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[Issue 1] Book Review 1: Between Governing & Governance

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BETWEEN GOVERNING & GOVERNANCE
POUL F. KJAER
OXFORD: HART, 2010

Reviewed by Mark FENWICK, Kyushu University

Poul Kjaer’s Between Governing & Governance is a provocative contribution to contemporary theoretical debates on evolving forms of governance within the European Union (EU). Kjaer’s contention is that over recent decades three new “governance structures” (following Kjaer, GS) have become increasingly prevalent within the EU – namely commitology, the open method of  coordination (OMC) &  independent regulatory agencies – and that these new GS can no longer be understood or explained by reference to the inter-governmental/supranational distinction that has traditionally been used to frame discussion. Instead, Kjaer seeks to suggest that EU governance is an evolving “hybrid structure” consisting of “networks” of traditional hierarchical organizations (such as the Commission, Council and Parliament), intermixed with new “heterarchical” organizational forms.

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[Issue 1] Article 4: オルド自由主義の呪縛？ ― EU 社会労働政策における集団と個人― / The Curse of Ordo-Liberalism?: Collectivity and Individual in EU Social and Employment Policy

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網谷龍介　津田塾大学学芸学部
Ryosuke AMIYA-NAKADA, Tsuda College

The aim of the paper is to analyze the EU social and labor policy in relation to the development of the Single Market. This topic is usually discussed using the dichotomy as “neo-liberalism” against “Social Europe,” or the Common Market versus the national welfare states. To the contrary, this paper offers a new perspective to understand the political tension inherent in the EU social policy by differentiating the “social” into the individual social rights and collective rule-making. From this perspective, it is elucidated that different understandings on the role of collective rule-making is harder to reconcile with the construction of the Single Market, where the rights should be universal and beyond a specific national conception.

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[Issue 1] Article 3: The Proposal for an Optional Common European Sales Law: A Step in the Right Direction for Consumer Protection?

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Stefen WRBKA, Kyushu University

On October 11, 2011, the European Commission (hereinafter Commission) presented its Proposal for a Regulation on a Common European Sales Law (hereinafter Proposal). The Regulation on a Common European Sales Law (hereinafter Sales Law Regulation), if and once adopted, would introduce an innovative and so far unique European mechanism that is inter alia applicable to cross-border business-to-consumer (hereinafter B2C) sales relationships. The Commission intends to install a fully harmonized pan-European sales law at the national level, the Common European Sales Law, which would establish a voluntary and parallel national sales law regime as an alternative to already existing national sales law rules.

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[Issue 1] Article 2: EU Normative Sanctions on Burma / Myanmar and the DPRK: Out of the Effective Range of EU democracy Promotion?

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Hiroshi INOOKA, Kyushu University

Valéry Giscard d’Estaing, a former president of France, gave his view on the future of the EU in his opening address as president of Europe’s Constitutional Convention in 2002: ‘If we succeed, in 25 or 50 years Europe’s role in the world will have changed. It will be respected and listened to, not only as the economic power it already is, but as a political power which will talk on equal terms to the greatest powers on our planet.’ However, what kind of the power is the EU?

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[Issue 1] Article 1: EU「黄金株」事件・再考 / EU ‘Golden Share’ Cases Revisited

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上田純子　九州大学大学院法学研究院
Junko UEDA, Kyushu University

The European Court of Justice (ECJ) has handed down a number of judgments regarding ‘golden shares’. The cases are brought against the background of liberalisation of the economy of the member states which results in the creation of privatised companies from formerly state-owned enterprises. In these cases, so-called ‘golden shares’ accompanied by special powers including the rights to limit general shareholders’ voting rights, approval rights and vetoes vested with shareholders are issued to the authority, including the relevant ministers and government officials, via the articles of association of the company under the special act of the member state, which may authorise the company to adopt such company articles, or under laws and regulations of the member state. Obviously, the purpose of the issuance is to maintain State control over the company even after its privatisation. The cases are, without exception, brought by the European Commission (Commission) against the member state. The plaintiff, the Commission, argues that the issuance of ‘golden shares’ infringes the obligations under the Treaty Establishing the European Community (EC)/ Treaty on the Functioning of the European Union
(TFEU) provisions of the defendant, the member state. The relevant provisions of the EC/TFEU are the free movement of capital or/and freedom of establishment. This article thoroughly examines the 13 relevant cases (including one joined cases) before the ECJ which have been reported or posted at the EU official website to date, the final judgments of which were made between 1999 and 2010, and reflects upon the theoretical points raised by these cases.