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Developments in European Law

The PSPP Judgment of the German Federal Constitutional Court

The Judge’s Theatre According to Karlsruhe

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords German Constitutional Court, basic law, ultra vires, European Central Bank, primacy of Union law
Authors Maria Kordeva
AbstractAuthor's information

    The PSPP decision of 5 May 2020 rendered by the German Federal Constitutional Court (FCC) does not constitute a break with the earlier jurisprudence of the FCC elaborated since the Lisbon Treaty judgment of 30 June 2009. Even though qualifying the acts of the Union as ultra vires has been likened to a warlike act, one should beware of hasty conclusions and look closely at the analysis of the Second Senate to form a moderate opinion of this decision decried by European and national commentators. Should the PSPP judgment of the Federal Constitutional Court be classified as “much ado about nothing”, despite the procedure started by the European Commission, or, on the contrary, will the CJEU in the next months, sanction Germany for its obvious affront to and breach of the principle of the primacy of Union law? The (final?) power grab between the European and national courts remains to be seen. We can criticize the German FCC that it put the fundamental principles of the Union in danger. Yet, it is worth reflecting on the possible encroachment of competences by European institutions, because, in this case, the red line between monetary policy and economic policy is more than thin.


Maria Kordeva
Maria Kordeva: PhD in Public Law (University of Strasburg/University of Constance), lecturer and research associate, Saarland University, Saarbrücken.
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.
Article

Opposition in Times of COVID-19 – To Support or Not to Support?

Journal Politics of the Low Countries, Issue 2 2021
Keywords minority government, rally-around-the-flag, COVID-19, mainstream parties, challenger parties, opposition, party goals
Authors Britt Vande Walle, Wouter Wolfs and Steven Van Hecke
AbstractAuthor's information

    COVID-19 has hit many countries all over the world, and its impact on (party) politics has been undeniable. This crisis situation functions as an opportunity structure incentivising opposition forces to support the government. Not much is known about what drives opposition parties to (not) support the government in crisis situations. This article integrates the literature on rally-around-the-flag, political opportunity structures, party types and party goals. More specifically, we focus on the behaviour of opposition parties towards the government’s crisis response to the COVID-19 pandemic. We analyse whether and how the party type influences the position of the party vis-à-vis the governmental coalition, focusing on the case of Belgium. We categorise the seven opposition parties in Belgium as challenger or mainstream parties and explain their behaviour on the basis of policy-, office- or vote-seeking motives. Our analysis is based on party voting behaviour, elite interviews and an analysis of the main plenary debates.


Britt Vande Walle
Britt Vande Walle is PhD Researcher at the KU Leuven Public Governance Instituted, funded by a FWO fellowship ‘Fundamental Research’. Her research focuses on comparative politics, political parties, and political party think tanks. ORCID: https://orcid.org/0000-0002-9594-9897.

Wouter Wolfs
Wouter Wolfs is Senior Researcher at the KU Leuven Public Governance Institute. His research interests include the European Union, political finance, legislative studies and political parties. ORCID: https://orcid.org/0000-0002-6214-5972.

Steven Van Hecke
Steven Van Hecke is Associate Professor in Comparative and EU Politics at the KU Leuven Public Governance Institute. His research focuses on Europarties, EU institutions and European integration history. ORCID: https://orcid.org/0000-0003-0215-5463.

    In the context of collective redundancies the term ‘establishment’ (Betrieb) must be interpreted in compliance with the Collective Redundancies Directive 98/59/EC (the ‘Directive’). The early warning mechanism of Section 45a of the Austrian Labour Market Promotion Act (Arbeitsmarktförderungsgesetz, ‘AMFG’) is only triggered if the number of the planned redundancies reaches a relevant threshold in an establishment. In the present case the stores in question were qualified as separate establishments within the meaning of Section 45a AMFG.


Andreas Tinhofer
Andreas Tinhofer is a partner at Zeiler Floyd Zadkovich.

Markus Blatnig
Markus Blatnig is an associate at Zeiler Floyd Zadkovich.
Article

Compensation for Victims of Disasters

A Comparative Law and Economic Perspective

Journal European Journal of Law Reform, Issue 2 2021
Keywords victim compensation, disaster risk reduction, government relief, insurance, moral hazard, public private partnership
Authors Qihao He and Michael Faure
AbstractAuthor's information

    This article provides a critical analysis of the compensation awarded for victims of disasters. First, general guiding principles of compensation are discussed. Next, various ways of government provided victim compensation, both during the disaster and ex post are critically reviewed. Then the article focuses on ex ante insurance mechanisms for victim compensation, arguing that insurance can play a role in disaster risk reduction. Finally, the article explains how the government can cooperate with insurers in a public-private partnership for victim compensation, thus facilitating the availability of disaster insurance.


