Publications
Exeter Papers in European Law published by CELS
Please click on the links on the titles for a text version:
Exeter Paper in European Law 16
Julia Eisengraeber, `Lis alibi pendens under the Brussels I Regulation. How to Minimise ‘Torpedo Litigation’ and Other Unwanted Effects of the ‘First-Come, First-Served’ Rule.’
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Abstract
The Brussels I Regulation deals with parallel proceedings in a rigid manner. When lis pendens obtains under Article 27, ‘every court seised second must stay its proceedings until the court first seised has decided upon its jurisdiction.’ This concept, known as the ‘first-come, first-served’ rule, is designed to avoid irreconcilable judgments, which may arise within the European Union, and is conceived as a very mechanic concept that rarely allows for exceptions.
A straightforward rule like this, contains merits but also weaknesses. One of the weaknesses is, that it may provoke a ‘rush to the courts’ due to the risk of loosing the immediate possibility to litigate. Moreover, employed by ‘innovative’ advocates, Article 27 may be abused to block future proceedings. This tactic has been coined the ‘Italian torpedo’, and consists of bringing an action for a negative declaratory judgment before a court of a Member State which is known for its heavy docket, so that the future claims of the opponent can be blocked over years until the first court has reached a decision.
To find ways of minimising the risk of this unintentional side-effect of the lis pendens rule, the existing case law in the different Member States will be analysed as well as the attempts made by scholars on this subject. The suggestion, of giving positive claims priority over claims for negative declaratory relief, is to be dismissed on the grounds that it is inconsistent with the principles of procedural fairness and equality of opportunity. It is recommended, that it is necessary to distinguish between justified and unjustified ‘torpedo’ actions; qualifying the latter as abusive ‘torpedoes’ with the result that they will not produce any effect. Consequently, Article 27 is not to be applied to abusive ‘torpedo’ actions so that those actions will not block future claims of the opponent.
Exeter Paper in European Law 15
Ulla Oehler, 'Environmental Liability and GMOs in the EU and in Germany'
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Abstract
The topic ‘environmental liability’ is of great concern for the public, as its appropriate regulation has the effect of protecting the environment and thereby improves human living conditions. After debates that lasted for years, the European Community finally adopted an ‘Environmental Liability Directive’ in April 2004. This Directive 2004/35/EC shall be examined, and in doing so, the questions of ‘who is liable?’, ‘for which types of damage?’, and ‘who has access to justice?’ are addressed.
The ‘Environmental Liability Directive’ has to be implemented into national laws by 30 April 2007. As an example, German Acts dealing with ‘environmental liability’ will be examined and necessary modifications proposed. This will be done in relation to the Civil Code, the Environmental Liability Act and the Water Resources Act.
Finally, a case study will be carried out, which shall review the effectiveness of the ‘Environmental Liability Directive’. Harm caused by GMOs is a problematic issue to deal with, especially because of the limited scientific and technical knowledge that exists on the effects of these organisms. In this area, the topics of ‘coexistence’ and the economic loss suffered by organic and conventional farmers due to their crops being admixed with genetically modified crops are of primary concern. Again, not only European law, but also German law will be looked at. The latter may be especially helpful for dealing with ‘environmental liability’ in relation to GMOs, as a Bill amending the Genetic Technology Act is in discussion that contains a new liability provision. Annexes contain translations into English of relevant German law (including the 2004 Bill amending the Genetic Technology Act).
Exeter Paper in European Law 14
Rofina Tham, 'The Impact of the EU Environmental liability Directive 2004/35 on English Law'
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Abstract
The key actors in English environmental law are the operators, regulators and non-governmental organizations (NGO). The introduction of the Environmental Liability Directive (ELD) creates a new dynamic among the key actors in relation to economic and environmental policies. Under the English regime, the operator is firmly a protagonist for ‘business’ and the NGO an advocate of the ‘environment’, with the regulator in between the two ends of the scale. The ELD is expected to introduce provisions which would shift the balance by nudging both the operator and regulator towards the ‘environment’ end of the scale.
This work examines the interface between the current English regime and the ELD to ascertain the areas in which the ELD enhances the current English provisions. It identifies the changes that have to be made to English provisions in the transposition of the ELD and highlights the English provisions which may be valuable for the development of the liability regime in the future. Apart from the ELD’s direct impact, it also points out the indirect impact of the ELD on the English environmental regime.
