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7719 results in Intersentia

Page 359 of 386

  • Chapter 6 - Public Schools for Afrikaners in South Africa

  • Edited by Catherine Jenkins, Max du Plessis
  • Book:
    Law, Nation-Building and Transformation
    Published by:
    Intersentia
    Published online:
    16 December 2020
    Print publication:
    31 January 2014, pp 139-168

  • Summary

    INTRODUCTION

    Now, many years after the South African Constitutional Assembly adopted the Constitution, it is difficult to recall just how difficult the settlement on the language of instruction in education was. Today, language issues are overshadowed by the problems of establishing democratic ways of acting and mitigating inequality. But, at the time of negotiating the 1996 Constitution, the demand of Afrikaners for the protection of Afrikaans commanded attention because the support of the Afrikaner-based outgoing National Party (NP) government was necessary for both formal reasons – the African National Congress (ANC) did not have the two-thirds majority required for the adoption of a new Constitution – and substantive ones – if Afrikaners were not brought on board, a real danger existed that they would actively seek to destabilize the new democracy.

    Of course, in a multilingual country like South Africa, a claim for the protection of a language need not be controversial – conceding some languageclaims can strengthen, rather than undermine, the political order. But the use and state protection of Afrikaans had been highly politicized in South Africa for decades. Agreement that Dutch should have the same status as English as an official language was central to the achievement of Union in 1910, when the two former Dutch or Afrikaans-speaking Boer Republics were united with the two British colonies to create a single country. By the time the National Party won power in 1948, Afrikaner nationalists had articulated an exclusive vision of Afrikaner identity of which single-medium schools were a pillar. Through the apartheid years and against the expectations of many observers, Afrikaans consolidated its position as a public language, but it remained widely perceived as the language of apartheid ideology. As Giliomee comments, ‘Afrikaans, the Afrikaner policy of apartheid and the Afrikaner-controlled state had become locked in a tight and suffocating embrace. Afrikaans had become the language of the oppressor – the medium used when white policemen arrested black pass offenders or when white civil servants ordered blacks or colored people out of their houses in racially mixed slum areas.’ In the 1970s, apparently once again concerned about the survival of Afrikaans, the apartheid government instituted a requirement that black students be taught in both English and Afrikaans.

  • Chapter 10 - The Transformation of Land Law

  • Edited by Catherine Jenkins, Max du Plessis
  • Book:
    Law, Nation-Building and Transformation
    Published by:
    Intersentia
    Published online:
    16 December 2020
    Print publication:
    31 January 2014, pp 241-256

  • Summary

    INTRODUCTION

    I will introduce my discussion of the transformation of land law with a disclaimer, followed by a number of broad assumptions that I rely on but will not argue. Having stated these assumptions I will first set out a context and then proceed to dwell on the specific point about transformation that I want to discuss in this chapter.

    First, the disclaimer. In the post-1994 South African context, it was always clear that land reform had to be an important part of social and economic transformation and hence people understandably associate land law with land reform; many readers, especially from outside South Africa, might therefore expect an introductory overview of the land reform process. However, as I want to discuss a specific aspect of land reform in this chapter I will not give a broad overview of the land reform process or the system of legal and other measures involved in it; nor will I analyze or assess the failures and shortcomings of the land reform programme or review possible solutions or remedies for them.

    In the absence of a general discussion of land reform it is necessary to start with a number of general assumptions that I take for granted, without explaining or arguing them. I will therefore just state these assumptions as a point of departure. Firstly, I assume that it is now widely accepted that apartheid land law was not and could not have been dismantled purely through the abolition of the apartheid laws of the former minority regime. Secondly, I assume that the lasting legacy of apartheid land law (evident in remaining problems with access to land and housing, continuing evictions and the like) was not and could not have been rectified automatically by the promulgation of the land reform laws.

    Thirdly, I assume that, apart from the abolition of apartheid laws and the promulgation of land reform laws, a complex range of further legislative, administrative and judicial interventions are required if the land reform process is to succeed on a significant scale.

