The autonomy of the EU legal order and the law-making activities of international organizations. Some examples regarding the Council most recent practice. Research Papers in Law 03/2012

[Introduction.] It is generally believed that while the principle of the autonomy of the EU legal order, in the sense of constitutional and institutional autonomy that is to say what concerns the autonomous decision-making of the EU, has been clearly strengthened by the most recent jurisprudence of the Court of Justice (eg. Moxplant3, Intertanko or the Kadi/Al Baraakat judgements or the Opinion 1/2009 of the CJEU etc.) as well as, in my opinion, in many aspects by the Treaty of Lisbon, it is still valid to add that the principle of a favourable approach, stemming from the Court jurisprudence, for the enhanced openness of the EU legal order to international law has remained equally important for the EU4. On the other hand, it should be also seen that in a globalized world, and following the increased role of the EU as an international actor, its indispensable and crucial role concerning the creation of world (legal) order in many policy fields ( for example let's think about the G20 issues, the global economic and financial crisis, the role of the EU in promoting and protecting human rights worldwide, the implementation of the multilateral or regional conventional law, developed in the framework the UN (e.g. in the field of agriculture or environment etc) or what concerns the Kyoto process on climate change or the conservation of marine biological resources at international level etc), it seems reasonable and justified to submit that the influence, for example, of the law-making activities of the main stakeholder international organizations in the mentioned policy-areas on the EU (especially on the development of its constantly evolving legal order) or vice-versa the influence of the EU law-making practice on these international organizations is significant, in many aspects mutually interdependent and more and more remarkable. This tendency of the 21st century doesn't mean, however, in my view, that the notion of the autonomy of the EU legal order would have been weakened by this increasing interaction between international law and EU law over the passed years. This contribution is going to demonstrate and prove these departuring points by giving some concrete examples from the most recent practice of the Council (all occuring either in the second half of 2009 or after the entry into force of the Lisbon Treaty), and which relate to two very important policy areas in the EU, namely the protection of human rights and the Common Fishery Policy.

The European Court of Justice and the Draft Constitution: A Supreme Court for the Union? Research Paper in Law 8/2003

[Introduction]. The purpose of this paper is twofold. First, it examines selectively the provisions of the draft Constitution pertaining to the Court of Justice and assesses the ways in which the draft Constitution is likely to affect the jurisdiction and the function of the Court. Secondly, it discusses the challenges faced by the Court in relation to the protection of human rights by reference to the recent judgment in Schmidberger.1 Both aspects of the discussion serve to underlie that the Court is assuming the function of the Supreme Court of the Union whose jurisdiction is fundamentally constitutional in character. It has a central role to play not only in relation to matters of economic integration but also in deciding issues of political governance, defining democracy at European and national level, and contributing through the process of judicial harmonisation to the emergence of a European demos. This constitutional jurisdiction of the ECJ is not new but has acquired more importance in recent years and is set to be enhanced under the provisions of the new Constitution. The paper is divided as follows: The first section provides an overview of the way the new Constitution affects the ECJ. The subsequent sections examine respectively Article 28(1) of the draft Constitution, the appointment and tenure of the judiciary, locus standi for private individuals, sanctions against Member States, jurisdiction under the CFSP and the Chapter on freedom, security and justice, preliminary references, other provisions o f the Constitution pertaining to the Court, the principle of subsidiarity, and the judgment in Schmidberger. The final section contains some concluding remarks.

Diritti sociali e crisi del costituzionalismo europeo [Social rights and the crisis of European constitutionalism]. WP C.S.D.L.E. “Massimo D’Antona”.INT – 95/2012

In the face of what looks like a real impasse of the the line of European constitutionalism, partly due to an orientation of the Court of Justice which tends to favor the protection of economic freedoms over the protection of social rights, two opposing trends occurr. The first amounts to a new "constitutional patriotism"; the second entrusts the protection of fundamental social rights no longer to a single Chart or to a single court but to a multi-level system of protection. A dialogue between the European courts that truly valorizes fundamental rights, however, might be hindered by what someone has seen as a resurgence of the dualist theories, evident in an ECJ’s decision as Kadi.

