*** MAARTJE VERHOEVEN: The Costanzo Obligation. The Obligations of National Administrative Authorities in the Case of Incompatibility between National Law and European Law. Intersentia (31 Groenstraat, B-2640 Mortsel. Tel: (32-3) 6801550 - fax: 6587121 - Email: mail@intersentia.be - Internet: http://www.intersentia.be ). “IUS Commune Europaeum” series, No. 93. 2011, 369 pp, €75. ISBN 978-94-000-0194-7.
This book is the continuation of a doctorate at the University of Utrecht and is based on a very concrete example taken from the real world. At the age of 68, a lady is prevented by the Westphalia and Lippe Dentists' Commission from pursuing her profession as a dentist, in compliance with German law. She appealed against this decision on the basis of the Directive 2000/78/EC, which had established a general framework for equal treatment in employment and occupation. This appeal was also dismissed, so she submitted her case to the Social Tribunal in Dortmund, which unhesitatingly introduced two demands for damages at the European Court of Justice in Luxembourg, together with the following question, “may a law enacted prior to the adoption of the Council Directive which is incompatible with that directive not be applied by virtue of the primacy of European law, even where the national law transposing the directive makes no provision for such a legal consequence in the event of a breach of the prohibition of discrimination?” No reader of Agence Europe's publications would be surprised to learn that the European judge ruled in favour of the plaintiff and subsequently confirmed the primacy of Community law by underlining that the administrative authorities cannot confine by simply applying provisions of national law. On the contrary, under the “Costanzo obligation” and in keeping with a ruling from the European Court in Luxembourg, it is beholden on them to set aside provisions of national law, which are incompatible with EU Law.
What exactly are the obligations to which the administrative authorities of member states are subject and how do they correspond to the obligations and tasks incumbent on the administrative authorities in the context of their own respective national legislation? This is the subject of this thesis, which amongst others, focuses on themes such as the principle of legality, the precedence of the law, the requirement of a statutory basis and the “théorie du dédoublement fonctionnel”. This meticulous research was carried out by the author on the basis of situations occurring in the Netherlands, Germany and France. Maartje Verhoeven has undoubtedly begun by providing a detailed analysis of appropriate European law and this book should provide an extremely useful reference in this connection!
Pierre Bouvier
*** ARTHUR HARTKAMP, MARTIJN HESSELINK, EWOUD HONDIUS, CHANTAL MAK, EDGAR DU PERRON (editors): Towards a European Civil Code. Kluwer Law International (PO Box 316, 2400 AH Alphen aan den Rijn, Netherlands. Email: kluwerlaw@turpin-distribution.com - Internet: http://www.kluwerlaw.com ) and Ars Aequi Libri (Nijmegen, Pays-Bas. Email: aalibri@arsaequi.nl). 2011, 1125 pp., €220. ISBN 978-90-6916-715-2.
No fewer than fifty legal experts employed at a number of different universities participated in the elaboration of this fourth edition of this impressive book. They were guided by five editors in their work. As pointed out by Professor Ewoud Hondius (European private law at the University of Utrecht) in his introductory contribution, although the authors of the first editions of this book quite rightly focused on the question of whether the different national legal systems in Europe were too remote and that any subsequent attempt at unification or harmonisation of private law in the Union would be fruitless, these two later versions demonstrate that there is no doubt that a European Civil Code is possible and, “may even be ready for a Restatement of Private Law”. A lot was accomplished during the last decade, since the Commission published its law on contracts in 2001. With the publication a year ago of Viviane Reding's Green Paper, it is now unquestioningly a Common Reference Framework that is now on the horizon. This monumental book provides an extremely useful examination of all the different elements contained within this huge area in almost forty chapters. The authors pay particular attention to the different revisions that have been introduced to the Community acquis over recent years. The book is bolstered by contributions focusing on new areas of this burgeoning area and provides clarification on the Union's legislative remit in the field of private law, the notion of damages and the defects of consent in contract law and vicarious liability. The book as a whole provides an excellent reference guide and is an indispensable tool for those working in this area!
(PBo)
*** GRALF-PETER CALLIESS (editor): Rome Regulations. Commentary on the European Rules of the Conflict of Laws. Kluwer Law International (see address attached). “Law & Business” series. 2011, 654 pp. ISBN 978-90-411-2586-6.
This book is not just a very beautiful object, it is also a very beautiful collective intellectual adventure. Under the editorial guidance of a professor of private law at the University Bremen, this book involves nineteen young specialist teachers in international private law and provide what Gralf-Peter Calliess considers as a German speciality, namely the production of commentaries, article by article, legislative acts and which in this case, make up the Rome I and Rome II Regulations. These two regulations, explains Professor Calliess in his preface, cover the most economically appropriate zones in the conflict of laws and are therefore a significant key for ensuring legal security in the internal market. According to Calliess, they will help to put the dream of the 19th century academics into practice, namely, “after more than a century of national fragmentation”, international private law will really become international. The commentaries are made in English in the hope of reaching as wide an audience as possible and not because they intend to obtain the British prize for literature. They are mainly based on the jurisprudence of the appropriate courts and the opinions that prevail in this small set of erudite legal experts. (MT)
*** STEFANIA BARIATTI: Cases and Materials on EU Private International Law. Hart Publishing (16C Worcester Place, Oxford, OX1 2JW, UK. Tel: (44-1865) 517530 - fax: 510710 - Email: mail@hartpub.co.uk - Internet: http://www.hartpub.co.uk ). "Studies in Private International Law", No. 4. 2011, 1.275 pp., £40. ISBN 978-1-84946-027-9.
