New Legal Dynamics of European Union

365 Pages·1995·6.201 MB·English

by  Jo Shaw (Ed.), Gillian More (Ed.)

New Legal Dynamics
of European Union
JO SHAW
and
GILLIAN MORE
CLARENDON PRESS OXFORD
1995
Oxford University Press, Walton Street, Oxford 0x2 6dp
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British Library Cataloguing in Publication Data
Data available
Library of Congress Cataloging in Publication Data
The new legal dynamics of European Union/[edited by] Jo Shaw and
Gillian More,
p. cm.
Includes bibliographical references.
1. Law—European Union countries. I. Shaw, Josephine. II. More,
Gillian.
KJE949.N49 1995
349.4—dc20 95-41327
[344]
ISBN 0-19-825980-8
ISBN 0-19-826218-3 (Pbk)
1 3 5 7 9 10 8 6 4 2
Typeset by Cambrian Typesetters Frimley, Surrey
Printed in Great Britain
on acid-free paper by
Biddles Ltd, Guildford and King’s Lynn
Preface and Acknowledgements
It is a truism that all essay collections are the result of collaborative
endeavour, involving extensive collaboration and co-operation
between editors and contributors. However, it is perhaps even more
true about this collection than most. Suggestions for essay titles and
abstracts from proposed contributors were gathered together by Jo
Shaw, but the book only began to come together at a workshop held
at the Europa Institute, University of Edinburgh, in November
1994, organized by Gillian More, where drafts of most of the papers
were presented. The outcome of the intensive discussions at this
workshop was a friendly, close, and continued collaboration
amongst the various contributors, as well as between editors and
contributors. In that respect the production of the book has been an
invaluable and (we hope) enjoyable learning experience for all
involved. For their prompt production of good quality copy and
their patient responses to our requests for amendments we would
like to thank all our contributors.
We would also like to thank the following people: Willie Paterson
for suggesting that the workshop for contributors be held in
Edinburgh and for supporting our endeavour; Andrew Scott, acting
Director of the Europa Institute, for providing generous financial
support for the workshop; Margaret Ainslie for providing adminis­
trative and organizational support; Richard Hart of Oxford
University Press for supporting the project from the beginning and
for making a financial contribution to the workshop; Peter Growther
for initiating and organizing the establishment of an e-mail network
which has greatly facilitated communication between participants;
John Alder, Head of the Law Department of Keele University, for
funding a research assistant; and Linda Veloso for checking the
manuscript and bibliography.
Gillian More
Jo Shaw

