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Full-Text Articles in Law
Non-Horizontal Mergers: A European Perspective, Carles Esteva Mosso
Non-Horizontal Mergers: A European Perspective, Carles Esteva Mosso
Fordham International Law Journal
In the last few years, the assessment of non-horizontal mergers in the European Union (“EU”) has evolved considerably. There is now a consistent body of jurisprudence and administrative decisions on the assessment of vertical and conglomerate concentrations. The goal pursued is consumer welfare; the potential benefits of non-horizontal mergers are recognized and sound economic thinking is relied upon in identifying those instances where such mergers could lead to anti-competitive effects. Several developments have significantly contributed to this evolution. Two judgments of the European Courts have necessarily to be mentioned first: in 2004 the European Court of Justice (“ECJ”) established general …
The Evolution Of The Free Movement Of Capital, John A. Usher
The Evolution Of The Free Movement Of Capital, John A. Usher
Fordham International Law Journal
After considering the evolution and scope of the capital movement rules, this Article will examine two distinct themes: 1) the treatment of discriminatory taxation under the capital movement rules, looking in particular at whether there is a coherent approach to this issue across the Treaty “freedoms,” and 2) the reaction of the European Court to the extension of the capital movement rules to third countries.
Fifty Years Of Ec/Eu External Relations: Continuity And The Dialogue Between Judges And Member States As Constitutional Legislators, Pieter Jan Kuijper
Fifty Years Of Ec/Eu External Relations: Continuity And The Dialogue Between Judges And Member States As Constitutional Legislators, Pieter Jan Kuijper
Fordham International Law Journal
First, the progressive development of the Common Foreign and Security Policy (“CFSP”) and European Security and Defense Policy (“ESDP”) in the successive Treaty amendments will be sketched in its character as heritage of the French Fouchet Plan of 1961-62. Second, the idea of a dialogue between the European Court of Justice (“ECJ”) and the Member States as constitutional law-givers will be sketched in greater detail. This presumably will enable us to recognize some kind of continuity in these developments and the final question to be answered will be whether this continuity is also apparent in the considerably amended provisions on …
The Lisbon Treaty: A Brief Outline, Giorgio Maganza
The Lisbon Treaty: A Brief Outline, Giorgio Maganza
Fordham International Law Journal
The story of the Lisbon Treaty cannot be told--nor can a brief outline thereof be sketched--without going back to the Constitutional Treaty, which represents the background to the Lisbon Treaty and against which the Lisbon Treaty ought to be assessed. That is why the present outline will first refer to the Constitutional Treaty, before addressing the structure and the content of the Lisbon Treaty.
The European Central Bank's Independence And Its Relations With Economic Policy Makers, Professor Dr. René Smits
The European Central Bank's Independence And Its Relations With Economic Policy Makers, Professor Dr. René Smits
Fordham International Law Journal
In this Essay, written for the Fifty Years of European Union (“EU”) Law Conference organized by Fordham Law School, I intend to sketch the independent position of the European Central Bank (“ECB”) in the context of economic policy making within the European Union. I will briefly describe the law and the practice in respect of independence and economic-policy making, both the internal (domestic policies) and the external aspects (international policies). The law is stated as of February 25, 2008.
Silver Threads Among The Gold . . . 50 Years Of The Free Movement Of Goods, Laurence W. Gormley
Silver Threads Among The Gold . . . 50 Years Of The Free Movement Of Goods, Laurence W. Gormley
Fordham International Law Journal
The European Community (“EC”) is 50 years old this year, albeit having undergone a change of name and, just to confuse everyone, the articles of the Treaty establishing the European Community (“EC Treaty”) underwent a change in numbering. If the Treaty of Lisbon comes into force, the European Community itself will disappear, being absorbed into the European Union (“EU”), and the present EC Treaty will become the Treaty on the Functioning of the European Union (“FEU”). It is thus appropriate that this issue of the Fordham International Law Journal be devoted to the Golden Anniversary of the European (Economic) Community, …
Regulation And Modes Of Governance In Ec Competition Law: What's New In Enforcement?, Imelda Maher
Regulation And Modes Of Governance In Ec Competition Law: What's New In Enforcement?, Imelda Maher
Fordham International Law Journal
The Article first locates the modernization of European Community antitrust enforcement within the context of the regulatory state and the Lisbon agenda before turning to the debates on new governance. It then specifically analyzes the emergence of networks in general and the European Competition Network in particular before concluding.
