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Spring 2009 Archive

This is the page for archived assignments, questions, and comments for the Spring 2009 semester.

Class meetings will take place on Wednesdays and Fridays from 11 am to 12.20 pm in Room F209.

The Course Syllabus is here (and you can access it from the Materials for Spring 2009 page on the right of this page).

FOR THE FIRST CLASS ON WEDNESDAY JANUARY 14, 2009, please read the materials available at http://ec.europa.eu/snapshot2008/index_en.htm. This will give you something of an idea of the range of the European Union’s activities, and, in particular, the aspects to which the Commission wishes to draw EU citizens’ attention. You might also want to take a look at the EU’s youtube channel. Over the last few years the EU institutions have been very conscious of a need to engage EU citizens, and the elections to the EU Parliament which will take place in the summer of 2009 provide a new reason to do so.

After the first class we will begin to read and discuss a set of introductory materials which I will post to this page by January 10th.

Update January 9, 2008: The first set of materials is here. For the class on Friday January 16, please read to page 12 of these materials and also read the Schuman Declaration at pp. 77-78.

For the second week of class you should read pages 12-40 of these materials.

WEEK 2: 19-23 January 2009: please read to page 40 of the introductory set of materials. We will spend a bit more time thinking about the objectives set out in Arts 2 and 3 of the EC Treaty, then review the timelines for widening and deepening, using the materials in the appendix. After that we will focus on some of the critical features of the EU’s institutions.

23 January, 2009: Brian Wheeler, a BBC journalist, spent some time at the European Parliament and you may be interested to read what he wrote (not required).

19 January 2009: Latest developments in the Czech government-sponsored artwork for Europe story:

Part of a work of art that depicts Bulgaria as a toilet has been covered up, following the country’s protest….
The Czech Republic thought it had commissioned work from 27 European artists for the Entropa display, which was installed at the weekend to mark the start of its six-month presidency.
But it turned out the work – an eight-tonne mosaic resembling a snap-out plastic modelling kit – was entirely completed by Mr Cerny and two associates.
Mr Cerny said he had “wanted to find out if Europe is able to laugh at itself”.

Comments for this week:
1. Bradley – January 19, 2009: Here’s a comment from Kelly Sullivan:
In the current reading highlighting the various institutions of the EU, there is a discussion about citizens’ rights to vote to elect their representatives to the European Parliament (even if they are living in a Member State different from that of their nationality). However, I found it intriguing that “many voters do not choose to exercise this right,”and that “just over 44% of the electorate voted in the last European Parliament elections,”which seems low.
Why is this? I found this interesting, especially since the European Parliament has continuously developed increased powers…
2. Bradley – January 20, 2009: Here is a link to some information about the 2004 elections:
http://www.euractiv.com/en/elections/european-parliament-elections-2004-results/article-117482
Voter turnout was really high in Malta (82%) and really low in Slovakia (16.7%). But even in the countries where voting is “mandatory”there were different participation levels. Mandatory in Greece (63%) means something very different from mandatory in Belgium and Luxembourg (both around 90%).
3. Bradley – January 20, 2009: This story suggests that EU citizens haven’t really noticed that there are to be elections to the European Parliament this year.

WEEK 3: 26-30 January, 2009 We began to focus on the idea of the legal basis for acts of the EU institutions and to explore some of the fundamental principles of Community law (proportionality, subsidiarity, legal certainty). This week we will begin at page 15 of the materials and look more closely at the concept of the legal basis. We will then focus on the different institutions of the EU. I don’t think we will get beyond page 45 this week.

January 26: Serbia plans to apply to join the EU.

WEEK 4: 2-6 February, 2009 We only have one class meeting this week. On Wednesday we will continue to focus on the ECJ/CFI. We will finish outlining the jurisdiction of the courts and look at the different types of action they deal with: enforcement actions, challenges to acts of the institutions, and preliminary references.

On Friday we began to focus on the jurisdiction of courts in the EU with respect to cases involving questions of EU law. The courts in the Member States have jurisdiction over many cases which raise issues of EU law as we began to see. In order to understand jurisdiction and the EU courts, we need to realize that what matters for the purposes of jurisdiction in the EU is not the source of the legal claims but who the parties are.

