Content and Meaning of National Law in the Context of Transnational Law

Transcription

1 Content and Meaning of National Law in the Context of Transnational Law Bearbeitet von Henk Snijders, Stefan Vogenauer 1. Auflage Taschenbuch. XII, 222 S. Paperback ISBN Format (B x L): 14,1 x 22,4 cm Gewicht: 314 g Recht > Europarecht, Internationales Recht, Recht des Auslands > Europarecht > Europäisches Unionsrecht, Verträge, Institutionen, EMRK Zu Leseprobe schnell und portofrei erhältlich bei Die Online-Fachbuchhandlung beck-shop.de ist spezialisiert auf Fachbücher, insbesondere Recht, Steuern und Wirtschaft. Im Sortiment finden Sie alle Medien (Bücher, Zeitschriften, CDs, ebooks, etc.) aller Verlage. Ergänzt wird das Programm durch Services wie Neuerscheinungsdienst oder Zusammenstellungen von Büchern zu Sonderpreisen. Der Shop führt mehr als 8 Millionen Produkte.

2 Content and Meaning of National Law in the Context of Transnational Law

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4 Content and Meaning of National Law in the Context of Transnational Law edited by Henk Snijders Stefan Vogenauer

5 ISBN (print) ISBN (e-book) The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available on the Internet at d-nb.de by sellier. european law publishers GmbH, Munich. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior permission of the publisher. Design: Sandra Sellier, Munich. Production: Karina Hack, Munich. Typeface: Goudy Old Style and Goudy Sans from Linotype. Printing and binding: Friedrich Pustet KG, Regensburg. Printed on acid-free, non-ageing paper. Printed in Germany.

6 General Introduction Henk Snijders * Stefan Vogenauer ** Transnational law, in particular the law of the European Union and the Council of Europe, does not only require to be applied as a separate set of rules. It also requires attention as a factor of interpretation of national law and, as such, an instrument for ensuring that national law is consistent with transnational law. To the extent that transnational interpretation of national law is not sufficient for getting the required consistency, the national law has to be adapted. That adaptation can be realised both by the legislator and by the judge, though the power of the latter is more limited. The judge will be able to adapt the national law by application of the rule of thumb that a lex specialis derogat legi generali, which allows him to amend and even to disregard national law as far as it is not in conformity with transnational law. However, this possibility does not exist everywhere as far as the national law in question is not consistent with a European Directive or cannot be made consistent with it by way of interpretation. The position of the legislator is different. He is able and even obliged to implement European Directives. He only has to ask himself whether the national law does not already meet the aims of a particular Directive, which would make it unnecessary to provide for implementing legislation. The last paragraph shows that the infl uence of transnational law on national law depends on the kind of transnational law involved and that the infl uence also differs according to the addressee (the legislator or the judge). This book deals with a variety of types of transnational law, including soft law, and it explores the infl uence and impact of transnational law on national law through national legislation and case law. The book starts with a general contribution of Evert Alkema who mainly deals with two questions: how does the constitution provide for the process of implementation and how does implementation affect the constitution itself? The infl uence of European conventions on the interpretation of national law is at stake in the contributions of Eric Lawson, Déirdre Dwyer and Maya Hertig Randall. Eric Lawson argues in his contribution that it may be undesirable for domestic courts to afford too much protection to individual rights and freedoms not because the State s interests would be prejudiced, but rather * Professor of Civil Law and Civil Procedural Law at Leiden University. ** Professor of Comparative Law, Faculty of Law, and Fellow of Brasenose College, Oxford University.

