Cambridge Yearbook of European Legal Studies. Volume 02, 1999

578 Pages·2000·1.87 MB·English

by  A Dashwood, A Ward

THE CAMBRIDGE YEARBOOK OF
EUROPEAN LEGAL STUDIES
Volume 2, 1999
The Cambridge Yearbook of European Legal Studies provides a new forum for the
scrutiny of significant issues in European Law, the law of the Council of Europe, and
Comparative Law with a “European” dimension, and particularly those which have
come to the fore during the year preceding publication. The contributions appearing in
the collection are commissioned by the Centre for European Legal Studies (CELS)
Cambridge, which is the research Centre of Cambridge University Law Faculty special-
ising in European legal issues.
The papers presented are all at the cutting edge of the fields which they address, and
reflect the views of recognised experts drawn from the University world, legal practice,
and the civil services of both the European Union and its Member States. Inclusion of the
comparative dimension brings a fresh perspective to the study of European law, and
highlights the effects of globalisation of the law more generally, and the resulting cross
fertilisation of norms and ideas that has occurred among previously sovereign and sepa-
rate legal orders.
Each edition will commence with the Mackenzie-Stuart Lecture, established in honour of
Lord Mackenzie-Stuart, formerly President of the ECJ, and given each year in the
Cambridge Law Faculty. The first Lecturer, in 1997, was Judge G. Rodriguez Iglesias,
currently President of the ECJ; the second was Mr Jean-Louis Dewost, Director General
of the Commission’s Legal Service. Their contributions launch Volume 1.
This volume can be cited as 2 CYEL (1999)
Editorial Board
DR. PHILIP ALLOTT, Trinity College Cambridge
PROFESSOR TONY ARNULL, University of Birmingham
CATHERINE BARNARD, Trinity College Cambridge
PROFESSOR ALAN DASHWOOD, Director of CELS
MR DAN GOYDER CBE, Consultant Solicitor, Linklaters and Alliance,
Visiting Professor of Law, King’s College London
PROFESSOR ROSA GREAVES, Durham University
PROFESSOR BOB HEPPLE, Clare College Cambridge
PROFESSOR DAVID O’KEEFE, University College London
LORD LESTER OF HERNE-HILL
DR STEPHANIE PALMER, Girton College Cambridge
DAVID VAUGHAN QC, Brick Court Chambers
DR. ANGELA WARD, Assistant Director of CELS
PROFESSOR SIR DAVID WILLIAMS Q.C., Emmanuel College, Cambridge
PROFESSOR D.A. WYATT Q.C., St Edmund Hall, Oxford
CENTRE FOR EUROPEAN LEGAL STUDIES (CELS)
CAMBRIDGE
The Cambridge Yearbook of
European Legal Studies
VOLUME 2, 1999
EDITED BY
Alan Dashwood
B.A. (Rhodes), M.A. (Oxon)
of the Inner Temple, Barrister
Professor of European Law, University of Cambridge
Fellow, Sidney Sussex College, Cambridge
AND
Angela Ward
B.A. (Univ. of QLD) LLB (Hons) (ANU), PhD (EUI)
of the Middle Temple and One Pump Court
Fellow, Magdalene College, Cambridge
OXFORD – PORTLAND OREGON
2000
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CONTENTS
Contributors vii
Table of Cases xi
Table of Legislation xxix
Table of Conventions and Treaties xliii
1. The Mackenzie Stuart Lecture—The Influence of European
Community Law on Public Law in the United Kingdom 1
Francis Jacobs
2. The Community Courts and Openness Within the European
Union 19
Judge Hans Ragnemalm
3. The Concept of European Union 31
Philip Allott
4. Joint Competence of the European Community and its
Member States and the Dispute Settlement Practice of the
World Trade Organization 61
Joni Helisoski
5. Caveat Emptor ? Integrating the Schengen Acquis into the
European Union Legal Order 87
Steve Peers
6. Grant v. South-West Trains: Some Comparative Observations 125
Nicholas Bamforth
7. The New UK Competition Act: Reform or Revolution? 149
Dan Goyder CBE
8. Facing the Digital Future: Public Service Broadcasting and
State Aid in the European Union 159
Jacquelyn MacLennan
9. Prospects for European Company Law After the Judgment
of the European Court of Justice in Centros Ltd 203
Karsten Engsig Sørensen
10. Two Types of Regulatory Competition: Competitive
Federalism versus Reflexive Harmonisation. A Law and
Economics Perspective on Centros 231
Simon Deakin
vi Contents
11. EC Transport Law and Policy: A Status Report 261
