Dissertations / Theses on the topic 'Proportionality in law – European Union Countries'
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Shi, Feng. "Principles of European Union water law." Thesis, University of Macau, 2007. http://umaclib3.umac.mo/record=b1944040.
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FELD, Leonard. "From soft law to hard law : the concept and regulation of human rights due diligence in the EU legal context." Doctoral thesis, European University Institute, 2022. http://hdl.handle.net/1814/74341.
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Defence date: 14 March 2022Examining Board: Professor Stefan Grundmann (Humboldt University Berlin); Professor Mathias Siems (European University Institute); Professor Karin Buhmann (Copenhagen Business School); Professor Robert McCorquodale (University of Nottingham)
This dissertation examines the concept of human rights due diligence (HRDD) under international soft law and its transposition into business regulation, with a particular focus on the European Union context. It traces the evolution of HRDD – starting from the work of the United Nations to the recent contributions of the Organisation for Economic Cooperation and Development. The inquiry finds that HRDD is a concept of remarkable depth, whose features make it suitable to address human rights abuse in the globalised economy. Yet, there are also a number of practical and conceptual concerns. For instance, it is argued that the concept of HRDD features a high level of abstraction, which leads to ambiguities at the stage of implementation. In view of these findings, the transposition of HRDD into business law provides an opportunity, not only to build on the strengths of the concept, but also to counter some of its weaknesses. In addition, the thesis addresses two questions of international law concerning, first, the legality of HRDD legislation in view of its extraterritorial implications and, second, the relationship between relevant legal acts and the duties of states under international human rights law. It is held that regulators enjoy considerable leeway under international law to facilitate or require HRDD even beyond their own borders. Yet, states are presently under no international obligation to regulate HRDD processes – even though new developments are in sight. Finally, drawing on the findings of this research, the dissertation reviews Directive 2014/95/EU and Regulation (EU) 2017/821 as two precedents of HRDD legislation in the European Union. The two legal acts pursue very different strategies to promote HRDD processes with, it is argued, a varying degree of success. Through these assessments, the thesis provides a set of recommendations that may inform the transposition of the concept into business law.
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Fee, Emma. "'A Europe without dividing lines': the normative framework of the European neighbourhood policy - emergent jus gentium or consolidation of jus civile?" Thesis, McGill University, 2005. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=83952.
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The primary focus of this work is Article 57 of the Draft European Constitution, concerning the constitutionalisation of a new aspect in EU external relations law, 'the European Neighbourhood Policy'. No comprehensive study of this constitutional article has yet been undertaken in EU legal research. Through the medium of the title of my thesis I wish to examine whether it amounts to an emergent jus gentium for the EU or its antithesis, the consolidation of jus civile. In parallel with the nature of the subject, this study is necessarily a legal-political one. Key points identified are the strategic use of human rights, extraterritoriality of law, foreign direct investment and legal imperialism. A number of recent developments, both judicial and legislative, have provoked this study.
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BARANSKI, Marcin. "Constitutional pluralism in the European Union : a critical reassessment." Doctoral thesis, European University Institute, 2021. https://hdl.handle.net/1814/72280.
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Defence date: 26 July 2021Examining Board: Professor Dennis M. Patterson (European University Institute); Professor Gábor Halmai (European University Institute); Professor Jan Komárek (University of Copenhagen); Professor Alexander Somek (University of Vienna)
The aim of this thesis is to offer a comprehensive and critical analysis of one of the most popular and prolific strands in European legal scholarship, i.e., constitutional pluralism. Specifically, the thesis seeks to challenge the central claim advanced by pluralist scholars with regard to the legal structure of the European Union: namely that the relationship between the EU and national legal orders is best conceptualized and understood as a heterarchical rather than hierarchical one. To that purpose, the thesis examines the work of leading scholars of pluralism– –Neil MacCormick, Kaarlo Tuori, Mattias Kumm, and Miguel Poiares Maduro–– all of whom advanced such heterarchical rather than hierarchical understandings of the aforesaid relationship. In so doing, the thesis attempts to address two main questions: first, does pluralism succeed in offering a descriptively and analytically sound account of the common European legal ordering; and second, how do the traditional, positivist, and hierarchical accounts of law fare in comparison with their pluralist contenders? The thesis concludes that while pluralist scholars should be given credit for bringing to light certain distinctive features of the European legal ordering, upon closer examination, their analyses appear to confirm (rather than deny) some crucial insights of said positivist theories, along with their allegedly outdated and distorting, hierarchical understanding of law and legality. Furthermore, it is argued that the pluralist attempts to set aside the positivist questions about the ultimate grounds of law, final authority and constitutional supremacy in the European Union prove unsuccessful in view of the growing constitutional disagreement therein. Finally, the thesis suggests that the nature of the current European legal or constitutional setting is better captured by the notion of national constitutional supremacy, rather than the core pluralist idea of heterarchy.
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CERAN, Olga. "Cross-border child relocation : national law in a united Europe." Doctoral thesis, European University Institute, 2022. http://hdl.handle.net/1814/74359.
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Defence date: 17 March 2022Examining Board: Prof. Stefan Grundmann (Humboldt-Universität zu Berlin & European University Institute); Prof. Martijn Hesselink (European University Institute); Prof. Katharina Boele-Woelki (Bucerius Law School); Dr. Ruth Lamont (University of Manchester)
Cross-border child relocation cases are among the most difficult disputes that family judges need to face. Commentators across the globe disagree on the interpretation of the child's best interests and the relevance of adults' autonomy in this context. As relocations are directly concerned with free movement, the literature has expressed an interest also in the European Union's influences in this area. However, considering its lack of competence in family law and the limited jurisprudence of the Court of Justice of the European Union on such issues, some questions about the scope and nature of obligations imposed by EU law remain open. This thesis investigates, therefore, the following question: What is the (nature of) EU law's influence on cross-border child relocation and what are its effects on national legal systems? Its contribution is two-fold. Methodologically, it proposes a constructively oriented investigation of European influences in child relocation law. Cross-border movement constitutes the main raison d'être of EU law, and a defining feature of its community. Hence, a mixture of traditional values and new ways of life - sanctioned by a supranational entity - might lead to new dilemmas regarding children's interests and adult autonomy and complicate relocation decisions. The suggested approach allows contextual influences to be analysed together with legal doctrines, at both the EU and the national level. Substantively, the thesis builds on existing research to refine the understanding of child relocation in the context of supranational fundamental rights and freedoms in the EU, in their doctrinal and ideational dimensions. Finally, using case law from Germany, Poland, and England and Wales, it qualitatively investigates how national judges encounter the EU and draw from its ideational and legal features. This thesis demonstrates how the normatively inflicted EU context is occasionally used in courts but does not seem to consistently reorient national approaches towards the EU.
Chapter 3 ‘Child relocation and the European framework of human rights' of the PhD thesis draws upon an earlier version published as an article 'Child relocation, soft law, and the quest for umiformity at the European court of human rights : part one' (2020) in the journal ‘Prawa prywatnego’
Chapter 3 ‘Child relocation and the European framework of human rights' of the PhD thesis draws upon an earlier version published as an article 'Child relocation, soft law, and the quest for umiformity at the European court of human rights : part two' (2021) in the journal ‘Prawa prywatnego’
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D'ANDREA, Sabrina. "Fluctuating conceptions of gender equality in EU law : a conceptual, legal and political analysis of EU policy, law and case law concerning work and care (1980-2020)." Doctoral thesis, European University Institute, 2021. https://hdl.handle.net/1814/70998.
