Pub Date : 2017-05-19DOI: 10.5771/9783845292700-67
Armin von Bogdandy
German Abstract: Der Beitrag zeigt im ersten Schritt anhand einer Analyse von Walter Hallsteins Schriften, wie das überkommene Verständnis, wonach die Europäischen Union in erster Linie eine Rechtsgemeinschaft ist, in die Jahre gekommen ist: Es erfasst die aktuelle Gestalt Europas weder deskriptiv noch normativ. Idiosynkrasien des spezifisch deutschen Verständnisses kommen zur Sprache. Im zweiten Schritt zeigt er, dass der Begriff des europäischen Rechtsraumes das Potential hat, ein ähnlich fundamentales Verständnis sowohl der Errungenschaften als auch der Herausforderungen des Europarechts zu vermitteln, insbesondere in Bezug auf die Rechtsstaatlichkeit und die Politisierung der EU. Letztlich zeichnet der Beitrag die Entwicklung nach, wie zunächst ferne technokratische Institutionen den Bürgern immer näher gekommen sind.
English Abstract:The received understanding of the European Union as being above all a community of law has run its course. The article dissects core features of the seminal concept as devised by Walter Hallstein, the EEC Commission’s first president, showing how much Europe’s contemporary constitution has moved beyond it. The article also explains the specificities of the German Rechtsgemeinschaft, allowing German reactions in the current rule of law crises to be better understood. Finally, the article shows the potential of the European legal space as a basic concept for comprehending both the achievements of European law and its challenges, in particular with regard to the rule of law and the politicization of the EU. It thereby tracks the evolution of remote technocratic institutions into a complex institutional web existing in close proximity to everyone.
{"title":"Von der technokratischen Rechtsgemeinschaft zum politisierten Rechtsraum - Probleme und Entwicklungslinien in der Grundbegrifflichkeit des Europarechts (From a Technocratic Legal Community to a Politicized Legal Space – Problems and Developments in the Basic Conception of European Law)","authors":"Armin von Bogdandy","doi":"10.5771/9783845292700-67","DOIUrl":"https://doi.org/10.5771/9783845292700-67","url":null,"abstract":"<b>German Abstract:</b> Der Beitrag zeigt im ersten Schritt anhand einer Analyse von Walter Hallsteins Schriften, wie das überkommene Verständnis, wonach die Europäischen Union in erster Linie eine Rechtsgemeinschaft ist, in die Jahre gekommen ist: Es erfasst die aktuelle Gestalt Europas weder deskriptiv noch normativ. Idiosynkrasien des spezifisch deutschen Verständnisses kommen zur Sprache. Im zweiten Schritt zeigt er, dass der Begriff des europäischen Rechtsraumes das Potential hat, ein ähnlich fundamentales Verständnis sowohl der Errungenschaften als auch der Herausforderungen des Europarechts zu vermitteln, insbesondere in Bezug auf die Rechtsstaatlichkeit und die Politisierung der EU. Letztlich zeichnet der Beitrag die Entwicklung nach, wie zunächst ferne technokratische Institutionen den Bürgern immer näher gekommen sind.<br><br><b>English Abstract:</b>The received understanding of the European Union as being above all a community of law has run its course. The article dissects core features of the seminal concept as devised by Walter Hallstein, the EEC Commission’s first president, showing how much Europe’s contemporary constitution has moved beyond it. The article also explains the specificities of the German Rechtsgemeinschaft, allowing German reactions in the current rule of law crises to be better understood. Finally, the article shows the potential of the European legal space as a basic concept for comprehending both the achievements of European law and its challenges, in particular with regard to the rule of law and the politicization of the EU. It thereby tracks the evolution of remote technocratic institutions into a complex institutional web existing in close proximity to everyone.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129998575","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-05-03DOI: 10.4337/9781785363962.00025
Peter L. Lindseth
This is the capstone chapter in a book on digital democracy that is, in the end, fundamentally about institutional change. The book is not merely cautious in its overall assessment but also cautionary, particularly as the contributors seek to understand the institution of democracy in relation to two social developments – digitalization and globalization – that have certainly been disruptive if not also potentially revolutionary. To understand these developments, one must deploy a theory of institutional change operating along three inter-related dimensions: functional, political, and cultural. Regardless of how the most optimistic scholars and theorists have at times conceptualized the new forms of transnational governance that seem to be emerging (particularly in the internet domain, via so-called ‘multistakeholderism’), the broader public seems to have experienced these forms not as a new kind of democracy but as democracy’s negation – a kind of digital technocracy. The elites who populate the various fora of transnational governance – who occupy their positions by virtue of functional power within business, bureaucratic, and technical networks – remain effectively immune from removal by any bottom-up collective political mobilization against them (something especially true with regard to algorithmic transparency and accountability). No wonder populism surges in such an environment: This is no longer democracy, at least not in a historically recognizable sense, but rather an elite technocracy, legitimized by paler forms