Here are the general rules:

If the plaintiff is an EU institution (Commission, Council, Parliament etc) it will sue in the ECJ.

If the plaintiff is a Member State:
If the defendant is an EU institution plaintiff tends to sue in the ECJ
If the defendant is another Member State plaintiff sues in the ECJ
If the defendant is an individual or firm plaintiff sues in national court (but if an issue of EC law arises in the case there may be a reference to the ECJ)

If the plaintiff is an individual or firm:
If the defendant is an EU institution plaintiff sues in the CFI (provided it has standing to do so)
If the defendant is a Member State plaintiff sues in national court (but if an issue of EC law arises in the case there may be a reference to the ECJ)
If the defendant is another individual or firm plaintiff sues in national court (but if an issue of EC law arises in the case there may be a reference to the ECJ)

Comments:
1. riccio – January 27, 2009 On the EU vs. the UN:
How fearful should the EU be (1) of becoming slowed by bureaucratic red tape and (2) the difficulties of managing a colossal organization, as it continues to add new members?
In contrast to the UN that has run into such issues, will the EU institutions be able to handle the load of so many member-states with varying interests?

2. Tony – January 28, 2009: I don’t know much about the topic besides a class from ages ago, but I’ll try to answer your question and the professor can fill in the blanks.
I think you have to first consider that the EU and the UN are very structurally different.
The EU primarily seeks to eliminate trade barriers and standardize government and business practices, so that goods and labor can freely flow across borders. Each member state has real power and has a legal obligation to abide by the treaties. Each member state must first meet the accession criteria to be considered for membership (http://ec.europa.eu/enlargement/enlargement_process/accession_process/criteria/index_en.htm). EU Institutions are also interconnected and hold legislative, executive, and judicial functions.
The UN is more of an open platform for dialogue, where member countries discuss any variety of things and selectively collaborate. Only the Security Council has any real power, and votes are non-binding. Organizations of the UN are also largely independent of one another.
So in answering your question I believe that although there will be an increase in disputes as members (and diversity) increase, the EU should have fewer difficulties because: 1) members share a narrow, common directive (as opposed to the UN’s broad good-faith charter), 2) member states have real power and an obligation to abide by the treaties (whereas in the UN only the Security Council has real power, and almost anything goes), 3) organizations of the EU are interconnected and function as a government (UN organizations are mostly independent bodies).
I have a question to add. What are some key differences between the WTO and the EU (EEA)? The purposes are the same, but I think the WTO is far less transparent. Do they encounter much of the same problems or does the EU’s higher barrier to accession cushion the repercussions? – i.e. North exploiting South (dumping, poorer nations coerced to sacrifice equity for efficiency).

3. Bradley – February 8, 2009: I have copied the last two comments into the archive file but will leave them here also for a couple of days. It’s difficult to predict how well the EU will be able to deal with any future expansion. We’re noticing right now some tensions between the different Member States as concern about the domestic effects of the transnational financial problems leads domestic governments to focus on protectionist policies.
I think the major differences between the EU and UN relate to 1. the different policy objectives (the EU committing the Member States to much closer legal and economic integration in the interests of promoting peace than the UN does) and 2. their very different institutional structures (and we have focused on the EU institutions – we’ll look a bit at the Security Council later because of some issues that have arisen with respect to implementation of Security Copuncil measures in the EU).
As to the WTO vs EU in some senses the objectives are perhaps more similar than the UN/EU but 1. the WTO focuses on negative rather than positive integration (breaking down barriers rather than c=setting up new harmonized regulation of economic activity) and 2. the institutional structures are very different – the WTO has much less of an institutional structure itself – no legislative body, no real executive to enforce the rules (enforcement happens through actions by the states) and a dispute resolution process rather than a more extensive court system

WEEK 5: 9-13 February, 2009 On Wednesday we will begin with preliminary references. I think it would make sense for you to read the rest of this first packet, although we won’t finish dealing with it in class this week.
On Friday, Yves Dezalay will be coming to the class to talk about some of his work. Dezalay is a sociologist who has studied lawyers and globalization in different regions of the world. A part of his work focuses on the role of law and lawyers in the EU and this is what he will talk to us about on Friday. Please read the following article before the class. It is not written by Dezalay himself, but by one of the people he is currently collaborating with, and this paper summarizes the collective project:

Antoine Vauchez, The Force of a Weak Field: Law and Lawyers in the Government of the European Union (For a Renewed Research Agenda) 2 International Political Sociology 128-144 (2008).

