14 Colum. J. Eur. L. 169 (2007 – 2008) Christine Janssens, Ph.D candidate, Fund for the Scientific Research Flanders, University of Antwerp. The author would like to thank Tim Corthaut for the useful thoughts and comments he expressed on a previous draft. Any error or omission is, of course, entirely due to the author. On May 3, 2007, the European Court of Justice (hereinafter “ECJ”) handed down its long-awaited judgment on the European Arrest Warrant (hereinafter “EAW”). Expectations ran high, as the validity of the Union’s pioneering instrument on extradition was at stake. The Framework Decision on the EAW (hereinafter […]

14 Colum. J. Eur. L. 189 (2007 – 2008) Apostolos Ioakimidis, Principal Administrator, Commission of European Community; member of the Athens Bar Association. This Legislative Development reflects the author’s personal views and does not bind his Institution. By August 2006, three years after the Council of Ministers’ (Council’s) adoption of the Statute for a European Cooperative Society, which enabled the creation of the European Cooperative Society (SCE), Member States of the European Community should have commenced implementation of appropriate internal legislation allowing the creation of the new European form of enterprise. However, as of October 2007-namely more than one year […]

13 Colum. J. Eur. L. 705 (2007) Waltraud Schelkle. Lecturer in Political Economy, European Institute, London School of Economics and Political Science. A key element of economic governance in the European Union, the Stability and Growth Pact (Pact), underwent a major revision in March 2005. The many critics of this change claim that what was once a hard law institution for fiscal surveillance has now become so soft as to jeopardize its functioning. This Article examines, first, how exactly the fiscal rules have changed, using a framework which distinguishes hard law from soft law along a continuum in three dimensions of […]

13 Colum. J. Eur. L. 513 (2007) Gráinne de Búrca. Professor of Law, Fordham Law School. Joanne Scott. Professor of European Law, University College London; Visiting Professor, Columbia Law School. The collection of articles in this special issue of The Columbia Journal of European Law represents the results of a conference held in London in 2006. The aim of the conference was to develop a better understanding of how the increasing use of new governance in the European Union has affected our understanding of law and the role of law. In so doing, we hoped also to bring more clarity […]

13 Colum. J. Eur. L. 519 (2007) Neil Walker. Professor of Law, European University Institute, Florence, Italy. Gráinne de Búrca. Professor of Law, Fordham Law School. This Article re-examines the concepts of Law and New Governance with a view to pursuing three cumulative objectives. First, it emphasizes that both law and new governance are deeply contested concepts whose meaning and inter-relationship cannot just be assumed or taken for granted, as is the tendency in some empirical studies of their interconnection. Second, it suggests that both concepts be situated and understood within an explicitly normative framework, one that takes account of […]

13 Colum. J. Eur. L. 595 (2007) Stijn Smismans. Reader, School of Law, University of Cardiff. With its focus on decentralized participation, new governance may appear as strengthening active citizenship. It may, therefore, provide a solution for European citizenship that has, until now, mainly been defined as a rights-based status. Whilst new governance may contribute to the participatory dimension of citizenship, it may be at odds with the rights and the identity dimension of the concept. This article shows the difficulties of linking the idea of participatory governance to the concept of European citizenship. It subsequently analyzes how new governance […]

13 Colum. J. Eur. L. 539 (2007) David M. Trubek. Voss-Bascom Professor of Law Emeritus, University of Wisconsin Law School; Senior Fellow, Center for World Affairs and the Global Economy (WAGE), University of Wisconsin. Louise G. Trubek. Clinical Professor of Law and Director of the Health Law Project, University of Wisconsin Law School. New approaches to regulation have emerged to deal with inadequacies of traditional command and control systems. Such “new governance” mechanisms are designed to increase flexibility, improve participation, foster experimentation and deliberation, and accommodate regulation by multiple levels of government. In many cases, these mechanisms co-exist with conventional […]

