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Contents:
  1. Die Außenwirtschaftspolitik der Europäischen Union. Ein Vergleich mit den USA
  2. Municipalities and Länder in the Wake of European Multilevel Governance
  3. Die Außenwirtschaftspolitik der Europäischen Union. Ein Vergleich mit den USA | SpringerLink
  4. Municipalities and Länder in the Wake of European Multilevel Governance

Hamilton, Alexander []: Federalist No. Supreme Court, Baden-Baden. Huber, Peter M. Isensee, Josef : Nachwort. Europa — die politische Erfindung eines Erdteils, in: ders. Isensee, Josef : Integrationsziel Europastaat? Band I, Baden-Baden, S. Kommers, Donald P. Basler Hg. IV, — , New Brunswick , S. Mayer, Franz C. McCoy, Drew R. Imperium in Imperio, —, Lawrence. Oppermann, Thomas : Europarecht. Ein Studienbuch, 2. Streinz, Rudolf : Europarecht, 5. The point is whether the development exceeds the learning capacities and productive imaginative power of those involved.

Translated by Iain F. Fraser, EUI Florence. A preliminary German version of this essay was presented at a workshop on private law theory organised in co-operation with Gunther Teubner Frankfurt a. That text was rewritten for the Ius Commune Conference in Amsterdam on November , and subsequently revised again.

I would like to thank many participants of the Amsterdam conference and the contributors to the workshop in Florence for their comments and suggestions. Iain F. But it needed a connoisseur of Roman law, namely Wolfgang Ernst Bonn , to remind me that justum facere is the common root of Recht-Fertigung and justification. Joerges and G. For this German term, see M. Joerges, Y. Weiler eds. This has now been given thorough treatment by the explanatory disciplines, most recently in K.

Wiener, They Just Don't Understand! For a very pointed recent restatement, see J. Habermas, Remarks on Legitimation through Human Rights, in: id. The whole issue is systematically discussed in Ch. Jetzlsperger, Legitimacy through Jurisprudence? A remarkable exception is Ph. Again see note 1 supra a notion which tends to lose its meaning in translation.

Die Außenwirtschaftspolitik der Europäischen Union. Ein Vergleich mit den USA

Joerges, The Market without a State? States without Markets? Bogdandy, P. Mavroides and Y. Admittedly, the many important policy fields exempted from Ordnungspolitik in the EEC Treaties were then to be understood as mere exceptions from the governing ordo.

Particularly significant, here, is A. Or more or less decisively preserved itself against relevant early 'special statutory private law' sonderprivatrechtliche projects, which existed from the mids onward and fit in with the picture sketched out here; cf. Grewe ed. Festschrift zum Another school of thought, represented first and foremost by Reinhard Zimmermann, conceptualises private law as an autonomous body of law freeing itself from national ties and finding the way back to the ius commune europaeum ; cf.

Hartkamp, M. Hesselink, E. Hondius, C. Joustra and E. Caropni and G. Dilcher eds. For an instructive account of the legal history, see Ch. Beck , Vol. Regulatory Reform in Europe and the United States , London: Routledge , where he developed the corresponding legitimising formula. For an interim balance, see G. Majone, Regulating Europe , London: Routledge Since then, the conceptual edifice has been steadily refined, for example, in id.

Municipalities and Länder in the Wake of European Multilevel Governance

For more details, see Ch. Mattei, Hard Code Now! Gierke, Die soziale Aufgabe des Privatrechts , Berlin , Sections II. Pappi ed. Snyder ed. Joerges and O.


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Gerstenberg eds. As well argued by N. This scepticism does not, as P. Instead, it assumes 'two kinds of social integration - cultural and political. The former denotes the kind of integration that is needed for individuals and groups that seek to find out who they are or would like to be. Eriksen and J. It is in this sense that I understand M. Ervervsog Selskabsstrylsen.