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Defence date: 27 April 2021Examining Board: Professor Claire Kilpatrick (European University Institute); Professor Ruth Rubio Marín (Universidad de Sevilla); Professor Sophie Robin-Olivie (Paris 1 Panthéon-Sorbonne); Professor Annick Masselot (University of Canterbury)
Gender equality is a complex and debated concept; feminist scholarship and legal philosophy still struggle to define this notion. The EU context is no exception, as within the European project and literature, conceptions of gender equality have fluctuated. Existing literature has only given limited accounts of the different meanings of gender equality and has failed to identify the variables and reasons for this fluctuation in EU policy and case-law. In order to fill this gap, the present thesis takes onboard the challenge to uncover how the meaning of gender equality has shifted in the EU, across time, policy field and institutions. It starts by developing a theoretical frame which distinguishes between the possible aims of gender equality policy and the legal strategies employed by gender equality policy. It then applies this frame to four decades of EU policy regarding work and care, from 1980 to 2020, and questions to which extent these different gender equality conceptions and strategies have served the aim of women’s emancipation, assessing their effect on the gendered division of care and on the provision of social protection. The thesis shows that the main variable of fluctuation of gender equality conceptions has been the policy issue at stake: while the EU has employed formal equality in certain areas of law, it has been more prone to allow for substantive strategies for equality in others, depending on political priorities and opportunities. The conclusion explains these findings and reflects on the political conveniences of gender equality conceptions. It makes a theoretical, political and normative contribution to existing literature and debates concerning gender equality in the EU and gives directions for future gender equality policy.
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KARAGIANNIS, Yannis. "Preference heterogeneity and equilibrium institutions: The case of European competition policy." Doctoral thesis, European University Institute, 2007. http://hdl.handle.net/1814/15460.
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Defence date: 21 December 2007Examining board: Prof. Adrienne Héritier (EUI)(Supervisor) ; Prof. Christian Joerges (EUI, Law Department) ; Prof. Jacint Jordana (Universitat Pompeu Fabra, Barcelona) ; Prof. Hussein Kassim (Birkbeck College, University of London)
PDF of thesis uploaded from the Library digital archive of EUI PhD theses
One characteristic of European competition policy is its complex governance structure. On the one hand, the European competition regulator has always enjoyed a high degree of formal autonomy from national governments. On the other hand, that regulator has always been embedded in a multi-task and collegial organisation that mirrors intergovernmental politics. Although the literature has often disapprovingly noted this complexity, it has not been explained. Part I elaborates on the theoretical lens for understanding the governance structures of EC competition policy. Despite the prominence of principal-agent models, transaction cost economics seems to offer a more promising venue. The assumption that Member States maximise their total expected gains and postpone excessive bargaining costs leads to the following hypothesis: the greater the preference heterogeneity (homogeneity) between Member States, the higher (lower) the asset-specific investments involved, hence the higher (lower) the risk of post-contractual hold-ups, and hence the more (less) integrated the governance structures created to sustain future transactions. Alternatively, this logic leads to a deterministic hypothesis about the sufficiency of preference heterogeneities for the production of complex governance structures. Part II examines this deterministic hypothesis. Using various sources, and conducting both within- and comparative case- studies, it analyses three important cases: the negotiations of the Treaty of Paris (1951), of the Treaty of Rome (1957), and of the two implementing Council Regulations (1962 and 2003). The evidence shows that (a) the relevant actors do reason in terms of transaction cost-economising, and (b) in the presence of preference heterogeneity, actors create complex governance structures. Nevertheless, it is also found that (c) the transaction cost-economising logic is not as compelling as it may be in private market settings, as bargaining costs are not systematically postponed to the post-contractual stage, and (d) the transaction costs between Member States are not the only relevant costs.
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SCHOLTES, Julian. "The abuse of constitutional identity : Illiberal constitutional discourse and European constitutional pluralism." Doctoral thesis, European University Institute, 2022. https://hdl.handle.net/1814/73873.
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Defence date: 21 January 2022Examining Board: Professor Gábor Halmai, (EUI); Professor Martijn Hesselink, (EUI); Professor Alexander Somek, (University of Vienna); Professor Neil Walker, (University of Edinburgh)
‘Constitutional identity’ has become a key argument in the negotiation of authority between national legal orders and the legal order of the European Union. Many national constitutional courts have declared that the reach of EU law is limited by certain core elements of the national constitution, often labelled ‘constitutional identity’. However, the rise of ‘illiberal democracies’ within the European Union, especially exemplified by the democratic backsliding of Hungary and Poland, has put constitutional identity into a questionable spotlight. Both countries have been leaning on the constitutional identity to both erode European legality and defend their authoritarian constitutional projects againstEuropean criticism. This dissertation deals with the question of how to delimit legitimate invocations of constitutional identity from abuses of constitutional identity. It develops a typology of constitutional identity abuse in three dimensions: The generative, the substantive, and the relational. The generative dimension is concerned with how a constitutional identity claim has come about, its relation to constituent power, constitutional enactment and amendment, the independence of courts, and the regulation of historical memory. The substantive dimension deals with what a constitutional identity claim entails, digging into the normative expectations invoked by the concept and the ways in which it ought to be regarded as intertwined with and embedded in a normative conception of constitutionalism. Finally, the relational dimension is concerned with how a constitutional identity claim is advanced. Advancing a constitutional identity claim in the European legal space evokes notions of diversity, dialogue, recognition, and pluralism, which need to be reciprocated. In each of these dimensions, ways in which constitutional identity can be abused will be identified, using Europe’s ‘backsliding democracies’ Hungary and Poland as the primary case studies, while discussing other countries where appropriate.
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Liang, Zheng Yun. "The enviromental principles of the European Union." Thesis, University of Macau, 2009. http://umaclib3.umac.mo/record=b2120095.
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Li, Qian. "European Union normative approaches to enviromental governance." Thesis, University of Macau, 2009. http://umaclib3.umac.mo/record=b2120096.
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Zhu, Feng. "EU energy policy after the Treaty of Lisbon : breakthroughs, interfaces and opportunity." Thesis, University of Macau, 2012. http://umaclib3.umac.mo/record=b2580185.
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Finck, Michèle. "Above and below the surface : two models of subnational autonomies in EU law." Thesis, University of Oxford, 2015. http://ora.ox.ac.uk/objects/uuid:60c9f0ae-3f2a-4701-a096-e8f9ce38b5f0.
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This thesis examines the relation between subnational autonomies, that is to say regional and local authorities and the norms they create, and European Union law. The existence of local and regional autonomies within the various Member States of the EU is a factual truth. We know that they exist and co-exist with other levels of public authority, themselves generating norms. Yet, on its surface European Union law does not devise any substantive understanding of such autonomies. This stands in stark contrast to the relation between the Member States and the EU, which is governed by a complex catalogue of Treaty rules. As a consequence of European integration, however, subnational autonomies and EU law do interact, so that the latter cannot simply ignore the existence of the former. This thesis sets out to determine the contours of their mutual relation through an analysis of EU procedural and substantive law. It uncovers that the relation between subnational autonomies and EU law is multifarious and diverges depending on whether we look at the surface of EU law, that is to say the Treaties, or whether we look below its surface, at the Court of Justice's rich case law or soft law instruments of the Commission. I map this conclusion through a modelling approach, relying on what I term the 'Insider Model' and the 'Outsider Model' respectively. These models underline that, in some areas of EU law, SNAs are seen to be outsiders to the project of European integration whereas other areas recognise SNAs and especially their norms to be the insiders of that project. The coexistence of both models forces us intellectually to rearrange things. It challenges our 'constitutional imagination'. The key to understanding the coexistence of both models can be found in the evolution of EU law itself. While the Outsider Model remains attached to the public international law origins of the EU Treaties, the Insider Model captures the reality that not only States and citizens, but also SNAs, are integrated into the EU legal order.
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HARBO, Tor-Inge. "The function of proportionality analysis in European law." Doctoral thesis, 2011. http://hdl.handle.net/1814/16057.
