concepts argue that there is a relatively clear, shared, and accepted framework of ideas, providing an understanding of the system that is ultimately unified in spite of all apparent divergence. Sceptics hold that there is no such framework; ‘common concepts’ turn out to be additional sources of misunderstanding, confusion and, subsequently, legal divergence. According to a third thesis, there is indeed no common conceptual core, but the necessary unity and coherence of EU law can be articulated and even reinforced through the use of divergent concepts. The contributors to this collection of essays address these issues from different disciplinary perspectives — legal sociology, linguistics, comparative law, European legal scholarship, legal theory, and practical experience. The research group focused on the application of two general themes: the protection of rights and judicial discretion. In addition to the thematic research, case studies from core policy sectors are featured, including energy regulation and social policy.

In almost all fields of cooperation that are covered by the EC Treaty, the formal competence to adopt legislation has been assigned to the Council (which must normally collaborate with the European Parliament), and in order to separate powers, the formal competence to prepare the necessary proposals (the right to initiate legislation), has been assigned to the European Commission. Over the years, however, it has become clear that the reality is far more complex. This book examines the fact that the Council is now passing an increasing part of the responsibility for adopting legislation to the Commission, subject to the requirement that it has to collaborate with a vast number of committees that consist of representatives of the various national administrations. This is known as comitology. Comitology provides the Council and national governments with a mechanism for controlling the Commission, and so comitology is often thought to manifest a conflict of interests. The book argues that, despite much support in principle for this assumption, in practice comitology does not give rise to the kinds of conflicts many expect or fear. It contends that in fact comitology appears to be a fruitful cooperation between the national administrations and the Commission. The book explains how and why comitology has developed, explores the nature of comitology and examines its present and future place in the legal order of the European Union.

This book is the first of a two volume treatise on the law of non-contractual obligations. The result of an attempt to discover the common elements of the law of torts of all the member states of the European Union, it is founded on the belief that the approximation of European laws should not be left to the directives and regulations of Brussels alone. The book analyses the relevant court rulings and academic writings of all the jurisdictions of the European Union to distil a European common law of torts. The material covered in volume one includes: the areas of application of tort law and its boundaries with contract, property, criminal and constitutional law; the elements of liability under the general clauses of the European civil codes and the more specific torts of the common law. Further topics include: strict liability, liability for other persons, animals and premises; multiple tortfeasors; and an account of European Union and Council of Europe attempts to harmonise the less coherent areas of tort law.

This book is the second of a two-volume treatise on the law of non-contractual obligations. The result of a unique attempt to discover the common elements of the law of torts of all the member states of the EU, it is founded on the belief that the approximation of European laws should not be left to the directives and regulations of Brussels alone. To this end, the author has undertaken a thorough and detailed analysis of the relevant court rulings and academic writings of all the jurisdictions of the European Union to distil a common European law of torts. The insights gained from the comparative analysis also offer guidance toward greater harmonization in the future. This second volume commences with a chapter on loss, damage, and damages, before proceeding with a detailed analysis of liability for breach of duty. This third chapter is devoted to strict liability, the fourth to causation and remoteness of damage, and the fifth to general defences.

European Contract Law unification projects have recently advanced from the Draft Common Frame of Reference (DCFR) to a European Commission proposal for an optional Common European Sales Law (CESL) which is to facilitate cross-border marketing. This book investigates for the how CESL and DCFR rules would interact with various aspects of domestic law, represented by English and German law. Nineteen chapters examine such interface issues, e.g., pre-contractual relationships, notions of contract, formation, interpretation, and remedies, extending to non-discrimination, third parties, transfers or rights, aspects of property law, and collective proceedings. They go beyond a critical analysis of CESL and DCFR rules by demonstrating where and how CESL rules would interact with neighbouring areas of English and German law before English and German courts, how domestic traditions might influence the application, which aspects might motivate sellers and buyers to choose or reject CESL, and which might serve as model for national legislators. The findings are summarized in the final two chapters.