Law, Nation-Building and Transformation
  • The South African Experience in Perspective
  • Edited by Catherine Jenkins, Max du Plessis
  • Published by:
    Intersentia
    Published online:
    16 December 2020
    Print publication:
    31 January 2014
  • In this volume, fifteen contributors from the disciplines of law, politics and sociology reflect on South Africa's transition to democracy and the challenges of transformation and nation-building that have confronted the country since the first democratic elections of 1994. The range of topics covered is expansive, in keeping with a broader than usual definition of transitional justice which, it is argued, is more appropriate for states faced with the mammoth tasks of reform and institution-building in a context in which democracy has never been firmly rooted and the existence of widespread poverty gives rise to the dual demands for both bread and freedom. In the case of South Africa, the post-apartheid era has been characterised by wide-ranging attempts at transformation and nation-building, from the well-known Truth and Reconciliation Commission to reforms in education and policing, the promotion of women's rights, the reform of land law, the provision of basic services to hundreds of thousands of poor households, a new framework for freedom of expression, and the transformation of the judiciary. In the light of South Africa's commitment to a new constitutional dispensation and to legal regulation, this volume focuses in particular, but not exclusively, on the role that law and lawyers have played in social and political change in South Africa in the post-apartheid era. It sets the South African experience in historical and comparative perspective and considers whether any lessons may be learnt for the field of transitional justice.

  • Chapter 4 - Rights at Work: The Transition to Constitutional Democracy and Women in South Africa

  • Edited by Catherine Jenkins, Max du Plessis
  • Book:
    Law, Nation-Building and Transformation
    Published by:
    Intersentia
    Published online:
    16 December 2020
    Print publication:
    31 January 2014, pp 91-122

  • Summary

    INTRODUCTION

    Can a transition to constitutional democracy benefit women? If so, in what ways? What do entrenched rights to equality, dignity, freedom from violence and reproductive choice mean in a society that is one of the most unequal in the world, with a high level of gender-based violence and patriarchal social attitudes? This chapter engages questions of constitutional democracy and human rights, not just in terms of the formal and quantitative measures so often used to advertise South Africa as a ‘women-friendly state’, but also in a more qualitative engagement with some of the struggles and compromises that shaped the formal victories, the boundaries that have been forged by rightsclaiming in the public sphere, and the manner in which women in civil society and the state have been able to engage the normative framework of rights to shape their public and private meanings and (possibly) to bring about changes in their own lives.

    The chapter begins with a brief account of women and women's struggles in the apartheid state, followed by a discussion of the transition in the early 1990s and the political conditions and struggles that shaped the constitutional text. It suggests that the development of a constitution based on human rights and the primacy of (gender) equality was a profound advance for women, whose struggles were also able to establish gender equality as a significant indicator of democratic progress after 1994, and then to harness the language of equality and rights to push for a series of formal advances. The balance of this section briefly describes these legal and constitutional gains in Parliament and the courts and some of the limitations of these formal advances for women.

    Two case studies are then presented to tease out the nature and scope of rightsbased transformation for women, to illustrate the extent to which women have been able to use rights to secure progressive ends, what has been achieved by this and to show how these rights remain subject to competing interests and social norms. The first, longer, case study looks at developments in culture and customary law, while the second considers reproductive choice.

  • Chapter 1 - Transitional Justice: Lessons from South Africa?

  • Edited by Catherine Jenkins, Max du Plessis
  • Book:
    Law, Nation-Building and Transformation
    Published by:
    Intersentia
    Published online:
    16 December 2020
    Print publication:
    31 January 2014, pp 1-40

  • Summary

    ‘With the successful conclusion of the constitutional negotiations of 1992 and 1993, we South Africans embarked on an experiment that placed particular emphasis on the legal system, and accorded especial responsibility to the legal profession. It was an experiment of massive proportions: a commitment to legal regulation as the framework for social development, and for the resolution of conflicting social claims… The successful endorsement of the constitutional experiment by the parties at Codesa and Kempton Park is in many circles regarded as a “miracle”. But at this stage, it is no more than an experiment.’

