14 Colum. J. Eur. L. 563 (2008) Jason J. Kilborn, The John Marshall Law School (Chicago). This paper explores the connection between social welfare reform and the adoption of consumer debt relief law in Europe. Health care expenses and unemployment are significant contributors to overindebtedness in Europe, and outside the primary sources, one finds suggestions to the effect that the unraveling social safety net was a major contributing factor in the adoption of consumer debt relief laws in Europe in the 1990s. This paper critically analyzes this notion by tracking the recent scaling back of social assistance programs in Sweden, […]

14 Colum. J. Eur. L. 509 (2008) Olivier De Schutter, Professor at the Catholic University of Louvain (UCL) and at the College of Europe (Natolin), and a Member of the Global Law School Faculty at New York University. He is a visiting professor at Columbia University (2007 08). This article addresses the division of tasks between the Council of Europe and the European Union in the protection of fundamental rights in Europe. As part of its project to establish an area of freedom, security, and justice, the EU has recently sought to develop a more proactive fundamental rights policy. However, […]

14 Colum. J. Eur. L. 467 (2008) Ian H. Eliasoph, Attorney, U.S. Department of Labor. B.A., Loyola College of Maryland (2000); J.D., University of California, Berkeley (2003); LL.M., Cambridge (U.K.) (2007). The views expressed are entirely my own and in no way represent those of the U.S. Department of Labor. This Article undertakes a comparative analysis of debates related to the legacies of the Lochner era in the United States with contemporary debates in Europe. It demonstrates that in the 1980s and   early  1990s the governance of the European Community (“EC) began to assume characteristics reminiscent of Lochner era governance, […]

14 Colum. J. Eur. L. 445 (2008) Stephen C. Sieberson, Ph.D. in European Law, Erasmus University Rotterdam; J.D., University of Iowa; member of the faculty, Creighton University School of Law. Editor’s Note: In volume 10 of this journal the editors published an extensive article by the author, entitled “The Proposed European Union  Constitution-Will It Eliminate the EU’s Democratic Deficit? “‘ That article analyzed the first draft of the European Union’s Constitution against a wide array of scholarly comment on the EU’s so-called “democratic deficit. ” When the Union abandoned the Constitution in 2007, the editors invited Professor Sieberson to follow […]

14 Colum. J. Eur. L. 377 (2008) Charles E. McLure Jr., While Deputy Assistant Secretary of the Treasury for Tax Analysis in 1983 85, the author chaired the staff-level Task Force that supported the Worldwide Unitary Taxation Working Group appointed by Treasury Secretary Donald Regan at the request of President Ronald Reagan. A preliminary version of this paper was presented at a conference on “National Fiscal Sovereignty: Integration and Decentralization,” held in Ravenna, Italy on October 13-14, 2006. The Member States of the European Community have systems of taxing corporate income that are more appropriate for nations than for members […]

14 Colum. J. Eur. L. 201 (2008) Neomi Rao. Assistant Professor of Law, George Mason University School of Law. Human dignity has developed into a core value of modern constitutionalism.  In the United States, the Supreme Court has referred to human dignity only sporadically, but several justices and a number of scholars have advocated using the concept of human dignity to modernize American constitutional law and to keep in step with the international community. I argue in this Article that acceptance of the modern, largely European conception of human dignity would weaken American constitutional protections for individual rights. Human dignity […]

14 Colum. J. Eur. L. 257 (2008) Mathilde Cohen. Ph.D. candidate, Paris-X University and J.S.D. candidate, Columbia Law School. B.A., M.A., Philosophy, Sorbonne (Paris I). LL.B., Sorbonne (Paris I). LL.M., Columbia Law School. This Article examines the thesis according to which the practice of giving reasons for decisions is a central element of liberal democracies.  In this view, public institutions’ practice—and sometimes duty—of reason-giving is required so that each individual may view the state as reasonable and therefore, according to deliberative democratic theory, legitimate. Does the giving of reasons in actual court practice achieve these goals?  Drawing on empirical research […]

