European Law Newsletter (Issue 4)

Author: Zhao Haifeng
Publisher:
Publish Date: 2003-04-01
Features: The European legal system, composed of EU law, European human rights law, domestic laws of European countries, and comparative law, continues to evolve and improve with the political, social, and legal practices of the European Union, the Council of Europe, and the member states. This requires us not only to conduct a comprehensive and in-depth study of the important institutions in this field but also to keep abreast of its new developments and trends. Although delayed from the original schedule, this journal finally begins to launch a series of thematic studies starting from this issue, expanding the depth and breadth of our research and focus on major European legal issues. This year marks the 50th anniversary of the European Court of Justice (ECJ), and the Treaty of Nice, signed in 2001, has brought significant reforms to the EU's judicial system, making it an excellent opportunity to analyze and study the past, present, and future of this key EU institution. The thematic series in this issue is titled "The European Court of Justice in the New Millennium."
Europe can be considered the laboratory of world law. The creation of the European Community and the subsequent development of the EU have introduced new practices to traditional domestic and international legal systems. The supranational characteristics of EC and EU law cannot be explained by traditional legal theories, and the ECJ has been a strong defender of this new legal practice. With a firm stance, the ECJ ensures the unity and consistency of the EC legal system, thereby objectively advancing Europe's transition from a single-market community to a federal union. As former EC Commission President Walter Hallstein once said, "The existence of the ECJ has made the EC a community of law."
The thematic series "The European Court of Justice in the New Millennium" consists of six carefully curated articles, each offering an in-depth study of the ECJ from different perspectives. Readers will discover how the legal elites of various countries, within the limited scope granted by the original treaties, have brilliantly leveraged their expertise to promote European integration. Through the exercise of judicial power, particularly through the establishment of principles such as the direct effect of EC law and the supremacy of EC law in its judgments, the ECJ has played a pivotal role as an engine and driving force in advancing European integration, as well as in the continuous development and refinement of EC and EU law, and in the profound and widespread influence of EU law on the domestic laws of member states.
The actions of EC judges are often referred to as the "activism" of EC judicial institutions. However, readers will also find the limitations of the ECJ due to the principle of EU institutions and the diversity of judicial systems among member states. Regarding the procedural aspects of the EU judicial system, readers can further explore the characteristics and impact of the ECJ's preliminary ruling system as a key mechanism in the process of European integration, serving as a channel for communication between the ECJ and national courts. Its features, development, and the reforms introduced by the Treaty of Nice will be discussed. Additionally, the various procedures and principles of judicial litigation, as well as the review and enforcement of judgments, will be clearly introduced.
Regarding the internal relationships within the EU judicial system, the articles in this thematic series discuss the distinctions, connections, cooperation, and conflicts between the ECJ and the Court of First Instance, as well as the mechanisms for resolving issues. Particular attention is paid to the significant reforms of the EU judicial system under the Treaty of Nice. With the establishment of specialized chambers attached to the Court of First Instance and the implementation of an appeal system to the ECJ, the ECJ's position as the highest court in the EU judicial system will be further emphasized. A new three-tiered court system will emerge. It can be imagined that within the framework of the Treaty of Nice reforms, the Court of First Instance will play a primary role in case handling in the coming period.
How do EU judicial institutions handle cases related to China? The articles in this issue also introduce six anti-dumping cases involving Chinese enterprises adjudicated by EU judicial institutions, analyzing their policy tendencies, along with a brief overview of the seventh case still under review. Additionally, the thematic series presents a series of ECJ judgments, showcasing the application of the WTO Agreement in the EC.
The authors of this issue are all specialists in EU law, many of whom have studied in Europe or conducted research there, some having interned at the ECJ, witnessing and participating in its case adjudications, while others have extensive experience in handling Sino-EU anti-dumping cases or are experts in the WTO. Their articles possess a degree of "firsthand" insight. Based on extensive research, these papers reflect the main characteristics, new trends, and achievements of EU judicial theory and practice. The authors vary in style—some are eloquent and thought-provoking, others rigorous and clear, while some challenge existing views and offer corrections. We believe that through the meticulous research of these experts, the launch of this thematic series will significantly enhance readers' understanding of the ECJ and the EU judicial system.
Of course, the ECJ also the characteristics of a constitutional court, an administrative court, and a civil court, with its system, functions, operations, and jurisdiction covering a vast and complex area, warranting a comprehensive study in a monumental work. Due to space constraints, our thematic studies can only offer preliminary explorations. For example, this issue focuses on two of the ECJ's three key functions—direct actions and preliminary rulings—while leaving the advisory opinions for future discussion. Additionally, the relationship between the ECJ and the European Court of Human Rights is not covered due to space limitations.
