A debate is under way about the future of the European Union. It was started by the Declaration adopted by the European Council of Nice in December 2000, was given more substance by the Declaration of Laeken in December 2001, and received a formal focus in the Convention which has been brought together in Brussels under the chairmanship of former President Giscard d’Estaing. The Nice Declaration referred to, among other things, ‘the simplification of the Treaties with a view to making them clearer and better understood without changing their meaning’, but the Laeken Declaration goes considerably further. There is a section in the Declaration entitled, ‘Towards a constitution for European citizens’, which contemplates possible changes to the structure not only of the Treaties but of the Union itself, including perhaps the abolition of the division into three so-called ‘pillars’, and the distinction between the European Union and the European Communities. The Declaration also raises the matter of the legal status of the Charter of Fundamental Rights which was proclaimed in Nice, and speculates as to the possible adoption ‘in the long run’ of what it calls a ‘constitutional text’. A reordering of the primary instruments of the Union is, therefore, very much on the agenda of the Convention, and the idea has heavyweight political supporters.

During the past nine years, co-operation in criminal matters within the European Union has developed in a rather fascinating way. Before the Maastricht Treaty, which entered into force in 1993, there was not much co-operation in this area at all.

During the time before Maastricht, the focus was on the creation of the internal market, on the rules on competition etc. and criminal law did not fall within the scope of the Treaties. Thus, although Community law had (and has) some implications for national criminal law and despite the fact that some conventions were agreed upon within the European Political Co-operation one cannot really say that criminal law questions were formally on the agenda before Maastricht.

In a series of decisions the European Court of Justice [‘the Court’] has ruled that Member States must deploy their law enforcement authorities, including their criminal justice systems, so as to safeguard Community interests from threat or damage. These rulings have received attention from commentators because, amongst other things, they make it explicit that Community law has a tangible impact on matters of criminal law and justice notwithstanding the absence of a criminal legal base in the Community Treaty.

In this article, I argue that apparently common values, such as ‘judicial independence’ have significantly different meanings in different judicial cultures. As an illustration, I take Sweden and Spain, countries with very different histories and institutional arrangements. It is my contention that basic values are understood and implemented in the light of historical and institutional settings. These have given rise to issues which a nation’s judiciary feel it has to address and set the context in which the contemporary judiciary has to operate. The purpose is to examine how far national histories and traditions colour the understanding of common values, such as judicial independence and democracy in the judicial process.

It is of course by no means certain that the Treaty of Nice will be ratified and that we will face the most radical revision to the EC Treaty provisions on the Common Commercial Policy (CCP) since its inception in 1957. Unlike most other proposed changes, however, this revision was foreshadowed in substance if not in detail by the Treaty of Amsterdam, which by adding a new paragraph 5 to the existing Article 133, allowed for the possibility of the extension of the CCP by Council decision. This aspect of the Treaty of Nice is particularly worth discussing, even in the absence of certainty as to its coming into force, both because some alterations to the CCP would be possible even under the existing regime, and because the issues raised by the Nice amendment are extremely pertinent to any such development. Discussion of the implications of the choices made at Nice are instructive when considering not only the post-Nice CCP but alternative options in the event of other Treaty amendments. The complexity of the Nice amendment is a reminder of just how difficult it is to achieve consensus in this area, and also of how important in practice that consensus is.

This article is concerned with the legal position of Community nationals who move to another Member State in search of employment. Section II will summarise the traditional legal status of the workseeker viewed as an economic factor of production. Section III will explore the new legal status of the workseeker viewed as a citizen of the European Union. Section IV will offer some brief comments on the Commission’s 2001 proposal for an umbrella directive on free movement for Union citizens, and its implications for the migrant workseeker. It will be argued, through this analysis, that the institution of Union citizenship, so often criticised for its ‘us and them’ mentality in the treatment of third country nationals, is equally characterised by a ‘haves and have-nots’ approach to its own members—thus presenting a model which (albeit for perhaps understandable pragmatic reasons) is not necessarily in the best interests of maximising economic efficiency within the Common Market, places limits on certain of the political aspirations vested in the process of European integration, and questions the depth or at least the methodology of the Community’s stated commitment to attaining high levels of social protection.

Rounding off a highly innovative process of elaboration, the European Union’s Charter of Fundamental Rights was officially proclaimed by the European Parliament, the Commission and the Council as planned at the Nice Summit, on 7 December 2000. According to the Cologne European Council of 3 and 4 June 1999, ‘it will then have to be considered whether and, if so, how the Charter should be integrated into the treaties’. Indeed, this is one of the points which, under the terms of Declaration 23 annexed to the Nice Treaty, will have to be considered during the ongoing process of institutional reform.

Advocate General Mayras described a public authority as ‘that which arises from the sovereignty and majesty of the State; for him who exercises it, it implies the powers of enjoying the prerogatives outside the general law, privileges of official power and powers of coercion over citizens’.