If you are interested in this project [note that this is NOT required reading for the class] you could look at the Symposium on Law, Lawyers, and Transnational Politics in the Production of Europe published in 32 Law and Sociological Inquiry (March 2007). This journal is available as an electronic resource through the University’s library system. You can search from this page.

February 13: here is the Van Gend en Loos handout.

Comment: Gayland – February 14, 2009: Below is a link to a New York Times story about the rising tensions between European Union member-states, particularly France and the Czech Republic (the latter having just held the EU presidency and the former now holding it), in the context of the global economic crisis. “Under the pressure of the crisis,”the author says, “a collective of shared sovereignties built on the idea of a common market of goods and services is being riven by statist policies and incipient protectionism.”
http://www.nytimes.com/2009/02/14/world/europe/14union.html?pagewanted=1&_r=1&hp

WEEK 7: 23-27 February, 2009 Here are the Materials Part 2 (Food Supplements I). This packet will be available from the Distribution Center. Please read to page 32 for Friday’s class. I have also added it to the materials page. And I have put up the Paper Assignment there too. I am also setting out the paper assignment below:

The paper should be typed and no more than 4 pages in length (at approximately 250 words per page).

In Alliance for Natural Health v Secretary of State for Health (Case C-154/04) Advocate General Geelhoed stated that:

68. In its present form, Directive 2002/46 is seriously deficient in three respects.
— There is no mention, in the text of the Directive itself, of the substantive norm which the Commission must follow as a guiding principle in exercising its powers under Articles 4(5) and 13 of the Directive. The Directive thus contains no standard for assessing whether the Commission has, in taking decisions concerning modifications of the positive list, remained within the limits of its legal powers;
— It is not clear whether the Directive allows private parties to submit substances for evaluation with a view to having them included in the positive lists. Recital 10 in the preamble to the Directive refers unambiguously to this possibility, yet Article 4(6)(b) of the Directive would seem to suggest the contrary;
— On the supposition that private parties are indeed able to submit substances for an evaluation with a view to inclusion in the positive lists, there is no clear procedure for this purpose which provides minimum guarantees for protecting those parties’ interests.

The ECJ disagreed with the Advocate General.

EXPLAIN:
1. the differences between the Advocate General’s and the ECJ’s approaches to this issue;
2. giving reasons for your answer, whether you think that the Advocate General’s approach or the ECJ’s approach to the issue is preferable.

Before writing your essay you should read Decision1999/468 (the Comitology Decision) (here is a link to the 2006 amendment).

WEEK 6: 16-20 February, 2009 We have one class this week, on Wednesday, and we will focus on the materials on direct effect at the end of the first packet. In addition, please read the Van Gend en Loos handout I distributed on Friday (which is also available here). As we heard on Friday this is one of the seminal cases in EU law. The test the case sets out for the existence of direct effect was the original test which has changed over time, and the materials packet focuses on the current test rather than the original test (which is why I did not originally include Van Gend en Loos in your materials). So the case is of significant historical significance but of less current significance in defining the doctrinal preconditions for direct effect.

If you are interested in the project Yves Dezalay talked about on Friday [note that this is NOT required reading for the class] you could look at the Symposium on Law, Lawyers, and Transnational Politics in the Production of Europe published in 32 Law and Sociological Inquiry (March 2007). This journal is available as an electronic resource through the University’s library system. You can search from this page.

WEEK 8: 2-6 March, 2009 This week we are reading the Materials Part 2 (Food Supplements I). On Wednesday we will look at the two BSE cases. For Friday please read to page 44 of the materials. We will discuss the questions. In addition, please think about whether, as a consumer, you would want to claim that the directive gives you any rights that you should be able to enforce in court.

3 March: The Commission launches an equal pay campaign:

Across the EU economy, women earn on average 17.4% less than men. The simple concept of ‘equal pay for work of equal value’ is at the heart of the campaign being launched in the context of International Women’s Day on 8 March to raise awareness of the pay gap, its causes, and how to tackle it.