    Edwin Cameron, 2007

    INTRODUCTION

    In the 1990s, the first democratic elections in South Africa and the early postapartheid era under the presidency of Nelson Mandela commanded widespread international interest and, indeed, much admiration. The language of the South African ‘miracle’, referred to above by Justice Cameron of the Constitutional Court of South Africa, achieved common currency. Archbishop Desmond Tutu suggested in 2004 that South Africa's success was particularly important because the country was ‘so utterly improbably a beacon of hope for the rest of the world’. Some aspects of the South African experience have been an inspiration to other societies emerging from conflict or repression: South Africa's process of constitution-making has received considerable international attention for this reason, as has the work of the South African Truth and Reconciliation Commission (‘TRC’). A striking feature of the transitional justice movement has been its interest in comparative perspectives. Just as South Africans attempted to learn from the experiences of transition in Latin America and Eastern Europe, so South Africans have received invitations to speak and consult internationally on how to deal with a legacy of gross human rights violations. In the 1990s, South Africa became the poster-child for the concept of ‘reconciliation’ in transitional societies, and President Mandela was personally widely admired as the great reconciler. As former US President Bill Clinton put it: ‘One lesson we all have to learn from Mr. Mandela is how to build a community across divisions of race, religion and tribe.’

    In recent times, however, the fault-lines in South African society have increasingly come into focus. Reports of poverty, inequality and crime, of protests at lack of service delivery, of xenophobia, of police violence, and of increasing racial tensions and the polarisation of political discourse, have appeared in the world's press.

  • Chapter 2 - Reflections on Post-Apartheid Nation-Building: Identity, Participation, Community

  • Edited by Catherine Jenkins, Max du Plessis
  • Book:
    Law, Nation-Building and Transformation
    Published by:
    Intersentia
    Published online:
    16 December 2020
    Print publication:
    31 January 2014, pp 41-64

  • Summary

    INTRODUCTION: THE STRUGGLE FOR WHAT?

    On the V&A Waterfront tourist area in Cape Town stand slightly larger than life-size bronze sculptures, next to each other, of the four South African Nobel Peace Prize winners: Albert Luthuli, Desmond Tutu, Nelson Mandela and FW de Klerk. Awarding such medals to four figures from a single country could be seen as reflecting recognition of and high regard for three periods in the process of change in the country towards a democratic order: the long struggle against a racist and unjust society; the resolution of that struggle through a negotiated settlement; and a subsequent process of revelation, reconciliation and transition to a new notion of being South African. There would be one understandable misperception – Tutu did not receive his award for the post-1994 contribution through serving as chairperson of the Truth and Reconciliation Commission (TRC). In each case, both in the award and in the statements from the recipients, the recognition was for a people's struggle against exclusion from democracy.

    Albert Luthuli, then president of the already banned African National Congress (ANC), received his Nobel prize in December 1961 in Oslo at a dramatic turning point in the struggle, shortly after the Sharpeville massacre, a change from peaceful appeals for inclusion in a single polity to armed struggle against an intransigent and racist apartheid government. In his acceptance speech Luthuli referred to a ‘threefold significance’ to the award: first, as a ‘tribute to my humble contribution to efforts by democrats on both sides of thecolour line to find a peaceful solution to the race problem’; second, to recognise that the award ‘is a democratic declaration of solidarity with those who fight to widen the area of liberty in my part of the world. As such, it is the sort of gesture which gives me and millions who think as I do, tremendous encouragement’; and, third, ‘it is a welcome recognition of the role played by the African people during the last fifty years to establish, peacefully, a society in which merit and not race, would fix the position of the individual in the life of the nation’.

  • Chapter 8 - The Transformation of the Judiciary

  • Edited by Catherine Jenkins, Max du Plessis
  • Book:
    Law, Nation-Building and Transformation
    Published by:
    Intersentia
    Published online:
    16 December 2020
    Print publication:
    31 January 2014, pp 199-222

  • Summary

    INTRODUCTION

    Law is central to South Africa's history, as well as its future. Looking back, a distinguishing feature of apartheid, in contrast to other unjust systems, was its essentially legal nature. Apartheid was sustained and distinguished through an elaborate and sophisticated legal system. In light of this, it is perhaps surprising that law – in the form of a rigid Constitution that embodies the nation's highest aspirations – is equally fundamental to South Africa's future. Indeed, as Cameron JA, as he then was, notes, ‘[t]his paradox lies at the core of our national project – that we come from oppression by law, but resolved to seek our future, free from oppression, in regulation by law’.

    Given this, the position of judges in South Africa has always been controversial and is likely to remain so. Langa J, as he then was, recalls that as a black man living under apartheid, judges ‘put the stamp of legality on a legal framework structured to perpetuate disadvantage and inequality’. In a famous debate, Raymond Wacks contended that apartheid judges had no option but to resign while others, most notably John Dugard, argued that the law offered resources that could be used for progressive ends and judges would do better to mitigate the effects of apartheid from within.