Table of Contents
LIST OF CONTRIBUTORS IX
LIST OF ABBREVIATIONS XÜ
Introduction 1
Jo Shaw
Identity and Difference: The European Union
and Postmodernism 15
Ian Ward
The Language of Rights and European Integration 29
Grâinne de Bùrca
The Single Market: From Prima Donna tojourneyman 55
Damian Chalmers
The Legacy of the Market Citizen 73
Michelle Everson
Migrant Workers and their Families in the European
Union: the pervasive market ideology of Community law 91
Tamara K. Hervey
W(h)ither Social Policy? 111
Elaine A. Whiteford
The Acquired Rights Directive: Frustrating or Facilitating
Labour Market Flexibility 129
Gillian More
The GATT and Community Law: rethinking the
‘regulatory gap’ 147
Joanne Scott
Regulating the free movement of goods: institutions and
institutional change 165
Kenneth A. Armstrong
viii Table of Contents
Changing Patterns of European Community Utilities
Law and Policy: An Institutional Hypothesis 193
Colin Scott
Telecommunications and European Integration 217
Leo Flynn
Legislative Review by the EC Commission: Revision
without Radicalism 235
Imelda Maher
A European Litigation Strategy: the Case of the Equal
Opportunities Commission 253,
Catherine Barnard
The Court ofjustice: Taking Taxes Seriously? 273
Peter Crowther
Political Theory, Law and European Union 293
Daniel Wincott
BIBLIOGRAPHY 313
INDEX 339
List of Contributors
KENNETH A. ARMSTRONG is a Lecturer in Law at Keele
University, having previously held a research position based in the
European Policy Unit at the University of Manchester. His research
interests are currently focused upon the role of institutions in
shaping the European Community’s policy process.
CATHERINE BARNARD is Jean Monnet Lecturer in Law at the
University of Southampton. Her research interests lie in the fields of
EC law and labour law. She is author of EC Employment Law (Wiley
Chancery, 1995).
GRAINNE DE BÙRCA studied at University College Dublin and
the University of Michigan. She is a lecturer at Oxford University
and a fellow of Somerville College. Her interests lie broadly in the
areas of Criminal Law and European Community Law, and is joint
author with Paul Craig of European Community Law: Text, Cases and
Materials (Oxford University Press, 1995).
DAMIAN CHALMERS studied at Amsterdam and Oxford.
Having previously been a Research Officer for the British Institute
of International Comparative law and a Lecturer at the University
of Liverpool, he is currently a Lecturer at the London School of
Economics and Political Science.
PETER CROWTHER was educated at Keele University, Erasmus
University, Rotterdam and the University of Oxford. Since 1995 he
has worked at the Copenhagen Business School, having previously
been a Lecturer in Law at Brunei University. He is currently
researching utilities, examining the relationships between different
types of corporate governance systems, resulting business strategies,
and legal rules.
MICHELLE EVERSON studied at the Universities of Exeter and
Saarbrücken, and the European University Institute in Florence,
where she completed her PhD. She is currently a researcher at the
x List of Contributors
Centre for European Legal Policy at the University of Bremen,
where she is working on European Citizenship.
LEO FLYNN graduated from the National University of Ireland
and the University of Cambridge. He is a Lecturer in Law at King’s
College, London, having previously taught at the University of
Leeds. His teaching and research focuses on EC law, in particular as
it relates to State intervention in markets and on equality law.
TAMARA K. HERVEY studied at the Universities of Glasgow and
Sheffield and is currently Lecturer in Law at the University of
Manchester. She was previously Jean Monnet Lecturer in EC Law,
at the University of Durham. Her interests include EC sex equality
law, the legal protection of minorities, EC constitutional and
institutional law, feminist legal method, and comparative law.
IMELDA MAHER, Lecturer in Law, Birkbeck College, University
of London, has previously held positions in the University of
Warwick and University College, Dublin. Her research interests are
EC Law and competition law. She is currently writing a book on the
regulation of competition in Ireland.
GILLIAN MORE has held positions as a Lecturer in Law at the
Europa Institute, University of Edinburgh and at Keele University.
She is currently studying for the English Bar, based at Middle
Temple. Her principal field of interest is EC employment law.
COLIN SCOTT is a Lecturer in Law at the London School of
Economics and Political Science having previously taught at the
University of Warwick. His main fields of research and teaching are
utilities regulation, consumer law and public administration. He is
currently carrying out research on UK and EC telecommunications
regulation and on changes in regulation of public sector bureacracies
associated with the development of the New Public Management.
JOANNE SCOTT is a Lecturer in Law at Queen Mary and
Westfield College, London, having previously taught at the
University of Kent. She is the author of Development Dilemmas in the
EC: Rethinking Regional Development Policy (Open University Press,
1995).
List of Contributors XI
JO SHAW is Professor of European Law at the University of Leeds,
having previously worked at the Universities of Keele and Exeter.
Her main fields of research are EC law and Contract Law.
IAN WARD is currently Senior Lecturer at the Centre for Legal
Studies, University of Sussex, having taught previously at the
Universities of Durham and Iowa. He has been a visiting lecturer at
the Catholic University of Portugal and the University of Oslo. His
research interests lie in the areas of European law, jurisprudence
and comparative law. He is currently engaged in a series of studies
relating to the contextual and critical study of European Law.
ELAINE A. WHITEFORD graduated in law from the University
of Edinburgh in 1990 and has worked at the Europa Instituut at the
Rijksuniversiteit Leiden. She has been a Lecturer in Law at the
University of Nottingham since 1995. Her research interests
concentrate on the social dimension of the internal market and
occupational pensions.
DANIEL WINCOTT is Jean Monnet Lecturer in Law and Politics
of European Integration at the University of Warwick. He has
published articles on a number of aspects of European integration in
journals including Public Administration, West European Politics and
Democratization.
List of Abbreviations
AG Advocate General
AJCL American Journal of Comparative Law
AJIL American Journal of International Law
BB Betriebsberater
BEUC Bureau Européen des Unions Consommateurs
CAP Common Agricultural Policy
CBI Confederation of British Industry
CDE Cahiers de Droit Européen
CEE Charge having an equivalent effect (to a customs
duty)
CEEP European Centre of Enterprises with Public
Participation
CITES Convention on International Trade in Endangered
Species of Wild Fauna and Flora
CLJ Cambridge Law Journal
CLS Critical Legal Studies
CMLR Common Market Law Review
CRE Commission for Racial Equality
CTR Common Technical Regulation
DG Directorate General
DSB Dispute Settlement Body
EBLR European Business Law Review
EC European Community (formerly ‘EEC’)
ECHR European Convention on Human Rights
ECJ European Court of Justice
ECLR European Competition Law Review
ECSA European Studies Association
EEA Employment Equality Agency (of the Republic of
Ireland)
EEC European Economic Community (renamed ‘EC’
by TEU)
EJIL European Journal of International Law
ELR European Law Review
EMU Economic and Monetary Union
EOC Equal Opportunities Commission