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Developments in European Law

The First Ever Ultra Vires Judgment of the German Federal Constitutional Court: PSPP

Will the Barking Dog Bite More Than Once?

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords judicial dialogue, ultra vires, PSPP, German Federal Constitutional Court, infringement procedure
Authors Robert Böttner
AbstractAuthor's information

    In May 2020, the German Federal Constitutional Court (FCC) delivered its judgment in the PSPP case. At first it seemed that it would be a remake of the Gauweiler/OMT case between the German Court and the CJEU. Shockingly, however, the German FCC decided that not only had the ECB acted ultra vires by failing to duly justify its PSPP decision, but it also found the CJEU to have delivered an incomprehensible and objectively arbitrary judgment by which the German Court was not bound. This case note not only traces the history of the PSPP proceedings, but it also tries to review the heavy criticism that the FCC’s verdict has garnered. In the context of European integration and due to the German FCC’s authority among supreme courts in Europe, it is a dangerous precedent, that the European Commission tries to curb through infringement proceedings. One can only hope that it will be settled for good and shall remain an unfortunate but singular incident.


Robert Böttner
Robert Böttner: assistant professor of law, University of Erfurt.

    Previous work has been undertaken (Green, Neumann, Grey 2018) to consider the development of the Newspace Sector and its impact on space activities in Low Earth Orbit (LEO). This previous work noted that although propertisation of space and celestial bodies is prohibited pursuant to the Outer Space Treaty 1967 (UN), orbits within space still remain rivalrous and commercially lucrative. For example, by operating in a LEO environment, a constellation of satellites would prevent other competitors from also operating and providing services within that same orbital plane or orbital shell. A regulatory scheme may be advantageous in mitigating anti-competitive conduct between private enterprises by allowing new entrants to market to gain access to commercially lucrative orbital planes, while ensuring access for government continues for national security and emergency response activities. This paper will consider these issues and explore what a regulatory or licensing scheme would look like for private enterprises operating in LEO and how UNOOSA and the ITU may act as arbiters. This paper will also offer solutions to facilitate a regulatory; or, licensing scheme that prevents anti-competitive conduct.


Thomas Green
Thomas Green, PhD Student, University of Wollongong; tjg171@uowmail.edu.au.

Patrick Neumann
Patrick Neumann, Chief Scientist, Neumann Space Pty Ltd; paddy@neumannspace.com.

Kent Grey
Kent Grey, Partner, Minter Ellison, 25 Grenfell Street, Adelaide 5000 Australia; kent.grey@minterellison.com.

Trevor Sandlin
Trevor Sandlin, Chief Mate AGT, USNS Salvor, United States Merchant Marine; sandlin.trevor@gmail.com.

Thomas Cullum
Thomas Cullum, Engineer, Neumann Space Pty Ltd; tomc@neumannspace.com.

Ilana Pender-Rose
Ilana Pender-Rose; ilanapenderrose@gmail.com.

Robert Mahoney
Robert Mahoney, Founder, Southern Cross Innovations; robert.mahoney24@gmail.com.

Robert Peacock
Robert Peacock is Professor of Criminology, University of the Free State, South Africa. Contact author: peacockr@ufs.ac.za.
Case Reports

2020/22 Works council’s right to inspect remuneration lists (GE)

Journal European Employment Law Cases, Issue 2 2020
Keywords Information and Consultation, Privacy
Authors Robert Pacholski
AbstractAuthor's information

    The Federal Labour Court (Bundesarbeitsgericht, “BAG”) has held that a works council must be provided with the documents necessary for carrying out its duties at any time on request. A works committee or another committee of the works council formed in accordance with the provisions of the Works Constitution Act (Betriebsverfassungsgesetz, “BetrVG”) is entitled to inspect the lists of gross wages. This right to inspect is not limited to anonymized gross pay lists. Data protection considerations do not dictate that the right is limited to anonymized gross payrolls. The processing of personal data associated with the right of inspection is permitted under the European General Data Protection Regulation (“GDPR”) and the German Federal Data Protection Act (Bundesdatenschutzgesetz, “BDSG”).


Robert Pacholski
Robert Pacholski is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.
Article

Delimiting Deportation, Unlawful Transfer, Forcible Transfer and Forcible Displacement in International Criminal Law

A Jurisprudential History

Journal African Journal of International Criminal Justice, Issue 1 2019
Keywords International criminal law, theory of international law, crimes against humanity, deportation, unlawful or forcible transfer
Authors Ken Roberts and James G. Stewart
AbstractAuthor's information

    The forced displacement of civilian populations is an issue of significant global concern and a subject of extensive legal debate. In international criminal law, forced displacement is criminalized by a complex network of distinct but overlapping offences. These include the Crimes Against Humanity of deportation, forcible transfer, persecution and other inhumane acts, and the grave breach of the Geneva Conventions of ‘unlawful deportation or transfer’. International courts and tribunals have been inconsistent in the adoption of these crimes in their statues and in their subsequent interpretation, making it all the more difficult to distinguish between them. The jurisprudential history of these crimes is lengthy and not without controversy, highlighted by inconsistent judicial approaches. In this article, we offer a critical jurisprudential history of these displacement crimes in international criminal law.
    In particular, we focus on the case law emanating from the International Criminal Tribunal for the former Yugoslavia, a court that comprehensively addressed crimes associated with ethnic cleansing, a characteristic feature of that conflict, with the result that displacement was a central focus of that court. We set out our jurisprudential history in chronological order, beginning with the earliest inceptions of displacement crimes at the ICTY and then tracing their development toward the establishment of a consensus. Our hope is that the article sheds light on the development of these offences, informs future debate, and acts as a useful template for those seeking to understand how these crimes may have a role to play in future international jurisprudence.


