The concept of 'economic activity' in the EU treaty: from ideological dead-ends to workable judicial concepts. Research Paper in Law 06/2011

[From the Introduction]. The economic rules, or put more ambitiously, the economic constitution of the Treaty,1 only apply to economic activities. This general principle remains valid, even if some authors strive to demonstrate that certain Treaty rules also apply in the absence of an economic activity,2 and despite the fact that non-economic (horizontal) Treaty provisions (e.g. principle of nondiscrimination, rules on citizenship) are also applicable in the absence of any economic activity.3 Indeed, the exercise of some economic activity transcends the concepts of ‘goods’ (having positive or negative market value),4 workers (even if admitted in an extensive manner),5 and services (offered for remuneration).6 It is also economic activity or ‘the activity of offering goods and services into the market’7 that characterises an ‘undertaking’ thus making the competition rules applicable. Further, it is for regulating economic activity that Article 115 TFEU, Article 106(3) TFEU and most other legal bases in the TFEU provide harmonisation powers in favour of the EU. Last but not least, Article 14 TFEU on the distinction between services of general economic interest (SGEIs) and non-economic services of general interest (NESGIs), as well as Protocol n. 26 on Services of General Interest (SGIs) confirm the constitutional significance of the distinction between economic and non-economic: a means of dividing competences between the EU and the member states. The distinction between economic and non-economic activities is fraught with legal and technical intricacies – the latter being generated by dynamic technological advances and regulatory experimentation. More importantly, however, the distinction is overcharged with political and ideological significations and misunderstandings and, even, terminological confusions.8

From Structure to Substance: Has the Constitutional Treaty improved the Chances for a Common Foreign and Security Policy? Research Papers in Law, 6/2005

From the Introduction. A common foreign and security policy for the European Union is an issue of the day. While most academic and many political observers believe that it would be in the interest of the Union to have a common policy, there is quite some disagreement as to how this is to be achieved and whether it should be accomplished in an assured and regular manner or whether it should come about on an ad hoc basis only when it is in the clear interest of all member states at any particular time. In other words, is a common foreign policy to be a fundamental characteristic of the Union or is it to be an occasional occurrence when advantageous and convenient, the ‘C’ in CFSP – as one observer has sarcastically commented – standing not for ‘Common’ but for ‘Convenient’?2

Réformes institutionnelles sans révision du traité? = Institutional reforms without treaty revision? Research Paper in Law 3/2006

No abstract.

Legal Aspects in Establishing the Internal Market for services. Research Papers in Law, 6/2007

Introduction. The internal market for services is one of the objectives set by the founding fathers of the EC back in 1957. It is only in the last ten-fifteen years, however, that this aspect of the internal market has seriously attracted the attention of the EC legislature and judiciary.1 With the exception of some sector-specific directives dating back in the late ‘80s, it is only with the deregulation of network industries, the development of electronic communications and the spread of financial services, in the ‘90s that substantial bits of legislation got adopted in the field of services. Similarly, the European Court of Justice (ECJ, the Court) left the principles established in Van Binsbergen back in 1973, hibernate for a long time before fully applying them in Säger and constantly thereafter.2 Ever since, the Court’s case law in this field has grown so important that it has become the compulsory starting point for any study concerning the (horizontal) regulation of the internal market in services. The limits inherent to negative integration and to the casuistic approach pursued by judiciary decisions have prompted the need for a general legislative text to be adopted for services in the internal market. This text, however, hotly debated both at the political and at the legal level, has ended up in little more than a complex restatement of the Court’s case law. It may be, however, that this ‘little more’ is not that little. In view of the ever expanding application of the Treaty rules on services, promoted by the ECJ (para. 1),3 the Directive certainly appears to be a limited regulatory attempt (para. 2). This, however, does not mean that the Directive is a toothless, or useless regulatory instrument (conclusion: para. 3).

