Dedication to Advocate General Francis Jacobs

This issue of the Fordham International Law Journal represents a solid tribute to the attainments of Francis Jacobs produced by a group of respected scholars. Some Articles present a serious analysis of his own opinions, while others review major current issues in the field. Altogether the authors join in expressing their highest respect for Francis Jacobs\u27 extraordinary contribution to the evolution of European Union law, and their expectation that he will continue to provide a valuable impetus to European Union studies as he returns to academic life

A Tribute to Judge Bo Vesterdorf

Judge Bo Vesterdorf retires this fall after serving as Judge on the Court of First Instance (“CFI”) since its inauguration on September 25, 1989, acting as its President for three successive terms since 1998. It is accordingly highly appropriate that the editors of the Fordham International Law Journal (“ILJ”) should dedicate this annual issue devoted to European Union (“EU”) law to Judge Vesterdorf as an eminent jurist who has significantly contributed to the development of the CFI\u27s jurisprudence, and also provided able pragmatic leadership as its presiding judge. The ILJ can be considered to act on behalf of the entire Fordham Law School community, which has greatly benefited from Judge Vesterdorf’s visits in past years

1 Corinthians 11:2-16: exegesis case study

Corinthians 1: 11-14. However one chooses to outline 1 Corinthians, it is evident that ch. 7-10 basically revolve around questions put to Paul by the congregation in Corinth. Ch. 11-14 focus on the worship life of the church: women in the church1 Cor 11:2-16 (cf. 14:33-36); the Lord\u27s Supper, 11:17-34; and the use of spiritual gifts, 12:1-14:40. Whether in 11:2-16 Paul is answering a question put to him by the church or simply directing himself to a particular irregularity of which he had become aware, we do not know. In this section the apostle interweaves two themes, one dealing with a basic or general principle, the other with its particular application. Thus in vv. 3,8-9,11-12 he clarifies the essential relationship between man and woman on the basis of their special creation by God. In vv. 4-7,10,13-15, he relates the principle to the issue of head coverings when praying or prophesying. Vv. 2 and 16 provide the framework for the discussion. [ed excerpt]

Adding a Little Gold to the Golden Years: Should the European Union Prohibit Compulsory Retirement as Aged-Based Discrimination in Employment?

On October 2, 1997, the Member States of the European Union signed the Treaty of Amsterdam which amended the European Community Treaty (ECT). Among the Amsterdam Treaty\u27s most important new provisions was ECT Article 13, which authorized the Council of Ministers, acting unanimously, to take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief disability, age or sexual orientation. The Council acted with surprising rapidity to adopt Directive 2000/78, which prohibits discrimination in employment on all the listed bases (except for racial or ethnic origin, which is covered by Directive 2000/43). Since December 2, 2003, the end of the period for Member State implementation of Directive 2000/78, the Court of Justice has issued numerous judgments interpreting and applying the Directives provisions. By far the largest number have concerned the Directives prohibition of discrimination in employment based on age. To date there has been relatively little American (or indeed EU) academic commentary upon the Court\u27s judgments. This article is accordingly timely in its presentation of the terms of Directive 2000/78, and its critical examination of the Court judgments concerning the prohibition of discrimination in employment based on age. Moreover the article compares the impact of the Directive and the Court judgments with the prohibition of discrimination in employment based on age through the U.S. Age Discrimination in Employment Act (ADEA), initially adopted in 1969. As amended in 1984, the ADEA totally prohibits employers from setting a compulsory retirement date, except where advanced age tends to impair an employee s occupational qualifications essential for performance in a particular profession or job. In Part I, the article describes the operational provisions of Directive 2000/78 relevant to the prohibition of age-based discrimination. The principal focus of the article, in Part II, is a description and critical examination of the four Court judgments reviewing national rules that authorize employers to set an age (usually sixty-five) for the compulsory retirement of employees. Part III supplements this with a description and critical examination of national compulsory retirement rules for certain specific professions or occupations (e.g., airline pilots, policemen, firemen, judges, prosecutors). Because the Court of Justice\u27s judgments have held that national rules authorizing employers to set a compulsory retirement age do not violate Directive 2000/78, a natural question is whether this judicial conclusion can be considered to be appropriate, as compared to the total prohibition of compulsory retirement in the U.S. After considering the significant difference between the limited social impact of the prohibition of compulsory retirement in the U.S., as contrasted with the significant adverse social impact of prohibiting compulsory retirement in many EU Member States, the article concludes that substantially higher unemployment rates among young people under thirty in some EU States justify their governments\u27 rules that authorize employers to set a compulsory retirement age. Accordingly, the Court\u27s judgments that permit national rules to authorize compulsory retirement in order to open employment opportunities for younger workers can be evaluated as appropriate and justified

