Suchergebnisse

After a hectic period of law reform, which has also provoked major governance reforms in the form of significantly increased levels of transparency and market consultation and major institutional innovations (with allied accountability and governance risks), the 1999 Financial Services Action Plan (FSAP)1 has now been completed. It has radically transformed the regulatory landscape for financial services in the EC, and set a seal on the recharacterization of EC financial services law from a minimum harmonization-based market construction regime to a highly interventionist and increasingly sophisti-cated market regulation system. In particular, the coincidence of legislative reform under the FSAP with the development of a new institutional process for law-making, which has rapidly become embedded in the financial market architecture (the Lamfalussy process),2 produced a reform agenda of immense depth and range. The FSAP period has also seen the use and development of a wide range of regulatory tools in EC financial services policy in line with the growing sophistication of the regulatory regime. While disclosure has long been a key policy tool of EC financial services law, the FSAP saw a closer focus on conflict of interest management across the financial sector, on more interventionist controls such as transparency, suitability, and best execution requirements, and on calibrating regulation to different investor profiles and different market risks. This article considers a selection of key recent developments.

The wide range of developments in social policy has necessitated dividing this commentary into two parts. The first part will examine discrimination law developments; the second part, published inthe next issue, will look at general employment law developments.

The last account of developments in the external relations of the European Union, described how the Treaty of Amsterdam, which had just entered into force, had reformed the Common Foreign and Security Policy. Three years on one can begin to assess the impact of these changes.

In December 1999, in Helsinki, the European Council requested the Commission 'to prepare a proposal for a long-term strategy dovetailing policies for economically, socially and ecologically sustainable development'. The Commission presented this proposal to the Gothenburg European Council in June 2001,1 resulting in the launch of the European Union's strategy for sustainable development.2 In keeping with the resolution that the annual spring European Council take on board responsibility for reviewing progress in developing and implementing the sustainable development strategy, and for offering further policy guidance to promote sustainable development, the Barcelona Presidency conclusions place emphasis upon the internal and external aspects of sustainable development, including the environmental dimension thereof.3 Looking at these documents,4 it is readily apparent that the political profile of sustainable development has been raised over the last year, with the European Council coming to play an important leadership function. Looking more closely at these, and other core documents, it is clear that the theme of environmental governance is very much to the fore, and that a number of strands emerge as crucial to European Union thinking in this respect. This short survey note will highlight a number of these strands, examining them within the framework of more general developments concerning 'governance' in the EU, and in particular in the light of the Commission's White Paper on governance issued in the summer of 2001.5 Four broad, and often overlapping, dimensions will be discussed in turn: integration, monitoring/evaluation, participation, and instruments for environmental protection.

In three judgments delivered on 27 September 2001, the European Court of Justice ruled on the legal effects of clauses in the Europe Agreements which accord candidate country nationals limited rights to establish themselves as self-employed persons in the Member States of the European Union (EU).1 The Court refused to interpret these provisions as steps on the road to full-fledged EU membership which should be given a dynamic reading in order to provide continuing impetus for enlargement. The significance of these judgments lies less in their legal pronouncements than in their wider political implications. The judgments indicate that the Court is not prepared to act as a second chaperone of the process of enlargement alongside the Commission.

The previous contribution on the current developments in Transport focused on problems of financing new infrastructure and on the allocation of the true costs of transport among those who generated them.1 In 1999 a directive on charging heavy vehicles for the use of certain infrastructures was finally adopted.2 During the period under review, infrastructure matters and safety and environmental concerns remained high on the agenda of the Common Transport Policy. As far as individual modes of transport are concerned the most significant developments have been in rail transport where a package of measure to open up this market has finally been adopted. The required legislation to liberalise all modes of transport has also now been adopted.