The link above is to the press release, which asks why equality has not been achieved ( and suggests part of the problem is that women’s work is seen to be less valuable than men’s). If you’re interested, a more detailed report is available.

Here is the Paper Assignment. As of 4th March I am trying to upload a pdf file with the correct links (without success). I can produce a wordperfect version where the links work but the weblog doesn’t want to accept that format (which may be solved by using the later version of wordperfect I have on my home computer). Later: It wasn’t, and saving the wordperfect document into pdf format does something weird to the links. So, here they are:
Council Decision of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission, OJ No. L 184/23 (Jul. 17, 1999)
Council Decision of 17 July 2006 amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission, OJ No. L 200/11 (Jul. 22, 2006)
Consolidated Version

Comments:
1. David_Mincberg – March 4, 2009: There have been some really interesting articles lately about proposed bailout among EU members. The conflict seems to be at what point does “community solidiarity/cooperation”stop and “individual/nation responsibility”begin. The debate over whether there is a “new iron curtain”being formed especially speaks to that conflict. What legal actions can disenfranchised member states (ie Hungary) now take?
Also interesting is the debate about whether to soften standards for the Euro. It seems like the Euro is the glue holding everything at the EU together, so that brings up a ton of interesting questions: What happens to the value of the Euro if the chatter about the EU dissolving brings up or the standards become less stringent? Will some Member States fear the Euro’s decline and revert back to national currency? Moreover, what actions can the ECJ or commision enforce if Member States try to “jump ship”?
Lastly, the most important question is as follows: If the EU disbands before the semester is over do we still have to take a final exam?
2. Bradley – March 4, 2009: As we only have a few weeks left, I think that the EU will still be around by exam time đŸ™‚ But it is clear that the current economic problems are stressing relationships that were sometimes fraught even when things were going better.

WEEK 9: 9-13 March 2009 As I said on Friday we will carry on working through the second packet. I will have the next packet available for you some time next week (I’ll post it to the blog as usual when it is ready and send it to the Distribution center also).

In order to submit your essay you will need to obtain your midterm grading number from the Registrar’s office. You will need your id in order to be able to get the number. Please put the number on the essay and not your name or any other identifying information. Please submit the essay to Beth Hanson in G378 on (or before) Wednesday March 25th (Tel: 305 284 2476; bhanson@law.miami.edu).

You may find it helpful to read the Commission’s Administrative Guidance on Submissions for Safety Evaluation of Substances Added for Specific Nutritional Purposes in the Manufacture of Foods. The Guidance provides that applications for inclusion of nutritional substances in the Food Supplements Directive (and some other measures) should be made by letter with a technical dossier in support first to the Commission, then after acknowledgment by the Commission to the Scientific Panel on Food additives etc of the EFSA. Scientific Opinions are to be made public.

WEEK 10: 23- 27 March 2009
Here is the next set of materials: Materials Part 3 (Food Supplements II). Please read up to page 17 for Friday’s class.

On Wednesday we will finish discussing the materials in the second packet.

A number of people have asked me about the 2006 decision to which I provided a link. It seems that this document complicates the writing of the essay too much. Please feel free to ignore it. Although amendments to a number of EU legislative measures now have to be made using the regulatory procedure with scrutiny this does not apply to the food supplements directive. And, in any case, as your essay is to focus on the Advocate General’s opinion and the ECJ’s judgment in the food supplements directive case the 2006 decision was not applicable at all at the relevant time.

In order to submit your essay [due March 25] you will need to obtain your midterm grading number from the Registrar’s office. You will need your id in order to be able to get the number. Please put the number on the essay and not your name or any other identifying information. Please submit the essay to Beth Hanson in G378 on (or before) Wednesday March 25th (Tel: 305 284 2476; bhanson@law.miami.edu).