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Defence date: 28 January 2011Examining Board: Prof. Ernst- Ulrich Petersmann (Supervisor), EUI; Prof. Inger-Johanne Sand, University of Oslo; Prof. Christian Joerges, University of Bremen; Prof. Loic Azoulai, EUI.
PDF of thesis uploaded from the Library digital archive of EUI PhD theses
The aim of the thesis is to explore the function of proportionality analysis (PA) as a tool of judicial adjudication in European law. In this effort the author analyses in the first part of the thesis the way in which European supra-/international courts, notably the ECJ, the EFTA Court and the Human Rights Court, apply PA. The analysis reveals that PA is a flexible instrument of judicial review. In the second part of the thesis the application of PA by UK and Norwegian courts is discussed. The respective countries´ courts have not traditionally applied PA but various reasonableness tests. The purpose of the investigation is thus to shed comparative light on PA by contrasting it with comparable assessment schemes. To the extent PA is taken on by the two national courts the investigation may display the persuasive nature of PA. The legal dogmatic approaches taken in part one and two of the thesis does only partly help determine the function of PA. A broader approach is needed to this end. In part three of the thesis the author firstly discuss what it means that PA consists of both rationality and reasonableness tests and thereafter whether PA is of a substantial or a procedural nature. Concluding that PA is of a procedural nature - securing a legal safeguard for individuals - it is nevertheless clear that PA implies the strengthening of the judiciary. This leads to an elaboration on the virtues and vices of 'judicial governance'. In this connection it is suggested that the establishment of PA as a (general) principle of law (together with the tri-partial structure) is a way in which courts may attempt to legitimise the extensive judicial power, which lies intrinsic in PA. The author then embarks upon a discussion of the nature and function of principles of law including the rule of law qualities of PA.
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LILLI, Marco. "The principle of proportionality in EC law and its application in Norwegian law." Doctoral thesis, 1997. http://hdl.handle.net/1814/5458.
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MARKETOU, Afroditi. "Local meanings of proportionality : judicial review in France, England and Greece." Doctoral thesis, 2018. http://hdl.handle.net/1814/58864.
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Defence date: 19 September 2018Examining Board: Prof. Bruno De Witte, Maastricht University/EUI (Supervisor); Prof. Loïc Azoulai, Sciences Po Paris; Associate Prof. Jacco Bomhoff, LSE; Prof. Guillaume Tusseau, Science Po Paris
The author was awarded the Mauro Cappelletti Prize for the best doctoral thesis in the field of comparative law (June 2019)
Proportionality increasingly dominates legal imagination. Initially conceived of as a principle that regulates police action, today it is progressively established as an advanced tool of liberal constitutional science. Its spread, accompanied by a global paradigm of constitutional rights, appears to be an irresistible natural development. This thesis was inspired by the intuition that even though courts and lawyers around the world reason more and more in proportionality terms, proportionality can mean very different things in different contexts, even within the same legal system. While the relevant literature has paid little attention to differences in the use of proportionality, identifying the local meanings of proportionality is crucial to making sense of its spread, to assessing its success, and to appraising the possibility of convergence between legal systems. Through an in-depth study and comparison of the use of proportionality by legal actors in France, England and Greece, this work shows that the local meanings of proportionality are not simply deviant applications of a global model. Instead, they reflect the legal cultures in which they evolve, local paths of cultural change and local patterns of Europeanisation. La proportionnalité a progressivement pris une place centrale dans l’imaginaire juridique. Initialement conçue comme un principe qui régit l’utilisation des pouvoirs de police, elle est aujourd’hui considérée comme un outil avancé de science constitutionnelle. Sa généralisation, accompagnée par le paradigme du droit constitutionnel global, est perçue comme irrésistible et naturelle. Cette recherche a été guidée par l’intuition que, même si les juristes à travers le monde raisonnent de plus en plus en termes de proportionnalité, celle-ci peut avoir des sens très différents, et ce, même au sein d’un seul système juridique. Les différentes utilisations du langage de la proportionnalité sont rarement étudiées en tant que tels. Pour autant, l’identification des sens locaux de la proportionnalité est cruciale si l’on veut comprendre sa propagation, apprécier son succès et évaluer les possibilités de convergence entre systèmes juridiques. Ce travail consiste en une étude approfondie et comparative de l’utilisation du langage de la proportionnalité parmi les acteurs juridiques en France, en Angleterre et en Grèce. Il cherche à montrer que les sens locaux de la proportionnalité ne sont pas simplement des applications imparfaites d’un modèle global. Au contraire, ils reflètent les cultures au sein desquelles ils évoluent, des chemins d’évolution culturelle propres à chaque système et des trajectoires locales d’européanisation.
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VAN, DER SLUIS Marijn. "In law we trust : the role of EU constitutional law in European monetary integration." Doctoral thesis, 2017. http://hdl.handle.net/1814/46925.
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Defence date: 16 June 2017Examining Board: Professor Bruno De Witte, EUI (Supervisor); Professor Deirdre Curtin, EUI; Professor Fabian Amtenbrink, Erasmus University Rotterdam; Professor Mark Dawson, Hertie School of Governance Berlin
Prior to the euro, the topics of constitutional law and monetary policy rarely overlapped. Money was regulated, on the national level, through the ordinary legislative procedures. For European monetary union, the use of constitutional law was nevertheless attractive because it meant that the MS would be in control of the negotiation process, because it enabled a very independent central bank and because it kept the MS in control over the future of the euro. The lack of trust among MS to share a currency was overcome by an abundant trust in law. As the euro was negotiated as a constitutional currency, this created specific opportunities and obstacles for the different parts of the EMU. Once the euro finally came into existence, the constitutional framework of the euro proved remarkably stable for the first decade and a half. After the excitement of Maastricht, monetary policy very quickly became boring again, in no small part due to constitutional law. Unfortunately, EMU primary law was quite successful. During the euro-crisis, EMU primary law shaped the responses to the crisis by placing fewer obstacles on some routes to change than on others. As the crisis developed, some conflicts became the topic of much legal debate and even judicial decisions, whilst other parts of euro-crisis law met with few objections, despite some legally problematic aspects. The possibilities for further reform of the Eurozone without treaty change are then largely the result of the process of reform until now.
Chapter 3 ‘The constitutional Euro' of the PhD thesis draws upon an earlier version published as a working paper 'The variable geometry of the eurocrisis: a look at the non-euro area Member States' (2015), 2015/33 EUI Working Paper Law.
Chapter 1 ‘Monetary policy and constitutional law before the euro' of the PhD thesis draws upon an earlier version published as a contribution 'Maastricht revisited: economic constitutionalism the ECB and the Bundesbank' (2014) in the book ‘The constitutionalization of European budgetary constraints’
The conclusion of the PhD thesis draws upon an earlier version published as an article 'EU law for a new generation?' (2016) in the journal ‘International journal of constitutional law’
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KOUNEVA, Magdalena. "Joint ventures in European Community competition law." Doctoral thesis, 2000. http://hdl.handle.net/1814/5591.
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SCHMIDT-KESSEN, Maria José. "IP competition conflicts in EU law through five judicial lenses." Doctoral thesis, 2018. http://hdl.handle.net/1814/55264.