This Journal's previous piece on current developments in EC intellectual property noted that this area of law is dominated by the drive towards harmonisation.1 This drive continues, and its success has been such that it can now begin to be seen in an overarching context of globalisation. The idea of a unified global system for the protection of intellectual property now seems at least conceivable, even if not immediately achievable. It is even possible to state that some stages have been achieved on the journey, most notably the TRIPs Agreement. Since adherence to this is a requirement of World Trade Organization (WTO) membership, the arguments in its favour have suddenly become "persuasive". It represents a tremendous achievement in terms of the protection and enforcement of intellectual property rights throughout the world. The World Intellectual Property Organisation's contribution here and elsewhere has been immense.

At the Nice Summit in December 2000, Europe's political leaders adopted the much-discussed EU Charter on Fundamental Rights in the form of a legally non-binding political declaration. It is the second such instrument in relation to human rights protection.1The Presidency Conclusions to both the 1999 Cologne and Tampere Summits ordered the preparation of a draft Charter which was to be solemnly proclaimed by the European Parliament, the Commission and Council at the Nice Summit.2It was only after that fact that "It will … have to be considered whether and, if so, how the Charter should be integrated into the treaties."3

The Commission resigned on 16th March 1999 shortly after the publication of the First Report of the Committee of Independent Experts.1 The Committee had been created by common agreement between the European Parliament and the Commission in order to address the persistent allegations of fraud, mismanagement and nepotism levelled at the Commission.2 The First Report investigated allegations of fraud against individual commissioners and the Commission as a whole.3 Although most of the allegations of fraud against individual commissioners were discarded as unfounded, the Committee held the Commission responsible for a series of mismanagement, administrative irregularities and a general failure to oversee the work it had contracted out.4 The conclusions of the report were damning and it became clear that resignation of the whole Commission was the only way forward. The events came at an all-time low for the Commission and will have lasting effects on the institution and its legitimacy.

The period under review (Autumn 1999–Spring 2001) saw a number of important cases decided by the Court of Justice involving breaches of Article 81(1). Pre-eminent are three judgments involving cartels and one involving distribution contracts.

Since the expiry of the deadline for the completion of the internal market at the end of 1992, the Commission has shifted its focus away from piloting an intense rule-making burst through the Community legislative system. As part of its quest to establish reliable methods for managing the internal market, the Commission is now overtly concerned to improve the quality of those adopted laws, for example by securing simplification and consolidation, and it is intent on investigating more rigorously how a closer match may be made between the relevant laws on paper and their practical application on the ground.1 In short, the Commission is focusing its energies on ensuring that the legal framework which has been adopted is treated by commercial operators and consumers in the market as a viable and trustworthy basis for an integrated market. Accordingly much of the Commission's work since the last survey of the law relating to the free movement of goods has been at first sight relatively unglamorous. It largely concerns soft law initiatives and attempts to improve administrative co-ordination designed to underpin the practice of market management, both vertically (Commission/Member State) and horizontally (Member State/Member State). This forms the core of the strategy for the internal market covering the next five years, published on 24 November 1999.2 Nonetheless, even though these initiatives might not immediately strike the lawyer accustomed to a fountain of legislative activity as worthy of close inspection, it is clearly the case that the Commission regards its medium-term mission to stabilise the management of the internal market as best pursued by a gradual approach designed to improve practical compliance.

The Court has continued with its expansive interpretation of the Citizenship provisions in Article 18 EC which it had previously acknowledged as being a fundamental right granted to all EU citizens by the Treaty.1 The case-law of the Court has, in particular, stressed the relationship between the free movement rights under Article 18 EC and preventing discrimination against EU nationals on grounds of nationality and without which the Citizenship provisions would lack force. Two recent judgments of Bidar2 and Ioannidis3 demonstrate the extent to which the Court will prevent covert discrimination on grounds of nationality. In a third judgment, that of Schempp,4 the Court, seemingly sensitive to criticism of interfering in domestic tax policy, adopts a more measured interpretation of discrimination when considering whether the rights granted under Article 18 EC are interfered with.