Qihao He
Qihao He is Associate Professor of Law, China University of Political Science and Law, College of Comparative Law. Beijing, China. Qihao He acknowledges the financial support of China Ministry of Education Research Program on Climate Change and Insurance (No. 18YJC820024), and Comparative Private Law Innovation Project of CUPL (No. 18CXTD05).

Michael Faure
Michael Faure is Michael G. Faure, Professor of Comparative and International Environmental Law, Maastricht University, and Professor of Comparative Private Law and Economics, Erasmus University Rotterdam, The Netherlands. The authors thank the participants in the symposium of Regulating Disasters through Private and Public Law: Compensation and Policy held in University of Haifa, and the comments from Suha Ballan.
Article

The Impact of VAAs on Vote Switching at the 2019 Belgian Legislative Elections

More Switchers, but Making Their Own Choices

Journal Politics of the Low Countries, Issue 1 2021
Keywords voting advice applications, vote switching, vote choice, elections and electoral behaviour, voters/citizens in Belgium, VAA
Authors David Talukder, Laura Uyttendaele, Isaïa Jennart e.a.
AbstractAuthor's information

    During electoral campaigns, the use of voting advice applications (VAAs) has become increasingly widespread. Consequently, scholars have examined both the patterns of usage and their effects on voting behaviour. However, existing studies lead to conflicting findings. In this article, we take a closer look at the effect of De Stemtest/Test électoral (a VAA developed by academics from the University of Louvain and the University of Antwerp, in partnership with Belgian media partners) on vote switching. More specifically, we divide this latter question into two sub-questions: (1) What is the impact of a (dis)confirming advice from the VAA on vote switching? (2) Do VAA users follow the voting advice provided by the VAA? Our study shows that receiving a disconfirming advice from the VAA increases the probability of users to switch their vote choice.


David Talukder
David Talukder is a PhD candidate at the Université libre de Bruxelles (ULB, Belgium). He works within the research project “Reforming Representative Democracy”. His main research interests are democratic innovations, political representation, and democratic reforms.

Laura Uyttendaele
Laura Uyttendaele is a PhD candidate at the University of Louvain (UCLouvain, Belgium). Her main research interests are Voting Advice Applications, Youth & politics, political attitudes and behaviours, and experimental methods.

Isaïa Jennart
Isaïa Jennart is a PhD candidate (Universiteit Antwerpen & VUB, Belgium) interested in public opinion, electoral campaigns, voting behaviour, Voting Advice Applications and political knowledge. He mainly studies citizens’ knowledge of parties’ issue positions.

Benoît Rihoux
Benoît Rihoux is full professor in political science at the University of Louvain (UCLouvain, Belgium). His research covers comparative methods (especially QCA) as well as diverse topics in comparative politics, political organizations and political behaviour.
Article

Reducing Ethnic Conflict in Guyana through Political Reform

Journal European Journal of Law Reform, Issue 1 2021
Keywords Guyana, race, ethnic conflict, political power, constitutional reform
Authors Nicola Pierre
AbstractAuthor's information

    This article discusses using constitutional reform to reduce ethnic conflict in Guyana. I start by exploring the determinants of ethnic conflict. I next examine Guyana’s ethnopolitical history to determine what factors led to political alignment on ethnic lines and then evaluate the effect of the existing political institutions on ethnic conflict. I close with a discussion on constitutional reform in which I consider a mix of consociationalist, integrative, and power-constraining mechanisms that may be effective in reducing ethnic conflict in Guyana’s ethnopolitical circumstances.


Nicola Pierre
Nicola Pierre is Commissioner of Title and Land Court Judge in Guyana.
Case Reports

2021/9 AGET Iraklis: another belated victory for the employer (GR)

Journal European Employment Law Cases, Issue 1 2021
Keywords Information & Consultation, Collective Redundancies
Authors Effie Mitsopoulou
AbstractAuthor's information

    The Supreme Court of Greece has clarified that the validity of terminations is not affected by the lack of consultation with the employees’ representatives, as per Directive 2002/14/EC on a general framework for informing and consulting employees. In case of non-compliance with such obligation, alternative administrative or judicial measures can be provided by the Member States. It further reiterated that the expediency and necessity of the company’s business decision to suddenly interrupt its plant operation cannot be subject to judicial control.


Effie Mitsopoulou
Effie Mitsopoulou is an attorney-at-law at Effie Mitsopoulou Law Office.