of transparency and participation, at least as compared to citizen voting within a historically constructed political community in which such mobilization and removal is possible. One likely result is a kind of political-cultural resistance that may contribute to the overall ‘stickiness’, or ‘hysteresis’, of traditional forms of representative government on the national level in the face of the seeming functional demands posed by digitalization and globalization. Representative government within a demos-based political community possesses a degree of specifically democratic legitimacy – derived ‘of’ a people, in a Lincoln sense – that governance networks, no matter how transparent and participatory, simply cannot muster. It is therefore a category mistake to describe them in autonomously democratic terms; they are, instead, an extension of technocratic/administrative governance on the national level. The challenge is thus to find a way to reconcile their existence (including the often significant functional advantages they bring) with the continued popular association of democracy with representative government on the national level. This demands rigorous oversight of such networks – a task to which increasing transparency and participation rights contribute. Rather than seeing ‘multistakeholderism’ as a vehicle for democratization in its own right, it should be seen as a way of reducing information costs that facilitates democ
{"title":"Technology, Democracy, and Institutional Change","authors":"Peter L. Lindseth","doi":"10.4337/9781785363962.00025","DOIUrl":"https://doi.org/10.4337/9781785363962.00025","url":null,"abstract":"This is the capstone chapter in a book on digital democracy that is, in the end, fundamentally about institutional change. The book is not merely cautious in its overall assessment but also cautionary, particularly as the contributors seek to understand the institution of democracy in relation to two social developments – digitalization and globalization – that have certainly been disruptive if not also potentially revolutionary. To understand these developments, one must deploy a theory of institutional change operating along three inter-related dimensions: functional, political, and cultural. Regardless of how the most optimistic scholars and theorists have at times conceptualized the new forms of transnational governance that seem to be emerging (particularly in the internet domain, via so-called ‘multistakeholderism’), the broader public seems to have experienced these forms not as a new kind of democracy but as democracy’s negation – a kind of digital technocracy. The elites who populate the various fora of transnational governance – who occupy their positions by virtue of functional power within business, bureaucratic, and technical networks – remain effectively immune from removal by any bottom-up collective political mobilization against them (something especially true with regard to algorithmic transparency and accountability). No wonder populism surges in such an environment: This is no longer democracy, at least not in a historically recognizable sense, but rather an elite technocracy, legitimized by paler forms of transparency and participation, at least as compared to citizen voting within a historically constructed political community in which such mobilization and removal is possible. One likely result is a kind of political-cultural resistance that may contribute to the overall ‘stickiness’, or ‘hysteresis’, of traditional forms of representative government on the national level in the face of the seeming functional demands posed by digitalization and globalization. Representative government within a demos-based political community possesses a degree of specifically democratic legitimacy – derived ‘of’ a people, in a Lincoln sense – that governance networks, no matter how transparent and participatory, simply cannot muster. It is therefore a category mistake to describe them in autonomously democratic terms; they are, instead, an extension of technocratic/administrative governance on the national level. The challenge is thus to find a way to reconcile their existence (including the often significant functional advantages they bring) with the continued popular association of democracy with representative government on the national level. This demands rigorous oversight of such networks – a task to which increasing transparency and participation rights contribute. Rather than seeing ‘multistakeholderism’ as a vehicle for democratization in its own right, it should be seen as a way of reducing information costs that facilitates democ","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"65 10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131450552","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The global value of public procurement spending is enormous. Each year, approximately 19% of the EU GDP is spent by over 250,000 public authorities purchasing services, works and supplies. The sheer scale of public procurement spending and supplier selection decisions can literally create and shape the market, impacting the lives of citizens across countries and regions at large. Over the last decade public procurement experienced wide spread modernization across the globe, both including local and international levels. These days, public procurement is no longer just about buying the cheapest possible supplies or services but, rather, it is understood as a process whereby organizations meet their needs in a way that achieves value for money on a lifetime basis and delivers aspects beyond savings. This includes doing