Rosa Greaves
12. Freedom of Information and Transparency as Administrative
and Constitutional Rights 285
Carol Harlow QC
13. EU Citizens’ Right to Know: The Improbable Adoption of a
European Freedom of Information Act 303
Ulf Öberg
14. Access to Governmental Information and the Judicial
Process: United Kingdom Law and the Influence of Europe 329
Ivan Hare
15. The Corpus Juris Project—has it a future? 355
Professor J.R. Spencer
16. The European Court of Justice, More than a Teleological
Court 373
Albertina Albors-Llorens
17. Invalidity, Disapplication and the Construction of Acts of
Parliament: Their Relationship with Parliamentary
Sovereignty in the Light of the European Communities Act
and the Human Rights Act 399
Geoffrey Lindell
18. EC Law, UK Public Law and the Human Rights Act 1998:
A New Integrative Dynamic? 417
Gordon Anthony
19. Human Rights in the Field of Taxation: A View from
Sweden 439
Roger Persson Östermann
20. Creating the New Europe: the Stability Pact for South Eastern
Europe in the Context of EU–SEE Relations 463
Marise Cremona
21. The European Convention on State Immunity and International
Crimes 507
Roger O’Keefe
Index 521
CONTRIBUTORS
ALBERTINA ALBORS-LLORENS holds degrees in Law from Valencia,
London and Cambridge Universities. She is a Fellow, Tutor, and College
Lecturer in Law at Girton College, Cambridge, and a Norton Rose Lecturer
in Law at the Faculty of Law, University of Cambridge. She was formerly a
British Academy Post-doctoral Fellow and a Research Fellow at Girton
College. Her publications include Private Parties in EC law: Challenging
Community Measures (OUP, 1996).
PHILIP ALLOTT is a Fellow of Trinity College and Reader in
International Public Law, University of Cambridge. He is the author of
Eunomia—New Order for a New World (OUP, 1990), a general theory of
international society and international law.
GORDON ANTHONY is a lecturer in law at the Queen’s University of
Belfast. He has written several articles on the relationship between UK pub-
lic law and European law. A book entitled UK Public Law and European
Law: The Dynamics of Legal Integration will be published by Hart
Publishing in autumn 2000.
NICHOLAS BAMFORTH is Fellow in Law at the Queen’s College,
Oxford. His interests include human rights, anti-discrimination law and
public law.
MARISE CREMONA is a Senior Fellow and the Head of the European
Commercial Law Unit within the Centre for Commercial Law Studies,
Queen Mary & Westfield College, University of London. She has had many
years’ experience of teaching European Union law, with a particular interest
in the relations between the EU and the countries of central and eastern
Europe, and has published widely in the field of EU external policy.
SIMON DEAKIN is Reader in Economic Law and a Fellow of Peterhouse
College at the University of Cambridge. He is the director of the “Corporate
Governance” research programme at the ESRC Centre for Business Research,
also at Cambridge. His research interests are in the economic theory and
analysis of law, with particular reference to labour law, company law and
competition law.
viii Contributors
DAN GOYDER CBE is a consultant solicitor with Linklaters & Alliance
in London, a visiting Professor at King’s College, London, and a visiting
Fellow at the Centre for European Legal Studies in Cambridge. He has writ-
ten widely on EC and US antitrust law and published, in 1998 the 3rd edition
of his textbook EC Competition Law which is a part of the Oxford European
Community Law Series.
ROSA GREAVES is the Allen & Overy Professor of European Law at the
University of Durham and Director of the Durham European Law Institute.
She has written several books on EC Law including Transport Law of the
European Community (1991) and EC Transport Law (forthcoming, 2000).
IVAN HARE is Assistant Director of the Centre for Public Law in the
University of Cambridge and a Fellow of Trinity College. He jointly edited
The Golden Metwand and the Crooked Cord—Essays in Public Law in
Honour of Sir William Wade (with C. F. Forsyth) and Constitutional Reform
in the United Kingdom: Practice and Principles (with J. Beatson and C. F.
