Ištrauka

Introductory Remarks



Norbert Reich*




The accession of ten new Member States to the EU has normally been only observed from the viewpoint of the EU institutions themselves and the old Member States concerning the challenges and problems they are facing in an enlarged Union. Much less is known – and even fewer studies done – concerning how the new Member States took up the challenges in the “fight over the 80.00 pages of the acquis”, as states the provocative title of a paper written by my late Danish colleague Christen Boye-Jacobsen, who was personally involved in the transition process.1

Even more dramatic have been the experiences of the three Baltic States, which had become independent only in 1990/1991. These had to completely restructure their constitutional and legal system according to the market economy and government of law requirements.2 When they applied for membership, they had to commit themselves via the Europe Agreements to gradually take over the acquis in such different areas as competition and company law, product liability, intellectual property, public procurement, consumer protection, e-commerce etc. – each an area where specialists in the “old” Member States write books, learned articles, and divergent opinions of high complexity. This chorus of voices still does not guarantee that EC law is correctly implemented and respected, as the growing number of infraction proceedings tells us – these are now even followed by imposition of fines under Art. 228 EC. This just happened to France3 for delay and incorrect implementation of the Product Liability Directive4 enacted in 1985.

Even worse for the new Member States, most of the EU acts which they were supposed to “implement” did not even exist in official translations. The case law of the European Court of Justice (ECJ), which in 2003 comprised about 13000 pages in the official reports, only existed in selective private or semi-official editions which hardly allowed access to the complexity of litigation and adjudication in the EU. Certainly the “causes célébres” of case law such as Cassis, Keck and Gebhard were known, but the fine-tuning of the law could not possibly be followed up (which is hardly manageable in the “old” Member States, too). The entire legal system had to be opened to such “strange” doctrines of EU law as supremacy and direct effect. Even worse, these did not even figure in the EU, EC, or accession treaties – seemingly threatening the newly-won independence from the authoritarian system of the Soviet Union, which did not trust the powers of judges to creatively develop the law. Smaller countries like the Baltic States faced even more problems because of the limited resources in “human capital”, trained lawyers, and indeed higher legal education institutions, which had usually focused only on international law – but not on EU law as a separate subject matter.

It is therefore of special interest that EuroFaculty at the University of Vilnius, which unfortunately had to discontinue its successful teaching and research program at the end of 2005, invited me to a European conference in May 2005. This was particularly devoted to analysing and evaluating the legal changes that had taken place not only in – but obviously with special regard to – Lithuania, but in the other Baltic States, and how future challenges coming from EU institutions could be handled. The conference also aimed to give young researchers a platform to present their ideas and results on the many faces of EU and Member State economics law, seen from the perspective of new Member States.

The results of this unique endeavour await careful and critical scrutiny by those interested and working with EU law in a broader perspective. This writer believes that they will be rewarded by a number of important and sometimes surprising insights. Without going into the details of the different papers, I would like to draw attention to the following:

A number of papers address general issues of EU law, but always keeping in mind the position of new Member States, in particular the Baltic States. Klaus Meßerschmidt, a German law teacher with special experience in the Baltic States, comments critically on the restrictions to free movement in the accession treaties – and different ways to overcome them by invoking the more liberal rules on establishment, services, and citizenship. It seems that some of the “old” Member States such as the UK, Finland, Spain, and Portugal are overcoming their restrictive attitude towards a complete opening of their labour markets – a proposition supported by the author and by this writer5 but unfortunately not in their home country (Germany). As we say in German: “der Prophet gilt nichts im eigenen Lande” (the prophet is not taken seriously in his own country).

Giedrė Jakubonytė, a Lithuanian master law student and former Euro­Faculty student research assistant, takes a look at the draft EU Services Directive, which, because of its incriminated “Country-of-Origin-principle” has caused so much concern in “old” Member States but has been hailed by ”new” Member States as a step in opening service markets for competition by their better priced providers. She carefully analyses the different positions of Member States. Her general attitude towards the draft is positive but obviously has problems following up with modifications proposed by the EP, which seem to turn the original proposals upside down. Personally I would have suggested reinforcing the Commission’s approach with a set of positive rules of conduct for service providers, setting high standards of consumer and social protection by the host country, e.g., on information and liability. The aim would be to combine the Country-of-Origin-principle (for establishment) with efficient monitoring of current activities which, by the general rules of public and international private law in the EU, should be taken over by the host country, in order to avoid dumping, double standards, and bureaucratisation.

Nis Jul Clausen, a Danish researcher with long comparative experience in the regulation of financial markets, gives an overview of the so-called “Lamfalussy”-procedure, which the EU has taken up as a tool for flexible regulation of the EU financial markets. He relates positively to this process, which allows quick adaptation to the challenges of the global financial markets.

Paulius Jurčèys, a Lithuanian law student and former EuroFaculty student research assistant, takes a close look at the state aid procedures from the perspectives of companies that either receive aid and need protection of their good-faith expectations, or that may suffer competitive disadvantages by aid illegally given to their competitors. The existing EC procedures are limited to a (sometimes very controversial!) dialogue between the Commission and the state giving out aid, without taking sufficient account of the interests of business parties concerned. Only slowly are these interests gaining recognition in the notification and approval/disapproval process which, according to the author, can certainly be improved, without however relieving the state from its obligation to strictly observe the EU rules on state aid, in particular the direct effect of Art. 88 (3) last sentence EC, in case of non-notified new aid.