business responsibly, taking a leadership position in the community and ensuring promotion of Small and Medium Enterprises (SMEs) in public procurement. SMEs are considered the backbone of the European economy as they represent around 99,8 percent of all enterprises and produce more than a half of the European GDP. Thus, if more SMEs participate in public procurement, the competition will increase and, consequently, governments will be able to achieve better value for money in their contracts. Also, it has been argued that most innovations originated from small entrepreneurial firms which support the sustainability agenda. The main claim of this article is that sustainability and the promotion of SMEs participation in public procurement do not necessarily contradict each other. It is without doubt that SMEs participation in the procurement context encompasses a number of challenges. To the latter may be accounted the argument that SMEs are too small, have too little money, experience or technical capabilities to participate in public procurement. Yet, it is argued that revised procurement law has the potential to solve some of the challenges and there is still considerable scope for promoting opportunities for SMEs such as reliance on the capabilities of third parties, bidding in form of consortia or subcontracting, the possibility to influence contract specification, and reserved contracts.
{"title":"Sustainability, Public Procurement and SMEs – Challenges and Opportunities","authors":"Marta Andhov","doi":"10.2139/SSRN.2911828","DOIUrl":"https://doi.org/10.2139/SSRN.2911828","url":null,"abstract":"The global value of public procurement spending is enormous. Each year, approximately 19% of the EU GDP is spent by over 250,000 public authorities purchasing services, works and supplies. The sheer scale of public procurement spending and supplier selection decisions can literally create and shape the market, impacting the lives of citizens across countries and regions at large. Over the last decade public procurement experienced wide spread modernization across the globe, both including local and international levels. These days, public procurement is no longer just about buying the cheapest possible supplies or services but, rather, it is understood as a process whereby organizations meet their needs in a way that achieves value for money on a lifetime basis and delivers aspects beyond savings. This includes doing business responsibly, taking a leadership position in the community and ensuring promotion of Small and Medium Enterprises (SMEs) in public procurement. \u0000 \u0000SMEs are considered the backbone of the European economy as they represent around 99,8 percent of all enterprises and produce more than a half of the European GDP. Thus, if more SMEs participate in public procurement, the competition will increase and, consequently, governments will be able to achieve better value for money in their contracts. Also, it has been argued that most innovations originated from small entrepreneurial firms which support the sustainability agenda. \u0000 \u0000The main claim of this article is that sustainability and the promotion of SMEs participation in public procurement do not necessarily contradict each other. It is without doubt that SMEs participation in the procurement context encompasses a number of challenges. To the latter may be accounted the argument that SMEs are too small, have too little money, experience or technical capabilities to participate in public procurement. Yet, it is argued that revised procurement law has the potential to solve some of the challenges and there is still considerable scope for promoting opportunities for SMEs such as reliance on the capabilities of third parties, bidding in form of consortia or subcontracting, the possibility to influence contract specification, and reserved contracts.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"94 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124254499","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
For understandable but also unfortunate reasons, the contemporary scholarly and public debate over “the administrative state” — a poorly defined term of convenience — has been marred by dramatic claims, ideological rancor, and arcane doctrinal quarrels that serve as placeholders for a grim clash of convictions. Expansive delegations of legislative powers, coupled with highly deferential judicial review and increasingly “unorthodox” forms of administration, have prompted scholars from opposing vantages to argue that all administrative law is an unlawful departure from constitutional government, or a thin veneer for an essentially “Schmittian” state beyond effective legal control (and a good thing, too).This essay — written as an Introduction to a series of articles commissioned for a transatlantic law conference — argues that the stateside debate would greatly benefit from a comparative administrative law inquiry. In contrast to the acrimony over unchecked executive power in the United States, British scholars apprehend tendencies toward administrative juristocracy. In even sharper contrast, the German administrative law profession shares a firm conviction that is entirely possible to reconcile the demands of modern government with constitutionally grounded rule-of-law precepts. At a minimum, the comparative perspective greatly complicates facile stories of constitutional decay or the “modernization” of an archaic constitutional framework. It invites deeper reflection and opens a wider, perhaps more sober perspective on the American administrative state and its law.