13 Colum. J. Eur. L. 565 (2007) Joanne Scott. Professor of European Law, University College London and Visiting Professor, Columbia Law School. Susan Sturm. George M. Jaffin Professor of Law and Social Responsibility, Columbia Law School. This Article offers a step forward in developing a theory of the judicial role within new governance, drawing on the emerging practice in both the United States and Europe as a basis for this reconceptualization. The traditional conception of the role of the judiciary–as norm elaborators and enforcers-is both descriptively and normatively incomplete, and thus needs to be rethought. There is a significant but […]

13 Colum. J. Eur. L. 623 (2007) Tamara Hervey. Professor of Law, University of Sheffield, United Kingdom. Louise Trubek. Clinical Professor of Law, Director of Health Law Project, University of Wisconsin-Madison, United States. In the context of free movement of health care services, “the classic Community method” (CCM) of regulation through harmonized internal market law, underpinned by Treaty-based litigation, has failed At the same time, a plethora of new governance activities concerned with health care have grown up in the EU. This article argues that the current situation represents an opportunity to develop and design, ex ante, a new Trans- formative […]

13 Colum. J. Eur. L. 649 (2007) Kenneth Armstrong. Professor of European Union Law, Queen Mary, University of London. Claire Kilpatrick. Senior Lecturer in Law, London School of Economics and Political Science.  As a novel technique of governance within the European Union, the “open method of coordination” (OMC) has attracted a significant degree of attention from the political science and legal community. Typically, analyses of the OMC characterize it with regard to two dominant conceptual reference points: the dichotomies of old/new governance and of hard/soft law. In this Article, the authors signal their dissatisfaction with the explicit or implicit deployment […]

13 Colum. J. Eur. L. 679 (2007) Imelda Maher. University College Dublin School of Law, Dublin, Ireland.   The aim of this Article is to explore the challenges posed for conventional accountability mechanisms by “new governance, ” understood as the wide range of processes with a normative dimension that do not operate through the formal mechanism of traditional legal institutions. It examines at what level of government and to what extent there should be accountability mechanisms and what those mechanisms should be, taking economic (specifically fiscal) governance as a case study. Economic governance in European Economic and Monetary Union is […]

13 Colum. J. Eur. L. 733 (2007) Marco Amorese. PhD, University of Brescia; LL.M., Harvard Law School, J.D., University of Milan, Studio legale Amorese (Bergamo). The Grand Chamber of the European Court of Justice (ECJ) has delivered a judgment in joined cases once again addressing the issue of competition in legal services and the scope of Articles 49, 81, and 82 of the European Community (EC) Treaty. This judgment focuses on mandatory tariffs and establishes principles that should further competition in the provision of professional services, which has become an object of renewed attention from the Commission. At the same […]

13 Colum. J. Eur. L. 747 (2007) Dionysia-Theodora Avgerinopoulou. LL.M., J.S.D. Candidate, Columbia University School of Law. The objective of environmental protection requires an integrated approach employing a variety of instruments appropriate to influence conduct, ranging from public participation  to the  use of sanctions. Regulatory environmental administrative law remains at the heart of European Union (EU) Member States’ instruments for environmental protection. Recently, the European Community (EC) issued a proposal for a new Directive on the Protection of the Environment through Criminal Law (2007 Directive Proposal, Directive Proposal), which follows the example of both the Council of the European Union […]

13 Colum. J. Eur. L. 427 (2007) Amanda Lee Wetzel. J.D. and Master en Droit Candidate at Columbia Law School and Universitd Paris-I Pantheon, Sorbonne, 2008; LL.M. in Human Rights Law (with Distinction), The Queen’s University of Belfast School of Law, 2003; B.A. in International Politics with Interdisciplinary Honors in Geography, The Pennsylvania State University, 2002. This Note evaluates the conflict resolution role of national human rights institutions (NHRIs) in divided societies through case studies of the Northern Ireland Human Rights Commission (NIHRC) and the Bosnia and Herzegovina Office of the Human Rights Ombudsman (BiH-HRO). A NHRI’s conflict resolution role […]