    Since 1994, the judiciary has continued to be a focus of controversy, particularly so in recentyears. As almost all South Africans, and many throughout the world, are surely aware, Jacob Zuma – President of the African National Congress (ANC) and currently President of the Republic – was charged with corruption. This held out the spectre that if Zuma had his day in court, the judiciary might have been required to determine whether he was able to become President or remain in office. This saga had several extraordinary repercussions. One was the resignation of Thabo Mbeki as South African President in response to a finding of Nicholson J in the High Court (later overturned by the Supreme Court of Appeal) that political meddling in the charges against Zuma could not be excluded.

  • Chapter 12 - Aspects of the Treatment of Freedom of Expression in South Africa’s Democratic Transition

  • Edited by Catherine Jenkins, Max du Plessis
  • Book:
    Law, Nation-Building and Transformation
    Published by:
    Intersentia
    Published online:
    16 December 2020
    Print publication:
    31 January 2014, pp 281-312

  • Summary

    INTRODUCTION

    South Africa has fairly recently emerged from centuries of racial repression, in which the fundamental equality and dignity of the majority of South Africans were negated. This repression culminated in the system of apartheid that prevailed from the late 1940's to the early 1990’s. As is often pointed out, one of the particularly shocking aspects of apartheid was the manner in which the law was used as an instrument of division and oppression. Far from acting as a bulwark against injustice, the law accentuated social and economic divisions by, amongst other things, restricting the right to vote on racial lines, providing for separate areas in which people were permitted to live and separate public amenities that they could use and prohibiting sexual relations across racial lines.

    Laws dramatically restricting freedom of expression were an important pillar of apartheid's legal edifice. As in other totalitarian states, the use of a myriad of laws to clamp down on free speech, and particularly media freedom, was a vital component in the apartheid state's attempts to cover up human rights violations and to stifle political and civil opposition. Newspapers were banned, political gatherings were prohibited, the content of publications was censored and journalists and editors were regularly harassed by the security police. The culture of repression that prevailed is captured by Richard L Abel:

    ‘Government either banned all outdoor meetings or refused to issue the requisite permits. It outlawed numerous organisations. It excluded and deported foreign correspondents and television crews. It regulated the entry of all foreign books, newspapers, magazines and films. It controlled television and dominated radio. It severely limited what the domestic media could publish, seized offending books, and punished publication and even ownership with fines and prison terms. It curtailed access to scenes of unrest or opposition. It prosecuted and jailed opponents for long terms …’

    These restrictive laws generally took the form of legislation emanating from Parliament, such as the Internal Security Act, the Publications Act and the Official Secrets Act, which was subsequently replaced by the Protection of Information Act.

  • Chapter 9 - Assessing the Social Transformation Performance of the South African Constitutional Court: From Totalitarianism to the Rule of Law

  • Edited by Catherine Jenkins, Max du Plessis
  • Book:
    Law, Nation-Building and Transformation
    Published by:
    Intersentia
    Published online:
    16 December 2020
    Print publication:
    31 January 2014, pp 223-240

  • Summary

    INTRODUCTION

    The legal academic literature on the role of the South African Constitutional Court (CCSA) in nation-building and social transformation is preoccupied with a set of concerns first raised by Karl Klare in a 1998 law journal article. In this article, Klare argued that the South African Constitution must be understood as having initiated a collective ‘project’ of social transformation through law in which the CCSA had the major part to play. On this understanding, the proper measure of the CCSA's social transformation performance is the extent to which it has fulfilled its primary institutional function of enforcing the liberalprogressive (or what Klare terms ‘postliberal’) legal rule changes envisaged by the Constitution. These changes are to be effected not just as a matter of result (constitutionally offensive legislation struck down or common law legal rules developed in a constitutionally compliant way), but also as a matter of adjudicative style: that is, the CCSA should change its decision-making methods to fit in with the Constitution's ‘caring and aspirationally egalitarian ethos’. What Klare means by this is that the Court should openly concede the political nature of its function and foreground the values and policy considerations it takes into account when deciding cases. In addition to the broader process of social transformation that the Constitution envisages, therefore (indeed, in Klare's argument, posited as a necessary condition for that broader process) is a particular type of legal-cultural transformation: the transformation of South African legal culture from formalism to something approximating the cultural ethos of the Critical Legal Studies movement in the United States.