Exeter Paper in European Law 13
Michael Boll, 'Bankrupt e-businesses and e-consumer protection'
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Abstract
This paper outlines the problems the legal systems of the United States of America, the European Union (using the Federal Republic of Germany as an example) have with the protection of privacy interests of e-costumers in the event of an online retailer filing for insolvency. It is examined how these interests are protected and what kind of other interests may oppose the privacy interests of e-costumers. The two different approaches on consumer protection of the US legal system and the German legal system are compared. The problems arising from an interaction of these two different systems are outlined and the solution of the “Safe Harbour” agreement is discussed. A method of resolution is proposed how the gap between the self-regulatory approach of the USA and the governmental approach of the European Union and especially of the Federal Republic of Germany can be filled. Finally, a proposal to improve the US approach of e-consumer data protection in the case of a bankruptcy of the e-retailer is submitted.
Exeter Papers in European Law 12
Jan Eggers, 'Removing Obstacles to EC Antitrust Litigation – Learning a Lesson from US Law?'
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Abstract
Comparing key legal aspects of antitrust litigation for damages in the EC and the US, the paper examines the extent to which such litigation can be promoted in the EC by taking an exemplary look at US law. In the US, there is much more litigation for damages that result from antitrust violations than in Europe, although considerations of compensations and deterrence make its increase desirable in the EC as well. Some characteristics of US law have been frequently mentioned as having a particularly stimulating effect on litigation, but a closer look reveals that this holds true only to a limited extent. The position of indirect victims of antitrust infringements is weaker in the US than in the EC. Treble damages under US law may often result in an amount below actual compensation. On the other hand, Europe lacks a provision allowing class actions to aggregate small claims. US law has facilitated plaintiffs’ burden to prove the amount of loss they suffered. It also promotes out of court settlements by denying compensation among multiple tortfeasors. Thus there are elements of US law that can serve as examples in the context of harmonised enhancement of the law governing antitrust litigation in the EC. Existing legislation in Europe is insufficient to effectively promote litigation for damages. There is a need for a Regulation that makes an effort to remove the obstacles claimants unnecessarily come across on their way to compensation. Such a Regulation should consider those provisions of US law that are worth being implemented in the EC as well.
Exeter Paper in European Law 11
Vanessa Reimann, 'The Legality of Restrictions to attend Sports Events for EU Citizens under EU Law'
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Abstract
In the context of hooliganism and violence at major sports events, different sorts of measures may be taken in order to prevent undesirable riots and offences. One possibility is to restrict the sale of entry tickets to those persons that are likely to commit a violent offence during a sport event. Restrictions like that could be implemented either by the State in which the ticket seller resides or by the event organisers themselves. In both cases, the criteria vary according to which one could determine a potential customer’s violence potential: nationality and previous delinquency or both are possible distinctions. Restrictions by the Community itself fail for want of competence. As for action by a Member State, Article 49 EC sets limits. There is a need to rely on the interpretation of the free movement of goods by way of analogy. Applied to a restriction of ticket sales, the free movement of services prohibits distinctions according to nationality, even if previous delinquency is used as an additional criterion. Even relying on previous delinquency alone does not comply with EC law if there is no examination of each individual case. However, organisers may use previous delinquency as a reason not to supply a potential buyer with an entry ticket, although they must on no account invoke nationality as a reason. The feasibility of ticket sale restrictions must therefore be viewed critically and must not be overestimated. Other measures such as travel restrictions will have to remain in force.
University of Exeter LLM dissertation in European Law 2002/2003
Exeter Paper in European Law No 9
republished from: (2002) 34 Bracton Law Journal 7-34 (2002)
Exeter Paper in European Law 8
Dr Gerrit Betlem , Dr Edward Brans, Kate Getliffe & Flore Groen, 'Environmental Liability & Mining Law in Europe' (September 2002),
Report D4 for ERMITE: Environmental Regulation of Mine Waters in the European Union. * European Commission Fifth Framework Programme, ENERGY, ENVIRONMENT AND SUSTAINABLE DEVELOPMENT, Key action 1: Sustainable Management and Quality of Water, RTD Priority 1.1.2: Socio-economic aspects of sustainable use of water, Shared-cost action RTD Project ERMITE, Contract No. EVK1-CT-2000-0078
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By David Harrison, a lawyer, author, former diplomat and deputy director of the Council on European Responsibilities
Exeter Paper in European Law 6
By J H H Weiler (European Union Jean Monnet Professor of Law, Director, The Centre for International and Regional Economic Law, New York University (NYU), School of Law).
Exeter Paper in European Law 5
By Professor Aslan Gündüz (Mamara University, Istanbul)
Exeter Paper in European Law 4
By António Vitoríno (Commissioner, European Commission)
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