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Defence date: 21 May 2018Examining Board: Prof. Giorgio Monti, EUI (EUI Supervisor) ; Prof. Urska Šadl, EUI ; Prof. Inge Govaere, College of Europe, Bruges ; Prof. Alison Jones, King's College, London
This PhD thesis deals with IP-competition conflicts and how the EU Courts have addressed them over time. It seeks to answer the question of how the reasoning of EU Courts in these cases has been affected by three crucial evolutionary moments in EU law: (1) the Europeanization of IP law (2) the modernization of EU competition law and (3) the elevation of the Charter of Fundamental Rights of the European Union to a primary source of EU law. The first two chapters provide the theoretical framework of the thesis. The first chapter provides a detailed overview of the three crucial evolutionary moments in EU law mentioned above. The second chapter provides an overview of theories about the legal reasoning of EU Courts and about the different approaches that the courts have adopted when deciding IP-competition conflicts. Five such approaches, or judicial lenses, are identified: an economics, a conflict of laws, a conflict of competences, a constitutional and a private law approach. It is shown that these five different approaches can be linked to the three evolutionary moments at the IP-competition interface in EU law. Chapters three to five trace the theoretical insights from the first two chapters in three case studies on specific business methods having given rise to IP-competition conflicts before EU Courts: (i) selective distribution systems, (ii) digital platforms and restrictions of access, and (iii) lock-in strategies on aftermarkets, in particular in the online environment. The case studies analyse how these comparable factual situations of IP-competition conflicts have been treated on the one hand under EU competition law and on the other under EU IP law. In each case study, the legal reasoning is identified and compared between EU competition and IP law. The main finding in the case studies is that EU Courts treat the spheres of EU competition law and IP law as wholly separate. This has led to quite diverging approaches in comparable cases of IP-competition conflicts depending on whether the cases are brought under EU competition law or IP law, jeopardizing the systemic coherence of EU law and disturbing the CJEU’s dialogue with national ii courts. This situation is not sustainable. In an economic environment where the EU’s economies are increasingly depending on e-commerce and digital assets often protected by IP, IP-competition conflicts are bound to increase. To ensure a legal environment that provides legal certainty and equal conditions for firms to thrive across EU Member States without hurting consumers, a more coherent and improved methodological guidance on how to address IP-competition conflicts is needed. The aim of this thesis is to provide a first step in this direction.
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GUSTAFSSON, Magnus. "The role of commercial arbitrators in enforcing European Competition Law : with special emphasis on Swedish law." Doctoral thesis, 2000. http://hdl.handle.net/1814/5547.
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Award date: 15 December 2000Supervisors: Petros Mavroidis and Claus-Dieter Ehlermann
PDF of thesis uploaded from the Library digitised archive of EUI PhD theses completed between 2013 and 2017
The topic chosen for this dissertation — the role of commercial arbitrators in enforcing European competition law — may, at least for someone not familiar with arbitration, seem slightly misplaced. After all, competition law is a subject and body of law of a public nature, enforced by governmental administrative agencies, as well as national courts. What has it got to do with arbitration? The simple answer is that arbitration is an extremely common mechanism through which commercial disputes are settled. Companies wish to avoid litigating ‘in the open’, as involvement in litigation in principle reflects negatively on a company and its reputation, even if it is successful in the courtroom. Therefore they are likely to choose arbitration, by stipulating to that effect in their contracts with business partners. Furthermore, it seems to be generally held that competition law is gaining increased importance for arbitrations, something which one may assume is due, 'inter alia', to companies becoming more aware of the advantages one may gain in litigation by relying on those rules.
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BOUCON, Lena. "EU free movement law and the powers retained by member states." Doctoral thesis, 2014. http://hdl.handle.net/1814/34842.
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Defence date: 12 December 2014Examining Board: Professor Loïc Azoulai, European University Institute (Supervisor); Doctor Julio Baquero Cruz, European Commission; Professor Michael Dougan, Liverpool Law School; Professor Joseph H. H. Weiler, European University Institute.
The intention of my thesis is to shed light on a technique of integration implemented by the European Court of Justice described as 'power-based approach.' Frequently neglected and overlooked, it is distinct from the ECJ traditional rights-based approach. It materializes in a specific range of free movement cases where Member States are suspected of having impinging on the free movement principle – understood as encompassing the four economic freedoms and EU citizenship – when they exercise what the Court deems as being their retained powers. A variety of fields are concerned, such as nationality, direct taxation, social security, or education. My overall claim is that the power-based approach contributes to defining and shaping the contours of the relationship between the European Union and its Member States, of EU interstate relations and, ultimately, of Union membership. I start with an attempt at deconstruction to identify the defining features of the cases concerned by this approach: (i) they revolve around the structural notion of power; (ii) the applicability of the free movement principle stems from the disjunction of the scope of application of EU law from the scope of EU powers; (iii) the settlement of the conflicts at hand amounts to a 'mutual adjustment resolution,' which consists in putting limitations on the exercise of the powers retained by Member States, while the Court itself tends to soften its own approach to protect national autonomy. I then proceed with an effort at reconstruction. First, I identify the jurisdictional implications of the power-based approach. Next, I look into its implications for membership of the Union. Lastly, I provide an overall critical and structural reassessment. I show that the silence of the Court regarding the rationale behind its approach has the effect of weakening its legitimacy and its authority. I finally identify its resulting structural model.
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BOIRET, Karolina. "Selective enforcement of EU law : explaining institutional choice." Doctoral thesis, 2016. http://hdl.handle.net/1814/44326.
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Defence date: 5 December 2016Examining Board: Professor Marise Cremona (supervisor), EUI; Professor Miguel Maduro, EUI; Professor Francesco Maiani, University of Lausanne; Doctor Günter Wilms, Legal service, European Commission and Legal Advisor, EUI
The Commission’s policy of selective enforcement rests on four pillars: confidentiality, bilateralism, flexibility, and autonomy. For years, the European Parliament, the Ombudsman and stakeholders have put pressure on the Commission to reform its enforcement policy in order to increase its legitimacy in the eyes of EU citizens by, inter alia, allowing complainants access to documentation from its investigations and securing their rights by means of legally-binding measures. They have sought to replace the Commission’s existing discretionary model of enforcement with a new approach characterized by such standards as transparency, trilateralism, objectivity, and accountability. The Commission, however, supported by the Court of Justice, has in most part resisted these challenges, changing its policy of selective enforcement only to such a degree that does not substantially interfere with its four pillars. This thesis seeks to explain the reasons for the Commission’s commitment to the existing discretionary model of enforcement. By means of the Comparative Institutional Analysis, it is argued that the proposed reforms would distort the balance between the Commission’s demand and supply sides. The Commission’s capacity to enforce EU law is limited, and burdening it with new responsibilities in order to introduce transparency or objectivity to its operation would lead to the formalization of enforcement measures, increasing its administrative burden and decreasing its efficiency. It would skew its attention towards complainant-relevant violations and transform its enforcement into a vehicle for individual grievances running counter to the Commission’s understanding of its enforcement function as guardian of the Treaties. The Commission’s opposition to the accountability approach does not, however, mean a rejection of its demands. The EU Pilot is an example of the Commission’s effort to address some of these expectations while maintaining the balance between the forces of supply and demand. Selective enforcement thus may not be as much about prioritizing cases as it is about assigning appropriate enforcement measures.
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WESSELING, Rein. "Constitutional developments in EC antitrust law." Doctoral thesis, 1999. http://hdl.handle.net/1814/4823.
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GIBBS, Alun Howard. "Thinking constitutionally about the European Union's area of freedom, security and justice." Doctoral thesis, 2009. http://hdl.handle.net/1814/12026.