    The sociological assumptions underlying this argument are somewhat questionable, involving as they do quite controversial claims about the role of courts in social change. It is not at all obvious, in a country like South Africa, which has fairly low levels of rights consciousness and access to justice, why changes in legal rules and judicial decision-making methods should have a significant impact on actual social relations.

  • Chapter 3 - The Truth and Reconciliation Commission Process: A Retrospective

  • Edited by Catherine Jenkins, Max du Plessis
  • Book:
    Law, Nation-Building and Transformation
    Published by:
    Intersentia
    Published online:
    16 December 2020
    Print publication:
    31 January 2014, pp 65-90

  • Summary

    ‘…truth commission-type mechanisms cannot be concerned simply with issues of justice, but are intricately involved in and reflective of broader processes of nation-building.’

    ‘One has only to consider the counter-factual question – what difference would it have made if South Africa had moved from apartheid… without anything like the TRC process? – to realize how much more violent and dangerous our current scene might well have been.’

    INTRODUCTION

    My charge in this chapter is to look back at the Truth and Reconciliation Commission (TRC) process in South Africa and to evaluate its contribution or otherwise to the post-apartheid socio-political process. I should at the outset clarify my use of the term ‘Commission process’ as it is broader than the TRC event itself, it pre- and post-dates it. The Truth and Reconciliation Commission was a multi-faceted and protracted event covering the period 1996–2003. When I refer in this chapter to the ‘Commission process’, I go further back to the accountability debates in the exiled African National Congress (ANC) in the late 1980s and up to certain events of the present. So the term embraces a gamut of issues and events – those late-80s debates which acquired added relevance after February 1990, the indemnity and amnesty negotiations of the 1990–94 period, the debates around possible prosecutions in the post-TRC era as well as the discussions over forms of reparation and the heated arguments around the delays in paying them out. Finally, the continuing exhumations of the remains of some of the disappeared victims of the late-apartheid era also fall into this category. Each of these forms part of a complex tapestry which I refer to as the ‘Commission process’ and they form part of this retrospective evaluation. I will also draw on my own experiences from 1996–99 as a member of the TRC's Research Department and of the small group which wrote the first five volumes of the Final Report.

    Many years have passed since the South African public and a wider international audience confronted the visual reality of South Africa's truth and reconciliation process. On 16 April 1996 in the Eastern Cape city of East London an international television audience watched a string of witnesses – widows and widowers, mothers and fathers, old struggle veterans – begin a story-telling process which was to mesmerize South Africa's people.

  • Chapter 11 - The South African Presidency in Comparative African Context

  • Edited by Catherine Jenkins, Max du Plessis
  • Book:
    Law, Nation-Building and Transformation
    Published by:
    Intersentia
    Published online:
    16 December 2020
    Print publication:
    31 January 2014, pp 257-280

  • Summary

    INTRODUCTION

    As a check upon potential for authoritarian rule, the South African constitution of 1996 imposes a ban upon Presidents serving for more than two five year terms in office (unless individuals are elected to fill a vacancy in the office, in which case the period between that election and the next election of a President by parliament is not regarded as a term). Furthermore, the principle of occupying office for a limited term was underlined by Nelson Mandela who, after his election as President by parliament following the country's first democratic general election in 1994, chose to stand down in 1999. Indeed, prior to that, Mandela had already made way as leader of the African National Congress (ANC), being succeeded as party president by then (state) Deputy President, Thabo Mbeki at the party's national conference in Mafikeng in December 1997. At that time, the political implications of a separation of the state and party presidencies were not much debated, not least because Mbeki had already assumed effective power, with Mandela being devoid of personal ambition and serving very much as a figurehead and icon of South Africa's new democracy. Yet, as subsequent events were to prove, the division of party and state powers was pregnant with constitutional and political difficulties.

    The ANC's own constitution requires, flexibly, that a national conference, the supreme body of the organization, shall be convened ‘at least every five years’. However, the practice since 1997 has been for the conference to be held at fixed five yearly intervals. This resulted in the party's 52nd national conference being scheduled for December 2007 at Polokwane, the capital of the province of Limpopo. The principal business of the Conference was to be to elect a president. However, unlike the state constitution, the ANC's constitution sets no limit upon the number of terms of office that a party president may serve.