    This article focuses on the posting of workers in the aviation industry. The main problem is that it is not clear in which situations the Posting of Workers Directive should be applied to aircrew (i.e. cabin crew and pilots). The aviation sector is characterised by a very mobile workforce in which it is possible for employees to provide services from different countries in a very short timeframe. This makes it, to a certain extent, easier for employers to choose the applicable social legislation, which can lead to detrimental working conditions for their aircrew. This article looks into how the Posting of Workers Directive can prevent some air carriers from unilaterally determining the applicable social legislation and makes some suggestions to end unfair social competition in the sector. This article is based on a research report which the authors drafted in 2019 with funding from the European Commission (hereafter the ‘Report’)


Gautier Busschaert
Gautier Busschaert (PhD) is senior associate at the Brussels law firm Van Olmen & Wynant.

Pieter Pecinovsky
Pieter Pecinovsky (PhD) is counsel at the Brussels law firm Van Olmen & Wynant.
Article

Access_open The Right to Claim Innocence in Poland

Journal Erasmus Law Review, Issue 4 2020
Keywords wrongful convictions, right to claim innocence, reopening of criminal proceedings, miscarriage of justice, revision of final judgment
Authors Wojciech Jasiński Ph.D., habilitation and Karolina Kremens Ph.D.
AbstractAuthor's information

    Wrongful convictions and miscarriages of justice, their reasons and effects, only rarely become the subject of academic debate in Poland. This article aims at filling this gap and providing a discussion on the current challenges of mechanisms available in Polish law focused on the verification of final judgments based on innocence claims. While there are two procedures designed to move such judgment: cassation and the reopening of criminal proceedings, only the latter aims at the verification of new facts and evidence, and this work remains focused exactly on that issue. The article begins with a case study of the famous Komenda case, which resulted in a successful innocence claim, serving as a good, though rare, example of reopening a case and acquitting the convict immediately and allows for discussing the reasons that commonly stand behind wrongful convictions in Poland. Furthermore, the article examines the innocence claim grounds as regulated in the Polish criminal procedure and their interpretation under the current case law. It also presents the procedure concerning the revision of the case. The work additionally provides the analysis of the use of innocence claim in practice, feeding on the statistical data and explaining tendencies in application for revision of a case. It also presents the efforts of the Polish Ombudsman and NGOs to raise public awareness in that field. The final conclusions address the main challenges that the Polish system faces concerning innocence claims and indicates the direction in which the system should go.


Wojciech Jasiński Ph.D., habilitation
Wojciech Jasiński is Assistant Professor in the Department of Criminal Procedure of the University of Wroclaw, Poland. orcid.org/0000-0002-7427-1474

Karolina Kremens Ph.D.
Karolina Kremens is Assistant Professor in the Department of Criminal Procedure of the University of Wroclaw, Poland. orcid.org/0000-0002-2132-2645
Article

The Question of Jurisdiction

The Impact of Ultra Vires Decisions on the ECJ’s Normative Power and Potential Effects for the Field of Data Protection

Journal East European Yearbook on Human Rights, Issue 1 2020
Keywords ECJ, German Constitutional Court, principle of proportionality, primacy of EU law, data protection, principle of conferral, ultra vires judgments
Authors Carsten M. Wulff
AbstractAuthor's information

    The ultra vires judgment of the German Constitutional Court on the debt security purchasing of the ECB system sent shockwaves throughout Europe. Some scholars see the legal framework, specifically the principle of the supremacy of the European Union in danger. This article argues that the judgment is a challenge for Luxembourg; however, there have been warning signs from the Czech Republic and Denmark that constitutional courts will not shy away from criticizing, when the ECJ oversteps its jurisdiction. The author argues that the judgment may weaken the overall normative power of the court and will assess whether a similar judgment could occur in the field of data protection and national security exceptions. The only way back to normality will be for the court to ensure it does not overstep its jurisdiction and the European Institutions unconditionally backing the ECJ in the expected upcoming conflict with the constitutional courts of Member States.


Carsten M. Wulff
PhD Student, Tallinn University, Estonia.
Article

Access_open Post-Conviction Remedies in the Italian Criminal Justice System

Journal Erasmus Law Review, Issue 4 2020
Keywords wrongful conviction, revision, extraordinary appeal, rescission of final judgment, res judicata
Authors Luca Lupária Donati and Marco Pittiruti
AbstractAuthor's information

    The Italian Constitution expressly contemplates the possibility of a wrongful conviction, by stating that the law shall determine the conditions and forms regulating damages in case of judicial error. Therefore, it should come as no surprise that many provisions of the Italian Code of Criminal Procedure (CCP) deal with the topic. The aim of this article is to provide an overview of the post-conviction remedies in the Italian legal system by considering the current provisions of the CCP, on the one hand, and by exploring their practical implementation, on the other.