Casual but Smart: The Court’s new clothes in the Area of Freedom Security and Justice (AFSJ) after the Lisbon Treaty. Research Papers in Law, 2/2008

Introduction. Unintended as it was, the European Court of Justice (ECJ, the Court, the Court of the EU) has played an extremely important role in the construction of the Area of Freedom Security and Justice (AFSJ). The AFSJ was set up by the Treaty of Amsterdam in 1997 and only entered into force in May 1999. The fact that this is a new field of EU competence, poses afresh all the fundamental questions – both political and legal – triggered by European integration, namely in terms of: a) distribution of powers between the Union and its Member States, b) attribution of competences between the various EU Institutions, c) direct effect and supremacy of EU rules, d) scope of competence of the ECJ, and e) extent of the protection given to fundamental rights. The above questions have prompted judicial solutions which take into account both the extremely sensible fields of law upon which the AFSJ is anchored, and the EU’s highly inconvenient three-pillar institutional framework.1 The ECJ is the body whose institutional role is to benefit most from this upcoming ‘depilarisation’, possibly more than that of the European Parliament. This structure is on the verge of being abandoned, provided the Treaty of Lisbon enters into force.2 However spectacular this formal boost of the Court’s competence, the changes in real terms are not going to be that dramatic. This apparent contradiction is explained, to a large extent, by the fact that the Court has in many ways ‘provoked’, or even ‘anticipated’, the depilarisation of its own jurisdictional role, already under the existing three-pillar structure. Simply put, under the new – post Treaty of Lisbon – regime, the Court will have full jurisdiction over all AFSJ matters, as those are going to be fully integrated in what is now the first pillar. Some limitations will continue to apply, however, while a special AFSJ procedure will be institutionalised. Indeed, if we look into the new Treaty we may identify general modifications to the Court’s structure and jurisdiction affecting the AFSJ (section 2), modifications in the field of the AFSJ stemming from the abolition of the pillar structure (section 3) and, finally, some rules specifically applicable to the AFSJ (section 4).

Le principe de reconnaissance mutuelle dans la libre prestation de services = The principle of mutual recognition in the free provision of services. Research Papers in Law 2/2009

No abstract.

Lisbon Treaty: Year I

The completion of the ratification of the Lisbon Treaty (from now on the Treaty) in November and its entry into force on 1 December 2009 marked the end of an extraordinary and unprecedented lengthy process of institutional change of the European Union. The Treaty had been signed on 13 December 2007, almost two years before its entry into force, by no means an excessive duration compared to the ratification of previous modifications of the Treaties. But the Treaty – in strictly legal terms a substantial set of amendments to two previous treaties renamed in the process – has a long history. Initial proposals for institutional reform date back to the German reunification in 1989-1990. They went through lengthy debates that eventually led to the European Convention and the 'Draft Treaty establishing a Constitution for Europe' of 20031 and from there to the 'Treaty establishing a Constitution for Europe' of 20042. If the current form of the Treaty is a clear consequence of the difficulties of the ratification process of the Constitution, the ideas that provide the substance can be traced back to the final years of the past century. The pages that follow are not a legal analysis but an attempt to identify changes and to assess their significance3.

Adapting to climate change from a regional perspective: in search of a requisite policy and legal framework. Jean Monnet Occasional Paper No. 8/2014

This paper aims to identify the Mediterranean States’ potential in adopting a regional strategy on climate change adaptation. The author proposes a Mediterranean Strategy on Adaptation to Climate Change as the first step to a political/legal regional approach to climate change issues that would supplement the multilateral process under the United Nations Framework Convention on Climate Change and the Kyoto Protocol. According to the author such a strategy would enhance cooperation between the EU and other Mediterranean states in various ways. The experience of the EU in regulating climate change and its ever growing knowledge-base on its impacts could serve to guide the other Mediterranean states’ and help bridge their knowledge-base gap on the topic. On the other hand, the support and cooperation of the EU’s Mediterranean partners would provide an opportunity for the EU to address better the challenges the climate change threatens to bring in its southernmost regions. The strategy could eventually even pave the way for the very first regional treaty on climate change that could be negotiated under the auspices of the Regional Seas Programme and the Union for the Mediterranean.

Treaty provisions relating to the rights of inheritance, acquisitions, and ownership of property in force between the United States and other countries /

Mode of access: Internet.

Statement by Herbert Brownell, Jr., attorney general of the United States before the Senate Committee on the Judiciary on S. J. Res. 1 (83d Cong.) a proposed amendment to the Constitution of the United States relative to the making of treaties and executive agreements, and S. J. Res. 43 (83d Cong.) a proposed amendment to the Constitution of the United States relating to the legal effect of certain treaties.

Mode of access: Internet.

