Argument of the evolution of the EU integration towards a supranational end and in contrast claim of continuing member states' control on conclusions both handle institutional reforms as means for their interpretation of EU integration. One side asserts that each development through supranationalism leads to the decrease in the member states' autonomy and capabilities, whereas the other approach advocates that these developments would be the consequence of the aim of member states to achieve a higher benefit without compromising more. By depending on their commonality, this research focuses on these legislative instruments to clarify the current positions and roles of member states in decision-making process. As a result, lack of such restrictions in legislation of EU verifies the continuing autonomy and competence of national governments and determines the international bargaining and in relation relative power of member states as assisting factors of their ongoing authority, rather than restrictions.

This book provides the first comprehensive discussion of conflicts between legal bases in EU law. It fills an important gap in the existing literature on the choice of legal basis in EU law by analysing the structure of legal bases and the resulting legal basis litigation in the European Union, thus identifying areas of conflict produced by overlapping competences, divergent inter-institutional interests, and inconsistencies in the courts’ judgements. While certain cases have been discussed extensively in academic literature (e.g. Tobacco Advertising, ECOWAS), there has been little analysis of the general underlying criteria and principles governing the choice of legal basis on the part of European institutions. Such an analysis has, however, become necessary in order to better understand and possibly predict judicial outcomes, and to identify flaws in the current legislative framework.

Legality is a traditional normative concept to regulate the relationship between those in power and those subjected to that power. The principle of legality protects the citizen against the arbitrary use of power, or, more precisely, it demands a legal basis (which itself must be of a certain standard) to legitimize State action. Is legality under siege in Europe? The authors contributing to this provocative and important book answer this question in the affirmative. Twenty-one outstanding European legal scholars expose a spectrum of ways in which the traditional legality principle is under pressure because of the creation of new legal orders, including that of the EU, and the interaction between these new orders and that of the State, combined with such factors as expertise driven governance, difficulties of international organizations to meet their objectives due to a lack of adequate powers, and lack of parliamentary control. The question of whether the main functions of legality - legitimating, attributing and regulating the exercise of public authority - are still fulfilled in the context of the overlapping, interacting, and mutually dependent legal orders of the EU, the ECHR, and the Member States is at the background of all the essays in this volume. Recognizing that legality, if it is to survive, demands rigorous reconsideration of its scope and application, the authors interrogate not only such fundamental democratic issues as who has legitimate power to perform legislative acts and through these to exercise of public power over citizens, but also such urgent European problems as the following: ; the use of the precautionary principle in EU decision-making; the scope of the principle that the exercise of public authority must rest on an act of Parliament; the extent to which the EU can provide a legal basis for action of Member State authorities in the absence of such a basis within Member State legal orders; the constitutional position of independent 'regulators'; the requirements that ECJ and ECHR case law impose on the exercise of public authority; whether legislative results are coherent in the sensitive area of equal treatment; transparency, legal certainty, enforceability, and implementation of EC Directives in the field of workers' involvement; new instruments as the Open Method of Coordination and the involvement of social partners in decision-making; the de facto harmonization of national criminal justice systems; and the prominent role of the EU in the field of data protection. There can be little doubt that the issue of legality and to whom it applies - in a world in which the role of the modern State is changing profoundly - is a crucial one. It is highly important in the context of the ongoing discussion on the meaning of democracy and citizenship. This volume, with its clear message that reconsidering legality demands taking serious issue with the uncertainty engendered by the processes of globalization, will resonate profoundly among practitioners and policymakers in this time of momentous change.

The European Union and Deprivation of Liberty examines the EU legislative and judicial approach to deprivation of liberty from the perspective of the following fundamental rights and principles: the principle of legality and proportionality of penalties; the right to liberty; and the principle that criminal penalties must aim for the social reintegration of the offenders. The book measures the relevant EU law against those rights; this constitutes the very core of the relationship between public powers and individual liberty. The analysis shows that the ultimate goal of the Union is the creation and preservation of the EU as a borderless area. The holistic approach adopted in the book explains how different legal phenomena connected to deprivation of liberty have come into being in EU law. It also shows that those phenomena call for solutions suitable for the peculiarities of the EU legal order.

This rise of a particular kind of European Union legislation known as the 'optional instrument' is a novel trend in the context of EU law, and one that until now has not been comprehensively mapped or explored. This study examines and discusses existing and proposed EU Optional Instruments (OIs) in different fields of European law, including company law, intellectual property law and procedural law (such as the European Company, the Community Trade Mark and the European Small Claims Procedure, respectively), as well as contract law. The study identifies the core elements that define Optional Instruments of the EU and distinguish them from other kinds of EU legislation, especially so-called approximating measures. It provides a detailed overview of a total of twelve OIs in the aforementioned policy areas, charting their development, characteristics and (where appropriate) usage in practice. It investigates the case for and against the use of optional instruments as an alternative means of EU law-making, by analyzing and evaluating the principal arguments in the debate surrounding the use of this legislative method. Finally, it offers an explanation of the varied degree of 'success' of EU OIs already in existence, by identifying possible factors that play a role in this respect and testing the significance of these factors with reference to available empirical data. In doing so, the author provides a framework for future research into this developing phenomenon, as well as guidance for the elaboration of future Optional Instruments of the European Union.