Patenting Strategies of the EU Pharmaceutical Industry -Crossroad between Patent Law and Competition Policy. Research Papers in Law, 1/2011

From the Introduction. The pharmaceutical sector inquiry carried out by the European Commission in 2008 provides a useful framework for assessing the relationship between the patent system on the one hand and competition policy and law on the other hand. The pharmaceutical market is not only specifically regulated. It is also influenced by the special characteristics of the patent system which enables pharmaceutical companies engaged in research activities to enter into additional arrangements to cope with the competitive pressures of early patent application and the delays in drug approval. Patents appear difficult to reconcile with the need for sufficient and adequate access to medicines, which is why competition expectations imposed on the pharmaceutical sector are very high. The patent system and competition law are interacting components of the market, into which they must both be integrated. This can result in competition law taking a very strict view on the pharmaceutical industry by establishing strict functional performance standards for the reliance on intellectual property rights protection granted by patent law. This is in particular because in this sector the potential welfare losses are not likely to be of only monetary nature. In brief, the more inefficiencies the patent system produces, the greater the risk of an expansive application of competition law in this field. The aim of the present study is to offer a critical and objective view on the use or abuse of patents and defensive strategies in the pharmaceutical industry. It shall also seek to establish whether patents as presently regulated offer an appropriate degree of protection of intellectual property held by the economic operators in the pharmaceutical sector and whether there is a need or, for that matter, scope for improvement. A useful starting point for the present study is provided by the pharmaceutical sector competition inquiry (hereafter “the sector inquiry”) carried out by the European Commission during the first half of 2008. On 8 July 2008, the Commission adopted its Final Report pursuant to Article 17 of Regulation 1/2003 EC, revealing a series of “antitrust shortcomings” that would require further investigation1.

The Triangular Relationship between Fundamental Rights, Democracy and the Rule of Law in the EU: Towards an EU Copenhagen Mechanism. CEPS Paperbacks. November 2013

This study examines the protection of fundamental rights, democracy and rule of law in the European Union, and the challenges that arise in reflecting on ways to strengthen EU competences in these contested terrains. It provides a ‘state of play’ and critical account of EU-level policy and legal mechanisms assessing the relationship between rule of law, democracy and fundamental rights in the member states of the Union. The cross-cutting challenges affecting their uses, effective implementation and practical operability constitute a central point of the analysis. The study argues that the relationship between rule of law, democracy and fundamental rights is co-constitutive. Any future rule of law-related policy discussion in the EU should start from an understanding of the triangular relationship between these dimensions from the perspective of ‘democratic rule of law with fundamental rights’, i.e. the legally based rule of a democratic state that delivers fundamental rights. The three criteria are inherently and indivisibly interconnected, and interdependent on each of the others, and they cannot be separated without inflicting profound damage to the whole and changing its essential shape and configuration.

The Challenges of Irregular Maritime Migration. Jean Monnet Occasional Paper No. 4/2013

This contribution presents migrant smuggling by sea as a multi-faceted phenomenon. It juxtaposes State rights and duties, State security interests and protection of fundamental rights. Similarly, various branches of law, sometime contradictory, regulate irregular maritime migration. In view of these considerations, the argument is made that any effort to control the situation must lie in a cooperative initiative among States which considers migrant smuggling by sea in a holistic manner.

‘Wrong number?’ The Use and Misuse of Asylum Data in the European Union. CEPS Paper in Liberty and Security in Europe No. 69/December 2014

The Common European Asylum System (CEAS) is an EU policy area that is particularly evocative of the ‘politics of numbers’. The European Union has at its disposal a wide array of sources providing detailed information about the capacities and pressures of its member states’ asylum systems. This paper discusses the content of asylum data and the evolving interaction between its different sources, ranging from the United Nations High Commissioner for Refugees to the European Commission’s EUROSTAT and DG HOME, the European Asylum Support Office, FRONTEX, the European Migration Network (EMN) and national databases. However, the way in which such data are often misused, or even omitted, in political debate affects the soundness of policy decisions in the CEAS. Drawing on debates over the contested phenomenon of ‘asylum shopping’ and the exemption of victims of torture and unaccompanied minors from accelerated and border procedures in the recast asylum procedures Directive, this briefing paper argues that solid data-based evidence is often absent from political negotiations on CEAS measures affecting refugees and asylum-seekers.