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Defence date: 15/06/2009Examining Board: Profs. Hans Lindahl (Tilburg University); Kimmo Nuotio (University of Helsinki); Wojciech Sadurski (EUI); Neil Walker (Supervisor, former EUI and University of Edinburgh)
PDF of thesis uploaded from the Library digital archive of EUI PhD theses
This thesis sets out to consider the constitutional implications of a policy of legal integration regarding internal security matters in the EU. It argues that constitutional theory is fundamental to addressing the legality and accountability concerns raised about the developing legal practice of the EU’s ‘Area of Freedom, Security and Justice’ (AFSJ). Conducting such a study poses important questions about how to pursue a constitutional approach to legal and political practices which do not resemble in any straight forward way the constitutional tradition of the nation state. This thesis advances the argument that constitutional theory cannot properly be construed as a ‘tool-kit’, a set of rules or principles with universal validity to cause a state of affairs or event then dubbed as legality or accountability. Instead it is argued that constitutional theory must work to reveal the issues of restraint, accountability or legality that are in fact part of an ongoing practice, not a one-off settlement; in which the theorist attempts to disclose or reveal the meaningfulness of what is described as the ‘common experience of the political way of life’. Consequently the first part of the thesis outlines how constitutional theory can establish the features of the ‘common experience of the political way of life’ (also referred to as the ‘constitutive function’) and it explains that meaning is situated in a historical background, which is uncovered by the theorist by providing an interpretation of this background. The thesis therefore advances and defends an interpretive theory of legal scholarship. These methodological parameters provide an appropriate means of making sense of the developments in the EU concerning the AFSJ, which thereafter becomes the focus of the thesis. In particular it concentrates on the importance of developing an understanding of public goods that form the basis as to why it is possible to think in constitutional terms about the AFSJ. The approach taken to public goods is that they manifest the meaningful commitments of a political community and therefore cannot be construed in instrumental terms. The thesis outlines that the constitutional issues facing the AFSJ are often collapsed into matters of instrumentalism that conceals the need to engage with the on-going meaning of the practices as forming part of a common political way of life. It is argued in conclusion that the thesis has provided a more robust way of not only considering the challenges facing the emerging internal security policies of the EU but has also provided an appropriate theoretical approach for the study of such issues in constitutional theory.
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HEDELUND, FRANDSEN Mette. "A comparative legal analysis of the impact of the EEC competition law on domestic nordic competition law." Doctoral thesis, 1995. http://hdl.handle.net/1814/4655.
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HÄGGLÖF, Mikael. "Emissions trading and competition law : refusal to supply marketable pollution permits." Doctoral thesis, 1999. http://hdl.handle.net/1814/5544.
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VAN, DE SCHEUR Sebastian B. W. "Oligopoly behaviour as abuse of collective dominance in EU competition law." Doctoral thesis, 2013. http://hdl.handle.net/1814/28057.
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Defence date: 31 May 2013Examining Board: Professor Heike Schweitzer, University of Mannheim (EUI Supervisor); Professor Giorgio Monti, European University Institute; Professor Wouter Devroe, Catholic University of Leuven; Professor Hanns Ullrich, Max Planck Institute for Intellectual Property and Competition Law.
PDF of thesis uploaded from the Library digital archive of EUI PhD theses
Abuse of collective dominance under Article 102 TFEU is a bit of a blind spot in European competition law. The concept has been relatively well developed for the purpose of merger control and serves to support the Commission in blocking a concentration that could facilitate tacit coordination of strategic behaviour between competitors in an already concentrated market. Case law and literature agree that tacit collusion in a tight oligopoly may also subject companies to theduties and prohibitions of Article 102 even in the absence of individual dominant market power, but little has been written about when such abuse might occur. The possible application of Article 102 to "oligopoly behaviour" remains an abstract theory with little practical applicability. That is dangerous, given the fact that the doctrine laid down in merger cases Airtours and Impala gives lots of discretion to a competition authority determined to remedy suboptimal markets by sanctioning oligopolists for abuse of collective dominance. This dissertation presents a novel approach to the application of the concept of abuse of collective dominance to behaviour by interdependent companies in a concentrated market. Rather than trying to catch tacit collusion or supracompetitive oligopoly prices, the focus of enforcing Article 102 in oligopoly should be on practices by which one or more incumbents exclude outsiders (newcomers, innovators and fringe competitors) to the benefit of the incumbent 'insiders' of the oligopolistic equilibrium. Doctrinally, this approach necessitates a breach with the objective concept of abuse as used in cases of single dominance, because it requires the demonstration of a causal link between market power and abuse. The resulting test for abuse of collective dominance in oligopolistic markets is a tough one to satisfy, but considering that oligopoly is still infinitely more dynamic than monopoly, that may just be the right outcome.
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SCHEBESTA, Hanna. "Towards an EU law of damages : damages claims for violations of EU public procurement law before national and European judges." Doctoral thesis, 2013. http://hdl.handle.net/1814/29598.
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Examining Board: Professor Hans-Wolfgang Micklitz, European University Institute Professor Giorgio Monti, European University Institute Professor Alexandra (Sacha) Prechal, Court of Justice of the European Union Professor Laurence W. Gormley, University of Groningen and College of Europe.Defence date: 16 September 2013
First made available online on 15 January 2015.
While the law is often highly harmonized at EU level, the ways in which it is realized in the various national courts are not. This thesis looks at enforcement through damages claims for violations of EU public procurement rules. Despite important recent amendments to the procurement remedies regime, the damages provision remains indeterminate. The legislative inertia pressures the CJEU to give an interpretation and raises the question as to how the Court should deal with damages. The requirements on damages claims are clarified under both general and public procurement EU law. The action for damages is conceived as a legal process which incorporates the national realm. Therefore, a comparative law part (covering England, France, Germany and the Netherlands) examines national damages litigation in public procurement law. A horizontal discussion of the legal issues which structurally frame damages claims is provided. The remedy of damages is analyzed as a bundle of rules and its constitutive and quantification criteria are studied, thereby refining the the Member States’ common conceptual base of damages claims. Functionally, the lost chance emerges as a compromise capable of mitigating the typically problematic nature of causation and uncertainty in public procurement constellations. An adjudicative approach to damages in EU law is developed through Member State liability and the procedural autonomy doctrine. Member State liability is construed as a form of constitutional liability which is distinct from damages arising under the 'effectiveness’ postulate of procedural autonomy. Procedural autonomy as currently used is legally indeterminate and inadequate from the point of view of procedural theory. The thesis proposes to sharpen the effectiveness test in three dimensions: material, based on the intrinsic connection between enforcement rules and substantive law; vertical, in delimiting the spheres of influence of national and EU courts; and in terms of institutional balance vis-à-vis the EU legislator.
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MAZUELOS, Angeles. "Non-binding Acts in the European Community legal order : soft law?" Doctoral thesis, 2003. http://hdl.handle.net/1814/6354.
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Defence date: 8 November 2003Supervisors: Prof. Gráinne de Búrca ; Prof. Francis Snyder
PDF of thesis uploaded from the Library digitised archive of EUI PhD theses completed between 2013 and 2017
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GIL, IBANEZ Alberto. "A comparative study of the roles of the Commission and national administrations in the supervision and enforcement of EC law." Doctoral thesis, 1996. http://hdl.handle.net/1814/4640.
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ÖBERG, Marja-Liisa. "Expanding the EU internal market without enlarging the Union : constitutional limitations." Doctoral thesis, 2015. http://hdl.handle.net/1814/36998.
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Defence date: 17 September 2015Examining Board: Professor Marise Cremona, European University Institute (Supervisor) ; Professor Loïc Azoulai, European University Institute ; Professor Christophe Hillion, University of Leiden ; Professor Stephen Weatherill, University of Oxford.
One of the most significant roles of the EU in the world is that of being a norms exporter. The EU has concluded numerous agreements with countries in its neighbourhood with the aim of encouraging third countries to adopt EU acquis in exchange for access to the internal market. The most ambitious of these agreements are the three multilateral agreements establishing the European Economic Area, the Energy Community and the European Common Aviation Area, respectively. The common feature of these agreements is the aim of extending to third countries either the entire internal market or a sector thereof. Achieving this objective is, however, challenged by the difficulty of circumscribing precisely the scope of the internal market and delimiting it from other EU policies, the sui generis nature of the EU legal order and the proclaimed need to protect its autonomy. An analysis of the concept of the internal market, the EU’s foundational principles and the institutions and procedures in place in the EU and in the three agreements for achieving and maintaining homogeneity within the expanded internal market reveals that it is, indeed, possible to extend the internal market to third countries. However, the level of homogeneity in the expanded market depends heavily on the goodwill of third country decision--makers, national administrators and, especially, courts to adopt and give the same effect to rules of EU origin outside the EU as within the Union. The objective of full homogeneity within an expanded internal market inevitably requires a certain transfer of supranational characteristics also to the agreements exporting the acquis.
