*** ERIC VAN DEN ABEELE: « Mieux légiférer »: simplification bureaucratique à visée politique. Institut syndical européen (5 bd du Roi Albert II, B-1210 Brussels. Tel: (32-2) 2240470 - fax: 2240502 - Email: etui@etui.org - Internet: http://www.etui.org ). “Working Paper” series, No. 2015/04. 2015, 88 pp.
Eric Van den Abeele is a lecturer at Mons-Hainaut University, as well as a guest researcher at the European Trade Union Institute. He is also an expert on the politico-administrative workings within the European Union apparatus. In this Working Paper, this highflying expert gets to the very marrow of what the Commission has been preparing for several months. He succeeds in presenting a detailed critique of the new episode contained with the "better regulation" package just as the final document unveiled last Tuesday by the Vice President Timmermans (EUROPE 11317 Wednesday 20 May) is published. Combined with his ability to perfectly resonate with the hottest contemporary themes, the author also provides an unquestionably thorough and robust analysis underpinned by sincerely felt convictions. This explains the obvious concerns he expresses in this publication …
Although, in theory, no one would be opposed to the European Union developing smarter regulation and a more streamlined bureaucracy, is it really necessary to launch a cultural revolution to found a "Union based on the rule of law"? Is a really good policy to just listen to the so-called adversaries of the "European bureaucracy" and the "nit-picking regulations" of which the Union is too fond and those that claim that, "this legislation suffocates enterprise to the point of damaging the continent's competitiveness"? These are some of the questions that Eric Van den Abeele lays into and which he really fears are really part of a ruse whereby the simplification process originally launched is really a hostage to the particular interests that benefit from the deregulation process and which are accompanied by a certain odour of ultra-liberalism in the economic arena. In the first part of the book he decodes the new orientations contained within the Agenda for Better Regulation and the four pillars underpinning the programme for sharper and improved regulation (Refit), namely, reducing regulatory and administrative costs, ex ante and ex post impact studies on legislation and consultation of the different stakeholders. In the second part, he examines the activities carried out by the Union institutions with regard to the recent developments in the Agenda and Refit by attempting to learn a number of lessons from them. This leads him to highlight the fact that the competitiveness advocated by the European Council is similar to a horizon that can never be reached and that the European Commission has effectively changed its "coitus interruptus" approach to one of "legislative abstinence". He then goes on to examine what he considers to be seven key dossiers when it comes to assessing the appropriateness of the criteria and the Commission's real intentions, particularly with regard to impact assessments. The proposal by the European Commission on the circular economy is also examined ("an unjustifiable withdrawal from the work programme"), the postponement of the roadmap on industrial policy ("refitting an initiative that is already awaited"), the absence of an impact assessment on the re-examination of economic governance, the withdrawal of the draft directive on maternity leave ("a not very brave act committed by the Juncker Commission" ), the repercussions of the Commission non-initiative on legislation in the health and workplace safety arena for hairdressers, the reduction of certain constraints through impact assessments (with, for example, the obligation of e-invoices for micro-companies) and, finally, the Transatlantic Treaty for Trade and Investment. In the fourth and final part of the book, the author seeks to examine the context in which the revision of the 2003 Inter-Institutional Agreement takes place and which, although certainly obsolete, provided the Better Regulation Agenda with its real motive, that of improving the quality of legislation, by attempting to flag up the new challenges arising and the main fault lines in the proposals from each of the different institutions.