7 VI Henk Snijders and Stefan Vogenauer because the position of third parties may be negatively affected by an overly generous interpretation of the ECHR. Déirdre Dwyer analyses the judicial interpretation of the English Civil Procedure Rules in the context of article 6 of the European Convention on Human Rights. Maya Hertig Randall examines the impact of the ECHR and the infl uence of the bilateral Agreement on the Free Movement of Persons ( AFMP ) concluded by Switzerland and the European Community and its member states on Swiss case law. The infl uence of European Union Law on the interpretation of national law is at stake in the contributions of Wim Voermans, Jaap Hijma, Steef Bartman, Maurice Polak and Henk Snijders. Wim Voermans discusses the phenomena of gold-plating and double banking in connection with the problem of the over-implementation of European Directives by national legislators. Jaap Hijma discusses the infl uence of European Directives on the judicial interpretation of domestic law on the sale of consumer goods. Steef Bartman deals with the infl uence of some European Directives on national company law which provide for what he calls optional harmonisation. Maurice Polak discusses the infl uence of transnational case law on the applicability and judicial interpretation of national rules, in particular on the interpretation of national rules on jurisdiction in civil and commercial matters. Henk Snijders also deals with this infl uence of EU case law, in particular on rules in domestic legislation and national case law for ex offi cio raising of points of Community law by national courts. Soft transnational law is dealt with in the contributions of Stefan Vogenauer and John Cartwright. Stefan Vogenauer analyses the different ways in which the UNIDROIT Principles of International Commercial Contracts may become relevant in national courts. He then explores the techniques that the courts must apply in interpreting this important soft law instrument. John Cartwright looks at a particular issue which arises from the Draft Common Frame of Reference; he considers the extent to which English law could interpret or develop its own law of contract consistently with the model of contract which is set up by the DCFR. Another transnational source which may be considered as a kind of soft law is at stake in the contribution of Erik-Jan Zippro. He deals with the infl uence of the White Paper on Damages Actions for Breach of the EC Antitrust Rules on the availability of court actions for victims of that kind of breaches. This survey of types of transnational law and their different infl uences on national laws does not only demonstrate the enormous impact of transnational law on domestic law practice in the European Union and Council of Europe and beyond. It also shows that the use that domestic legislators and courts make of transnational law in the application and interpretation of national law differs according to the type of transnational law involved. This book contains the results of the third academic staff exchange between the Law Faculties of the Universities of Oxford and Leiden in the new millennium (Leiden, September 2008). This time, the staff exchange in-

8 General Introduction VII cluded the participation of the University of Genève. Quite a few colloquium papers were further elaborated and updated before publication. We are most grateful to ms Margie Breugem (student-assistant Civil Law Division of Leiden) and to the E. M. Meijers Institute of Leiden University for their organisational support to the staff exchange. We received invaluable editorial support from, again, Margie Breugem and Tomas Furlong (formerly Merton College, Oxford). Furthermore, we are deeply indebted to the Institute of Anglo-American Law, the Europaeum and the Leidse Universiteitsfonds for their generous fi nancial support to both the staff exchange and the publication of this collection of articles, which may help all of us to improve the way of dealing with transnational law in our work on domestic law in theory and practice. Leiden/Oxford, May 2009 Henk Snijders and Stefan Vogenauer (editors)

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10 Table of Contents General Introduction Henk Snijders and Stefan Vogenauer Abbreviations V XI Channelling International Law into the Domestic Legal Order Some Practices and Constitutional Problems 1 Evert Alkema Beyond the Call of Duty? Domestic Courts and the Standards of the European Court of Human Rights 21 Rick Lawson The Interpretation of the English Civil Procedure Rules in the Context of Article 6 of the European Convention on Human Rights 39 Déirdre Dwyer The Europeanisation of Fundamental Rights Protection in Switzerland: Two Steps Forward, One Step Back 53 Maya Hertig Randall Gold-plating and Double Banking: an Overrated Problem? 79 Wim Voermans Sale of Consumer Goods: the Adaptation of (Dutch) National Law to Transnational Demands 89 Jaap Hijma EU Law-making and its Impact on National Company Law 101 Steef M. Bartman Inspiration From Above: Making and Interpreting Dutch Law on Jurisdiction in Civil and Commercial Matters in Light of European Law 113 Maurice Polak

11 X Table of Contents Interpretation of National Rules for ex officio Raising of Points of Community Law by National Courts 133 Henk Snijders Interpretation of the UNIDROIT Principles of International Commercial Contracts by National Courts 157 Stefan Vogenauer Interpretation of English Law in Light of the Common Frame of Reference 197 John Cartwright The White Paper on Damages Actions for Breach of the EC Antitrust Rules 213 Erik-Jan Zippro