    Mbeki, re-elected as state President in 2004, was scheduled to relinquish that office following the country's fourth democratic general election, which constitutionally could be held no later than the first half of July 2009.

  • Chapter 5 - Crime, Policing and Nation-Building

  • Edited by Catherine Jenkins, Max du Plessis
  • Book:
    Law, Nation-Building and Transformation
    Published by:
    Intersentia
    Published online:
    16 December 2020
    Print publication:
    31 January 2014, pp 123-138

  • Summary

    ‘KILL THE BASTARDS’

    In April 2008, some three weeks before the 14th anniversary of what the ANC calls the ‘democratic breakthrough’ of the elections in 1994, Susan Shabangu, the then Deputy Minister of Safety and Security and a woman involved in the struggle against apartheid since the early 1980s, was asked by members of the audience at a community meeting in Pretoria what she and her government were doing to curb crime. From press reports of the event, it is unclear how she structured her response: one cannot tell if she talked about recent declines in unemployment or government's commitment of billions of rands to the construction of housing; one cannot tell if she addressed herself to reducing inequality or helping to build better family structures; one cannot tell if she spoke about addressing drug abuse or redressing historical patterns of patriarchy. What is clear is that, when she turned to the question of the role of the police in keeping communities safe, her views tended to the robust: ‘You must kill the bastards if they threaten you or the community. You must not worry about the regulations. That is my responsibility. Your responsibility is to serve and protect.’

    Warming to her theme, she said that she wanted to assure police officers that they had ‘permission to kill these criminals. I won't tolerate any pathetic excuses for you not being able to deal with crime. You have been given guns, now use them.’ She continued:

    ‘I want no warning shots. You have one shot and it must be a kill shot. If you miss, the criminals will go for the kill. They don't miss. We can't take this chance. Criminals are hell-bent on undermining the law and they must now be dealt with. If criminals dare to threaten the police or the livelihood or lives of innocent men, women and children, they must be killed. End of story. There are to be no negotiations with criminals’.

    It was a chilling speech made by someone clearly playing to an audience – she received a standing ovation and, a few days later, nearly 90% of respondents to a newspaper phone-in survey on the subject said Shabangu was right. This might have been less depressing if the response from government and the opinionmaking elite had been suitably horrified.

  • Preface

  • Norbert Reich
  • Book:
    General Principles of EU Civil Law
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    03 December 2013, pp v-vi

  • Summary

    This book takes up a continuing, controversial and to some extent rather confusing debate in EU law – in both academia and in ECJ (the Court of Justice of the EU as it will be abbreviated in the following) case law – on the discovery, shaping and perhaps defence of general principles which may unite its rather heterogeneous involvement in private law, or, as I prefer to call it, civil law relations. The study is not meant to “open” the route to some type of codification, consolidation or restatement of EU civil law, but more modestly to explain its present status, thus making any “optional instruments” nugatory. The debate on EU law principles is much more advanced in EU constitutional and administrative law. EU civil law seems to be lagging behind, but will certainly gather steam the more EU law takes an interest in – some call it “invades” – “horizontal” relations between private persons, and shapes remedies, both substantive and procedural, of its own.

    The seven principles, explained in the introduction and treated in detail in the seven following chapters, have an impact on substantive, procedural and methodological matters which have traditionally belonged to the law of Member States but which have seen a shift in competence and legitimacy towards the EU – a shift welcomed by many, but also feared by others. This study does not take a stand in this debate, but simply analyses the remarkable competence “creep” promoted and to some extent provoked by the abundant case law of the ECJ which forms the basis for the “bottom-up” approach used in this study.

    The study covers many areas of EU civil law, such as free movement and competition issues, employment relations, consumer law, non-discrimination issues, services in the general economic interest, EU attempts to create a Common European Sales Law (CESL), as well related procedural matters within the scope of EU law. Last but not least, reference to fundamental rights is made continuously, namely to those enshrined in the EU Charter of Fundamental Rights, but also to those in the European Convention of Human Rights (ECHR) and earlier case law of the ECJ. A caveat should be added: the study never tries to exhaustively discuss any of the areas referred to.