{"title":"The Administrative State and Its Law","authors":"M. Greve","doi":"10.2139/SSRN.2904043","DOIUrl":"https://doi.org/10.2139/SSRN.2904043","url":null,"abstract":"For understandable but also unfortunate reasons, the contemporary scholarly and public debate over “the administrative state” — a poorly defined term of convenience — has been marred by dramatic claims, ideological rancor, and arcane doctrinal quarrels that serve as placeholders for a grim clash of convictions. Expansive delegations of legislative powers, coupled with highly deferential judicial review and increasingly “unorthodox” forms of administration, have prompted scholars from opposing vantages to argue that all administrative law is an unlawful departure from constitutional government, or a thin veneer for an essentially “Schmittian” state beyond effective legal control (and a good thing, too).This essay — written as an Introduction to a series of articles commissioned for a transatlantic law conference — argues that the stateside debate would greatly benefit from a comparative administrative law inquiry. In contrast to the acrimony over unchecked executive power in the United States, British scholars apprehend tendencies toward administrative juristocracy. In even sharper contrast, the German administrative law profession shares a firm conviction that is entirely possible to reconcile the demands of modern government with constitutionally grounded rule-of-law precepts. At a minimum, the comparative perspective greatly complicates facile stories of constitutional decay or the “modernization” of an archaic constitutional framework. It invites deeper reflection and opens a wider, perhaps more sober perspective on the American administrative state and its law.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116056752","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This book deals with the impact of the free movement rules in the EC Treaty on tax treaties in the internal market. This is a highly relevant issue since a provision in breach of teh free movement rules is inapplicable. The potential far-reaching consequences following the preclusion of tax treaty provisions makes it important for taxpayers and governments of teh Member States of teh EU to predict when a provision in a tax treaty may be in conflict with free movement law.
{"title":"Free Movement and Tax Treaties in the Internal Market","authors":"M. Hilling","doi":"10.2139/SSRN.2898181","DOIUrl":"https://doi.org/10.2139/SSRN.2898181","url":null,"abstract":"This book deals with the impact of the free movement rules in the EC Treaty on tax treaties in the internal market. This is a highly relevant issue since a provision in breach of teh free movement rules is inapplicable. The potential far-reaching consequences following the preclusion of tax treaty provisions makes it important for taxpayers and governments of teh Member States of teh EU to predict when a provision in a tax treaty may be in conflict with free movement law.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125674756","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
‘Agencification’ is one of the most widespread phenomena in the current European politico-administrative space. However, while academic literature has mostly focused on the Executive Agencies under the Commission framework, little attention has been devoted to the study of the Agencies of the Common Security and Defence Policy (CSDP). In this context, the European Defence Agency (EDA) is a particularly interesting case-study, because it is a unique laboratory where we can observe the interactions between three types of experts: those working directly within the agency, experts’ representatives of member states and non-governmental experts from industry and academia.EDA has institutionalised a peculiar ‘experimental governance’ model to coordinate its activities, able to involve all the different stakeholders in the EU defence field. This network of experts is producing a process of informal socialisation among defence practitioners and it is legitimising the role of EDA in the wider EU institutional field.