March 24: The ECJ announced a symposium on the preliminary reference procedure:

On 30 and 31 March 2009, the Court of Justice of the European Communities is organising a symposium of the Presidents of the Constitutional and Supreme Courts of the Member States of the European Union with the objective of deepening the dialogue with the highest national courts on measures to be considered to improve the efficiency of the preliminary ruling procedure. The symposium is being held in the context of the process of consideration of the preliminary ruling procedure set in motion by the Association of Councils of State and Supreme Administrative Jurisdictions of the European Union, in cooperation with the Network of the Presidents of the Supreme Courts of the European Union.
The cooperation between the courts of the Member States of the European Union and the Court of Justice of the European Communities has proved to be one of the sturdiest pillars of the Community legal order. Thanks to the preliminary ruling system, laid down from the outset by the Treaties, national courts are able to make a reference to the Court of Justice to obtain a ruling on the interpretation or validity of a provision of Community law which it needs in order to decide the case before it. By thus ensuring judicial protection of the rights which individuals derive from Community law and by enabling the Court to fulfil its task of ensuring compliance with the law in the application and interpretation of the Treaties, that system is the keystone of the Community court system

Comments:
RonHonick – March 23, 2009 Is there any time by which you’d like the papers submitted? Of course, I wouldn’t dream of turning my paper in just before the deadline…I’m just curious. Thanks
Bradley – March 24, 2009 You may submit the papers by email to Beth Hanson provided that the papers do not identify you except by blind grading number. If the paper is in her email inbox by the time she gets to work on Thursday (around 8 am) I will accept it.

WEEK 11: 30 March-3 April 2009 We will continue to focus on the standing materials in Materials Part 3 (Food Supplements II) this week. Please read up to page 51 for this week.

Comments:
crohrig – March 30, 2009:I was looking at some articles on the EU and I came across this article about the European Ombudsman. Basically this person is to basically serve as a liason to find acceptable solutions between private parties and EU institutions. While the EU institution can ignore his recommendations, his recommendations can still be fowarded to the EU parliament according to the article. The article also discusses how the creation of a new website will assist in processing individual complaints more quickly and efficiently. I thought this article interesting in light of previous conversations in class about the recourses available to private parties to resolve their claims. My question is how effective has the role of this officer been within the EU and if in fact this is another avenue private parties can pursue apart from those that we have discussed in class (i.e, preliminary references)?
Here is the link: http://ec.europa.eu/news/eu_explained/090316_1_en.htm
jdell – March 31, 2009: This is a great piece that looks at what is behind Italy’s “slippery”olive oil business. Essentially, the author converys that we cannot trust that olive oil we buy in grocery stores in fact real olive oil. He provides numerous stories of the fraud within the industry and strongly suggests that the supervising bodies are in the pockets of the industry.
http://www.newyorker.com/reporting/2007/08/13/070813fa_fact_mueller

WEEK 12: 6-10 April, 2009: I aim to finish the current materials packet this week.

I have posted my Spring 2006 and Spring 2005 exams for this class to the materials page. In looking at past exams I came across two questions I almost asked in the Spring 2007 exam (this is supplied with the syllabus), but didn’t in the end include. The first one relates to the material we are looking at this week. Here they are (the idea was to offer a choice of essay questions as in the 2006 exam as well as the hypothetical):

1. In Yusuf (excerpted in Materials Packet 3) the Court of First Instance stated that although the CFI did not have jurisdiction to review the lawfulness of a Security Council resolution “according to the standard of protection of fundamental rights as recognised by the Community legal order,”(para. 272) :

“…the Court is empowered to check, indirectly, the lawfulness of the resolutions of the Security Council… with regard to jus cogens, understood as a body of higher rules of public international law binding on all subjects of international law, including the bodies of the United Nations, and from which no derogation is possible.”(para 277).
Critically assess the ECJ’s and CFI’s approach to their role as EU institutions. In your answer you may focus only on the issue of validity of resolutions of the Security Council or analyze the ECJ’s and CFI’s jurisprudence more generally. If a court in an EU Member State were to claim the power to check whether acts of the EU institutions infringed jus cogens, how would you expect the ECJ and CFI to react?

2. “…[A]ccording to article [249] of the..Treaty the binding nature of a Directive, which constitutes the basis for the possibility of relying on the Directive before a national court, exists only in relation to ‘ each member state to which it is addressed ‘. It follows that a Directive may not of itself impose obligations on an individual and that a provision of a Directive may not be relied upon as such against such a person.”(Marshall v Southampton and South-West Hampshire Area Health Authority, para. 48, Materials Packet 1).
Discuss.