All the different investigations carried out by Eric Van den Abeele lead him to sound the alarm: "we are witnessing a refit of legislative activity" the proof of which, he claims, can be seen with the stubbornness demonstrated by the Commission and the short-sightedness of the European Council and Council by choosing to focus on the exclusive reduction of costs and administrative charges and not on the potential benefits contained within regulation or the costs of having a watered-down EU. This he believes, leads to the unquestionable "disintegration" of the European Union because the Community acquis have been undermined as has the Community method. He also says that the Regulatory Control Committee replacing the Impact Assessment Council is in danger of censoring legislative activity and that the independence of the Commission, which guarantees the general interest, is somewhat delegating its tasks to the benefit of stakeholders with different, varied and contradictory interests. The author concludes that "reducing for the sake of reducing does not constitute a policy" and that the main task is not so much one of reducing the Community acquis but rather, providing the Union with intelligence standards that help replace the "everything for competitiveness paradigm" by an intelligent sustainable development revolution. He has subsequently launched a debate, which, judging by the evidence, will be at the heart of the European debates over the next few months. …
Michel Theys
*** JUSTINE PILA, CHRISTOPHER WADLOW (Editors): The Unitary EU Patent System. 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 of the Oxford Institute of European and Comparative Law" series, No. 19 2014, 207 pp. £50. ISBN 978-1-84946-619-6.
This book stems from a workshop jointly organised a year and a half ago by the Institute of European and Comparative Law, University of Oxford ESRC and the Centre for Competition Policy (CCP) at the University of East Anglia. It provides a valuable insight into essential issues raised by the unitary EU patent system created by Regulation 1257/2012 and Regulation 1260/2012, as well as the 2013 agreement on setting up a tribunal responsible for this area. The book's editors also explain that this mechanism constitutes, "the culmination of over 50 years of attempts to legislate for a system under which patents could be enforced within Europe on a supranational, and perhaps ultimately pan-European, basis their relationship with the European Patent Office and the Court of Justice". This is certainly a significant step forward and appreciated by many companies, despite the fact that David Kitchin (The Court of Appeal in England and Wales) uses most of his introduction to demonstrate that the new system is not going to be a panacea from a legal perspective. The innovations are examined in the 10 contributions that follow in light of their historic context and relationship with the European Patent Office and European Court of Justice, as well as their place in the EU legal and constitutional order, their relationship with competition law and those that will be developed with US and international private law and in the context of the expectations of those that will possibly be using them. In the general conclusions that she draws, Alison Brimelow, the former President of the European Patent Office, explains why she still thinks there is still a lot of work cut out for them. (PBo)
*** KERSTIN KERN: Ausschließliche Patentlizenzen im Europäischen Insolvenzrecht. Die Einordnung der ausschließlichen Patentlizenz unter die europäische Insolvenzverordnung auf der Basis des französischen und deutschen Patent- und Insolvenzrechts. Peter Lang (1 Moosstrasse, P.O. 350, CH-2542 Pieterlen. Tel: (41-32) 3761717 - fax: (41-32) 3761727 - Email: info@peterlang.com - Internet: http://www.peterlang.com ). "Schriften zum internationalen Privat- und Verfahrensrecht " series. 2014, 326 pp, €79.95. ISBN 978-3-631-65546-7.
In her thesis, Kerstin Kern looks at the question of exclusive patent license contracts in the event of bankruptcy by the body responsible for awarding licences when it is established in a country that is not the same as the licensee. This kind of situation in the European Union has led to the introduction of many legal standards: particularly at a European level but not exclusively so - Regulation EC 1346/2000 on insolvency procedures and Regulation EC 1257/2012 on the unitary protection conferred by a patent; at a level of member states and domestic legislation regarding patented license contracts and insolvency law. Looking at the situation in France and Germany, one of the main thrusts in the analysis proposed consists in identifying license guarantees in the event of bankruptcy by the body responsible for issuing licences in the other country, as part of the collective liability settlement procedure in each of the countries examined, during which the central role of the German or French official receiver/liquidator is highlighted. (GLe)
*** LEONE NIGLIA: The Struggle for European Private Law. A Critique of Codification. Hart Publishing (see address attached). "Modern Studies in European Law" series, No. 50. 2015, 185 pp. £48. ISBN 978-1-84946-260-0.