Around the globe, ex ante evaluation of legislation has become an established rationalisation of legislative processes. Legislators, politicians, and the public at large increasingly demand new laws to have a particular effect and no unwanted side effects. Various instruments are being applied that all have in common that they must predict the effect of new legislation. Until now, most publications on regulatory impact assessment praise such instruments as being extremely useful. Scepticism, however, is in order as well. Is it not as difficult to predict the future effect of a new set of rules in our complex society as it is to predict where our society as a whole is going? The search for an answer to this sceptical question is at the heart of the book. The newly established Research Group for Methodology of Law and Legal Research at Tilburg University (the Netherlands) brought together some of Europe’s top specialists in the field of ex ante evaluation of legislation, with backgrounds in law, social science, political science, and law and economics. The result of their collaborative effort is a comprehensive and critical book on the pros and cons and on the opportunities, limitations, and challenges of ex ante assessment of legislation.

In April 1997, during the Dutch presidency of the European Union, a three-day international conference was held in The Hague, The Netherlands, on the subject of The Quality of European and National Legislation and the Internal Market. The present publication comprises the proceedings and conclusions of this timely conference, which was organized by the T.M.C. Asser Instituut, The Hague, on behalf of the Ministries of Justice and Economic Affairs of The Netherlands and the European Commission. The objective of the conference was to suggest ways of improving the legislation in the European Union against the background of the common market. The quality of the drafting of Community legislation is crucial if it is to be properly implemented by competent national authorities and better understood by the public and in business circles. The conference focused on European legislation and on national legislation in the Member States. Representatives of the European Union, the governments, the academic world, industry and consumer organizations gave their views of and commented on the three main themes of the conference: (I) the experiences on European and national level regarding the judicial quality of legislation; (II) simplification of existing legislation and (III) assessment of draft legislation. The updated and revised versions of their studies and comments are published in the present book. During the final session of the conference, current initiatives in the field of improving the quality of legislation were reviewed (e.g., on consolidation, codification, guidelines and deregulation). The main findings of the conference were brought to the attention of the Internal Market Council and the IGC as a preparation of the European Council of Amsterdam (16-17 June, 1997) where the Draft Treaty of Amsterdam was concluded. Many of the conference findings and suggestions were repeated in the documents of the Draft Treaty. In addition to the above-mentioned contributions, the book contains (i) a valuable methodical digest of the conference, including a closer evaluation of the Draft Treaty of Amsterdam, and (ii) a summing-up of the results of the important debate by Professor L.J. Brinkhorst (European Parliament, Strasbourg/Brussels). The book is also enriched by relevant documentation in the field.

Policy instruments are techniques used to implement policy goals. Subject to political conflict, they address the relationship between those who govern and those who are governed. Why do political actors choose certain policy instruments to implement policy goals? Systematically comparing policy instruments employed in the European Union's environmental and social policy, Holger Bähr develops a general theoretical framework to illustrate how policy-makers prefer different types of policy instruments depending on the respective effect they wish to have on member state governments, citizens, consumers, and producers. He argues that institutions, the politicisation of policy problems and external events constrain political actors and provide them with the opportunity to transfer their preferred policy instruments into policy outputs at the end of decision-making.

This book provides the first comprehensive discussion of conflicts between legal bases in EU law. It fills an important gap in the existing literature on the choice of legal basis in EU law by analysing the structure of legal bases and the resulting legal basis litigation in the European Union, thus identifying areas of conflict produced by overlapping competences, divergent inter-institutional interests, and inconsistencies in the courts’ judgements. While certain cases have been discussed extensively in academic literature (e.g. Tobacco Advertising, ECOWAS), there has been little analysis of the general underlying criteria and principles governing the choice of legal basis on the part of European institutions. Such an analysis has, however, become necessary in order to better understand and possibly predict judicial outcomes, and to identify flaws in the current legislative framework.

Just a few months after the entry into force of the EU Framework Decision on the fight against organized crime, this book provides an unprecedented analysis of the national and European legislation on organized crime. The book provides a critical examination of the European policies and legal instruments to promote the harmonization and approximation of criminal law in this field (including the United Nations Convention on Transnational Organized Crime). The current level of harmonization among EU Member States and the approximation to the standards of the new Framework Decision are discussed in detail, with the help of tables, graphs and maps. The results highlight the problems surrounding the international legal instruments and the inconsistencies of the national approaches to combating organized crime.