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AVBELJ, Matej. "Theory of European Bund." Doctoral thesis, 2009. http://hdl.handle.net/1814/12043.
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Defence date: 30 June 2009Examining Board: Prof. Neil Walker, University of Edinburgh (Supervisor); Prof. Bruno de Witte, European University Institute; Prof. Samantha Besson, University of Fribourg; Prof. Stephen Weatherill, University of Oxford
PDF of thesis uploaded from the Library digital archive of EUI PhD theses
This thesis lays down in seven chapters a revised theoretical foundation for European integration - the theory of European Bund. Relying on a social constructivist meta-theoretical methodological approach, it starts off with an observation that European integration, as a social phenomenon, has been socially constructed through the activities of social actors, which have been conducted on the basis of certain narratives - the narratives of European integration. As the process of integration has run into problems this has been, following the social constructivist maxima, due to its deficient narratives. Because of the complex discontinuity of European integration and in particular due to the narratives' intrinsic reliance on the monistic mindset, these have in their battle for domination through institutionalization not only failed to grasp the existing nature of European integration, but have moreover and because of that furnished it with unfeasible, incoherent and hence undesirable normative guidance. The proposed theory of European Bund splits with the monistic mindset. It is based on three founding pillars: legal-institutional, socio-political and philosophical, which constitute its distinct character and set it apart from the other theoretical approaches in the field. As such, the theory of European Bund not only provides a better descriptive and explanatory account of European integration, but it also comes with advantageous normative prescriptions for the integration's long term viability that make the best of it, given its unique, above all legal, but also socio-political pedigree. Last but not least, the theory of European Bund is not a constitutional theory, it shall not be addressed as such, and consequently the nature of European integration ought not to be regarded as constitutional either.
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TUYTSCHAEVER, Filip. "The changing conception of differentiation in European Union law." Doctoral thesis, 1998. http://hdl.handle.net/1814/4810.
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Defence date: 20 November 1998Examining board: Prof. Francis Snyder, European University Institute (supervisor) ; Prof. Claus-Dieter Ehlermann, European University Institute (co-supervisor) ; Mr. Ricardo Gosalbo-Bono, Legal Service, Council of European Union
PDF of thesis uploaded from the Library digitised archive of EUI PhD theses completed between 2013 and 2017
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CONDON, Rónán. "Tort law beyond the reasonable man : re-thinking tort law beyond the state." Doctoral thesis, 2017. http://hdl.handle.net/1814/46671.
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Defence date: 7 June 2017Examining Board: Professor Hans-Wolfgang Micklitz, European University Institute; Professor Stefan Grundmann, European University Institute; Professor Simon F Deakin, University of Cambridge; Professor (Emeritus) Karl-Heinz Ladeur, Universität Hamburg
This thesis explores the evolution of tort law through the prism of three paradigms of modernity, namely, the society of individuals, organizations and networks. These models build on Karl-Heinz Ladeur’s pioneering work. Tort law developed in a society of individuals which is considered a radical break with prior methods of social organization. While the core of private law was contract law modelled on the abstract will, tort law set outer boundaries on the will but its shape was individualistic focusing on individualized conduct. In the twentieth century, with the rise of the society of organizations, tort law was reshaped towards providing remedies fit for a society of organizations. This is evident both in terms of how tort law was adapted to the private firm and the state as service-provider. We find that the concept of vertical vicarious liability fits the way in which tort law abstracted from the reasonable man per se, to embrace the organizational setting in which agents conducted their activities. Our third paradigm, that of the society of networks, is emergent. It blurs lines between private and public and, additionally, the existing normative models of liability – whether individualized or organizational – are not aligned. With the breaking of the territorial frame of the nation-state coinciding with the emergence of a society of networks we investigate whether actors, which might previously be considered 'peripheral' to a tort and, therefore, outside the organizational model of liability are, from the perspective of the horizontal sociological network, once again potential normative addressees of liability. We argue that European law de lege lata is beginning to bring such actors within its scope of application. Making sense of these developments in an overall framework of an emerging society of networks and, additionally, arguing what the stakes are, and how they may be fitted into legal, normative argument, is the task of our final chapters.
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MENDES, Joana. "Rights of participation in European administrative law : a rights-based approach to participation in rulemaking." Doctoral thesis, 2009. http://hdl.handle.net/1814/12019.
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Awarded the Mauro Cappelletti Prize for the best comparative law doctoral thesis, 2010.Defence date: 16 March 2009
Examining Board: Loïc Azoulai (University of Paris II); Paul Craig (St. John's College, Oxford); Bruno De Witte (EUI); Jacques Ziller (Supervisor, former EUI and University of Pavia)
PDF of thesis uploaded from the Library digital archive of EUI PhD theses
This dissertation critically assesses the current scope and meaning of participation rights in European administrative law and proposes a different normative solution to the problem of the procedural protection of rights and legally protected interests. The analysis of the Courts' case law on this matter demonstrates that their view on participation rights is determined by a bilateral conception of the procedure which involves the decision-maker and the decisiontaker and justifies the latter's right to be heard. All extensions of this right endorsed by the Courts' case law fall within the realm of this basic construction. Likewise, the exclusion of participation rights from rulemaking procedures is a consequence of this basic approach to participation rights. It is defended that the structural scheme within which the European Courts conceive participation rights prevails over the consideration of the substantive adverse effects that may be produced in the legal sphere of legal and natural persons. It is defended that this status quo is too restrictive and overlooks the procedural protection of rights and legally protected interests where this would be justified. An extension of the scope of participation rights is thus proposed. The solution defended is grounded on a concept of participation, built on the basis of rationales of participation that can be derived from the Courts' case law as well as from rules and principles of national laws, and is framed by the concept of legal administrative relationship, which was developed in national administrative law. The solution proposed is deemed to be more consonant with the rule of law, as well as with specific features of European administrative law (in particular with the characteristics of European normative acts and with the centrality of the individual conveyed by principles of European law). This study consists of two parts. First and foremost, it is an interpretation of the Courts' case law regarding participation rights, as well as of selected relevant legal provisions covering this matter. For this purpose, this interpretation combines the literal, teleological, historical and systematic elements of interpretation. The theoretical conceptions that frame the critical analysis of the Courts' stance are grounded on rules, principles and theories found and developed in selected national legal systems. These contribute to a better understanding of participation rights from a de lege lata perspective because they have inspired some of the current features of European administrative law on this matter. Furthermore, they are capable of providing a valuable second level of analysis to critically assess the current status quo. Secondly, this dissertation includes a study of those forms of participation that exist in the EU political system and that do not constitute legally enforceable rights and duties. These demonstrate that participation is a constitutive feature of the EU political system. Moreover, this permits to consider other meanings of participation, which are not fully deprived of legal meaning, to contrast them with the rights-based approach to participation proposed in this dissertation, as well as to demonstrate the little attention given to rights-based participation in European decision-making.
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NEMETH, Kristin. "European insurance law : a single insurance market?" Doctoral thesis, 2000. http://hdl.handle.net/1814/5667.
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WEIMER, Maria. "Democratic legitimacy though European Conflicts-law? : the case of EU administrative governance of GMOs." Doctoral thesis, 2012. http://hdl.handle.net/1814/26447.