In this publication, Professor Niglia, director of the Centre for European Legal Studies at the University of Exeter, explores new ways employed to unify private law by way of codification in the European Union. To this end, he develops an analytical method that helps to examine the position of those responsible for codification and the reasons for their dissatisfaction in the context of the codification strategy developed by the Commission. He believe that this strategy is a turning point in the struggle to configure private law and which has pitted legislators against legal practitioners since the Savigny-Thibaud case of… 1814, which the author reassesses. The author's starting point is that legislators have always worked in this domain "in tandem with the legal elites". He portrays the idea of the European civil code as a complex project of reorganisation of the private realm sought by the European legislator and key segments in the legal world that he describes as, "a powerful governmental technique for the ongoing shaping of the market by the legal experts". Subsequently, he observes the emergence of an artificially recreated unified law above those at a national level. The book is divided into four parts. In the first part, Leone Niglia explains how legal experts and the Commission have cooperated to devise the Draft Common Frame of Reference and its synthetic version, the Optional Sales Law Code. In the second, he tackles the way in which jurisprudential forces have organised private law by freeing themselves of the restrictions exercised by the different national legal codes and have subsequently developed a law that is much less ideological. The third part involves a critique of the current progress achieved with these approaches and the observation that the codification process is encountering diverging points of view within the process itself. The repercussions of “social dumping” provoked by the Optional Sales Law Code are a particular case in point in this encounter. In the last part of the book, the author explains that this exercise is yet another episode in the infinite struggle waged in the legislative and legal arena. (PBo)
*** CHRISTOPH RÖDTER: Das Gesellschaftskollisionsrecht im Spannungsverhältnis zur Rom I - und II- VO. Eine Untersuchung zur Reichweite des Gesellschaftsstatuts in Abgrenzung zu den Kollisionsregeln der Rom I- und Rom II-VO. Peter Lang (1 Moosstrasse, P.O. Box 350, CH-2542 Pieterlen. Tel: (41-32) 3761717 - fax: 3761727 - Email: contact@peterlang.com - Internet: http://www.peterlang.com ). "Studien zum vergleichenden und internationalen Recht" series. 2014, 257 pp. €61.95. ISBN 978-3-631-65651-8.
As part of his thesis, Christoph Rödter examines the scope of the rules on the status of companies in the context of the rules on conflict and the laws defined by the European Rome I and Rome II regulations. These two regulations certainly do not directly affect corporate law, however and the restrictions imposed on the scope of the latter are therefore indirect and more subtle. In an effort to get to grips and define this limitation, the author provides a preliminary examination of the rules on the status of companies subject to the rules on conflicts in European and national laws and he indicates how to decide on the application of one or other of these rules. He concludes his study by focusing the rules on the status of companies in the context of the European Rome I and Rome regulations, as well as locating them within the European regulation on insolvency procedures. (GLe)
*** CORINNA MALETZKI: Inhaltskontrolle nicht individuell ausgehandelter Vertragsbestimmungen in B2C-Verträgen nach dem Gemeinsamen Europäischen Kaufrecht. Peter Lang (see address attached). "Pforzheimer wirtschaftliche Studien" series. 2014, 166 pp. €44.95. ISBN 978-3-631-65348-7.
The project for creating European sales law should help develop a unified legal framework applied to cross-border contracts affecting sales law within the Union, particularly through the setting up of a pre-established contractual framework. This book looks at the draft regulation that will oversee the contractual clauses in such a contract, which are not the subject of specific case-by-case negotiations between the parties or those imposed on at least one of the different parties. The author provides a comparison of the provisions in German law and the draft European regulation on this subject. Nonetheless, Corinna Maletzki, remains cautious about the definitive substance of this latter regulation that has not yet been put into practice
(GLe)
*** DANIELE MATTIANGELI (Editor): Emptio-Vendito Europäische Studien zur Geschichte des Kaufvertrags. Peter Lang (see address attached). "Salzburger Studien zum Europäischen Privatrecht" series. 2014, 416 pp. €79.95. ISBN 978-3-631-65463-7.
The different authors contributing to this anthology analyse the foundations and historical roots of sales law. In their contributions they draw on Roman sales law, particularly its main lessons and theoretical foundations. These legal specialists then look at the historical evolution of sales law, such as the contract of sale in 13 different European countries. The main thrust underpinning this selection of essays is the article written by editor, Daniele Mattiangeli, which provides a detailed assessment of the legal foundations of the Roman sales contract. (GLe)