Bilateral treaty developments in Latin America, 1953-1955.

Continuation of Bilateral treaty developments in Latin America, 1938-1948, by the Division of Legal Affairs, and Bilateral treaty developments in Latin America, 1942-1952, by the Division of Law and Treaties.

Examining the process of regime change in the North Atlantic Treaty Organization: The divide between rhetoric and reality

The North Atlantic Treaty Organization (NATO) is a product of the Cold War through which its members organized their military forces for the purpose of collective defense against the common threat of Soviet-backed aggression. Employing the terminology of regime theory, the creation of NATO can be viewed as the introduction of an international security regime. Throughout the Cold War, NATO member states preserved their commitment to mutual defense while increasingly engaging in activities aimed at overcoming the division of Europe and promoting regional stability. The end of the Cold War has served as the catalyst for a new period of regime change as the Alliance introduced elements of a collective security regime by expanding its mandate to address new security challenges and reorganizing both its political and military organizational structures. ^ This research involves an interpretive analysis of NATO's evolution applying ideal theoretical constructs associated with distinct approaches to regime analysis. The process of regime change is investigated over several periods throughout the history of the Alliance in an effort to understand the Alliance's changing commitment to collective security. This research involves a review of regime theory literature, consisting of an examination of primary source documentation, including official documents and treaties, as well as a review of numerous secondary sources. This review is organized around a typology of power-based, organization-based, and norm-based approaches to regime analysis. This dissertation argues that the process of regime change within NATO is best understood by examining factors associated with multiple theoretical constructs. Relevant factors provide insights into the practice of collective security among NATO member states within Europe, while accounting for the inability of the NATO allies to build on the experience gained within Europe to play a more central role in operations outside of this region. This research contributes to a greater understanding of the nature of international regimes and the process of regime change, while offering recommendations aimed at increasing NATO's viability as a source of greater security and more meaningful international cooperation.^

Graphic satire and the rise and fall of the First British Empire: political prints from the Seven Years' War to the Treaty of Paris, c. 1756-1783

This thesis examines the early stages of the transformation of emblematic political prints into political caricature from the beginning of the Seven Years' War (1756) to the Treaty of Paris, which ended the American Revolutionary War (1783). Both contextual and iconographical issues are investigated in relation to the debates occasioned by Britain's imperial project, which marked a period of dramatic expansion during the Seven Years' War, and ended with the loss of the American colonies, consequently framing this thesis as a study of political prints during the rise and fall of the so-called 'First British Empire'. Previous studies of eighteenth-century political prints have largely ignored the complex and lengthy evolutionary process by which the emblematic mode amalgamated with caricatural representation, and have consequently concluded that political prints excluded emblems entirely by the end of the 1770s. However, this study emphasizes the significance of the Wilkite movement for the promotion and preservation of emblems, and investigates how pictorial political argument was perceived and received in eighteenth-century British society, arguing that wider tastes and opinions regarding the utilization of political prints gradually shifted to accept both modes of representation. Moreover, the marketplace, legal status, topicality, and manufacturing methods of political prints are analyzed in terms of understanding the precarious nature of their consumption and those that endeavoured to engage in political printmaking. The evolution, establishment, and subsequent appropriation of pictorial tropes is discussed from the early modern period to the beginning of the so-called Golden Age of caricature, while tracing the adaptation of representational models in American colonial prints that employed emblems already entrenched in British pictorial political debate. Political prints from the two largest print collections, the British Museum and the Lewis Walpole Library at Yale are consulted, along with a number of eighteenth-century newspapers and periodicals, to develop the earlier research by M. Dorothy George, Charles Press, Herbert Atherton, Diana Donald, Amelia Rauser, and Eirwen Nicholson.