The enlargement of the EU has highlighted the challenges of compliance, but it has also helped to suggest new compliance methodologies. The combination of methodologies used by the EU and the differing levels of enforcement available are characteristic of the EU's compliance system, permitting the remarkable reach and penetration of EU norms into national systems. This study offers assessment of the enforcement procedures and compliance processes that have been developed to ensure Member State compliance with EU law. The first three chapters examine the merits of combing both coercive and problem-solving strategies, describing the systems in place and focusing on the different levels at which compliance mechanisms operate: national, regional, and international. It also looks at horizontal compliance as well as ‘from above’ compliance, creating a complex and rich picture of the EU's system. The final three chapters of the book focus on different aspects of compliance seen from a national perspective. The first analyses the two bases for the use of criminal sanctions to enforce EU law: the ability of Member States to choose to include criminal penalties for non-compliance in their national law; and the imposition of criminal sanctions at a national level by EU law itself. The book then moves on to a discussion of the role of national courts in ensuring Member State compliance with, and enforcement of, EU law. It examines the role of national constitutional courts in facilitating compliance with EU law and draws comparisons between EU law and international law and their interactions both with each other and with national constitutional courts.

This book is concerned with the legal concept of State aid under Article 107(1) TFEU. It was born out of the concern that EU institutions and practitioners alike refer to it as if this concept had been immune to the evolution experienced by the context in which it has been applied: the Internal Market. Against this seemingly static background, the book argues that the concept of aid is a ‘living instrument’ that has been applied in accordance with the main policy priorities of the European Commission, a fact that had been underexplored in the literature and the implications of this connection seldom studied. The book also contends, contrary to what has been affirmed before by other authors, that the evolution of this concept has been influenced by the broader advancement of the case-law of the Court of Justice in different periods of the integration process. Thirdly, the book submits that the study of the origins of subsidy control in Europe, of the legislative history of today’s Article 107(1) TFEU, and of the policy and enforcement considerations that have affected the development of the concept of aid is not only enriching from an intellectual point of view but also useful to decide difficult cases. In this regard, the book provides criteria to interpret and discuss cases, e.g. Sloman Neptun, Philip Morris or Azores, beyond the analysis traditionally carried out in this field, too often limited to the compatibility of these cases with the effects-based formula traditionally followed to define aid.

This book focuses on the potential for conflict between overlapping constitutional and EU fundamental rights. When constitutional and EU rights overlap and the respective interpretations diverge, state courts are asked to follow the standard of protection defined by the European Court of Justice (ECJ). The ECJ's claim to normative authority needs to be justified. This book advocates a theory of supranational judicial authority grounded in the ideal of dialogue. At the outset, it is argued that traditional approaches to constitutional conflicts based upon supremacy should be overcome. A pluralist framework for structuring the interaction between legal systems in the EU not only offers a better account of reality, but it should be welcomed normatively as well. In this context, the ideal of dialogue will contribute to a better understanding and theorizing of the interaction between national and supranational courts interpreting fundamental rights. Despite multiple and varied references to dialogue in the literature, mostly from a descriptive standpoint, there has been no thorough and rigorous account establishing its legitimating potential regarding ECJ adjudication of fundamental rights norms. This book offers a theoretical account of how the legitimacy of ECJ's authority in adjudicating fundamental rights might be grounded in the ideal of dialogue. The arguments underpinning the legitimating potential of dialogue and the prerequisites for judicial dialogue are explored. Thereafter, the implications of dialogue for the mode of judicial reasoning in interpreting fundamental rights are analyzed. Such a theory of supranational judicial authority would serve as a normative model to assess the activity of the ECJ and to improve current institutional practices.

Europe is in crisis. With rising unrest among citizens of European Union Member States exemplified by the UK’s decision to leave the European Union (EU), and the growing popularity of anti-EU political parties, this book presents the argument that Europe has to change its method of further integration or risks failure. The book asserts that currently the EU does not have enough sources of legitimation to uphold itself, surviving solely on the legitimation provided by Member States. One popular remedy is the suggestion of ‘parliamentarization’ of the EU, giving the European Parliament the powers typically possessed by national parliaments as a means of heightening its legitimation. This is criticized by the book as expanding the Parliament’s powers would not change the effects of over-constitutionalization as the Parliament is inferior to the constitution. In order to reduce the EU’s legitimacy deficit, the book makes several recommendations, including the re-politicization of the decision-making processes, which can be achieved by reducing treaties to the capacity necessary for their constitutional function; the reinvigoration of European Parliament elections, by having ‘Europeanized’ parties to increase engagement with European society and give voters the opportunity to more immediately influence European politics; and a new division of powers based on subject matter to restrain European expansionism, reserving particular areas of policy to the responsibility of Member States even if this affects the common market.