Ken Roberts
Ken Roberts is Senior Legal Officer, International, Impartial and Independent Mechanism (Syria).

James G. Stewart
James G. Stewart is Associate Professor, Allard School of Law, University of British Columbia.

    Both the French Supreme Court and the Versailles Court of Appeal held that an employer, who must ensure that liberties and fundamental rights of each employee are respected in the working community, may lawfully prohibit the wearing of any visible sign of political, philosophical or religious beliefs in the workplace, provided that the rule contained in the company rules and regulations applies without distinction to employees in direct contact with the customers of the company only. But in the absence of such rules, sanctioning an employee who refuses to remove her Islamic veil based on the wish of a customer, which does not qualify as a genuine and determining occupational requirement, amounts to an unlawful direct discrimination and should consequently be held null and void.


Claire Toumieux
Claire Toumieux is partner and Thomas Robert is an attorney at Allen & Overy LLP in Paris, France.

Thomas Robert

Robert Cario
Robert Cario is Professor Emeritus of Criminology, Université de Pau et Pays de l’Adour, France, and Founder President of the French Institute for Restorative Justice.

Benjamin Sayous
Benjamin Sayous is the Director of programmes at the French Institute for Restorative Justice, Pau, France. Contact author: direction@justicerestaurative.org.
Article

Access_open De nominalistische theorie van de rechtssubjecten

Journal Netherlands Journal of Legal Philosophy, Issue 1 2017
Keywords rechtssubject, natuurlijk persoon, rechtspersoon, staat, orgaan
Authors Robert Jan Witpaard
AbstractAuthor's information

    In dit artikel presenteer ik een nieuwe ‘nominalistische’ theorie van de rechtssubjecten en laat ik zien waarom geen van de tot nu gepresenteerde theorieën de toets der kritiek kan doorstaan. Het artikel valt uiteen in een constructief en een kritisch deel. In het constructieve deel presenteer ik eerst de nominalistische theorie van de rechtssubjecten. Deze theorie richt zich op de persoonlijke elementen van het rechtssysteem en begrijpt rechtspersonen en organen als namen die uitsluitend bestaan binnen het rechtssysteem. In het kritische deel presenteer ik vervolgens een overzicht van de tot nu toe verdedigde theorieën van de rechtspersoon. Het gaat daarbij respectievelijk om de sociaal-biologische of organische leer, de sociologische leer, de sociologisch-juridische leer, de fictieleer en de leer van het (gepersonifieerde) normencomplex. Aan de hand van enkele algemeen geaccepteerde kenmerken van de rechtspersoon laat ik ten slotte zien waarom geen van deze alternatieve theorieën de toets der kritiek kan doorstaan.


Robert Jan Witpaard
Mr. dr. Robert Jan Witpaard is jurist bij de Afdeling Verdragen van het ministerie van Buitenlandse Zaken.

    The seriousness of the incorporation problem in interdisciplinary legal research, this article argues, depends on how legal research is understood. If legal research is understood as a single, inherently interdisciplinary discipline, the problem largely falls away. On this view, the incorporation of other disciplines into legal research is what legal academics have for the last 40 years already successfully been doing. If, on the other hand, legal research is best conceived as a multi-disciplinary field, consisting of a core discipline – doctrinal research – and various other types of mono-disciplinary and interdisciplinary research, the incorporation of other disciplines presents real difficulties. For legal academics engaged in socio-legal research, in particular, two problems arise: the practical problem of trying to address a legal professional and academic audience at the same time and the philosophical problem of trying to integrate the internal perspective of doctrinal research with the external perspective of other disciplines. In the final part of the article, these practical and philosophical difficulties are illustrated by reference to the author’s research on the politics of judicial review in new democracies.


Theunis Robert Roux
Theunis Robert Roux is Professor of Law at the University of New South Wales, Australia.
Article

Transformative Mediation

A Self-Assessment

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2014
Keywords relational approach to mediation, transformative mediation, ideology and mediation, Institute for the Study of Conflict Transformation, USPS REDRESS Mediation Program
Authors Joseph Folger and Robert A. Baruch Bush
AbstractAuthor's information

    Transformative mediation is an approach to third party intervention that has been implemented in a range of dispute settings over the past twenty years. This article offers an explanation of what led us to develop the transformative model of mediation, and an assessment of the body of work related to both the theory and practice of transformative mediation. Specifically, we offer an assessment of: how well the relational premises of the model have been articulated, whether transformative practice remained aligned with its underlying premises, what the impact of practice has been, and what effect this approach to conflict intervention has had on the discourse of the conflict field in general.


