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TitleCambridge Yearbook of European Legal Studies. Volume 02, 1999
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Contents
Contributors
Table of Cases
Table of Legislation
Table of Conventions and Treaties
1.  The Influence of European Community Law on Public Law in the United Kingdom
	I. Introduction
	II. Public Law in the United Kingdom
	III. Effects of European Community Law on Public Law
	IV. Constitutional Reform
2.  The Community Courts and Openness Within the European Union
	I. Democracy and Openness
	II. The Requirements of the Democratic Principle
	III. Towards a General Principle of Access in CommunityLaw
3.  The Concept of European Union
	I. The Self and the Other—the Dilemma of Identity
	II. The One and the Many—the Dilemma of Power
	III. Unity of Nature, Plurality of Value—the Dilemmaof the Will
	IV. Justice and Social Justice—the Dilemma of Order
	V. New Citizens, Old Laws—The Dilemma of Becoming
	VI. Making the Economic Constitution
	VII. The Precession Effect
	VIII. The Macro-micro Fault-line
	IX. European Union as European Society
4.  Joint Competence of the European Community and Its Member States and the Dispute Settlement Practice of the World Trade Organization
	I. Background, Scope and Purposes
	II. Complaints against the Community and theMember States: the Problem of the Correct Party
	III. Complaints by the Community and the Member States:the Prisoners of Consensus
	IV. Conclusions, Evaluation and Suggestions
5.  Caveat Emptor? Integrating the Schengen Acquis into the European Union Legal Order
	I. Introduction
	II. Schengen Cooperation: An Overview
	III. The Schengen Protocol
	IV. Defining the Schengen acquis
	V. Allocating the Schengen acquis
	VI. Legal Effects of Integration
	VII. Conclusions
6.  Grant v. South-West Trains: Some Comparative Observations
	I. Introduction
	II. Grant v. South-West Trains
	III. M v. H
	IV. A Comparative Assessment
7.  The New UK Competition Act: Reform or Revolution?
8.  Facing the Digital Future: Public Service Broadcasters and State Aid Law in the European Union
	I. Introduction
	II. State Aid Law and Public Broadcasting in the European Union
	III. Future Funding Options in Light of the State Aid Rules
	IV. Conclusion
9.  Prospects for European Company Law After the Judgement of The European Court of Justice in Centros Ltd
	I. Introduction
	II. Main Findings of the Judgment
	III. The Conclusions of the European Court of Justice onthe Circumvention of Member State Company Law
	IV. Regulation of Branches and Pseudo-ForeignCorporations
	V. The Siège Réel Theory in Private International Law
	VI. Competition Among Company Law Rules
	VII. The Effect of Centros Ltd on the Harmonisation ofCompany Law
	VIII. Conclusion
10.  Two Types of Regulatory Competition: Competitive Federalism versus Reflexive Harmonisation.  A Law and Economics Perspective on Centros
	I. Introduction
	II. Theories of Regulatory Competition
	III. The Evolution of Company Law in America and Europe:Comparative Perspectives
	IV. Assessing the Implications of Centrosfor European Company Law
	V. Conclusions
11.  EC Transport Law and Policy: A Status Report
	I. Introduction
	II. Historical Background
	III. Infrastructure: the Cost of Provision and Maintenance
	IV. External Competence in the field of Transport
	V. Concluding Observations
12.  Freedom of Information and Transparency as Administrative and Constitutional Rights
	I. Introductory
	II. Distinguishing Conceptual Meanings of Transparency
	III. Conclusions
13.  EU Citizens' Right to Know: The Improbable Adoption of A European Freedom of Information Act
	I. Introduction
	II. The Reception of German Constitutional Reasoningin Sweden
	III. The End of Secrecy as the General Principle ofCommunity Law?
	IV. The Alleged Primacy of the Internal Classification andSecrecy Rules of Community Law
	V. The Adoption of a EuropeanFreedom of Information Act?
	VI. Conclusion
14.  Access to Governmental Information and the Judicial Process: United Kingdom Law and the Influence of Europe
	Introduction
	I. Governmental Use of the Courts to Restrict Access toInformation
	II. Judicial Review of Administrative Action
	III. The Influence of Europe
	IV. Legislative Initiatives on Access to Information
15.  The Corpus Juris Project - Has it a Future?
	A. “The Corpus Juris is not popular”
	B. “The Corpus Juris would change laws and procedures”
	C. “The Corpus Juris is defective and incomplete”
	D. “The Corpus Juris is not practical”
	E. “The Corpus Juris lacks a proper Treaty base”
	Appendix
16.  The European Court of Justice, More than a Teleological Court
	I. Introduction
	II. Methods of Interpretation used by the European Courtof Justice
	III. Preliminary Rulings of the European Court (1962–1977):Three Areas of the Case Law
	IV. Concluding Observations
17.  Invalidity, Disapplication and the Construction of Acts of Parliament: Their Relationship with Parliamentary Sovereignty in the Light of the European Communities Act and the Human Rights Act
	I. Introduction
	II. The Nature of the Provisions Explained
	III. The Principle About Implied Repeal
	IV. The Statutory Construction Explanation
	V. Disadvantages of the Statutory Construction Explanation
	VI. Assumption about Parliamentary Supremacy andImplied Repeal Principle
	VII. Summary of Conclusions
18.  EC Law, UK Public Law and the Human Rights Act 1998: A New Integrative Dynamic?
	I. Introduction
	II. UK Public Law and the Language of European LegalIntegration
	III. EC Law, UK Public Law and the Practice of EuropeanLegal Integration
	IV. The Human Rights Act 1998 and European LegalIntegration
	V. The Human Rights Act 1998: A New integrativeDynamic?
	VI. Conclusion
19.  Human Rights in the Field of Taxation: A View from Sweden
	I. Introduction
	II. The Relevance of Human Rights to Tax Law
	III. The Swedish Constitution and Human RightsProtection
	IV. The European Convention on Human Rights
	V. The Law of the European Union
	VI. Tax Law and the Rule of Law
	VII. Conclusions
20.  Creating the New Europe: The Stability Pact for South-Eastern Europe in the Context of EU-SEE Relations
	I. The Stability Pact for South-East Europe
	II. The Context of the Stability Pact
	III. The Regional Approach and the Stabilisation andAssociation Process
	IV. The Stabilisation and Association Agreements
	V. Conclusions: EU External Relations in thePost-Kosovo Era
21.  The European Convention on State Immunity and International Crimes
	I. Introduction
	II. A Neglected Convention
	III. The European Convention on State Immunityand Criminal Jurisdiction
	IV. Why Implied Waiver?
	V. Article 2 (a) and Implied Waiver
	VI. Necessary Implication
	VII. Vis à vis Which States?
	VIII. Conclusion
Index
                        