Maija Palčikovska, a doctoral candidate from the University of Latvia, Riga, takes a look at some general principles of mediation such as self-determination and confidentiality, which have won great support in the US but are only slowly creeping into European concepts and practices which are even “newer” to the “new” than to the “old” Member States. The author makes a number of interesting proposals on how to improve and enhance mediation as an alternative dispute resolution mechanism, especially by allowing confidentiality not only to mediators but also to the parties involved.

A set of other papers concerns specific problems of EC law in Lithuania, one even with regard to Estonia. Inga Martinkutė, a business lawyer and lecturer in Vilnius, reports on company law reform which developed a highly liberal approach after the change-over from the strict Soviet licence system, by literally taking over the acquis. However, rules on corporate governance are still underdeveloped due to the low separation of management and ownership in Lithuania. The board structure is very flexible. Lithuania did not follow the German co-determination model, despite the influence of German company law in general – probably to the best of the development of a transition economy which should not be impaired by too rigid and inflexible management and supervision structures, as is the case in Germany now. Company law is a system of learning law, not of fighting ideological battles of the past on co-determination!

Ivan Kuznetsov, an Estonian business lawyer, reports about “golden share” legislation in Estonia. This, according to the Commission, does not exist but in reality is found in the privatisation act of Estonian Railways. When the ECJ was seized by the Commission in infringement proceedings against “old” Member States, the ECJ was rather hostile to these “golden share” provisions as a restriction of free movement of capital.6 In the case of Estonia the Commission may not need to take action because the “shares” did not prove to be very “golden”, and Estonian Railways may be re-nationalised because private investors have not kept to their commitments to invest in infrastructure – a fact easily to be confirmed by a foreigner such as the writer of these lines, who has resided for some time in Estonia!

Yvonne Goldammer, former EuroFaculty visiting lecturer, now assistant at the Department of European and International Law at Vilnius University Law Faculty, and Aleksandr Masaliov, a former Euro­Faculty student research assistant and now assistant attorney at law, are concerned with the implementation of the Distance Marketing Directive7 and the E-Commerce Directive8 into Lithuanian law – both done incorrectly. Dir. 97/7, probably due to an error in translation, is not applicable to contracts concluded through “operators of means of communication”, while the Directive only wanted to exclude contracts concluded by “operators through the use of public payphones”. Can this defect be remedied by a “consistent interpretation” of Lithuanian law, as required by the ECJ, in particular its latest Pfeiffer judgment9, which the authors seem to deny because it would amount to a “contra legem” application. The E-Commerce Directive, by contrast, has been implemented only by a ministerial decree – which is certainly not sufficient under EU standards. It will be interesting to see whether the Lithuanian courts will derive rights out of this incomplete implementation for private parties.

Elzė Matulionytė, PhD student at the Law Faculty of Vilnius University, reports on planned modifications to the Lithuanian consumer protection law. The Lithuanian legislator, in somewhat over-fulfilling its duties under the Europe Agreement, implemented the relevant EU directives twice: in a special act on consumer protection, and in the New Civil Code of 2000 ( I have called this the “parallel approach”10). This does of course not mean that the Lithuanian consumer enjoys twice the amount of protection than his or her colleague in Latvia (“dualist approach”) or Estonia (“monist approach”). The duplication, on the contrary, has not improved consumer protection due to a lack of sufficient enforcement mechanisms – a general problem of EU consumer law. This should be remedied by eliminating the substantive provisions out of the new consumer legislation, and strengthening enforcement.

Rita Matulionytė, a law student at the Faculty of Laws, Vilnius University and working at the Law Institute Vilnius research institute, concentrates on Dir. 2001/29 on “Copyright in the Information Society”. Somewhat hesitantly she points to the tendency of “overprotection” of right holders by the Directive. These are only to a small extent limited by “fair use” provisions concerning reproduction and public communication. It seems that Lithuanian law has hardly used the exemption possibilities provided for in the Directive, e.g., on research and public libraries. It remains a paradox – not sufficiently debated by the author – that in the “information society” copyright can be used as a severe means of restricting the free flow of information – which is prohibited to states by Dir. 2000/31. Correctly, the Directive should have been named “copyright beyond the information society”!

Edita Radzevičiūtė, a Lithuanian business lawyer and former Euro­Fa­cul­ty student research assistant reports on recognition and enforcement of foreign judgments in Lithuania. This is now, within the EU, a matter of regulation11 ; Danish judgments are subject to national law because Lithuania is not a party to the Brussels Convention, a rather strange consequence of the Danish “freedom” to opt-out of the provisions on judicial cooperation in civil matters, without having the British and Irish opt-in possibility. Interesting is a remark of the author on the concept of “public order” used by the Lithuanian Supreme Court: The freezing of the bank accounts of the biggest regional enterprise was regarded to be against “public order” because of the negative repercussions on the regional economy. Does “size” mean being beyond the reach of the law? The Lithuanian Supreme Court will have to revise its attitude under the new EU law regime, otherwise effective enforcement of foreign judgments will not be possible. Mere economic reasons have never been justified by the ECJ as public policy exceptions to fundamental freedoms!