  • Chapter 4 - The Principle of Effectiveness

  • Norbert Reich
  • Book:
    General Principles of EU Civil Law
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    03 December 2013, pp 89-130

  • Summary

    ARTICLE 47 OF THE CHARTER AND ARTICLE 19 TEU: ANYTHING NEW?

    This chapter will be concerned with a specific aspect of the constitutionalisation of civil law, namely the principle of effectiveness now written into Article 47(1) of the Charter, which reads:

    “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.”

    Article 19(1) TEU puts the responsibility for “providing remedies sufficient to ensure effective legal protection in the fields covered by Union law” on Member States through the status of their courts of law as “Union courts”. A similar provision was contained in Article I-29(1) of the Draft EU Constitution, which was rejected in the Dutch and French referenda, but which later formed the basis of the TEU.

    On a traditional reading, the constitutional “tandem” of Article 47 of the Charter and Article 19 TEU does not seem to contain anything new. It simply restates the existing EU acquis based on the so-called “procedural autonomy” of Member States to enforce Union rights, with some specific limitations developed under the so-called REWE/Comet case law to be discussed below (4.3). Its importance for civil law still remains to be discovered.

    This chapter will take a different approach. The three strands of the argument examine the different ways in which the principle of effectiveness can be understood as a “constitutional principle” (0.7) in the case law of the ECJ:

  • – the first, rather more traditional reading understands effectiveness as an “elimination rule” (4.3);

  • – the second uses it as a “hermeneutical”, i.e. interpretative, principle (4.7); and

  • – the third is concerned with its “remedial” function (4.10).

    • The argument will be limited to ECJ case law related to civil law and is illustrated by case studies. This is a relatively new area of EU law, which goes some way to explaining some of its difficulties and inconsistencies. But it seems that a new, more useful and aggressive approach to the “tandem” Articles 47 of the Charter and 19 TEU can be discovered.

General Principles of EU Civil Law
  • Norbert Reich
  • Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    03 December 2013
  • General Principles of EU Civil Law focuses on a rapidly developing but still highly controversial area of EU law: the emergence of general principles with constitutional relevance for EU civil law, guiding its interpretation, gap filling and legality control. This study brings to light seven principles in the case law of the Court of Justice of the European Union and in the Charter of Fundamental Rights. Principles 1 to 3 on framed autonomy, protection of the weaker party and non-discrimination are now part of substantive EU law, mainly contract law. Principle 4 on effectiveness, together with the principle of equivalence, is an "old acquaintance" of EU law and has mostly to do with procedures but can also be extended to cover substantive and remedial matters. Principles 5 and 6 on balancing and proportionality are primarily concerned with methodological questions: the first has to do with judicial interpretation and application of EU civil law, the second with legal-political questions on the future of a (questionable) codified or optional EU civil law, in particular sales law. Finally, principle 7 on good faith is still an emerging principle but is gradually gaining importance.This book will allow the reader to understand and to assess the current evolution of EU civil law in days where its autonomous character is increasingly recognised in the case law of the Court, and where the Charter is having a growing impact on its constitutional foundations.About this book'The topic is highly relevant these days and orders our case-law in ways that only a proficient academic like Norbert Reich is capable of doing. That effort will in turn be taken into account in the further development of the case-law.'Koen Lenaerts, Vice-President of the Court of Justice of the European Union'Professor Reich has written a book that is not merely rich and broad in ambition,but in fact genuinely ground-breaking. In identifying, explaining and analysing seven key principles of EU civil law, he has drawn us a map that will help scholars to find their way through the forbiddingly dense jungle populated by EU Treaty provisions, the legislative acquis and the Court's case law. And, in showing how proudly 'social' much of the EU's protective regulation affecting private parties truly is, he has set a tone that EU policymakers should embrace.' Stephen Weatherill, Jacques Delors Professor of European Law, University of Oxford'For the private lawyer, probably the most interesting recent development in EU law is the emergence of principles of private law, developed by the European Court of Justice. This phenomenon unfolds in three strands. Firstly, the Court has developed general principles of EU law which are also relevant for private law. Secondly, since the entry into force of the EU Charter of Fundamental Rights (2009) a process of judicial interpretation has started which shows that not a few provisions have a significant impact on private law. In a third wave of innovations the ECJ seems to be willing to develop principles of civil law, in a more restricted sense, playing their role purely within the ambit of private law. In his new book, General Principles of EU Civil Law, Norbert Reich reaches out to these different categories of principles, combining them under one heading and systematising them in a new and original way.'Arthur Hartkamp, Professor of European Private Law, Radboud University, Nijmegen'Showing the hidden face of European private law is probably the best way to demonstrate the importance of European integration in private law. Through this remarkable accomplishment professor Norbert Reich offers us a refreshing look at what forms the general principles of European private law. A valuable book that no private law researcher claiming an interest in European law can miss to have in his library!'Jean-Sylvestre Berg�, in RTDeur