Document Text Contents
Page 1

THE CAMBRIDGE YEARBOOK OF
EUROPEAN LEGAL STUDIES

Volume 2, 1999

Page 2

The Cambridge Yearbook of European Legal Studies provides a new forum for the
scrutiny of significant issues in European Law, the law of the Council of Europe, and
Comparative Law with a “European” dimension, and particularly those which have
come to the fore during the year preceding publication. The contributions appearing in
the collection are commissioned by the Centre for European Legal Studies (CELS)
Cambridge, which is the research Centre of Cambridge University Law Faculty special-
ising in European legal issues.

The papers presented are all at the cutting edge of the fields which they address, and
reflect the views of recognised experts drawn from the University world, legal practice,
and the civil services of both the European Union and its Member States. Inclusion of the
comparative dimension brings a fresh perspective to the study of European law, and
highlights the effects of globalisation of the law more generally, and the resulting cross
fertilisation of norms and ideas that has occurred among previously sovereign and sepa-
rate legal orders.

Each edition will commence with the Mackenzie-Stuart Lecture, established in honour of
Lord Mackenzie-Stuart, formerly President of the ECJ, and given each year in the
Cambridge Law Faculty. The first Lecturer, in 1997, was Judge G. Rodriguez Iglesias,
currently President of the ECJ; the second was Mr Jean-Louis Dewost, Director General
of the Commission’s Legal Service. Their contributions launch Volume 1.

This volume can be cited as 2 CYEL (1999)

Editorial Board

DR. PHILIP ALLOTT, Trinity College Cambridge
PROFESSOR TONY ARNULL, University of Birmingham

CATHERINE BARNARD, Trinity College Cambridge
PROFESSOR ALAN DASHWOOD, Director of CELS

MR DAN GOYDER CBE, Consultant Solicitor, Linklaters and Alliance,
Visiting Professor of Law, King’s College London
PROFESSOR ROSA GREAVES, Durham University

PROFESSOR BOB HEPPLE, Clare College Cambridge
PROFESSOR DAVID O’KEEFE, University College London

LORD LESTER OF HERNE-HILL
DR STEPHANIE PALMER, Girton College Cambridge

DAVID VAUGHAN QC, Brick Court Chambers
DR. ANGELA WARD, Assistant Director of CELS

PROFESSOR SIR DAVID WILLIAMS Q.C., Emmanuel College, Cambridge
PROFESSOR D.A. WYATT Q.C., St Edmund Hall, Oxford