Moreover, grasping the overall EU judicial system presents further questions: With the potential emergence of an EU constitution and the strict requirements of national constitutional courts, should all EC judges possess constitutional expertise, or should a separate EU constitutional court be established? How should the overall status of the ECJ be defined, and how should the EU's judicial system be outlined? What qualifications should judges meet, and what methods do they employ to create law and interpret judgments? How do judicial assistants contribute within the ECJ's vast caseload? These and other questions require further research.
In the field of EU law, we also publish a study by Mr. Cai Congyan on the legal issues of joint ventures under the EU Merger Regulation. This is an area previously underexplored in domestic EC and EU law research. Using public policy analysis, doctrinal studies, legal sociology, and economic principles, the paper examines the interplay between EU integration and the legal treatment of joint ventures from a public policy perspective, as well as the legislative and judicial practices concerning joint ventures in corporate mergers from the perspective of legal uncertainty.
In the domestic and comparative law section, we feature two studies on the legal development of Germany. The most recent significant reform in German civil law is the implementation of the Act on the Reform of the Law of Obligations. With the consent of the translators of the Act on the Reform of the Law of Obligations—Shao Jiandong and Meng Han—and China University of Political Science and Law Press, we publish an introduction to this act by Professor Christiane Wunderlich of Germany, written by the translator, to benefit our readers. Mr. Zhao Yanqing, a PhD candidate from Freiburg University in Taiwan, presents "Evidence Prohibition Theory Under the Influence of Fundamental Human Rights—Developments in German Criminal Procedure Law," providing a comprehensive overview of the new theories and practices of evidence prohibition in German criminal procedure law under the influence of human rights law. His writing style clearly reflects the differences in legal style and thinking between the two shores of the Taiwan Strait. In fact, recent reforms of criminal procedure laws in European countries have been influenced to varying degrees by international human rights law, particularly the European Convention on Human Rights. We can observe this in the recent legal developments of Germany, France, and the United Kingdom.
Zheng Aiqing's research on Chinese-French labor contracts is also noteworthy. China is in a historical period of transitioning to a market economy and integrating with the global economy after joining the WTO. While workers' rights have seen improvements, they still lack sufficient legal protection. In the relationship between workers and employers, workers are the weaker party. Strengthening their protection is not only determined by China's social nature but also by the imperative of social justice. The author selects France, which offers one of the most comprehensive protections for laborers worldwide, as a comparative case study, examining Chinese and French labor systems from the perspectives of contract formation and termination. Based on this, the paper proposes legislative recommendations from the viewpoints of protecting workers' rights and ensuring corporate efficiency.
The "Progress" section continues to highlight new developments in European law. This issue places greater emphasis on reviews and research in private law. Guo Shuli's "From Treaty to Regulation: New Developments in EU Private International Law" demonstrates the EU's trend of replacing international treaties with regulations to facilitate rapid and effective cooperation in civil and other areas. With the consent of the Common Market and EU Journal of France, we also publish "Reflections on the Commission's White Paper on European Governance" by Jacqueline Didier-Delacour, newly appointed Rector of Paris 2 University and Professor of the Jean Monnet Chair in EU Law. We also congratulate her on her appointment as Rector of Paris 2 University and hope that during her tenure, she will promote legal exchanges and cooperation between this renowned law school and China.
The Treaty of Nice, which was adopted by the EU in December 2000 and signed on February 26, 2001, is currently undergoing ratification procedures among EU member states. Ireland, which previously rejected the treaty in a referendum, is preparing for another vote in October 2002. If all goes as planned, the treaty is expected to be fully ratified by the end of 2002, paving the way for the EU's unprecedented eastward expansion.
The "Important Legal Documents" section in this issue continues to feature the second half of the Treaty of Nice. From the "Academic Exchange" section, readers can observe the increasing frequency of legal exchanges between China and Europe. Legal development has always been closely tied to academic exchange, and the convergence of laws in European countries stems from mutual communication and understanding. We hope that numerous Sino-European exchange programs will benefit all involved parties.
In the "Lawyer Biographies" section, Xue Jun, currently pursuing a PhD in law in Italy, introduces Mario Tarrach, a master of Roman law research, and elaborates on the strengths and weaknesses of various schools of Roman law research, particularly the characteristics and appeal of Mario Tarrach's school, the theoretical implications of Roman law research, and its vibrant future.
In the "Book Reviews, Bibliographies, and Article Lists" section, this issue continues to feature research on European law by scholars on the mainland, as well as academic achievements from Taiwan, compiled by Xu Yaoming, who is studying in France. However, due to space constraints, this issue can only include book-related content from Taiwan.