A Celex search on 25 March indicated commentaries. That figure was too modest, for it did not take into account, for instance, H. Halbhuber's monograph Limited Company statt GmbH? The following owes much to B. I am also indebted to Kara Preedy for many discussions on the normative contents of the freedoms; see K. Sentence 1 of the tenor of the judgment ECJ I Completeness can scarcely be achieved in portraying the range of opinions. Specifically on the response in Germany, see H. Halbhuber, National Doctrinal Structures and European Company Law, Common Market Law Review 38 ; a very comprehensive survey 'from outside' on the overall development of company law is offered by J.

Trefil note 35 supra. An opinion to be found in E. Thus, for example, W. It was especially paragraph 20 in Advocate General La Pergola's Opinion that inspired this sort of interpretation. Above text before section II. Trefil note 35 supra , at 31 ff. Jensen Florence kindly pointed me to the judgment. Kegel, note 36 supra.

Eriksen, J. Fossum and J. See note 1 supra. However, see M. Nemeth, 37 Common Market Law Review , ff. This is discussed and disputed by M. Sadowski, J. Junkes and S. Schanze and A.

Die Außenwirtschaftspolitik der Europäischen Union. Ein Vergleich mit den USA | SpringerLink

The more one believes in the benefits of competition between regulatory systems or in the competence and capacity of a European judiciary, the more one would agree with their views. This is, to cite Theodor Fontane, a vast field, cf. Joerges, Interactive Adjudication in the Europeanisation Process? But Sonderprivatrecht does by no means point to some German Sonderweg ; here, it is sufficient to recall G. See sections I. Dehousse ed.

Beck , 29 ff. Joerges in co-operation with A. Furrer and O. On the ECJ's case law, cf.

For a detailed history of the dispute, see W. Skaupy, Der Pronuptia-Prozess , Betriebsberater , ff. On the conceptual and conflicts of law theory still worth studying B. Jackson , Columbia Law Review 63 ff. For an instructive actualisation, cf. Bernard Crehan. Already in the run-up to the ECJ decision; cf. Ehlermann and I. Atanasiu eds. References on the English law can be found in A. Komninos note 89 , at Slaughter, A. Stone Sweet and J.

See note 99 supra. Tenreiro and J. Schulze eds. ECJ note 99 supra , paras. In the time when the encyclopaedias were being sold , Spain had not complied with its obligation to implement the Directive. This, according to the ECJ id. Stuyck in his annotation, Common Market Law Review 38 , ff. See note supra. See note 98 supra. References in G. Medicina Asturiana SA. Article 13 states: 'This Directive shall not affect any rights which an injured person may have according to the rules of the law of contractual or non-contractual liability or a special liability system existing at the moment when this Directive is notified.

But see G. Palmieri and R. Quite symptomatically, J. Habermas, 'Why Europe Needs a Constitution', note 58 supra. O'Keeffe and P. Twomey eds. Poiares Maduro, Where to Look for Legitimacy? Fossum and A. Cecchini, M. Catinat and A. The references in note 26 supra. For a summary, see M.

Set out in the same sense and in more detail in his Habilitation Thesis 'Politische Herrschaft in horizontalen Mehrebenensystemen. And this legal reconstruction of the European postnational constellation has, of course, been under way for quite some time; cf.

Municipalities and Länder in the Wake of European Multilevel Governance

Furrer, Zivilrecht im gemeinschaftlichen Kontext. Oddly if not incomprehensibly , the comparative law tradition seems less impressed by all this than conflict of laws scholarship. At the same time, the conceptualisation of the EU as a multi-level system demonstrates with particular poignancy mutual influences between regulatory systems and the restructuring of international relations. Of course, generalising judgments on a discipline can always be falsified.

The law will respond in some way to real problems, and legal science in turn will reflect on them, explicitly or more implicitly; cf. Michaels, Im Westen nichts Neues? Benz, Politische Steuerung in lose gekoppelten Mehrebenensystemen, in: R. Wehrle and U. Schimank eds.