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Examining board: Professor Christian Joerges (supervisor) EUI; Professor Loïc Azoulai EUI; Professor Ellen Vos Maastricht University; Professor Maria Lee University College LondonDefence date: 30 August 2012
PDF of thesis uploaded from the Library digital archive of EUI PhD theses
This thesis aims at addressing the problem of a potential dis-embedding of the EU administration from democratic institutions. For that purpose it explores the potential of a novel approach to EU constitutionalism, namely of European conflicts-law to ensure the democratic legitimacy of EU administrative governance of GMOs. The term administrative governance is being used as referring to a system of administrative action, in which EU administrative actors implement EU law in cooperation with national administrations, as well as with scientific and private experts. In order to analyse the functioning of this system governance is employed as analytical framework. This thesis shows that the conflicts-law approach constitutes a valuable constitutional framework. It helps to identify and better understand the legitimacy problems of EU administrative governance in the field of GMOs. The existent legal rules in this area can to a certain extent be reconceived as embodying conflicts-law mechanisms and ideas. This is most visible in their aim to procedurally organise cooperation between various actors within horizontal network structures of decision-making. However, the implementation of GMO rules in practice has considerably undermined the functioning of conflicts-law mechanisms. The analysis reveals problematic shifts of authority, which go beyond the system of shared responsibility envisaged by the EU legislator. Instead of administrative cooperation between national and supranational actors, hierarchy in the sense of central decision-making by the Commission dominates the process. Moreover, instead of shared responsibility between public authorities and the biotech industry, the applicant has become a powerful player of GMO regulation. This has to some extent also undermined the application of the precautionary principle in this area. This thesis concludes that attempts of EU law to constitutionalise administrative governance of GMOs in a legitimate way have not proven to be successful so far. Finally, this thesis also reveals certain limitations of the conflicts-law approach. It is suggested that conflicts-law at present should not be considered as a fully-fledged theory of European integration. Its strength lies in the ability to re-direct the discussion on democratic legitimacy of EU law, and to offer constitutional ideas for further elaboration of regulatory solutions. However, further conceptual clarifications seem necessary in order to make it operational in concrete cases of EU regulation.
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COUTTS, Stephen. "Citizenship, crime and community in the European Union." Doctoral thesis, 2015. http://hdl.handle.net/1814/37798.
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Defence date: 6 November 2015Examining Board: Professor Loïc Azoulai, EUI (Supervisor); Professor Marise Cremona, EUI; Professor Valsamis Mitsilegas, Queen Mary University, London; Professor Niamh Níc Shuibhne, University of Edinburgh
The aim of this thesis is to analyse the extent to which criminal law can contribute towards our understanding of Union citizenship and of the political community of the Union. In carrying out this task it adopts a particular perspective on both criminal law and Union citizenship. Firstly, it adopts the criminal law theory developed by RA Duff, premised on the notions of citizenship and community; crimes are viewed as public wrongs, committed against the community. Individuals are held responsible as citizens and are called to account before the community. Secondly, it adopts a particular account of Union citizenship based on a distinction between transnational dimensions and supranational dimensions. The transnational dimension is then broken into two sub-dimensions based on the concepts of social integration and autonomy or a space of free movement. The role of criminal law in these dimensions of Union Citizenship is analysed in the main body of the thesis. Two chapters consider the role of criminal law in social integration in the context of the acquisition of residence rights and the serving of sentences. Two chapters consider the parallels between the autonomy of Union citizens that results in a single space of movement, and the area of justice as it is constructed through the European Arrest Warrant and the operation of a transnational ne bis in idem principle. A final substantive chapter details the competence of the Union to adopt legislation criminalising certain conduct and the extent to which this can be said to contribute to the formation of a community at a supranational level. A conclusion brings together the findings of the thesis in relation to Union citizenship and considers the implications for the structure of the political community in the Union. It is suggested the national remains the main site for communities in the Union. However, transnational processes associated with Union citizenship trigger the emergence of certain supranational norms and ultimately a composite, complementary supranational community.
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MUMFORD, Richard Stephen James. "The primary law conditions of the optional instrument in the area of European contract law." Doctoral thesis, 2003. http://hdl.handle.net/1814/5597.
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DAWSON, Mark. "New governance and the proceduralisation of European law : the case of the open method of coordination." Doctoral thesis, 2009. http://hdl.handle.net/1814/12702.
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Defence date: 8 September 2009Examining Board: Profs. Christian Joerges (Supervisor, former EUI and University of Bremen); Hans-W. Micklitz (EUI); John Paterson (External Co-Supervisor, University of Aberdeen); David M. Trubek (University of Wisconsin, Madison)
PDF of thesis uploaded from the Library digital archive of EUI PhD theses
This thesis is devoted to analysing the emerging relationship in the European Union between 'new governance' - epitomised by the development of the Open Method of Coordination (OMC) - and law. While some scholars have seen the project of new governance as a purely political or functional enterprise - a mechanism of 'soft law' - the thesis will argue against such a view through an empirical analysis of a particular OMC process - the OMC for social inclusion and social protection (the OMC SPSI). While on the one hand, the OMC SPSI has achieved considerable success in creating a new social policy vocabulary in Europe, the very description of the OMC as an instrument of 'soft law' has handed considerable power to frame key policy decisions to national and European executives, while depriving Parliaments and local authorities from their normal rights of scrutiny. The OMC SPSI illustrates why - far from invoking a merely 'technical' or procedural set of questions - 'new governance' is deeply implicated in debates over the future of the European welfare state. The indicators and recommendations of the method are not seen by its participants as neutral descriptors, but rather invoke competing views of the very ends of social policy in Europe. The description of new governance as soft and heterarhical does not therefore dilute its key legitimacy challenges, but makes them ever more pressing. In response, the thesis will argue for a 'constitutionalisation' of new governance. This constitutionalisation, the thesis will argue, should not be aimed at a legal 'juridification' of OMC procedures, or at re-enforcing their participatory potential, but rather at creating opportunities for political contestation and scrutiny in procedures too long the preserve of a small and mutually re-enforcing circle of executive actors. A 'republican' constitutionalisation of the OMC - one able to politicise the norms and indicators through which national social policy is being evaluated - may allow 'new governance' a last opportunity to refute accusations of executive dominance and technocratic paternalism that threaten to undermine its 'procedural' potential.
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UPTON, Michael. "Practical aspects of the private enforcement of EC competition law." Doctoral thesis, 1996. http://hdl.handle.net/1814/5646.
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LENZ, Miriam. "The interplay between the environment and competition law in the EU : an analysis of environmental agreements and their assessment under Article 81 EC." Doctoral thesis, 2000. http://hdl.handle.net/1814/5459.
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KOCHAROV, Anna. "Republican Europe or constitutional choices of EU migration law." Doctoral thesis, 2015. http://hdl.handle.net/1814/38395.
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Defence date: 18 September 2015Examining Board: Professor Marise Cremona, European University Institute (Supervisor); Professor Dennis Patterson, European University Institute; Professor Elspeth Guild, Radbound University Nijmegen; Professor Anne Peters, Max Planck Institute for Comparative Public Law and International Law.
Constitutions establish communities. This essay explores how a European political community can be advanced through EU constitutional law. It is shown that legitimacy of the Union derives from three conceptions of Peace manifest in EU free movement law, external agreements of the Union and migration law under the AFSJ. The constitutional role of the Union is to ensure Peace by addressing two types of conflict. The first are static conflicts of interests between the national polities in the EU. These are avoided by ensuring reciprocal non-interference between Member States in the Union through deregulation in Union law. The second are dynamic conflicts of ideas about positive liberty held by the peoples of Europe that can be resolved through regulation in a European political space. Here, Union law enables a continuous process of re-negotiating a shared European idea of positive liberty that can be accepted as own by each national polity in the EU. Both solutions are premised on liberty from domination of each national polity, from which legitimacy of the Union and the European political space ensue. Substantive law and constitutional theory, analysis of the legislative process and CJEU case law, insights from psychology and philosophy are combined throughout this work to unveil how a stronger Union can be advanced through constitutional law.