Forsyth). Most of his work is in the field of comparative public law.
CAROL HARLOW is Professor of Public Law at the LSE, where she has
worked since 1986. Her specialist subjects are administrative law, with spe-
cial reference to state liability, comparative administrative law and public law
of the EU. She is author, with her colleague Richard Rawlings, of Law and
Administration and Pressure Through Law. She has contributed several arti-
cles on EU law to leading journals, has been a Jean Monnet Visiting
Professor at the European University institute and is on the Editorial Board
of the European Law Journal.
JONI HELISKOSKI is Legislative Secretary in the European Law Unit of
the Law Drafting Department, Ministry of Justice, Finland and a PhD can-
didate at Trinity Hall Cambridge. He is the author of a number of articles
on the European Community’s external relations.
FRANCIS G. JACOBS is an Advocate General at the Court of Justice of
the European Communities. Before his appointment to the Court in 1988 he
was Professor of European Law in the University of London and Director of
the Centre of European Law at King’s College London; he was also a prac-
tising barrister (Queen’s Counsel) specialising in European law. He was
founding editor of the Yearbook of European Law and is general editor of
the Oxford EC Law Library.
GEOFFREY LINDELL is a Professor of Law at the University of
Melbourne in Australia. He has taught and published widely in the field of
Australian constitutional law. He has appeared in some major constitutional
Contributors ix
cases before the Australian High Court and served on an Advisory
Committee to the Australian Committee to the Australian Constitutional
Commission (1986–1988). His contribution to the Cambridge Yearbook of
European Legal Studies was written during the second half of 1999, while he
was a Visiting Fellow at Wolfson College and a visitor at the Cambridge Law
Faculty.
JACQUELYN MACLENNAN has practised EU law in Brussels for more
than ten years. She publishes and teaches in the field, specialising in compe-
tition and trade law.
ULF ÖBERG has served since 1995 as a Référendaire to Judge Ragnemalm
at the European Court of Justice, Luxembourg. He is currently writing a
PhD at Stockholm University on public access to documents in European
law, and is the moderator of the European Freedom of Information (mailing)
List (EFIL).
ROGER O’KEEFE is a University Assistant Lecturer at the University of
Cambridge, and a Fellow of Magdalene College. He recently completed a
doctorate in public international law at Magdalene College Cambridge, and
his research interests include international criminal law, the law of armed
conflict, human rights and the international legal protection of cultural
heritage.
STEVE PEERS is a Reader in Law at the Human Rights Centre, University
of Essex and Director of the Centre for European Commercial Law there. He
has written over thirty articles on EU law, particularly on EU Justice and
Home Affairs Law (Longman, 2000), and The Amsterdam Proposals:
Implementing EC Immigration and Asylum Law (Immigration Law
Practitioners’ Association & Migration Policy Group, 2000).
ROGER PERSSON-ÖSTERMAN is an Assistant Professor of Law at
Stockholm University, Sweden. He obtained the Doctor of Laws degree at
Stockholm University in 1997. He has written widely on fiscal law, primarily
on taxation and reorganisation of companies. Recently his interests have
focused on EC Tax Law. He was a visiting fellow at CELS and at Clare Hall
in Cambridge in the 1998/1999 academic year.
HANS RAGNEMALM has been Judge of the Court of Justice of the
European Communities since Sweden joined the EU in 1995. He was for-
merly a Professor of Public Law at the Universities of Stockholm and Lund,
Parliamentary Ombudsman, and Judge of the Swedish Supreme
Administrative Court. He has published extensively in the fields of constitu-
tional and Administrative Law.
x Contributors
KARSTEN ENGSIG SØRENSEN is an Associate Professor at the
Department of Law, Aarhus School of Business, Denmark. He has written
several books and articles on EU Law and Company Law, including publica-
tions combining these two topics. His work has appeared in both Danish and
international law journals.
JR SPENCER is a Professor in the Cambridge University law Faculty and a
Fellow of Selwyn College. He has also spent several periods as a professeur
invité at various universities in France. He has written extensively about
English criminal procedure and evidence, both in English and in French. He
was one of the group of experts who drafted the Corpus Juris project.