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Common Law for Europe

Common Law for Europe

Gian Antonio Benacchio
Barbara Pasa
Translated by Lesley Orme
Copyright Date: 2005
Edition: NED - New edition, 1
Pages: 330
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  • Book Info
    Common Law for Europe
    Book Description:

    An essential guide for lawmakers, scholars, and students of law, this work takes on the formidable task of providing a detailed overview of the harmonization of law in the European Union. Skillfully researched, the authors seek to approach this topic with an eye to the recent enlargement process. In highlighting the most recent actions of the European Court of Justice and the Court of First Instance, the book seeks to analyze the future strengths and pitfalls of EU Common Law. Court rulings are quoted at length, and work in conjunction with text inserts in providing a format that breaks down complex information. This open style of the book gives researchers the ability to quickly locate useful information and cite statements from EU institutions. In outlining the sources and institutions of Community Law, and the challenges in harmonizing national and supra-national law-books, A Common Law for Europe has done a tremendous service for academics and future leaders of the European Union.

    eISBN: 978-615-5053-80-1
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-ix)
  3. Introduction
    (pp. 1-6)
    Gian Antonio Benacchio and Barbara Pasa

    The Europeanization of private law, a process which has been taking place for a decade or more, is a phenomenon that everyone is watching. The new phases of European integration, which began with the accession negotiations for the entry of the Central and Eastern European countries, along with Cyprus, Malta, and Turkey, coincide with the debate on the desirability (or otherwise) of a renewal of the European jus commune; this increases the complexity of the whole scene.

    This first volume, “A Common Law for Europe,” is the first part of A Guide to European Private Law, which is intended to...

  4. CHAPTER I Private Law of the European Community: The Process of Harmonization, Uniformization and Unification
    (pp. 7-64)

    This book is the observation of a process, which has been happening for several years in Europe.

    This process consists of a slow but continuing affirmation of common legal rules, principles, and judicial solutions for the legal systems which already form part of the European institutions—the European Coal and Steel Community (ECSC),¹ the European Economic Community (EEC), and the European Atomic Energy Community (Euratom)²—and for those which are and which will become part of the European Union in the years to come.

    The main actor in the process with which we are dealing is the European Community, not...

  5. CHAPTER II The Diffusion of Legal Rules and Models and the Transposition of Concepts
    (pp. 65-100)

    More than once in the following pages we will be discussing diffusion (also referred to as ‘circulation’ or ‘transplant’) of legal models and rules which occurs within the EC countries or from the Community to the new Members and candidate countries which will join the EU in the coming years.

    The expression usually designates the phenomenon by which a collection of technical rules, of general principles and of judicial solutions, which constitute a defined legal model, is transferred from one legal system to another one. The reasons for transfer may be very different.

    A model may, for example, circulate by...

  6. Chapter III Harmonization as an Instrument for the ‘Reinforced Pre-Accession Strategy’
    (pp. 101-156)

    The abandonment of communism, following the historic events of 1989–1991, has encouraged the development of a new form of harmonization and uniformization, which involves the Central and Eastern European Countries (hereinafter referred to as CEECs)¹ in view of their accession to the EU. What is more, it has accelerated the decisive transformation of Europe into a Union, which is no longer exclusively economic.

    An analysis of the reasons for the end of communism and the emergence of the post-communist order is beyond the scope of this book.² There exist several explanations for the transformation: they address, in different ways,...

  7. CHAPTER IV Institutions and Sources of Community Law
    (pp. 157-213)

    Every legal system evolves continuously. Sometimes the change in the law occurs with full awareness, it is explicit, expressed and noted by everybody. It does not, however, always happen like that.

    Sometimes, the change brought about by a new statute, or by a legal principle being overruled, happens without any clamour, almost unnoticed. This occurs when the change is not so socially relevant as to justify more attention, because it does not answer to the social needs of the citizens. However, in some cases, the apparent lack of public interest is, in fact, a result of scarce knowledge of the...

  8. CHAPTER V The Adaptation of National Laws to Community Law
    (pp. 215-268)

    Community law now constitutes an integral part of domestic law within the Member States. However, the two principle embodiments of Community law generate different situations which cannot be overlooked: whereas the Treaty provisions and the Regulations have immediate direct effect on coming into force, the Directives, on the other hand, must be implemented by the national legislature before becoming directly effective, in order to satisfy the requirements of the founding Treaty. In fact, owing to some principles which have been developed by the Court of Justice and accepted by Member States, there are some directives which national bodies are bound...

  9. CHAPTER VI A Common Law for Europe?
    (pp. 269-308)

    The multi-level process taking place (of harmonization, uniformization and unification) is leading the legal systems of new and old Member States and further applicant countries such as Bulgaria, Romania, Croatia, or Turkey, towards an ever increasing homogenization of rules and institutions.

    Legal scholars throughout Europe are referring to an imminent process of Europeanization (or re-Europeanization) of the law.¹

    In the second volume of this Guide, The Harmonization of Civil and Commercial Law in Europe, where we examine the areas of influence of Community law (company law, intellectual property, contract law, etc.), we will be highlighting the level of harmonization/uniformization among...

  10. List of Abbreviations
    (pp. 309-314)
  11. List of Tables
    (pp. 315-315)
  12. Index
    (pp. 317-320)
  13. Back Matter
    (pp. 321-321)