Introduction

By Carbonneau, Thomas E. | Denver Journal of International Law and Policy, Fall 1999 | Go to article overview

Introduction


Carbonneau, Thomas E., Denver Journal of International Law and Policy


The Denver Journal of International Law and Policy does the legal community a great service by providing a report on the significant recent rulings of the European Court of Justice (ECJ). The dedication of the Journal's student staff to this undertaking is important not only to their individual legal education, but also to the general enterprise of transborder law-making and legality. Under the able leadership of Professor Ved Nanda, the University of Denver and the Denver Journal of International Law and Policy have made a significant contribution to the study of international law and the elaboration of a world law and legal process.

The reconciliation of national law with a transborder standard is at the heart of the European enterprise to create an integrated legal process. Such reconciliation is also necessary to establish a unified political community with common core values. The various cases that are analyzed in this issue address critical questions of law and policy, and demonstrate the court's progress in elaborating a communitarian practice in the various subject areas.

From the perspective of an academic observer of legal processes, the content of this issue affirms the notion that the European Union is the great contemporary repository of comparative law analysis and doctrine. In its decisional law, the ECJ has the delicate task of building a bridge between the European Community Treaty (EC Treaty), Community directives, and the substantive norms that reign in national legal systems. The final result cannot simply be an eclectic amalgam of rules, but rather, it must be a statement of organic principles that reflect an autonomous communitarian position acceptable to constituent members and to the unifying dictates of the EC Treaty. The work of the ECJ is difficult and important. It is also unique and essential to the development of global law and legal practice.

In the cases that are studied, the ECJ rendered preliminary rulings on previously unresolved issues of Community law. The ECJ has the power under Article 177 of the EC Treaty to issue preliminary rulings on questions of Community law presented to a national court.(2) The preliminary ruling has a binding effect on the national courts, which in turn implement the decision into their own decisional law. Ideally, this process provides for the uniform interpretation of Community law and is necessary for its uniform application. Questions regarding protection of television and radio broadcasters' rights, the free movement of persons between and among Member States, state monopolies of employment placement offices, gender-based discrimination in employment, and protection of the image of a luxury perfume for trademark purposes-have all been recently presented to the ECJ, and are analyzed in this issue.

I. PROTECTING THE RIGHTS OF TELEVISION BROADCASTERS

On June 4, 1997, the ECJ decided a case concerning an English television broadcaster's right to broadcast in Belgium.(3) The decision affects broadcasters throughout the Community who are subject to the television and radio directive contained in the EC Treaty. VT4, a broadcasting company incorporated under the laws of England, transmitted programs via satellite from the United Kingdom to Belgium.(4) The Flemish Minister for Culture and Brussels Affairs refused cable access to VT4. Belgian national legislation provides that the Flemish Executive can only license one entity to broadcast to the Flemish community.(5) A license had already been issued to VTM, a Belgian company, resulting in a virtual monopoly in commercial television and radio advertising for VTM.(6)

The television directive in the EC Treaty provides that each Member State must ensure that all television broadcasts within its jurisdiction comply with the law applicable to broadcast,; intended for the public of that Member State.(7) The ECJ addressed the question of which Member State had jurisdiction over VT4. …

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