Joseph Folger
Joseph Folger, Ph.D., is Professor of Adult and Organizational Development at Temple University, Philadelphia, Pennsylvania, U.S.A. He is a co-founder of the Institute for the Study of Conflict Transformation (<www.transformativemediation.org>).

Robert A. Baruch Bush
Robert A. Baruch Bush, J.D., is Rains Distinguished Professor of Law at the Maurice A. Deane School of Law, Hofstra University, Hempstead, New York, New York, U.S.A. He is a co-founder of the Institute for the Study of Conflict Transformation (<www.transformativemediation.org>).

Robert Briner
Attorney at Law with Lenz & Staehelin, Geneva (CH), Chairman of the International Court of Arbitration of the International Chamber of Commerce, Paris, Former President of the Iran-US Claims Tribunal.

Gabriël Oosthuizen
Gabriël Oosthuizen is executive director of International Criminal Law Services Foundation (ICLS), a Hague-based NGO (www.icls-foundation.org).

Robert Schaeffer
Robert Schaeffer is an ICLS assistant. The views expressed in this article are their own, and do not refl ect the views of ICLS.

Roberto Pardolesi
Roberto Pardolesi is Professor of Comparative Law and Private Law at the Guido Carli University of Rome.

Bruno Tassone
Bruno Tassone is Attorney in Rome, Professor of Civil Law Torts at the Guido Carli University of Rome and Professor of Copyright Law at the University of Terano.
Article

Partis politiques nationaux en crise?

Organisation des partis et décentralisation. Une comparaison de l’Espagne et du Royaume Uni

Journal Res Publica, Issue 1 2005
Authors Elodie Fabre, Bart Maddens, Wilfried Swenden e.a.
AbstractAuthor's information

    This article investigates the link between state decentralization and party decentralization. We study the impact of the type (dual, integrative, asymmetrical) and degree of decentralization on two dimensions of the relationship between a party’s central party organs and its regional branches: the autonomy of the regional branches to manage their regional affairs and the degree of participation of the regional branches in the central party. We compare the organization of five state-wide parties in two decentralized multi-national polities, Spain and the UK. Our analysis of their party statutes partly confirms the link between degree and asymmetry of decentralization and party organization. However, the impact of the type of distribution of powers between the state and its regions is much less clear. This article shows the need to investigate the influence of other factors such as regional party competition and electoral rules on the type of central-regional relationships within state-wide parties.


Elodie Fabre
Doctorante au Département de science politique à la Katholieke Universiteit de Leuven.

Bart Maddens
Professeur en science politique à la Katholieke Universiteit de Leuven.

Wilfried Swenden
Professeur en science politique à l’Université de Edimbourg, Ecosse.

Robertas Pogorelis
Collaborateur scientifique au Département de science politique à la Katholieke Universiteit de Leuven.
Article

Organizing for Science Participation on the International Space Station

International Law and Practice of Agreements on Cooperation Regarding Space Activities

Journal International Institute of Space Law, Issue 2 2004
Authors M.A. Roberts

M.A. Roberts

Robert Sir Jennings
Former President, International Court of Justice, The Hague.

    Kant had a notion of our determined and freely-choosing behavior which illuminates basic assumptions of contemporary ideologies. A myopic embracement of only one or the other behavior has been superseded by a new entanglement which renders moot ordinary political classifications. Fascism had typically affirmed the radical freedom of an Uebermensch (Superman) as well as a superior race and racism; Marxist communism a radical determinism as well as inevitable class warfare. But during the Cold War, especially since the 1960s, there arose in open societies a virulent assimilation of the two ideologies. Understood as a species of the"New Left", the ideology has effectively combined name-calling ad hominem attacks of "racism" with"elite white classes" to politicize dialogue and to suppress objective pursuits of truth as well as to foster ethnic identity and provide an unprecedented apologetics for global conflict.


Robert C. Trundle
Article

U. S. Remote Sensing Data from Earth Observation: Law, Policy and Practice

Legal Aspects of Sharing Benefits from the Conduct of Space Activities

Journal International Institute of Space Law, Issue 3 1996
Authors M.A. Roberts

M.A. Roberts

Robert Vandeputte

    The employers, although small in size, dispose of an important influence in economic decision-making. Before the second world war, economic problems were exclusively dealt with by the government and the employers. After world war II, trade unions came more into relief. They were involved in consultations as athird partner. Consequently the impact of the employers faded somewhat. Currently the employers dispose of various channels to influence economic decision-making; e.g. contacts with civil servants, consultations in study centres of political parties, international relations, etc. Nevertheless the efficacy of employers's power is hindered by internal quarrel, strong individualism, and by the position of trade unions.


Robert Vandeputte
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