The current state, problems and future of Germany's air and missile defence. OSW Commentary No. 105, 2013-04-10

From German point of view, air and missile defence systems are of little relevance for the protection of Germany’s territory. However, they are seen as important for conducting ‘out of area’ operations, providing military assistance to allies, and for Germany’s political and military- technical position within NATO. The Bundeswehr has been modernising its air and missile defence systems for several years. The modernisation of very short-range and short-range systems is slightly behind schedule. Plans to modernise the medium-range air and missile defence have been encountering problems since the United States decided to refrain from buying the jointly developed MEADS system. Therefore Germany is currently considering using the results of the MEADS program in the development of its own medium-range air and missile defence system, possibly in co-operation with France and Italy. Such a system would ensure protection against short-range ballistic missiles (up to 1000 km) and might become part of NATO’s ballistic missile defence, replacing the Patriot batteries which Germany is currently operating. Furthermore, Germany could expand its involvement in NATO’s ballistic missile defence in the future by buying or developing system to intercept medium- and intermediate- range ballistic missiles (up to 3000 km and 5500 km). The final decision on this matter has not yet been taken, and will be left for the successive governments of Germany to resolve. It will depend on a number of political, military and financial factors.

Mixed Public-Private Enterprises in Europe: Economic Theory and an Empirical Analysis of Italian Water Utilities. Bruges European Economic Research (BEER) Papers 4/July 2006

Mixed enterprises, which are entities jointly owned by the public and private sector, are spreading all over Europe in local utilities. Well aware that in the vast majority of cases the preference of local authorities towards such governance structure is determined by practical reasons rather than by the ambition to implement new regulatory designs (an alternative to the typical “external” regulation), our purpose is to confer some scientific value to this phenomenon which has not been sufficiently investigated in the economic literature. This paper aims at proposing an economic analysis of mixed enterprises, especially of the specific configuration in which the public partner acts as controller and the private one (or “industrial” partner) as service provider. We suggest that the public service concession to mixed enterprises could embody, under certain conditions, a noteworthy substitute to the traditional public provision and the concession to totally private enterprises, as it can push regulated operators to outperform and limit the risk of private opportunism. The starting point of the entire analysis is that ownership allows the (public) owner to gather more information about the actual management of the firm, according to property rights theory. Following this stream of research, we conclude that under certain conditions mixed enterprises could significantly reduce asymmetric information between regulators and regulated firms by implementing a sort of “internal” regulation. With more information, in effect, the public authority (as owner/controller of the regulated firm, but also as member of the regulatory agency) can stimulate the private operator to be more efficient and can monitor it more effectively with respect to the fulfilment of contractual obligations (i.e., public service obligations, quality standards, etc.). Moreover, concerning the latter function, the board of directors of the mixed enterprise can be the suitable place where public and private representatives (respectively, welfare and profit maximisers) can meet to solve all disputes arising from incomplete contracts, without recourse to third parties. Finally, taking into account that a disproportionate public intervention in the “private” administration (or an ineffective protection of the general interest) would imply too many drawbacks, we draw some policy implications that make an equitable debate on the board of the firm feasible. Some empirical evidence is taken from the Italian water sector.

An Exercise in Legal Honesty: Re-writing the Court of Justice and the Bundesverfassungsgericht. IHS Political Science Series No. 136, February 2014

At a time of crisis – a true state of emergency – both the Court of Justice of the European Union and the German Federal Constitutional Court have failed the rule of law in Europe. Worse still, in their evaluation of the ersatz crisis law, which has been developed in response to financial and sovereign debt crises, both courts have undermined constitutionality throughout Europe. Each jurisdiction has been implicated within the techocratisation of democratic process. Each Court has contributed to an incremental process of the undermining of the political subjectivity of European Citizens. The results are depressing for lawyers who are still attached to notions of constitutionality. Yet, we must also ask whether the Courts could have acted otherwise. Given the original flaws in the construction of Economic and Monetary Union, as well as the politically pre-emptive constraints imposed by global financial markets, each Court might thus be argued to have been forced to suspend immediate legality in a longer term effort to secure the character of the legal jurisdiction as a whole. Crisis can and does defeat the law. Nevertheless, what continues to disturb is the failure of law in Europe to open up any perspective for a return to normal constitutionality post crisis, as well as its apparent inability to give proper and honest consideration to the hardship now being experienced by millions of Europeans within crisis. This contribution accordingly seeks to reimagine each Judgment in a language of legal honesty. Above all, this contribution seeks to suggest a new form of post-national constitutional language; a language which takes as its primary function, proper protection of democratic process against the ever encroaching powers of a post-national executive power. This contribution forms a part of an on-going effort to identify a new basis for the legitimacy of European Law, conducted jointly and severally with Christian Joerges, University of Bremen and Hertie School of Government, Berlin. Differences do remain in our theoretical positions; hence this individual essay. Nevertheless, the congruence between pluralist and conflict of law approaches to the topic are also readily apparent. See, for example, Everson & Joerges (2013).