14 Colum. J. Eur. L. 277 (2008) Krešimir Piršl. S.J.D. (Duke University School of Law), LL.M. (Duke University School of Law), LL.M. (University of Zagreb School of Law), J.D. (University of Rijeka School of Law). This manuscript resulted from research undertaken at Duke University School of Law (Visiting Scholar, 2006-2007) and Georgetown University Law Center (Visiting Researcher, 2004-2006). The article examines trends in, and developments of, selected issues and legal concepts that have developed in United States corporate law and European Community company law. The aim is to reveal the general direction of corporate or company law by surveying the […]

14 Colum. J. Eur. L. 359 (2008) Florian Sander. Associate, Freshfields Bruckhaus Deringer, Hamburg, Germany; LL.M., Harvard Law School, 2005; Dr. Jur. (Ph.D.), University of Hamburg, 2003. As expected, on October 23rd, 2007, the ECJ ruled that the so-called VW-Gesetz (“Volkswagen Law”) – a statute designing Volkswagen AG’s corporate laws in a manner that deviates from the general German corporate laws – constitutes an infringement of the freedom of capital movements (Art. 56 EC). Following General Advocate Ruiz-Jarabo Colomer’s February 2007 opinion stipulating that the ECJ should reject the VW-Gesetz,# the ECJ has articulated what most observers considered the most […]

14 Colum. J. Eur. L. 371 (2008) Gilles Cuniberti. Associate Professor of Law, Paris Val-de-Marne University, France; J.D., Ph.D (Law), Panthéon-Sorbonne University; LL.M., Yale. On October 15 and 16, 1999, the European Council met in Tampere, Finland, and approved the principle of mutual recognition of judicial decisions and judgments.  In its conclusions,# the European Council insisted that the principle should become the “cornerstone of judicial cooperation in both civil and criminal matters within the Union.”  In civil matters, which will be the exclusive focus of this note, the European Council specifically made clear that the “intermediate measures which are still […]

14 Colum. J. Eur. L. 1 (2007 – 2008) Mark F. Kightlinger, Assistant Professor, University of Kentucky College of Law; Partner, Covington & Burling 1999- 2004; J.D., Yale Law School, 1988; Ph.D., Yale University, 1991; B.A./M.A., Cambridge University, 1983/1995; B.A., Williams College, 1981. This Article provides a timely examination of the European Union’s approach to information privacy on the internet, an approach that some legal scholars have held up as a model for law reform in the United States. Building on the author’s recent piece discussing the U.S. approach to internet privacy, this Article applies to the EU’s internet privacy […]

14 Colum. J. Eur. L. 63 (2007 – 2008) Georg W. Kofler, Acting Assistant Professor of Tax Law, New York University School of Law. Ruth Mason, Associate Professor of Law and Nancy & Bill Trachsel Corporate Law Scholar, University of Connecticut School of Law. This article considers whether the fundamental freedoms of the EC Treaty encompass an absolute requirement for the Member States to mitigate juridical double taxation, and it concludes that such a requirement could reasonably be inferred from the goals of the fundamental freedoms and the European Court of Justice’s “double burden” jurisprudence. Notwithstanding the reasonableness of that […]

14 Colum. J. Eur. L. 99 (2007 – 2008) Lauren Gilbert, Associate Professor of Law, St. Thomas University School of Law; J.D., University of Michigan Law School, 1988; B.A., Harvard University, 1983. This article contrasts the efforts currently underway in the European Union to develop a harmonized system for admitting and integrating immigrants with the repeated failure of immigration reform in the U.S. and the absence of a policy for immigrant integration. After examining recent obstacles to immigration reform in the U.S., Part II discusses different integration models and experiences in the U.S. and the European Union. Part III then […]

14 Colum. J. Eur. L. 145 (2007 – 2008) Clemens Rieder, PhD Candidate and Teaching Assistant, University of Reading. This article looks into the emerging field of health care rights in the EU. The developments in this area seem to have come to a turning point. The EU Commission now wants to consolidate the case law of the European Court of Justice that has had a major impact upon this field of law. In order to provide a contribution to this discussion, this article highlights the shortcomings in the Court’s case law and the aspects which have to be addressed […]

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 […]