Environmental Spill-Overs Into General Community Law, Professor Dr. Jan H. Jans, Professor Dr. Hanna G. Sevenster, Jos M.P. Janssen
Environmental Spill-Overs Into General Community Law, Professor Dr. Jan H. Jans, Professor Dr. Hanna G. Sevenster, Jos M.P. Janssen
Fordham International Law Journal
This Article will illustrate that indeed, European environmental law is not just another sectoral policy area of the European Union (“EU”). Over the years it has proven to have a major impact on various general doctrines of European law. In that sense, European environmental law had (and still has) an important spill-over impact upon general European Community (“EC”) law. It is the modest ambit of this Article to illustrate some of the environmental spill-overs into general European law, specifically examining the role of the European Court of Justice (“ECJ”) and its case law.
Activism And Darfur: Slowly Driving Policy Change, Colin Thomas-Jensen, Julia Spiegel
Activism And Darfur: Slowly Driving Policy Change, Colin Thomas-Jensen, Julia Spiegel
Fordham International Law Journal
This article describes citizen activism about the situation in Darfur. Part I describes the birth of the activist movement. Part II describes the foundations and growth of the movement. Part III describes the movement in more detail and details govenrment responses as a result of this movement. Parts IV and V look towards the future.
Fifty Years Of European Community Law , Roger J. Goebel
Fifty Years Of European Community Law , Roger J. Goebel
Fordham International Law Journal
Thus, it is highly appropriate for the Fordham Center on European Union Law and the Fordham International Law Journal ("ILJ") to join efforts to celebrate the achievements of the European Community, with particular recognition of the role and influence of the EC Court of Justice. Our conference, Fifty Years of European Community Law, held on February 29 and March 1, 2008, assembled thirty leading European and American experts in EU law fields, together with five former Court of Justice members and national court judges, for an impressive program reviewing different fields. This issue of the ILJ is the first of …
Tax Reform And Promoting A Culture Of Philanthropy: Guatemala's "Third Sector" In An Era Of Peace, Archana Sridhar
Tax Reform And Promoting A Culture Of Philanthropy: Guatemala's "Third Sector" In An Era Of Peace, Archana Sridhar
Fordham International Law Journal
Three major sections comprise this Article. Part I offers a historical overview of recent Guatemalan tax reform efforts and goals for civil society, based on the 1996 Peace Accords. Part II maps and analyzes the current provisions regarding philanthropy and regulation of the NGO sector in Guatemala, including discussion of the limitations imposed by constitutional doctrine. Part III explores recommendations for Guatemalan reform in the areas of philanthropy and civil society, based in part on the negotiations of the 2006-2007 Pacto Fiscal Commission as well as recent recommendations for Latin America in general. While there has been a burgeoning conversation …
Conceptualizing Intimate Violence And Gender Equality: A Comparative Approach, Valorie K. Vojdik
Conceptualizing Intimate Violence And Gender Equality: A Comparative Approach, Valorie K. Vojdik
Fordham International Law Journal
Part I discusses the treatment of domestic violence as a human rights issue under international law, focusing on the shift in the conceptualization of violence against women from a private matter to a human rights issue. By framing gender-based violence as a means to perpetuate the social, economic, and political inequality of women, the international community has imposed positive obligations upon the state to not only punish but to prevent gender-based violence and to eliminate its root causes. In Parts II and III, I contrast the approaches of the highest courts of the United States and South Africa. Part II …
Child Soldiers, Slavery And The Trafficking Of Children, Susan Tiefenbrun
Child Soldiers, Slavery And The Trafficking Of Children, Susan Tiefenbrun
Fordham International Law Journal
This article will examine the complex relationship of human trafficking, slavery, and child soldiering. Part I will examine the root causes of the development and expansion of the use of child-soldiers. Part II will examine the international and domestic laws and instruments that protect against the use of children as soldiers. Part III will examine some literary representations of the crime of child soldiering in order to raise the readers' awareness of the depths of this atrocity. Part IV will conclude by offering practical suggestions and economic solutions to make these legal instruments more effective. Children are humanity's most valuable …
The Challenges Of International Criminal Prosecutions In Africa, Okechukwu Oko
The Challenges Of International Criminal Prosecutions In Africa, Okechukwu Oko
Fordham International Law Journal
This article evaluates the problems and challenges of international criminal prosecutions in Africa.Part I examines the values of criminal prosecution. It examines whether international criminal prosecutions can be used as a vehicle to contribute to "national reconciliation and to the restoration and maintenance of peace." I concede that punishing perpetrators of evil is definitively a viable mechanism for combating impunity. In appropriate cases, the criminal process can be deployed to engineer compliance with the law and to deter would-be perpetrators of evil. I argue, however, that the objectives of using criminal prosecution to reestablish social equilibrium and promote reconciliation, though …
Introduction: New Dimensions Of Cultural Property, Susan Scafidi
Introduction: New Dimensions Of Cultural Property, Susan Scafidi
Fordham International Law Journal
The articles in this symposium, and the scholars, practitioners, and passionately committed individuals who came together at the invitation of the Fordham International Law Journal to discuss current issues in cultural property law, represent important and diverse perspectives. Their work is a significant contribution to the growing body of scholarship on ownership of culture and offers a glimpse into the future of the field.