Page 289

regulatory competition since, without it, there will not be a sufficient num-
ber of rival suppliers of legal rules. The continual danger will exist of the
central institutions assuming new powers over the lower levels of govern-
ment. In this context, it is important to note the view that “the Treaty of
Rome does not score high marks as a federal, or potentially federal, consti-
tution, because it did not address directly the question of the division of
powers between the centre and the constituent States”.15 To what extent this
deficiency has since been remedied by the subsequent enactment of Article 5
of the EC Treaty (formerly Article 3b), with its reference to the principle of
the attribution of powers (that is to say, the idea that the Community organs
only have those powers which have been conferred upon them by the Treaty),
is a matter for argument. For present purposes, it is sufficient to say that
Community law, thanks to Article 5 and also to the developing case-law of
the Court, is at least moving closer to a coherent account of the relationship
between what in the American context would be referred to as “federal pow-
ers” and “states’ rights”.

A federal orientation to the emerging European constitution is also nec-
essary on economic grounds for a second reason, namely the collective
action problem which emerges from decentralised law-makers being
accorded too much autonomy. This problem may be modelled in terms of the
well-known “prisoner’s dilemma”.16 The point about the prisoner’s dilemma
is that it describes a “non-cooperative game”, that is, a set of interactions in
which it cannot be assumed that the parties will cooperate simply because
they have undertaken or contracted to do so. Instead, it is assumed that none
of the parties will cooperate unless they rationally see this as being in their
self-interest. In the particular situation described by the prisoner’s dilemma,
it is not in the interests of any one party to cooperate, because the individual
pay-offs from defection (that is, non cooperation) always exceed those from
cooperation whatever the other party does. The outcome of mutual defec-
tion is therefore a “Nash equilibrium”, in other words a situation in which it
is not in the interests of either party to change their strategy given what they
rationally anticipate the strategy of the other to be. This is so even if the par-
ties would be collectively better off if they cooperated. The result can be
characterised, then, in terms of what critics of excessive decentralisation see
as the “race to bottom” in regulatory standards.

As we have seen, unless the individual states cooperate to allow free move-
ment of economic resources across their borders, the market mechanism
cannot be brought into play at all. At a very basic level, then, regulatory

Two Types of Regulatory Competition 237

15 Davies, P. “The European Court of Justice, national courts and the Member States”, in
Davies et al. (eds). above n 10 at 97; Berman, G. “Taking subsidiarity seriously” 94 (1994)
Columbia Law Review 331.

16 For an accessible and insightful account of the prisoner’s dilemma, see Hargreaves,
Heap, S. and Varoufakis, Y. Game Theory: A Critical Introduction (Routledge, 1995), in par-
ticular ch. 5.

Page 290

competition rests upon a prior agreement to cooperate among the states. At
least, this is the case if the starting point is the existence of a number of
separate, autonomous and sovereign states (as it is in the case of the
European Community). The problem of the prisoner’s dilemma is therefore
highly relevant to the debate over centralisation versus decentralisation in
transnational standard-setting, as a number of commentators have recog-
nised.17 But what exactly is the message which game theory is sending us
here?

A dynamic perspective on the prisoner’s dilemma predicts that coopera-
tion may emerge spontaneously, if certain conditions are met. These are two-
fold: interactions between the parties take place on a continuing or repeated
basis; and, the end-point, beyond which no further interactions will take
place, is not known in advance. In this situation, each party can respond to
the other’s defection by retaliating in the next round of play. This strategy of
“tit for tat”, or reciprocal punishment, means that each player binds his
strategy to that played by their opponent in the previous round. On this
basis, it becomes rational for each party to cooperate, until such time as the
end point of the game is known. At that point, the problem of “backward
induction” arises: since it is rational to defect in the final round of play (since
no retaliation is then possible), it becomes rational to defect in the round
before that, and so on.18

These basic insights have been further developed by evolutionary game
theory in such a way as to generate a wide range of predicted outcomes
(“multiple equilibria”), depending on the degree to which the parties prefer
present, certain gains over future, less certain ones, their propensity to make
mistakes about the other’s intentions, and the effects of playing “mixed
strategies” of cooperation and defection. The composition of the population
of players is also vital in determining how far an “evolutionarily stable strat-
egy” based on cooperation may emerge. Variations on “tit for tat” may prove
resistant to “mutant” strategies of defection under most conditions, but this
depends on the factors just mentioned, a change in any one of which can lead
to an established pattern of behaviour being destabilised.19 Thus, as Revesz
notes (in the context of environmental regulation), game theory can predict
either a race to the bottom, or a race to the top, either of which could be sub-
optimal:

238 S I M O N D E A K I N

17 A key text is Oates, W. and Schwab, R. “Economic competition among jurisdictions:
efficiency enhancing or distortion inducing?” 35 (1988) Journal of Public Economics 333. For
its use in a legal context see (inter alia) Revesz, R. “Rehabilitating interstate competition:
rethinking the ‘race to the bottom’ rationale for federal environmental regulation” 67 (1992)
New York University Law Review 1210; van Wezel Stone, K. “Labor and the global economy:
four approaches to transnational labor regulation” 16 (1995) Michigan Journal of
International Law 987; Van den Bergh, above n 1; Faure, above n 1.; Barnard, C. “Social
dumping revisited: some lessons from Delaware?” [2000] European Law Review 1.

18 Hargreaves Heap and Varoufakis, above n 16, ch. 3.
19 Ibid., ch. 7.

Page 577

Sovereignty:
EC law, influence of, 16
See also Parliamentary sovereignty

Spain:
public service broadcasters, 190–1

Spouses:
definition, 125–48
same-sex, 125–48

State aids:
Art 86, relationship with, 171–4
market economy investor principle, 170
outline of rules, 161–6
public service broadcasters, 159–201

Art 86 and, 171–4
audiovisual policy, European, 174–9
BBC, funding of, 193–5
BBC News 24, 191–2
Commission guidance, 181–4
complaints, 184–6
Directorate General on Competition’s

Initiative on Horizontal Guidelines,
189

France, 190–1
funding options, 197–200
future, 174–8
future Commission policy, 195–6
generally, 159–61
Germany, 189–90
industry, 178–9
Italy, 190–1
outline of rules, 161–6
pending complaints, 192–3
Portuguese TV decision, 186–7
Protocol to Amsterdam treaty, 180–1
public undertakings, application of rules

to, 166–74
Spain, 190–1
special interest channels in Germany,

189–90
Telecinco case, 187–8
Treaty rules, 179–80

public undertakings, application of rules to,
166–74

tax concessions, 172
transparency, 169

State Immunity, European Convention on,
507–20

applicability, 518–19
criminal jurisdiction, 508–10
generally, 507
implied waiver, 511–17
necessary implication, 517–18
neglect of, 507–8
Pinochet case, 511–15

Sweden:
freedom of information, 303–27

adoption of European Act, 323–6
background, 303–6

German constitutional reasoning, 306–10
primacy of Community rules, 316–23

human rights:
constitution and, 441–2
European law, 451–5
rule of law, 456–7
tax avoidance, 460–1
taxation and, 439–62
See also European Convention on Human

Rights
taxation and human rights in, 439–62
VAT, 457–9

Transparency:
conceptual meanings, 286–99
constitutional right, as, 285, 291–6
freedom of information, 285
meaning, 19, 285
Schengen Agreement, 100–1
state aids, 169

Transport law and policy, 261–83
air transport, 268–71
common transport policy, 261–64
external competence, 277–9
historical background, 261–71
infrastructure, 271–6

construction of, 271–3
generally, 271
user costs, 273–6

inland waterways, 266–7
maritime transport, 267–8
railways, 265–6
road transport, 264–5
status report, 261–83

TRIPS Agreement, 62
complaints under, 72–6
Helms-Burton complaint, 76–80

United Kingdom:
Competition Act, 149–57

changes brought about by, 153–7
human rights, 155
institutional structure, 151
previous position, 150–1
privatisation, 151–2
transitional provisions, 155–6

freedom of information, 329–54
European influence, 345–8
generally, 329–30
Governmental use of courts to restrict

access, 330–3
judicial review, 333–45

disclosure of information, 335–8
natural justice, 339–41
reasonableness, 342–5
substantive grounds, 338–45

legislative influences, 348–54
legislative initiatives, 348–54

Index 525

Page 578

United Kingdom (cont.):
Schengen Agreement, 93

United States:
company law, 222–4
competition, 248–50
Delaware syndrome, 222–4, 248–50
freedom of information, 385

Welsh Assembly, 16
World Trade Organisation (WTO):

Dispute Settlements Understanding,
61–85

background, 61–6
conclusions, 84–5
consensus decision making, 62

consent, 62
correct party, 66–72
establishment, 61–2
evaluation, 84–5
Helms-Burton complaint, 76–80
integrated system, 62
LAN dispute, 66–72
Polygram dispute, 80–4
predecessor, 61
purposes, 61–6
reform suggestions, 84–5
scope, 61–6
US Treaty rights versus Community

autonomy, 66–72
WTO, see World Trade Organisation (WTO)

526 Index

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