European Law Newsletter (Issue 4)

Author: Zhao Haifeng, Jin Banggui, Editors
Publisher:
Publish Date: 2003-04-01
Features: The European law, composed of EU law, European human rights law, domestic laws of European countries, and comparative law, continues to evolve and improve with the development of political, social, and legal practices in the European Union, the Council of Europe, and European countries. This requires us not only to gradually and thoroughly study the important systems in this field but also to keep up with its new developments and trends. Although delayed from the original schedule, this journal finally begins to launch a series of thematic studies from this issue to expand the depth and breadth of our research and focus on major issues in European law. The European Court of Justice celebrates its 50th anniversary this year, 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 studies in this journal are 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 Community and EU law cannot be explained by traditional legal theories, and the European Court of Justice is a strong defender of this new legal practice. With a firm stance, the Court ensures the unity and consistency of the Community's legal system, thereby objectively advancing Europe's transition from a single-market community to a federal union. As former European Commission President Walter Hallstein once said, "The existence of the European Court of Justice has made the European Community a community of law."
The thematic study "The European Court of Justice in the New Millennium" consists of six carefully curated articles. These articles provide in-depth research on the European Court of Justice from different perspectives. Readers can discover how the legal elites of various countries, within the limited scope of their original treaties, have brilliantly utilized their intelligence and provided effective safeguards through the exercise of judicial power. Especially through its case law, the Court has established principles such as the direct effect of Community law and the supremacy of Community law, playing a pivotal role in promoting European integration, the continuous development and improvement of Community and EU law, and the profound and widespread influence of EU law on the domestic laws of member states. The actions of Community judges are referred to as the "activism" of Community judicial institutions. However, readers can also find the limitations of the European Court of Justice due to the principle of EU institutions and the differences in judicial systems among member states.
Regarding the procedural aspects of the EU judicial system, readers can further explore the characteristics and impact of the preliminary ruling system of the European Court of Justice as a key tool in the process of European integration, serving as a channel for communication and dialogue between the Court and national courts. Its features, development, and the reforms introduced by the Treaty of Nice are discussed. Additionally, readers can learn about the various procedures and principles of judicial litigation, the review and enforcement of judgments, and the role of judicial offices' assistants within the Court.
The papers in this thematic study also discuss the relationship between the European Court of Justice and the Court of First Instance, including their distinctions, cooperation, conflicts, and solutions to emerging issues. They particularly examine the significant reforms to the EU judicial system brought by the Treaty of Nice. With the establishment of specialized chambers attached to the Court of First Instance and the implementation of the appeal system to the Court of First Instance, the European Court of Justice will further solidify its position as the highest court in the EU judicial system. A new three-tiered judicial 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 major role in case handling in the coming period.
How do EU judicial institutions handle cases related to China? The articles in this issue introduce the EU judicial institutions' judicial practices and case law, including the handling of six anti-dumping cases involving Chinese enterprises, analyzing their policy tendencies, and briefly summarizing the seventh unresolved case. The papers also present key aspects of the WTO Agreement's application in the EU through a series of Community Court judgments.
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 European Court of Justice, witnessing and participating in its case adjudications, while others have extensive experience in handling EU-related anti-dumping cases with Chinese enterprises or are experts in the WTO. Their articles reflect a degree of "firsthand" experience. Based on extensive research, these papers showcase the main features, new trends, and achievements of EU judicial institutions' theory and practice. The authors vary in style—some are eloquent and insightful, others rigorous and clear, and some challenge existing views while offering corrections. We believe that through the expert research presented in this thematic study, readers will gain a deeper understanding of the European Court of Justice and the EU judicial system.
Of course, the European Court of Justice also the characteristics of a constitutional court, administrative court, and civil court, with its system, functions, operations, and jurisdiction covering a wide range of topics, making it a subject worthy of a comprehensive study. Due to space constraints, our thematic studies can only offer preliminary explorations. For example, this issue focuses on two of the Court's three powers—direct actions and preliminary rulings—while leaving the advisory opinions for future discussion. Additionally, the relationship between the European Court of Justice and the European Court of Human Rights is not included due to space limitations.
Moreover, broader questions about the EU judicial system, such as whether judges should all possess constitutional expertise or whether a separate EU constitutional court should be established, how the overall status of the European Court of Justice should be defined, how the EU's judicial system should be outlined, what qualifications judges should meet, and what methods they use to create law and interpret judicial decisions, remain topics for further research.
In the field of EU law, we also publish a study by Mr. Cai Congyan on the legal issues of joint ventures in the EU's merger law. This is an area previously underexplored in domestic EU law research. Using public policy analysis, doctrinal studies, legal sociology, and economic principles, the article examines the interactive relationship between EU integration and the legal treatment of joint ventures from a public policy perspective and studies the legislative and judicial practices regarding joint ventures in corporate mergers from the perspective of legal uncertainty.
In the domestic laws 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 the Act by Professor Christiane Wunderlich of Germany, edited by the translators, to benefit our readers.
Mr. Zhao Yanqing, a doctoral candidate in law at the University of Freiburg from Taiwan, presents the article "Evidence Prohibition Theory Under the Influence of Fundamental Human Rights—Development 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 styles and thinking methods between the two sides of the Taiwan Strait. In fact, the 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 gradually improved, they still lack sufficient legal protection. In the relationship between workers and employers, workers are the weaker party, and strengthening their protection is not only determined by China's social nature but also a requirement of social justice. The author selects France, which offers relatively comprehensive protection for laborers worldwide, as a comparative case, conducting a thorough study of Chinese and French labor systems from the perspectives of contract formation and termination. The article also proposes legislative recommendations from the viewpoints of protecting workers' rights and ensuring corporate efficiency.
The Progress section continues to highlight the new developments in European law. This issue places greater emphasis on reviews and research in private law. Guo Shuli's article "From Treaty to Regulation: New Developments in the EU's Unification of Private International Law" demonstrates the EU's trend of replacing international treaties with regulations to quickly and effectively cooperate in areas such as international civil law. With the consent of the Journal of the Common Market and the European Union, we also publish an article by Jacqueline Didier-Drouin Laroche, the newly appointed president of the University of Paris 2 and professor of EU law at the Jean Monnet Chair, titled "Reflections on the EU Commission's White Paper on European Governance." We also congratulate her on her new role as president of the University of Paris 2 and hope that during her tenure, she will promote legal exchanges and cooperation between the prestigious university and China.
The EU adopted the Treaty of Nice on institutional reforms in December 2000 and officially signed it on February 26, 2001. The ratification process is ongoing among EU member states, with Ireland, which previously rejected the treaty in a referendum, preparing for another vote in October 2002. If all goes as planned, the treaty is expected to be fully ratified and enter into force by the end of 2002, paving the way for the EU's unprecedented eastward expansion.
The important legal documents section continues from the previous issue to present the second half of the Treaty of Nice.
From the academic exchange information 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 Legal Biography section, Xue Jun, who is pursuing a doctorate in law in Italy, introduces Mario Tarradona, 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 Tarradona's school, the theoretical connotations of Roman law research, and its vibrant future.
In the book reviews, bibliographies, and article indexes section, this issue continues to feature research on European law by scholars in mainland China. Additionally, Xu Yaoming, who studied in France, compiles academic achievements from Taiwan scholars. Due to space limitations, this issue can only include book-related content from Taiwan.