This impressive volume is the result of a painstaking and erudite undertaking. Stefania Bariatti is a professor in International Private Law at the University of Milan. In her book she identifies all the different areas of progress achieved at a European level through the harmonisation of successive elements of international private law following the treaties of Maastricht and Amsterdam. In the first part of her book, the author provides an insight into the developments affecting European competencies in this area, such as Article 220 of the EEC Treaty up until Article 81 of the Treaty on the functioning of the European Union. She also describes the external dimensions to these solutions adopted and the preliminary tentative assessment. The author then methodologically examines all the different related areas, together with the general provisions on Judicial Cooperation in Civil Matters, legal assistance in these areas, the Law Applicable to Social Security and the law applying to companies (freedom of establishment and freedom to provide services), in addition to Non-Contractual Obligations, insolvency procedures, commercial aspects, divorce and separation, personal rights etc. Stefania Bariatti provides a thoroughly comprehensive exploration, which also covers a number of summaries and extracts from the European Court of Justice decisions, as well as the numerous rulings on the interpretation of the Brussels I Regulation. The book also looks at initiatives that could have an impact on the application of European rules in the area of international private law, as well as international conventions to which member states are signatories and which will obviously affect the application of related European law. Finally, Stefania Bariatti provides a serious evaluation of the impact of the general principles in European law, such as the concept of citizenship, the protection of fundamental rights and the role of public policy. It should also be noted that the author considers that in light of the Commission proposal to extend the field of the Brussels I Regulation to suspects residing outside of the Union and the universal scope of other initiatives involving recent organisation, that all the different aspects or almost all of them in international private law will undoubtedly one day be incorporated into the scope of the Union. The book as a whole is likely to be seen by many legal experts as a valuable or indeed indispensable tool to help them in their work.
(MT)
*** ALAN UZELAC, C. H. (REMCO) VAN RHEE (editors): The Landscape of the Legal Professions in Europe and the USA: Continuity and Change. Intersentia (see address attached). “ Ius Commune Europaeum” series No. 95. 2011, 277 pp., €64. ISBN 978-1-78068-014-90.
This collectively written book provides an account of the developments that have recently affected the world of legal practitioners in Europe and the US. As pointed out by Professor Uzelac (civil procedures at the University of Zagreb) and Professor van Rhee (Chair of European legal history and comparative civil procedures at the University of Maastricht) in their introduction, although the legal profession presents a rather uniform character in the US, where a lawyer can carry out a wide range of different tasks, it is quite different in Europe where legal experts specialise in different domains and work in distinct professions with very different characteristics: judges, notaries, lawyers and prosecutors are certainly all legal experts but everyone knows that they exercise very different and very specific professions. The main objective of the authors in this book is to compare the different legal professions. In the first part of the book, two contributions analyse the changes that have occurred in the US and Romania. The young university teachers and researchers then in turn look at the professions of judges, notaries in the Latin tradition, lawyers, registrars, prosecutors, court experts, ombudsman and arbitrators. The book highlights the diversity characterising these professions in Europe.
(PBo)
*** JURGEN BASEDOW, WOLFGANG WURMNEST (editors): Structure and Effects in EU Competition Law. Studies on Exclusionary Conduct and State Aid. Kluwer Law International (see address attached). "International Competition Law Series", No. 47. 2011, 343 pp.. ISBN 978-90-411-3174-4.
It has not been until very recently (over the past decade) that the European Commission has gradually abandoned the German ordo-liberal philosophy in favour of a more economic approach that focuses on the effectiveness of the benefits generated or at least planned, from combating anti-competitive practices. In an effort to discuss this development, the Max Planck Institute for Comparative and International Private Law in Hamburg organised a conference in January 2009, which brought together economists, legal experts and practitioners. This book provides a report back on the work achieved at this conference and also attempts to examine the methodological foundations for competition policy and law at a European Union scale and which have focused on the prohibition of abuses of dominant positions and state aid. Through the fourteen different but equally meticulous contributions, diverse elements such as the objectives of European competition law, the guidelines followed by the Commission to apply Article 102 of the Treaty on the Functioning of the Union, market forces, abusive low pricing strategies, the economics of competition law enforcement, recent developments in the area of state aid and economic justification is for this aid are all subject to analysis. The book reveals how the more economic approach is now being followed by the Commission and how this approach has had a considerable impact on the different sectors of European competition law. The authors also demonstrate that new aspects in economic theory can be integrated into the legal analysis in these different fields. The book is further bolstered by an annex that includes an evaluation text of the European Commission action plan regarding the German Monopolies Commission.
(MT)
*** PHILIPP SEBASTIAN WALPER: Die Effizienz in der EU-Fusionskontrolle. Peter Lang (1 Moosstrasse, CH-2542 Pieterlen. Tel: (41-32) 3761717 - fax: 3761727 - Email: info@peterlang.com - Internet: http://www.peterlang.com ). 2011, 256 p. €46.50. ISBN 978-3-631-60331-4.
Competition policy is one area in economic policy whose legislation is almost entirely covered by the European Union. Controlling mergers between companies is an important areas covered in this policy because the development of monopolies obviously affects genuine competition on the European market. In 2004, the European legislator launched a new regulation to improve the efficiency of European action in this connection. The first part of this book introduces the subject in a general way and the author illustrates how mergers are controlled at legislative and economic levels. He also demonstrates in this part of the book how previous regulation worked and explains the different shortcomings in terms of efficiency and therefore the reasons that prompted the creation of the new Regulation 139/2004. This regulation is then explored and thoroughly analysed. Several different cases are also looked at, which enable the author to explain his theoretical explanations in detail. The new regulation is then approached from its legal dimension and its relations with primarily and secondary law are also decoded. Different conclusions are included throughout the book.
(JD)