{"title":"Agencification in the EU Common Security and Defence Policy: The European Defence Agency","authors":"A. Calcara","doi":"10.2139/ssrn.2889370","DOIUrl":"https://doi.org/10.2139/ssrn.2889370","url":null,"abstract":"‘Agencification’ is one of the most widespread phenomena in the current European politico-administrative space. However, while academic literature has mostly focused on the Executive Agencies under the Commission framework, little attention has been devoted to the study of the Agencies of the Common Security and Defence Policy (CSDP). In this context, the European Defence Agency (EDA) is a particularly interesting case-study, because it is a unique laboratory where we can observe the interactions between three types of experts: those working directly within the agency, experts’ representatives of member states and non-governmental experts from industry and academia.EDA has institutionalised a peculiar ‘experimental governance’ model to coordinate its activities, able to involve all the different stakeholders in the EU defence field. This network of experts is producing a process of informal socialisation among defence practitioners and it is legitimising the role of EDA in the wider EU institutional field.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115114001","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The article focuses on the interplay between European Union (EU) law on privacy and data protection and international trade law, in particular the General Agreement on Trade in Services (GATS) and the WTO dispute settlement system. The argument distinguishes between the effects of international trade law in the EU legal order on the one hand, and, on the other hand, how EU data protection law would fare in a hypothetical challenge under the GATS. The contribution will apply international trade law and the general exception in GATS Article XIV to typical requirements stemming from EU data protection law, especially on transfers of personal data to third countries. The article enumerates the specific legal risks for defending EU law on privacy and data protection and explains the practical implications of its hypothetical challenge under the GATS. These insights could be useful for the EU’s negotiators of the future bi- or multilateral free trade agreements, notably the Transatlantic Trade and Investment Partnership and the Trade in Services Agreement.
{"title":"The Best of Both Worlds? Free Trade in Services, and EU Law on Privacy and Data Protection","authors":"S. Yakovleva, K. Irion","doi":"10.21552/EDPL/2016/2/9","DOIUrl":"https://doi.org/10.21552/EDPL/2016/2/9","url":null,"abstract":"The article focuses on the interplay between European Union (EU) law on privacy and data protection and international trade law, in particular the General Agreement on Trade in Services (GATS) and the WTO dispute settlement system. The argument distinguishes between the effects of international trade law in the EU legal order on the one hand, and, on the other hand, how EU data protection law would fare in a hypothetical challenge under the GATS. The contribution will apply international trade law and the general exception in GATS Article XIV to typical requirements stemming from EU data protection law, especially on transfers of personal data to third countries. The article enumerates the specific legal risks for defending EU law on privacy and data protection and explains the practical implications of its hypothetical challenge under the GATS. These insights could be useful for the EU’s negotiators of the future bi- or multilateral free trade agreements, notably the Transatlantic Trade and Investment Partnership and the Trade in Services Agreement.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"25 2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124963522","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
One of today’s main policy concerns for the competition community in Brussels is the way in which national institutional, procedural and sanctioning frameworks have the aptitude and are sufficiently harmonized to guarantee a coherent application of the substantive aspects that European Union competition theory and law imply. As competition policies between the still twenty eight Member States have long been harmonized as the legal substantive similarities reflect this matter of fact, it is for the institutional and procedural set-ups to be assessed, in order to perceive the level of enforcement effectiveness that each European Competition Network party is able to deliver. With this regard, domestic instruments and procedures must exist and be interpreted in accordance with the Treaty objectives, so as to avoid any potential vulnerability for the complete achievement of the Union antitrust desideratum.
