The Role of the Characteristic Performance from the Rome ...

Ugo Villani
The Role of the Characteristic Performance
from the Rome Convention to the “Rome
I” Regulation on the Law Applicable to
Contracts
The characteristic performance, whose origin is in the Swiss doctrine and
jurisprudence, was accepted in the European private international law by the
Rome Convention of 1980 on the law applicable to contractual obligations.
Pursuant to Article 4 of this Convention, to the extent that the law applicable to
the contract has not been chosen by the parties, the contract shall be governed
by the law of the country with which it is most closely connected. In order to
ascertain this country, paragraph 2 of Article 4 declares that it shall be presumed
that the contract is most closely connected with the country where the party
who is to effect the characteristic performance of the contract has, at the time of
the conclusion of the contract, his habitual residence. However, this
presumption shall be disregarded if it appears that the contract is more closely
connected with another country. In the 1980 Rome Convention, according to
the Author, the characteristic performance is only a presumption directed to let
the real conflict rule work, namely the “proximity” rule. On the contrary, the
“Rome I” Regulation of 2008 mainly aims at securing legal certainty as regards
the law applicable to contracts. Therefore that law shall be determined in
accordance with the rules specified in an automatic, strict way by the new Article
4, paragraph 1, for eight types of contracts. Only if the contract cannot be
categorized in one of these types, or if its elements fall within more than one of
the specified types, it shall be governed by the law of the country where the
party required to effect the characteristic performance has his habitual residence.
In the present Author’s view, in the cases envisaged by this provision of the
Rome I Regulation it will often be difficult to determine the characteristic
performance. As a consequence, it will be necessary to have recourse to the law
of the country with which it is most closely connected, which has to be applied
where it is impossible to determine the characteristic performance of the
contract.

Sergio M. Carbone
EU Law and Sport after Lisbon Treaty
This paper carries out an analysis of the impact produced in the field of sports
by the enforcement of the EU fundamental principles regarding nondiscrimination,
freedom of circulation and competition. After having underlined
that, according to the new drafting of Article 165 TFEU, the EU has actually
been entrusted with a specific competence for such a field, the Author provides
a survey of the ECJ consolidated case-law according to which the above
mentioned EU fundamental principles have been implemented and it is expected
to be implemented after the Lisbon treaty also in the sport sector, taking into
account its specific nature. As a consequence, rules governing the field at stake
must be coherent and applied consistently with EU law notwithstanding the fact
that the authorities endowed with such a task are often to be regarded as nonjurisdictional.

Saverio de Bellis
The New Role of National
Parliaments in the European Union
The Lisbon Treaty, in the process of European integration, constitutes an
important step in the involvement of national parliaments in European Union
affairs. A new general article of declaratory value has been inserted in Article 12
of the Treaty on European Union, stating that “national parliaments contribute
actively to the good functioning of the Union”, but there are other new rules in
the Protocol on the application of the principles of subsidiarity and
proportionality and in the Protocol on the role of national parliaments. This
paper analyses how the Lisbon Treaty shapes the new role of national
parliaments in the European Union. We will have to check how these new
provisions concerning national parliaments will be applied.

Ornella Porchia
Subsidiarity through Competences’
Re-Organization? The Reform Treaty
and the Distribution of Competences
The present article deals with the issue of the re-organization of the EU
competences’ system by the Reform Treaty. To this regard, the Treaty of Lisbon
confirms the relevance of the principles of the conferral of competences,
proportionality and subsidiarity as cornerstones of the whole structure.
However, greater emphasis is put on the first of these principles, so to dispel any
doubt on the residual nature of the competences conferred to the EU. Another
important element of novelty introduced by the Lisbon Treaty is the distinction
between three types of EU competences: exclusive powers, concurrent or shared
powers and areas of supporting actions by the EU. This distinction may help to
clarify the legal framework, although not always based on perfectly consistent
criteria. The article goes on taking into account the subsidiarity and the
proportionality principles and seeks to clarify their scope and content. The
Protocol annexed to the Lisbon Treaty specifies the obligations stemming from
the subsidiarity and proportionality principles for the EU institutions, in
particular the Commission, during both the pre-legislative and the legislative
phase. As for subsidiarity, such a clarification, especially with regard to the prelegislative
phase, may represent a major breakthrough for the correct application
of the principle. To this regard, it must be also observed that the Protocol
introduces an ‘early-warning’ mechanism that allows national parliaments to
exercise their control on the legislative proposals presented by the Commission,
so to assess their conformity with the subsidiarity principle. Lastly, the article
shows that the most important innovation brought forward by the Lisbon
Treaty is what can be called the ‘increasing proceduralization’ of the subsidiarity
principle. This could have a positive impact on the effective implementation of
the principle by the law-making institutions, as well help the European Union
Court of Justice to exercise a more systematic control (ex post) on the respect of
the principle. Furthermore, the article highlights that these mechanisms, by
increasing the participation of national actors already during the drafting phase,
may contribute to a better and faster implementation of EU acts.