Proving State Responsibility For Genocide: The Icj In Bosnia V. Serbia And The International Commission Of Inquiry For Darfur, Ademola Abass
Proving State Responsibility For Genocide: The Icj In Bosnia V. Serbia And The International Commission Of Inquiry For Darfur, Ademola Abass
Fordham International Law Journal
This Article discusses the Bosnia v. Serbia case and the Darfur Inquiry and asks whether, in coming to their respective decisions on Serbia and Sudan's responsibilities, the ICJ and the ICID did all that was required of them, especially under the law of State responsibility. This Article first considers whether, despite striking similarities in the circumstances of Darfur and Srebrenica, the ICID's decision that genocide did not occur in Darfur is credible, defensible and could withstand legal analysis under international law. The analysis here juxtaposes the ICID's findings with the ICJ's decision on the Srebrenica genocide.
The Lisbon Compromise: A Synthesis Between Community Method And Union Acquis, Jacqueline Dutheil De La Rochère
The Lisbon Compromise: A Synthesis Between Community Method And Union Acquis, Jacqueline Dutheil De La Rochère
Fordham International Law Journal
Lisbon is a return to the community method: the word "Constitution" has disappeared along with the goal of drafting a self-sufficient document. A new treaty is proposed for ratification by Member States modifying on one side the Treaty on European Union ("TEU") and on the other side the Treaty establishing the European Community ("EC Treaty"); this last part of the modifying treaty is designated as the Treaty on the Functioning of the European Union ("TFEU"). Nothing has improved as regards clarity and simplification: the amendments cover 152 pages and prove very difficult to read in the absence of consolidation, not …
The Application Of Community Law By National Courts Ex Officio, Richard H. Lauwaars
The Application Of Community Law By National Courts Ex Officio, Richard H. Lauwaars
Fordham International Law Journal
This Essay will mainly deal with the administrative jurisdiction, but to the extent that it is relevant, will also pay attention to civil suits as well, in a national context as in the Union. The Essay will describe the development of the case-law of the Court of Justice concerning the ex officio application of Community law, starting with the well-known van Schijndel & van Veen v. Stichting Pensioenfonds voor Fysiotherapeuten and Peterbroeck, Van Campenhout & Cie SCS v. Belgian State cases of December 14, 1995 and ending with the van der Weerd & Others v. Minister van Landbouw, Natuur en …
Improving Competition In European Energy Markets Through Effective Unbundling, Neelie Kroes
Improving Competition In European Energy Markets Through Effective Unbundling, Neelie Kroes
Fordham International Law Journal
This Article is structured as follows: first, it summarizes the European approach to developing integrated and well-functioning electricity and gas markets, giving an overview of the opening of energy markets through Community legislation and the development of the current unbundling regime. It puts the European approach in perspective, outlining experiences with unbundling in the United States. Secondly, the malfunctioning of European energy markets is analyzed, presenting the findings of the Sector Inquiry. It then explains how the problems identified can be addressed using instruments at the Commission's disposal, namely competition law enforcement and legislation. In this context, the main elements …
The Development By The Court Of Justice Of The Duties Of Cooperation Of National Authorities And Community Institutions Under Article 10 Ec, John Temple Lang
The Development By The Court Of Justice Of The Duties Of Cooperation Of National Authorities And Community Institutions Under Article 10 Ec, John Temple Lang
Fordham International Law Journal
Article 10 of the European Community Treaty has gradually given rise to a large body of case law on a wide variety of subjects, including several profoundly important constitutional principles of Community law: the duty of national courts to give effective protection to rights given by Community law, the duty to give direct effect to directives against the State, the duty to interpret national law so as to be compatible with Community law, and the right to judicial review. These principles are the foundation of the constitutional structure that the Court of Justice has built, in which national courts ensure …