Luca Lupária Donati
Luca Lupária is Full Professor of Criminal Procedure at Roma Tre University, Director of the Italy Innocence Project and President of the European Innocence Network.

Marco Pittiruti
Marco Pittiruti is researcher of Criminal Procedure at Roma Tre University.

    States apply different material conditions to attract or restrict residence of certain types of migrants. But states can also make use of time as an instrument to design more welcoming or more restrictive policies. States can apply faster application procedures for desired migrants. Furthermore, time can be used in a more favourable way to attract desired migrants in regard to duration of residence, access to a form of permanent residence and protection against loss of residence. This contribution makes an analysis of how time is used as an instrument in shaping migration policy by the European Union (EU) legislator in the context of making migration more or less attractive. This analysis shows that two groups are treated more favourably in regard to the use of time in several aspects: EU citizens and economic- and knowledge-related third-country nationals. However, when it comes to the acquisition of permanent residence after a certain period of time, the welcoming policy towards economic- and knowledge-related migrants is no longer obvious.


Gerrie Lodder
Gerrie Lodder is lecturer and researcher at the Europa Institute of Leiden University.
Article

Access_open State Obligations to Counter Islamophobia: Comparing Fault Lines in the International Supervisory Practice of the HRC/ICCPR, the ECtHR and the AC/FCNM

Journal Erasmus Law Review, Issue 3 2020
Keywords Human rights, positive state obligations, islamophobia, international supervisory mechanisms
Authors Kristin Henrard
AbstractAuthor's information

    Islamophobia, like xenophobia, points to deep-seated, ingrained discrimination against a particular group, whose effective enjoyment of fundamental rights is impaired. This in turn triggers the human rights obligations of liberal democratic states, more particularly states’ positive obligations (informed by reasonability considerations) to ensure that fundamental rights are effectively enjoyed, and thus also respected in interpersonal relationships. This article identifies and compares the fault lines in the practice of three international human rights supervisory mechanisms in relation to Islamophobia, namely the Human Rights Committee (International Covenant on Civil and Political Rights), the European Court of Human Rights (European Convention on Human Rights) and the Advisory Committee of the Framework Convention for the Protection of National Minorities. The supervisory practice is analysed in two steps: The analysis of each international supervisory mechanism’s jurisprudence, in itself, is followed by the comparison of the fault lines. The latter comparison is structured around the two main strands of strategies that states could adopt in order to counter intolerance: On the one hand, the active promotion of tolerance, inter alia through education, awareness-raising campaigns and the stimulation of intercultural dialogue; on the other, countering acts informed by intolerance, in terms of the prohibition of discrimination (and/or the effective enjoyment of substantive fundamental rights). Having regard to the respective strengths and weaknesses of the supervisory practice of these three international supervisory mechanisms, the article concludes with some overarching recommendations.


Kristin Henrard
Kristin Henrard is Professor International Human Rights and Minorities, Erasmus School of Law, Rotterdam, the Netherlands.
Article

Building Legislative Frameworks

Domestication of the Financial Action Task Force Recommendations

Journal European Journal of Law Reform, Issue 3 2020
Keywords domestication, legislative processes, functionality, efficacy
Authors Tshepo Mokgothu
AbstractAuthor's information

    As the international financial framework develops it has brought with it dynamic national legislative reforms. The article establishes how the domestication of the Financial Action Task Force (FATF) Recommendations directly affects national legislative processes as the FATF mandate does not have due regard to national legislative drafting processes when setting up obligations for domestication. The article tests the FATF Recommendations against conventional legislative drafting processes and identifies that, the proposed structures created by the FAFT do not conform to traditional legislative drafting processes. Due regard to functionality and efficacy is foregone for compliance. It presents the experience of three countries which have domesticated the FATF Recommendations and proves that the speed at which compliance is required leads to entropic legislative drafting practices which affects harmonisation of national legislation.