Maduro Poiares, Where to Look for Legitimacy? Furrer, Zivilrecht im gemeinschaftsrechtlichen Kontext. For a heuristic using American conflict of law methodologies for the structuring of European Kollisionsrecht , cf. Currie's particularly lucid summary of his position in his Comment on Babcock v.

Jackson, Colum. See, for example, M. See note This is how I read the plea for 'constitutionalism pluralism' in N. The critique by A. Neyer in notes and supra. Deliberative supranationalism tends to undervalue perfectly legitimate validity claims of supranational law, argues Hans-W. Micklitz; cf. The second significant countercurrent is the globalization of the economy, to be precise, the coopting of European enterprise by global capitalism. Esser b. It is true that we can refer to this second countercurrent to interpret European integration as an attempt to erect a home-ruled European social and political undertaking within the triad in the context of global competition and thus to ward off U.

At the same time we should bear in mind that this project has thus far progressed so contradictorily because the powerful economic players in Europe are targeting the world market as well as European trade. Summing up, we can therefore claim that, despite the to date quite successful processes of assimilation and convergence in market and competition policy, political reinforcement of integration toward European federalization is thwarted by the two countercurrents.

Nevertheless, European government does operate in a European political system. What that means and how it works is the subject of the following section. We have already stated that Europeanization of public tasks of many kinds is a component of the EU project. The Treaty on European Union, which went into effect on 1 November , cemented the community of European states, forging an overarching edifice of European integration with three pillars. The first pillar consists of all previous measures of the European Community in the domains of economic and monetary policy, the second contains all measures for common foreign and security policy, the third is a reformation of cooperation in particular areas of justice and home affairs.

This mandate was further legitimized in the Amsterdam Treaty of Pfetsch ; Schmidt While measures to implement economic and monetary policy are adopted supranationally by the Commission and the Council, i. Thus, a common platform can only be adopted if the majority of members are in favour.

Manfred G. Schmidt published a precise list Schmidt , Table 1, p. Its length suggests that, after the Treaty of Amsterdam , communitized policy has a long arm which in the meantime has touched most policy fields and has a firm grip on some op. Schmidt maintains that even more precise measurements of the degree of Europeanization of individual policy areas have demonstrated particular integration advances in the last 50 years in the following sectors: external economic and agricultural policy, regulation of competition and handling of goods and services, regulation of capital transfer, mobility of individuals and labour, as well as monetary and fiscal policy, which were tightly reined in by orientation to the convergence criteria of the Maastricht Treaty and Stability Pact of the EU finance ministers to support the price stability policy of the European Central Bank.

According to Schmidt, considerable progress in integration was subsequently made in many areas of economic and labour market policy, e. Schmidt believes that Europeanization is sluggish in foreign and security policy, with the exception of external economic policy.

He claims that little has been achieved in the core areas of domestic policy such as criminal law, penal measures and organization of the courts.

Schmidt also suggests that the authority of national government in core areas of the welfare state has not been impaired, particularly in the fixtures of social security - old-age pensions, unemployment, illness, accidents and long-term invalid care. The EU is also said to have played hardly any meaningful role in employment policy until now, despite the employment chapter in the Amsterdam Treaty, which has given the EU neither new powers nor additional budgets for employment programmes.

Schmidt concludes that employment policy remains predominantly under the autonomous control of the EU member states, with the reservation that the introduction of the euro has confronted the policy with a powerful uniform European monetary policy, further slanting the relationship between monetary and employment policy to the detriment of the latter op.

If we study EU policies for their political and legal repercussions since the Maastricht treaties, we would hardly go wrong in rating the Community as a market liberalization community Esser et al. These notions reflect the majority conviction that, based on the ideological authority and politico-institutional decision-making power of neoliberalism, the revitalization of the European economy and improvement of its position in the triad-wide international market competition is only possible if the economy, society and politics are comprehensively liberalized, deregulated and flexibilized.