Roberta Bogni
The role of Eurobarometer in the
Communication Policy of the
European Union
The relevant changes brought in by the Lisbon Treaty at institutional level
require reflections concerning the new communication policy of the European
Union and the specific contribution given by Eurobarometer surveys. Aim of
this work is to study the potential of Eurobarometer, instrument created in 1973
and now boasting several methods of research and analysis of the European
public opinion. Besides the activity of Eurobarometer stimulates observations
on its legal and juridical outline, as well as remarks regarding the linguistic and
terminological weight of its opinion polls. The EU case law can also help in
valuing the pre-trial function of Eurobarometer and in making forecasts on its
future use and relations with EU institutions, national public authorities and
citizens.

Fabio Raspadori
Participative Democracy and the
European Citizens’ Initiative
Starting from the concept of the participative democracy, the present article
underlines how a more active participation of citizens to policy can help the
notion of representative democracy, that appears day by day more in crisis. The
Lisbon Treaty has the merit to have introduced some instruments of the
participative democracy within the European founding Treaties and, among
these, the European citizens’ initiative represents the most ambitious. The most
part of the article is dedicated to the Proposal of the European Commission on
the Regulation of the European Parliament and of the Council on the citizens’
initiative, presented on 31st March 2009 and presently under discussion within
the new ordinary legislative procedure of the European Union. The Author
describes the contents of the most significant parts of the act, as well as the least
convincing parts. The article finishes with a general appreciation of the
Commission’ Proposal for its innovative character, that emerges especially in
comparison with the poor attention given by the national constitutions to the
participative democracy.

Francesca Martines
Rules of Origin and Territorial
Application of the Association
Agreement between the EU and Israel
In the case discussed in this comment (Case C-386/08 Firma Brita Gmbh c.
Hauttzollamt Hamburg-Hafen) the Court of Justice rules that goods originating in
the Israeli settlements located in (West Bank) occupied territories cannot be
considered of Israeli origin and therefore cannot be eligible for preferential
customs treatment under the EC-Israel Association agreement. The reasoning of
the Court – which clarifies some issues related to the application of rules of
origin – is not totally convincing when the Court applies the international law
rules on the effect of treaties on third countries to settle the question of the
territorial scope of the EC-Israel Association Agreement, the actual question of
the case. The distinction between the territorial spheres of competence of the
two agreements made by the Court correctly excludes the application of
preferential treatment to goods produced in the Israeli settlements under the
EC-OLP association agreement but seems to exclude as well exports of
Palestinian products into the EU through certificates of origin issued by Israeli
authorities which control the occupied territories. This conclusion could be
considered a sanction for Israel (although this is not verbalized by the Court
which is clearly aware of the consequences of its judgment in a very delicate
international context) but could result in a severe penalization for Palestinian
exports.

Donatella del Vescovo
Development of Article 54 of the
Schengen Convention in the
European Union
The growing internationalization of crime, more and more cross-border, the
discipline of criminal jurisdiction concerns situations in which various member
States are competent to perform the prosecution for the same case. In addition
to this, currently, it may happen more frequently that several proceedings may
occur on the same case, or conflicts “positive” of jurisdiction, because the
capacity of many national courts in criminal matters has been significantly
increased over the last few years. The multiplicity of the processes damages the
rights and interests of the individual with the danger of duplication of criminal
proceedings. In an area of freedom, security and justice evolved is necessary to
avoid such consequences disadvantageous, hindering the establishment of many
processes on the same events. The legal limit is precisely the principle of ne bis in
idem. This principle does not prevent conflicts of jurisdiction when several
processes are underway in two or more member States; it may come into play
only by preventing the prosecutions for the second time on the same case, when
the proceedings in a member State has concluded with a decision that prevents
the opening of a new one (res judicata). The structure of this work is divided into
different points. In the first place the essential characteristics of ne bis in idem
principle legislation community are summarized, and it will verify the existence
of a general principle of European law that prohibits to submit to a new trial one
who has already been processed for the same facts by the courts of another
State. Subsequently, it will focus on the possible assimilation of ne bis in idem
“considered”, while highlighting the copious decisions by a certain reluctance of
the member States to a boundary excessive scope of application ne bis in idem.
They will ensure that neither the practice of the Court, or the application of the
ne bis in idem principle in the framework of multilateral treaties in criminal
matters of the Council of Europe have led to a common standard of ne bis in
idem in Europe.