  • Chapter 2 - The Principle of Protection of the Weaker Party

  • Norbert Reich
  • Book:
    General Principles of EU Civil Law
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    03 December 2013, pp 37-58

  • Summary

    ELEMENTS OF PROTECTION OF THE WEAKER PARTY

    EU civil law has emerged not so much as a body of rules with an objective of enabling citizens to use their autonomy for purposes, whether economic or not, to be determined by themselves, but rather as a body of provisions that tries to protect the weaker party and to combat discrimination (Chapter 3). To put it simply, at least three areas can be distinguished and have found their way into the Charter, frequently based on prior extensions of citizens’ rights by EU law amendments that will not be documented here, in particular in the field of social and consumer policy:

  • An important element of EU social policy has been the protection of persons in dependent employment situations by guaranteeing fair and just working conditions, Article 31 of the Charter, including the “right (of every worker) to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave”. This conforms to Article 3(3) TEU on establishing a “social market economy”. Article 8 of the Community Charter of Fundamental Social Rights of 1989 which is referred to in Article 151(1) TFEU, has similar provisions; the ECJ has on several occasions made reference to it. A prominent example to be studied here is the Working Time Directive (WTD) 2003/88/EC of 4 November 2003 (recast), and its predecessor Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time. Their controversial interpretation by the ECJ will be taken as an example (2.3–2.4).

  • Another area where EU law has been active is the protection of consumers as typically weaker parties to contracts with business partners (B2C). This principle is now enshrined in Article 38 of the Charter, although in rather general terms. It was already contained in the old Article 129a EEC under the Maastricht Treaty of 1992, which became Article 153(2) EC of the Amsterdam Treaty and has now been transferred to Article 12 TFEU.

  • Chapter 7 - An Emerging Principle of Good Faith and of a Prohibition of Abuse of Rights?

  • Norbert Reich
  • Book:
    General Principles of EU Civil Law
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    03 December 2013, pp 189-212

  • Summary

    SOME MISUNDERSTANDINGS ABOUT GOOD FAITH IN CONTRACT LAW: ELEMENTS OF A DUTY OF LOYAL COOPERATION IN CONTRACTING

    The concept of “good faith” in contract law has been the subject of extensive legal writing in the Member States of the EU. Comparative lawyers usually distinguish between the continental approach where the general clause of good faith is part of the general law of obligations, including contracting, and the attitude in common law, which seems to ignore such a general concept. As a sort of “proof”, Hesselink cites a prominent English judge as having said:

    “In many civil law systems, and perhaps in most legal systems outside the common law world, the law of obligations recognises and enforces an overriding principle that in making and carrying out contracts parties should act in good faith […]English law has, characteristically, committed itself to no such overriding principle but has developed piecemeal solutions in response to demonstrated problems of unfairness.”

    In this context, it comes as a surprise that the ECJ, in the Messner case (5.9), refers to the “principles of civil law, such as those of good faith”. As far as German contract law is concerned, this is of course nothing surprising, but for an English lawyer it must have been quite shocking and remained unexplained how far this refers merely to applicable, i.e. German, law or EU civil law in general, which is the object of this study. I have tried to limit the impact of this judgment, against the overarching criticism of Hesselink, to the case before the ECJ; in this case the ECJ only authorised the German court to impose upon the consumer an obligation under the German rules of good faith which was not expressly included in the relevant Distance Contracts Directive, but which now has been put into Article 14(2) of the new Consumer Rights Directive 2011/83 (2.1). I am not aware of later references by the ECJ to a general principle of good faith in EU civil law. But of course this would not exclude its autonomous development once EU civil law becomes more coherent and comprehensive.

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