13 Colum. J. Eur. L. 231 (2007) David Corbé-Chalon. Attaché temporaire d’enseignement et de recherche (Instructor), Faculté de Droit et des Sciences Économiques, Université du Maine, Le Mans, France; Member of the Groupe de recherches en droit des affaires (Research Group in Business Law). Professor of Law, University of Maine School of Law. Martin A. Rogoff. Professor of Law, University of Maine School of Law. There is a perception among many in the United States that the system for awarding tort damages for bodily injuries needs to be reformed. Some legal scholars have proposed the adoption of a system similar […]

13 Colum. J. Eur. L. 305 (2007) Rafael Leal-Arcas. Lecturer in Law, and Deputy-Director of Graduate Studies, Queen Mary, University of London, (Centre for Commercial Law Studies, U.K.); Formerly, Visiting Researcher at Harvard Law School (European Law Research Center) and Fellow at the Real Colegio Complutense (Harvard University); Emile Noel Fellow 2004-2005 at New York University School of Law (Jean Monnet Center for International and Regional Economic Law and Justice); Visiting Scholar during the fall of 2003 at the University of Wisconsin-Madison Law School (Institute for Legal Studies). Ph.D. candidate, LL.M. (European University Institute, Florence, Italy); J.S.M. (Stanford Law School); LL.M. […]

13 Colum. J. Eur. L. 401 (2007) Florian Becker. Professor of Law, Sixth Century Chair, University of Aberdeen School of Law.   Angus Campbell. Senior Lecturer in Law, University of Aberdeen School of Law.   According to the doctrine of horizontal direct effect certain provisions of a Directive may apply within a Member State between individuals and may be invoked before a national court without first being implemented by the national legislature. When the E.E.C. treaty was signed, it was far from obvious that Directives could apply directly, in any manner, within a Member State. Indeed the opposite seemed true, […]

13 Colum. J. Eur. L. 471 (2007) Julian Davis Mortenson. Associate, Wilmer Cutler Pickering Hale and Don; Law Clerk to the Honorable David H. Souter, United States Supreme Court (2003-2004); Associate Legal Officer, Office of President Theodor Meron, International Criminal Tribunal for the former Yugoslavia (2004-2005). Pierre Hazan, Justice in a Time of War: The True Story Behind the International Criminal Tribunal for the Former Yugoslavia, Texas A&M University Press, College Station, Texas, 2004. Pp. 272. Translated by James Thomas Snyder. Originally published as La Justice face 6 la guerre: de Nuremberg 6 La Haye, Stock, Paris, 2000. INTRODUCTION The […]

13 Colum. J. Eur. L. 489 (2007) Inge Verdonck. Research Associate, Institute of Social Law, Faculty of Law, Katholieke Universitiet Leuven, Belgium.   In Luisi and Carbone the European Court of Justice for the first time held that Article 49 EC Treaty confers upon all European citizens the right to travel to other Member States for the purpose of receiving medical services. After the Court’s landmark Kohll and Decker judgments, a body of case law on cross-border patient mobility had developed in which the application of free movement principles was thoroughly tested and clarified (Smits & Peerboonis, Miler-Fauri, Vanbraekel, Inizan, […]

13 Colum. J. Eur. L. 501 (2007) Maria Panezi. LL.M, International Legal Studies, New York University School of Law. The Council Directive 2005/85/EC of I December 2005 on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status’ (Procedures Directive) is the last of six important legislative texts establishing the “Common European Asylum System.” The legal basis for the adoption of the Procedures Directive was Paragraph 1(d) of Article 63 of the Treaty Establishing the European Community (EC Treaty).2 The Procedures Directive aims at creating a framework common to all Member States, which will progressively lead to […]