The European Union in Transition: The Treaty of Nice in Effect; Enlargement in Sight; A Constitution in Doubt

This Article is intended to provide an overview of this transitional moment in the history of the European Union. Initially, the Article will briefly review the background of the Treaty of Nice, and the institutional structure modifications for which it provides, which paves the way for enlargement. Next it will describe the final stages of the enlargement process. Finally, the Article will set out the principal institutional innovations and certain other key aspects of the draft Constitution, the most important issues concerning them, and the current impasse

Court of Justice Oversight Over the European Central Bank: Delimiting the ECB\u27s Constitutional Autonomy and Independence in the OLAF Judgment

An article devoted to the European Court of Justice\u27s (“ECJ” or the “Court”) judicial review of the European Central Bank\u27s (“ECB”) level of constitutional autonomy and independence may seem a bit arcane in a book dedicated to honor Advocate General Francis Jacobs upon his retirement from the Court. The topic is, however, eminently suitable, because it highlights his influence in a case remote from the many fields of law in which his impact has been so marked-- e.g., free movement of goods, competition law, trademarks and other intellectual property rights, free movement of services and establishment rights, human rights protection, and taxation. This Article will first discuss the high importance of the principle of independence for the ECB in its control of monetary policy and the European currency, noting some aspects of the academic debate concerning the appropriate level of such independence. The first section also observes that a debate about the constitutional nature and autonomy of the ECB has become intertwined with the appraisal of its level of independence. The Article then reviews the EC Treaty\u27s attribution to the Court of jurisdiction within Monetary Union, including a power of judicial review of the ECB\u27s status, measures and decisions. The following section sets out the conflict between the Commission and the ECB in the OLAF case. The Article concentrates upon the text in Advocate General Jacob\u27s opinion and the Court\u27s judgment concerning the constitutional status of the ECB as an organ or body structured within the Community framework and concerning the scope of the ECB\u27s independence. The final section provides several reflections upon the ultimate impact of the judgment and opinion. The reflections stress the importance of the Court\u27s rejection of the ECB\u27s claim to virtual autonomy in constitutional terms and the related subjection of the ECB to the rule of law within the EC. The final commentary also considers the Court\u27s and especially Advocate General Jacobs\u27 demarcation of the functional nature of the ECB\u27s independence. Advocate General Jacobs\u27 discussion of the value and extent of democratic accountability of the ECB is also highlighted

Against the Stream, How Karl Barth Reframed Church-State Relations (Chapter 3 of Keine Gewalt! No Violence!)

Excerpt: Defenders of the Barmen Declaration\u27s apolitical tone remind us that it was never intended to establish a program of political protest, that Karl Barth and the others were pastors not politicians; that the goal was to reassert the integrity of the gospel in the face of the attempted subversion by the German Christians. On the one hand, the soundness of this interpretation is self-evident. And yet it should surprise no one that an apolitical strategy would have little political impact on the German state. It is also true that Barth\u27s views on church and state relations changed after Barmen; that afterward he expressed remorse over his own sins of omission. If we explore Barth\u27s writings over a twenty-year period, the change will become evident and so also his impact on the emerging political theology in Eastern Europe. The next two chapters will chronicle this development

Supranational? Federal? Intergovernmental? The Governmental Structure of the European Union After the Treaty of Lisbon

The goal of this article is to provide an overview of the progressive augmentation of the supranational character of the governmental structure of the initial EEC, gradually evolving into the present European Union, particularly as a consequence of revisions to the constituent Treaties. Part I of this article presents the European Commission, the initial institution whose structure and operations have always been markedly supranational in character and which has always been dedicated to the promotion of supranational goals. Part II examines the Council of Ministers, the political institution that is intrinsically intergovernmental in character, but whose operational role in the adoption of legislation and policies took on significant supranational features in the late 1980s. Part Ill then describes the European Parliament, which can be properly characterized as a supranational, or indeed federal, institution after it began to be directly elected in 1979, and which strongly promotes a supranational agenda. Part IV presents the intrinsically intergovernmental nature of the European Council, and then examines the impact of the Lisbon Treaty, which marks the start of a shift to a partially supranational operational role for that highest political body