This quotation has an eighteenth century flavour and is difficult to adapt to the complex legal and economic system of the European Community the extraordinary remit of which has extended to many activities traditionally reserved to the State and to public authorities. The scope of this remit blurs the distinction between what could be termed the exercise of a public power and what could be termed the exercise of an economic function. The ‘Europeanization of public service provision’ has thus rendered the definition of a ‘public authority’ elusive. One of the areas where such a definition has been particularly problematic is the protection of employees’ rights in the event of the transfer of an undertaking.

From the point of view of an individual, rights conferred by a legal system are only effective and substantive if there are effective remedies available if those rights are infringed. In some instances, those remedies may be pre-emptive; but in most instances, they seek to deal with infringements of rights, or damage to interests, which have taken place.

A lot of attention has been devoted in the past few years to attempts made by intellectual property owners to oppose parallel imports. This refers in particular to imports without their consent of goods placed by themselves, or with their consent, on the export market. The question is crucial as it is inherently linked to the quest for the key to control international trade flows and to restrict intra-brand competition in the country of importation.

On 1 March 2002, the Competition Commission Appeal Tribunals (‘the Appeal Tribunals’) celebrate the second year of their existence, this being also the second anniversary of the coming into force of the Competition Act 1998 (‘the Act’) which founds their jurisdiction. In fact the Act had existed in dormant form for some time before this date (it was enacted on 9 November 1998), giving competition practitioners and officials alike ample warning of the main provisions of the new regime. However, as the Appeal Tribunals are an appellate body, their opportunity to play their part in the brave new world of competition law had to await the actions of the administrative bodies, and hence the Appeal Tribunals were not called upon to act until fifteen months into their tenure. Nevertheless, once appraised of appeals they have proceeded to produce a number of final and interlocutory judgments which have established the framework and ground rules for an effective judicial forum.

Within the context of Community law, the negotiation, conclusion and implementation of international agreements is often fraught with legal problems about competence. There are various reasons for this: the EC Treaty set out a sui generis legal order based on the principle of limited powers pursuant to Article 5 EC. On the other hand, international trade relations deal with a wide range of distinct, albeit interdependent, areas not necessarily falling within the Community’s competence. This substantive discrepancy entails the simultaneous involvement of both Member States and Community institutions, whose often differing agenda may give rise to disputes of a procedural and practical nature. This process has been seen as a threat to the uniformity of the Community’s external relations. The Commission, for instance, has often argued that, in order for the Community to maintain a unified position on the international trade scene, to preserve the coherence of its policies and protect the credibility of its negotiating stance, the exclusive nature of its competence should be interpreted broadly.

The Technical Barriers to Trade (hereinafter TBT) Agreement was negotiated at the Tokyo Round (1973–1979). However, at that time the GATT rules comprised no legally binding mechanism to force Member States to respect their obligations. Indeed, Member States remained free to defer the dispute settlement system. Consequently, for a very long time the TBT Agreement remained a dead letter.

In May 1998, the Council, meeting in the composition of Heads of State or Government, unanimously decided, in accordance with Article 121(2) EC, that eleven Member States fulfilled the necessary conditions to move towards the third and final stage of economic and monetary union (EMU) with the adoption of the single currency on 1 January 1999. This article will discuss the legal position of the Member States which did not initially progress to the third stage of EMU, in particular, the opt-outs exercised by the United Kingdom (UK) and Denmark. There follows an analysis of the extent of the UK and Danish opt-outs and the derogation which exists in relation to Sweden (and previously Greece) together with the role of these Member States in the new institutional framework as in operation from 1 January 1999. The current political discussions on the Euro taking place within the UK and Denmark will be highlighted.

There is a generalised perception that the European Court of Justice has adopted different approaches to the different free movement rules included in the Treaties. In particular, the free movement of goods has ‘benefited’, until 1993, from a wider scope of application. Contrary to what has for long constituted the standard approach to the free movement of persons, the free movement of goods was constructed as requiring more than national treatment and non-discrimination in regard to goods from other Member States. Even non-discriminatory restrictions on trade in goods could constitute a violation of Community rules if not justified as necessary and proportional to the pursuit of a legitimate public interest. The freedom to provide services has somewhat occupied a middle ground between the interpretation given to the goods and persons provisions. Following the Court’s decision in Keck & Mithouard in 1993, a reversal of fortune appears to have taken place regarding the Court’s approach to the different free movement provisions, with the free movement of persons and the freedom to provide services now benefiting from a more ‘aggressive’ interpretation in comparison with the free movement of goods.

This article is about reaching a closing door before it shuts. The door in question is the academic and institutional approach which has been taken since 1971 to the Court of Justice’s seminal decision on the Community’s implied external competence in Case Commission v. Council (the ‘AETR’ case). A recent study of the rules enunciated by the Court is prefaced by an apologetic justification for daring to trespass on the sacred ground of the old authorities, exemplifying the sclerotic complacency which now seems to characterise disquisition in the field. There is much to be regretted in this, since it is by no means clear some thirty years after the AETR decision that the correct analysis of those authorities has been unearthed. It is hoped that there is still room for debate on the matter.