Stephen Gill believes this new constitutionalism is an attempt "to separate economic policies from broad political accountability in order to make governments more responsive to the discipline of the market forces and correspondingly less responsive to popular-democratic forces and processes" Gill , p. This assessment is corroborated if we refer to the imbalance between "negative" and "positive" integration analysed by Fritz W.

Scharpf , categories first propounded by the Dutch economist Jan Tinbergen in classifying the provisions of European regulation and its repercussions on the member states. Positive integration is defined as exercising economic policies and regulatory authority at the level of the larger economic system. While all negative integration measures should be classified as market creating, positive integration measures may be either market creating, e. This second distinction marks the ideological boundary between neoliberal and interventionist e. Neoliberals accentuate negative integration and only accept positive integration if it serves to create markets.

The European Commission and the European Court of Justice have nurtured the latter into an extremely effective tool, which has prohibited national restrictions on free exchange of goods, services, capital and labour and eliminated unfair competition. The legitimacy of this market integration policy is legally based on the primacy of the European Treaties which were concluded by all member state governments and ratified by their parliaments.

However, as Scharpf reminds us, "the tools of negative integration … now also employed to liberalize and privatize a wide range of services and infrastructure provision, which were excluded from market competition in all member states at the time the treaties were signed and for decades afterwards. The substantive legitimacy of this European liberalization of public services, which we Germans like to call Daseinsvorsorge, is ultimately only founded on the authority of European and national legal systems - and on the leeway which these systems grant to jurisprudence which is not checked by democratically elected governments or parliaments" op.

In contrast to this negative integration, efforts to promote positive integration have made little or no headway to date. Most attempts, if made at all, have been blocked in the process of harmonization between members since many of these measures still require unanimity or a qualified majority.

We can therefore conclude that European integration creates an inherent imbalance "between a free market policy and a programme fostering social security and equality. Welfare state promotion at the national level is limited by market integration, liberalization and European competition law" Scharpf a , p. So far we have talked about the provisions of public services that have been Europeanized. Now we turn to political consensus-building and decision-making at the European level in the evolution of these functions.

Despite all the controversy "Governance in the European multilevel system" Grande ; Benz has been accepted as a useful working concept for this phenomenon. As far as institutions are concerned, consensus-building and decision-making at European level involves regional and local bodies as well as supranational EU organs and national governments. As far as functions are concerned, we have already seen that the European level handles "nearly the entire policy spectrum" Grande , p.

In addressing social issues, the concept suggests that European consensus-building and decision-making features participation of a broad spectrum "of public and private, individual and corporate players which attempt to exert influence on the European political process in any possible way and at any available level" op.

European multilevel interaction basically denotes various deliberation systems in which participants from European, national, regional and local political institutions try to reach a binding accord with private and non-government players on diverse issues. This type of governance Benz on the European stage benefits from the following coordination devices: voluntary, reciprocal stakeholder accommodation on issues, intergovernmental agreements, either unanimous or qualified majority, supranational centralization through the EU channels on the basis of the EU treaties and with the participation of member states, and last but not least political interaction via established negotiation systems between the EU institutions and national governments in policy areas in which the responsibilities of the players are not clearly stipulated by agreements Scharpf b.

Whether political coordination really takes place can only be determined by empirical investigations. However, political science and empirical findings authorize us to conclude that in most cases with no sanctioning legal or political , regardless of how this may be defined, collective decisions at European level would be doomed. Investigators heatedly debate the issues of legitimacy and democracy in such deliberations "kitchen cabinet sessions" which are generally rather untransparent with legally fuzzy rules of procedure, imbalances of power among participants, unequal opportunities for involvement and strategies to exclude poorer organized interests and dissident lobbies.

And the least one can say is that this European multilevel governance is encumbered with "1. Scharpf Scharpf , p.