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VAN, VOOREN Bart. "A paradigm for coherence in EU external relations law : the European neighbourhood policy." Doctoral thesis, 2010. http://hdl.handle.net/1814/14529.
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Defence date: 31 May 2010Examining Board: Marise Cremona (Supervisor, EUI), Panos Koutrakos (University of Bristol); Ernst-Ulrich Petersmann (EUI); Ramses Wessel (University of Twente)
PDF of thesis uploaded from the Library digital archive of EUI PhD theses
Coherence is a powerful rhetorical device that is prevalent throughout decades of EU external relations discourse and practice. There is intuitiveness to coherence, an implied sense of ‘good fit’ between the different elements of an all-encompassing system. Yet, any attempt to concretize coherence will open up a plethora of context-specific legal and political questions. The European Neighbourhood Policy (ENP) is a recent example of an external policy drawn up explicitly with the objective of achieving coherence across different EU and Member State external policies. Positioning the ENP in the legalhistorical context of political Union, this thesis first argues why coherence is an issue at all in EU external relations, and why law is integral to attaining the ever-enigmatic single voice of the European Union. Subsequently, the text examines the role of EU external relations law in attaining a coherent neighbourhood policy. It is argued that the innovative nature of the ENP for coherence lies beyond the narrowly defined legal sphere, but stems mostly from its hybrid composition of hard legal, soft legal and nonlegal policy instruments. It is concluded that from a purely EU-internal and institutional perspective, this approach was reasonably successful in involving different actors towards common objectives in the neighbourhood. However, coherence should be more than rhetorical gloss, and agreeing that a wide range of initiatives should be included in soft legal instruments is no guarantee for coherence in actual policy substance. To examine the latter issue this thesis then moves beyond the realm of legal inquiry, and employs content analysis to investigate the extent to which the ENP is substantively coherent between the different norms, actors and instruments this policy encompasses.
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BRAUN, Egelyn. "Collective alternative dispute resolution (ADR) for the private enforcement of EU competition law." Doctoral thesis, 2016. http://hdl.handle.net/1814/44324.
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Award date: 30 November 2016Supervisor: Giorgio Monti
The European enforcement landscape is undergoing significant changes that are leading to a departure from the actors, tools and processes traditionally associated with delivering justice. This thesis examines these themes while developing a solution to the private enforcement gap that continues to leave a large number of victims without a remedy, particularly if they have suffered low-value individual harm as a result of competition infringements. In order to ensure that the private enforcement of EU competition law leads to the effective enforcement of EU rights and to the full compensation of all victims, a collective redress device must be developed. In particular, this thesis will explore whether optimal private enforcement outcomes could be achieved through the integration of collective alternative dispute resolution (‘collective ADR’) into a regulatory enforcement architecture as a first choice redress avenue. To date, the use of collective ADR as a private enforcement mechanism has not been considered as a serious policy option on the European level. While this thesis focuses on the use of collective ADR in the context of competition enforcement, it also confronts issues that could be expanded to private enforcement in other fields. Ultimately, the enforcement toolbox should be diversified not only to ensure the successful fulfilment of the regulatory goals, but also to facilitate the transformations that are occurring in the enforcement landscape more broadly.
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RICHMOND, Catherine. "Perspectives on law : system, authority and legitimacy in the European Union." Doctoral thesis, 2000. http://hdl.handle.net/1814/4758.
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Defence date: 16 October 2000Supervisor: M. La Torre ; Co-supervisor: F. Snyder ; Jury member: J. Weiler
PDF of thesis uploaded from the Library digitised archive of EUI PhD theses completed between 2013 and 2017
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DALY, Angela. "Mind the gap : private power, online information flows and EU law." Doctoral thesis, 2015. http://hdl.handle.net/1814/35407.
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Defence date: 3 March 2015Examining Board: Professor Giorgio Monti, European University Institute (EUI Supervisor); Professor Giovanni Sartor, European University Institute; Professor Lilian Edwards, University of Strathclyde; Professor Chris Marsden, University of Sussex.
This thesis examines how European Union law and regulation address concentrations of private economic power which impede free information flows on the Internet to the detriment of Internet users' autonomy. In particular, competition law, sector specific regulation (if it exists), data protection and human rights law are considered and assessed to the extent they can tackle such concentrations of power for the benefit of users. Illustrative case studies - of Internet provision, search, mobile devices and app stores, and the cloud – are chosen to demonstrate the gaps that exist in current EU law and regulation when applied to concentrations of private power online. It is argued that these gaps exist due, in part, to current overarching trends guiding the regulation of economic power, namely neoliberalism, by which only the situation of market failures can invite ex ante rules, buoyed by the lobbying of regulators and legislators by those in possession of such economic power to achieve outcomes which favour their businesses. Given this systemic, and extra-legal, nature of the reasons as to why the gaps exist, some 'quick fixes' from outside the system are proposed at the end of each case study, namely the potential for applying regulation and/or applying 'self-help' solutions, which are mainly technical measures using peer-to-peer design.
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MORAIS, LEITAO Teresa. "Civil liability for environmental damage : a comparative survey of harmonised European legislation." Doctoral thesis, 1995. http://hdl.handle.net/1814/5464.
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GSCHWANDTNER, Susanne. "Non-contractual liability of the European Commission in the field of merger control." Doctoral thesis, 2009. http://hdl.handle.net/1814/13556.
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HARTMANN, Moritz. "Globaler klimawandel und Europäischer rechtspluralismus : implementationsparameter des klimaschutz - und emissionshandelsrechts." Doctoral thesis, 2010. http://hdl.handle.net/1814/15414.
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VIANELLO, Ilaria. "EU external action and the administrative rule of law : a long-overdue encounter." Doctoral thesis, 2016. http://hdl.handle.net/1814/44489.
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Defence date: 13 December 2016Examining Board: Professor Marise Cremona, European University Institute (EUI Supervisor); Professor Edoardo Chiti, University of La Tuscia (External Supervisor); Professor Christophe Hillion, University of Leiden and University of Oslo; Professor Joana Mendes, University of Luxembourg
The thesis uses as case studies the Stabilisation and Association Process and the European Neighbourhood Policy in order to exemplify the increasing role played by the Unionﾒs administrative power in external relations. While seemingly harmless, the administrative power bears important legal consequences regarding the position of individuals, of third countries, and of the Union as a whole. In a system based on the rule of law (and committed to its respect in external relations), it is crucial to question whether implementing arrangements are in place or ought to be put in place with the aim of subjecting the external administrative power to administrative rules and principles. The analytical framework suggested by the thesis uses as a starting point the features and the impact of the administrative power externally. Based on this analysis, it identifies which administrative law principles (as developed within the framework of the internal market) have the potential of giving effect to the administrative rule of law externally once applied and operationalized in the external domain. Despite the increasing role granted to administrative power externally, administrative law in external relations is underdeveloped. Therefore, the analytical framework suggested by this thesis is relevant as it helps to ensure that the action of the Union in the international scene is carried out in compliance with its constitutional spiration, i.e. upholding the rule of law in its relations with the outer world, and as it structures the relation between the Union and individuals, and between the Union and third countries. The 'long-overdue encounter' between EU external relations and EU administrative law ought to be encouraged. The thesis aims to offer a methodology for structuring such an encounter and for planning venues for future meetings.
Chapter 1 of the thesis draws upon a previously published EUI LAW WP; 2015/08