{"title":"The Bottom-Up Approach on Competition – A Study on How Institutional, Procedural and Sanctionatory Frameworks Touch on the Very Substance of the EU Antitrust Desideratum","authors":"V. Roman","doi":"10.2139/ssrn.2874329","DOIUrl":"https://doi.org/10.2139/ssrn.2874329","url":null,"abstract":"One of today’s main policy concerns for the competition community in Brussels is the way in which national institutional, procedural and sanctioning frameworks have the aptitude and are sufficiently harmonized to guarantee a coherent application of the substantive aspects that European Union competition theory and law imply. As competition policies between the still twenty eight Member States have long been harmonized as the legal substantive similarities reflect this matter of fact, it is for the institutional and procedural set-ups to be assessed, in order to perceive the level of enforcement effectiveness that each European Competition Network party is able to deliver. With this regard, domestic instruments and procedures must exist and be interpreted in accordance with the Treaty objectives, so as to avoid any potential vulnerability for the complete achievement of the Union antitrust desideratum.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121540015","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article confronts the controversies surrounding Article 50 by analysing the relationship between statute and prerogative in the UK. The piece focuses on domestic constitutional issues and suggests a new way of classifying the relationship between statute and prerogative into two types falling under ‘the abeyance principle’ or ‘the frustration principle’. The abeyance principle means that where statute and prerogative overlap, the prerogative goes into abeyance. The frustration principle means that where statute and prerogative give rise to potential inconsistencies, but do not overlap, the prerogative cannot be used inconsistently with the intention of parliament as expressed in the relevant legislation. It then argues that Article 50 has the status of primary or ‘primary‐equivalent’ legislation which could justify applying the abeyance principle. This would mean that the trigger power would be exercised on statutory authority rather than through prerogative powers. If the courts are unable thus to construe the relevant legislation it argues EU law requires the courts to bridge the gap. Alternatively, if the abeyance principle is not applicable, it argues the frustration principle could apply but the circumstances in this litigation fall outside it. In the further alternative, EU law could require the frustration principle itself to be set aside in this case.
{"title":"Casting Aside Clanking Medieval Chains: Prerogative, Statute and Article 50 after the EU Referendum","authors":"R. Craig","doi":"10.1111/1468-2230.12229","DOIUrl":"https://doi.org/10.1111/1468-2230.12229","url":null,"abstract":"This article confronts the controversies surrounding Article 50 by analysing the relationship between statute and prerogative in the UK. The piece focuses on domestic constitutional issues and suggests a new way of classifying the relationship between statute and prerogative into two types falling under ‘the abeyance principle’ or ‘the frustration principle’. The abeyance principle means that where statute and prerogative overlap, the prerogative goes into abeyance. The frustration principle means that where statute and prerogative give rise to potential inconsistencies, but do not overlap, the prerogative cannot be used inconsistently with the intention of parliament as expressed in the relevant legislation. It then argues that Article 50 has the status of primary or ‘primary‐equivalent’ legislation which could justify applying the abeyance principle. This would mean that the trigger power would be exercised on statutory authority rather than through prerogative powers. If the courts are unable thus to construe the relevant legislation it argues EU law requires the courts to bridge the gap. Alternatively, if the abeyance principle is not applicable, it argues the frustration principle could apply but the circumstances in this litigation fall outside it. In the further alternative, EU law could require the frustration principle itself to be set aside in this case.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121880213","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-10-31DOI: 10.4337/9781785362613.00020
Pedro Caro de Sousa
Very few industries are as profoundly influenced by regulation as the pharmaceutical industry. All aspects of the life-cycle of new drugs are regulated, from patent application, to marketing approval, commercial exploitation, patent expiration and competition with generics. The nature of demand for drugs, the identity of drugs brought to market, and the nature of competition in the drug market over time are all shaped by regulation. Throughout much of the world, administrative regulation, rather than competition policy, dominates efforts to afford consumers and governments adequate access to affordable drugs. As a result, the nature of competition in this market is sui generis. A significant number of infringements to competition law in this sphere across the world are concerned with practices that seek to take advantage of or manipulate the regulatory framework, including misuses of the patent system (e.g. ever-greening or patent clustering), spreading misleading information or inducing product switching, among others. A proper understanding of how competition law works in this area requires a solid knowledge of the structure of the market and its regulation. In the European context, any such analysis must also take into account free movement law, which provides a regulatory underpinning for integrated European markets in pharmaceutical products while also acting as a parallel tool to competition law in promoting and deepening market integration. This chapter will provide an overview of free movement cases on pharmaceuticals, with a view to frame such case law within the European regulatory framework and to identify its impact on competition law enforcement. It is structured as follows: a first section will provide an overview of the structure of the European market for pharmaceuticals, including the basic European regulatory framework; a second section will review the case law on free movement and pharmaceuticals; and a last section will detail how the basic pharmaceutical regulatory framework, free movement law and competition law interact to determine the shape of European pharmaceutical markets.
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