Establishing continental sovereignty in Africa: risk and opportunity in financial integration - lessons for Africa from a legal perspective

This thesis identifies and defines the new African sovereignty. It establishes a modern sovereignty in Africa hatched from the changing nature of sovereignty in which countries come together at various levels or grades of partial surrender of national sovereignty in order to work closer together for their mutual advantage and benefit. To this end, the narrative zooms in on the central issues within the realms of money matters whereby a new model of monetary sovereignty and monetary solutions is designed in an attempt to ease the recurring tensions and challenges of modern national sovereignty in the continent of Africa. As such, this discussion will offer a historical journey through the constitution of sovereignty, to the birth of the nation state and international public law. It develops the theory of the changing nature of sovereignty within the modern state and opens new lines of inquiry for Africa. In this regard, it draws from juxtaposing and mixing elements of regional and global financial integration as well as retaining national financial sovereignty features to form this new design which I dub continental sovereignty. At its core, the thesis will deal with the legal aspects that stem from the co-mingling of legal systems of nation states and communities at the regional and global levels within the context of financial integration. The argument is that the rule of law remains sacrosanct in monetary management. Effective financial integration is the result of properly structured and managed legal frameworks with robust laws and institutions whether at a national, regional or global level. However, the thesis reveals that in order to avoid undermining the progress of Africa’s financial integration project, any solution for Africa must be immersed within a broader global solution where development issues are addressed and resolved and Africa can form a more central part in all relevant international discussion fora. The work will expound these issues by applying them within a regional and global context, with the state of affairs in Africa forming the nucleus. This application consequently presents the six key themes of the thesis which will be considered therein. They are: a.) regional advantage: which exploits the possibilities of deeper and further financial integration between smaller communal arrangements; b.) regional risk and exposure: the extent to which this deeper form of financial integration can spiral out of control if effected too quickly and too ambitiously; c.) global advantage: which considers the merits of global financial integration and the influence exerted by financial laws on the global financial architecture; d.) global risk and exposure: which considers the challenges of global financial integration especially within the background of the Global Financial Crisis 2007-2008; e.) African challenge: which considers the extent to which this analysis impacts the African economic and financial integration agenda; and f.) development challenge: which examines the extent to which global development issues impact the African solution (continental sovereignty) and the need for any solution for the continent to be roped into a broader global solution within which Africa can form an important part. Even though the thesis requests an optimistic undertone on the progress made so far, it unearths the African problem of multiple national sovereignty and multiple overlapping regional sovereignty constituted as the ‘spaghetti bowl’ dilemma. As such, the unique contribution to knowledge on financial integration in Africa can be echoed in these words: Africa‘s financial integration agenda has had little success in authenticating a systematic and dependable legal framework for monetary management. Efforts made have been incomplete, substandard, and not carefully followed through particularly reflected in the impuissant nature of the judicial enforcement mechanisms. Thus, the thesis argues that, any meaningful answer to the problems dogging the continent is inter alia deeply entrenched within a new form of cooperative monetary sovereignty. In other words, the thesis does not prescribe the creation of new laws; rather it advocates the effective enforcement of existing laws.

EU-North Africa relations in cross-border law enforcement: new legal challenges for the EU in the post-Lisbon and post-Stockholm era

The Stockholm Programme, allied to the Lisbon Treaty, heralds a new era of development of the EU provisions on cross-border law enforcement. The focus is shifting from the ongoing internal EU developments to the external relations of the EU. Many North African countries have had long legal relationships with the EU through the Euro-Mediterranean Partnerships. A number of these partnership agreements make express references, at the political level, to the development of cross-border law enforcement provision, as is the case of Morocco and Algeria with regard to drug trafficking and manufacture, or the lengthy references by Egypt to many of the crimes of interest to the EU’s own law enforcement legal framework. Algeria is currently focusing on modernising their own police forces, with both Algeria and Tunisia, reforming their criminal judicial frameworks. Another key player, Libya, currently has no legal agreements with the EU, and at least until the recent conflict, maintained an observer status in the Euro-Mediterranean process. At a practitioner level, the European Police College (CEPOL) is currently involved in the Euromed Police II programme. Clearly momentum is developing, both within the EU and from a number of Euro-Med North African countries to develop closer law enforcement co-operation. This may well develop further with the recent changes in governments of a number of North African countries. The EU approach in the Police and Judicial Cooperation in Criminal Matters (PJCCM) policy area is to develop a legal framework upon which EU cross-border law enforcement will be based. The current EU cross-border law enforcement framework is the product of many years of multi-level negotiations. Challenges will arise as new countries from different legal and policing traditions will attempt to engage with already highly detailed legal and practice frameworks. The shared European legal traditions will not necessarily be reflected in the North African countries. This chapter critically analyses, from an EU legal perspective the problems and issues that will be encountered as the EU’s North African partner countries attempt to articulate into the existing, and still developing EU cross-border law enforcement framework.