The EU, China and Southeast Asia: Divergent Views of Dealing with Human Security. Jean Monnet/Robert Schuman Paper Series Vol. 14 No. 8, May 2014

Introduction. This chapter takes a closer look at the European Union (EU), China, and the Association of Southeast Asian Nations (ASEAN)’s respective approaches to dealing with non-traditional security (NTS) challenges by investigating their policies toward Burma/Myanmar—a source country of numerous such challenges. It argues that, although all, as members of the ASEAN Regional Forum (ARF), see the need for multilateral solutions to fight organized crime, provide disaster relief, combat terrorism, prevent drug trafficking, etc., they differ with respect to the steps to be taken to protect human security in Asia-Pacific. China, initially hesitant to join the ARF for fear that other members might try to contain it, has come to value the principal forum for NTS challenges in the Asia-Pacific region since, like many ASEAN countries, it is a big proponent of non-interventionism, non-use of force, consensus decision-making, that is, the confidence-building mechanisms commonly referred to as the ‘ASEAN way’.2 The EU, as a strong proponent of human rights and the rule of law, repeatedly, has criticized ARF members for allowing sovereignty-related norms to get in the way of the protection of human rights, but it has refrained from assuming the role of norm exporter. As will be seen in the case of Burma/Myanmar, the EU does make its opinions heard and, when necessary, will take unilateral steps not supported by the ASEAN members of the ARF but, cognizant of the history of the region, for the most part, settles for supporting economic development and aiding in capacity-building, understanding that it would be counter-productive to exert pressure on reluctant ARF members to modify the non-interference norm. The chapter then speculates about the ‘ASEAN way’s’ longevity, arguing that, increasingly, there are internal and external dynamics that seem to indicate that the ‘ASEAN way,’ at least in its current form, may not be here to stay. The conclusion looks at what might be in store for Burma/Myanmar in the years to come.

The European Pharmaceutical Industry in a Global Economy: what drives EU exports of pharmaceuticals?. Bruges European Economic Research Papers (BEER) 31/2015.

The pharmaceutical industry is one of the most competitive sectors in the European Union. With its substantial investments in research and development, this industry represents a key asset for the European economy and a major source of growth and employment. However, despite the importance of the pharmaceutical sector for the European Union, few researchers have attempted to assess the determinants of the EU exports of pharmaceuticals. This paper aims at filling the aforementioned gap by examining what drives EU exports of pharmaceuticals. In order to tackle this question, this paper has derived hypotheses from the Gravity Model of Trade and the relevant academic literature on pharmaceuticals. Based on an econometric analysis, the research sheds light on the complex interaction of factors influencing the EU exports of pharmaceuticals. The paper finds that the protection of intellectual property in the receiving countries, their economic size, the importance of their health sector, and the quality of infrastructures constitute major drivers to the EU exports of pharmaceuticals. On the contrary, the research shows that transports costs as well as tariff barriers and non-tariff barriers tend to hinder the EU exports of pharmaceuticals.

Annotated record of the detailed examination of Mn deposits from the SO 79 (SEDIPERU - TUSCH) expedition from R/V Sonne

The research cruise SO79 with RV SONNE (April 18 to June 09 1992) aimed to assess the impact of a potential mining activity on the sensitive deep-sea ecosystem of the Peru Basin. Up to now only results of reconnaissance surveys of the extended manganese nodule field discovered in 1978 in the Peru Basin are available. The hydroacoustic, sedimentological, and geochemical studies on data and sample material of SO79 came to the following results: a small-scaled variation in thickness respectively type of surface sediments shown by the sediment echosounder respectively the side-scan-sonar is assumably due to variations in deposition or erosion. The composition of sediments is controlled by climatic cycles of different length which were caused by the variable influence of glaciation of the northern hemisphere. We think that during the quaternary a deep-water circulation reduced in intensity and O2-content may have produced a suboxic diagenetic environment which led to a remobilization and redeposition of Mn forming manganese nodules in the oxic surface sediments. Near the distinct redox boundary at about 10 cm depth the growth conditions for nodules are extremely favourable. Due to the great variability of sediments the impact of deep-sea mining will be highly variable and the disturbance of the seafloor will change the ecosystem considerably.

Ethical guidelines for the delivery of health services by DHEW : report and recommendations /

Includes bibliographical references