April 10: Here is a link to the EU’s advertisement campaign for the upcoming elections, running on MTV.

Comments:
David_Mincberg – April 4, 2009: Picking up the class discussion-as I understand-
Art 230 is used by EU institutions or members states to challenge acts, including DIRECTIVE.
Since EU acts cannot be challenged unles an entity is directly and individually concerned, a DIRECTIVE can never be challenged by an indiviudal. However, an individual who is directly and invdividually concerned can challenge a REGULATION in the CFI under Art 230.
While individuals can challenge implementing measures of a DIRECTIVE in the national courts, there is no way for them to challenge these directives in the CFI.
So assuming this is correct, maybe these questions will help move things along if we can clarify as a group:
1) So is the main issue we are trying to determine is why do individuals have to wait for implementing measures in order to challenge a directive with restrictive guidelines and not much discretion for implementation measures?
2) This line from page 14 of the new materials confused me:
“Very many of the EU’s directives affect people and firms precisely because they carry on a particular economic activity. In some cases particular firms are affected in ways that others are not and may have standing under Art. 230 as a result”.
But as I understand from the lecture, there is NEVER standing for an individual firm to challenge a DIRECTIVE under 230.
Please feel free to add or answer…
halleyjp – April 7, 2009: In response to David’s comments (and with questions of my own…):
1. I think that the ECJ responds to this issue by stating the national courts are meant to deal w/ individuals who want to challenge directives that haven’t been implemented yet. If the individuals have to wait, the ECJ seems to put the blame on national courts and notes the national courts’ power to ensure judicial effectiveness (which is what all the individuals claim they AREN’T getting from the ‘traditional interpretation’ of ‘individually concerned’). Is this right?
2. From what I’ve understood, individual firms can challenge Directives but somewhat indirectly because individuals would be challenging the implementing measures used by the national courts. Then, this would trigger a preliminary reference from the national courts to the Community Courts.
I’m not sure if these are right… feedback appreciated.
Bradley – April 7, 2009: You’re both right (the text on p 14 of the materials should not refer to directives). To the extent that an individual or firm wants to challenge a directive that does not need to be implemented the ECJ’s decisions suggest that it is up to the Member States to provide the mechanism.
David_Mincberg – April 7, 2009: Thank you Professor Bradley. So should the text on page 14 substitute “acts,””measures,””regulations,”or something else? Thanks.
Bradley – April 7, 2009: Regulations, measures or acts would work here, but generally when talking about a general regulatory measure which could concern an individual or firm directly it would be called a regulation.

I have posted notes on the Spring 2005 and 2006 exams to the materials page.

REVIEW SESSION: I have booked room F209 from 2.30-4.30 pm on Thursday May 7. There’s an exam in that room in the morning which finishes at 1.30 pm and they like to leave a gap of an hour after the exam.

Here is the Paper Memo.

WEEK 14: 20-24 April 2009 My aim this week is to finish Materials Part 4 (Food Supplements III).

WEEK 13: 13-17 April, 2009: On Tuesday we will finish Kadi. Then please read to page 31 (and page 40) of this next packet: Materials Part 4 (Food Supplements III).

April 14: There’s a post on the uncastrated pigs case at the end of this packet here.

Comments:
ErinBohannon – April 14, 2009: Here is a link to an article about the Kadi decision that illustrates some of the issues related to the interplay between EU and international law that is relevant to our class discussion. Specifically, the article points out that judicial review of community acts giving effect to resolutions by the UN Security Council work only insofar as there is a way to implement UN Security Council resolutions in conformity with fundamental rights of the EU.
http://eubusinesslaw.wordpress.com/2009/04/12/albert-posch-the-kadi-case-rethinking-the-relationship-between-eu-law-and-international-law/
KomalPVaidya – April 22, 2009: Today the EU Parliament voted in favor of a price cap on roaming charges on mobile texting and emailing. The vote reflects the general sentiment one shouldn’t be charged exorbitant roaming charges while traveling throughout the EU or texting/emailing a person in another EU country.
I think it is particularly interesting how the price cap reflects a balance between ensuring fair prices/consumer protection and competition. I’ve posted the link below.
http://news.bbc.co.uk/2/hi/europe/8010352.stm