Tshepo Mokgothu
Tshepo Mokgothu, LLB (University of Botswana), LLM (University of Kent) is a recipient of the Joint Master in Parliamentary Procedures and Legislative Drafting and a Senior Legislative Drafter at The Attorney General’s Chambers in Botswana.
Article

The ECB’s Independence and the Principle of Separation

Journal European Journal of Law Reform, Issue 3 2020
Keywords ECB, Banking Supervision, Banking Supervision Centralization, Prudential Supervision, European Union, EU Law, Banking Union, Central Banking Independence, SSMR, SSMR
Authors Pamela Nika
AbstractAuthor's information

    This article addresses the question of whether the European Central Bank’s (ECB’s) involvement in banking supervision is compatible with its independent status as provided by the European Union’s (EU’s) primary law, specifically with reference to the principle of separation between the ECB’s monetary policy and supervisory powers. It is found that the Single Supervisory Mechanism (SSM) Regulation provides the ECB with a set of prerequisites in pursuit of its supervisory objectives under a high level of independence. However, the article argues that the current EU regulatory framework poses risks to the overall independence of the ECB. In particular, the principle of separation, as one of the mechanisms aimed at safeguarding the ECB’s independence, is not fully achieved. In addition, the boundaries and application of macro-prudential operation of the ECB in both the SSM and European Systemic Risk Board (ESRB) remain blurry and uncertain. The article concludes by suggesting that the only way to safeguard the independence of the ECB is by carefully revising the ECB’s competencies, which may require treaty amendment.


Pamela Nika
Dr Pamela Nika is a lecturer in Corporate and Finance Law at Brunel University London.
Article

Investment Arbitration and the Public Interest

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords BIT, ILA, ISDS, unclean hands, regulatory chill
Authors Gábor Hajdu
AbstractAuthor's information

    The study focuses on analyzing conflicts between (international) investment arbitration and the public interest, dividing its contents into five substantive sections. First, it summarizes the common characteristics of international investment arbitration (distinguishing procedural and substantive elements), followed by its most pressing issues (including frequent criticism such as lack of consistency, asymmetrical proceedings, regulatory chill, etc.). Afterwards, selected investment arbitration cases are examined, grouped based on which areas of public interest they affected (environmental protection, employee rights, public health). These cases all hold relevance and offer different insights into the workings of investment arbitration, which serve to illuminate the complex interplay between foreign investor and public interest. The cases also provide the foundation for the study’s conclusions, where key observations are made on the central subjects.


Gábor Hajdu
Gábor Hajdu: PhD student, University of Szeged.
Article

The Development of Human Rights Diplomacy Since the Establishment of the UN

More Actors, More Efficiency?

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords human rights, diplomacy, international organizations, NGOs, corporate social responsibility
Authors István Lakatos
AbstractAuthor's information

    This study gives a comprehensive picture of the development of human rights diplomacy since the establishment of the UN, focusing on the dilemmas governments are facing regarding their human-rights-related decisions and demonstrating the changes that occurred during the post-Cold War period, both in respect of the tools and participants in this field. Special attention is given to the role of international organizations, and in particular to the UN in this process, and the new human rights challenges the international community must address in order to maintain the relevance of human rights diplomacy.


István Lakatos
István Lakatos: career diplomat, former human rights ambassador of the Ministry of Foreign Affairs and Trade of Hungary, currently senior adviser of the Ministry of Human and Minority Rights of Montenegro.
Article

The Impact of the Achmea Ruling on Intra-EU BIT Investment Arbitration

A Hungarian Perspective

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords Achmea, Intra-EU BIT, investment arbitration, investment protection, Hungary
Authors Veronika Korom
AbstractAuthor's information

    The Achmea judgment of the CJEU brought the worlds of EU law and investment arbitration on a collision course. The judgment sent shockwaves through the EU investment arbitration community, which feared that Achmea would be the death knell of intra-EU BIT arbitration. In the years since Achmea, however, arbitral tribunals, ad hoc committees and national courts have found ways around Achmea, effectively eliminating its practical impact on intra-EU investment disputes. On 5 May 2020, the majority of EU Member States adopted a multilateral agreement that seeks to terminate intra-EU BITs and provides for a transitional regime for pending arbitrations in order to give effect to Achmea. This agreement, once ratified, will mark the end of intra-EU BIT arbitration in the future, although its impact on pending proceedings remains unclear. With its 22 intra-EU BITs and several arbitration proceedings pending under these treaties, Hungary has relied heavily (albeit unsuccessfully thus far) on Achmea in recent years as part of its defense strategy. The final termination of intra-EU BITs will be a win for Hungary in the short term, as no new investment arbitrations can be pursued by EU investors against Hungary. In the long term, however, the termination of intra-EU BITs will leave Hungarian companies who invest in the EU without sound legal protection and may even adversely impact Hungary’s standing as an attractive place for EU investment.


Veronika Korom
Veronika Korom: assistant professor of law, ESSEC Business School.
Editorial

Editorial Comments: The Relevance of Foreign Investment Protection in International and EU Law

Foreword to Vol. 8 (2020) of the Hungarian Yearbook of International Law and European Law

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Authors Marcel Szabó
Author's information

Marcel Szabó
Marcel Szabó: editor-in-chief; professor of law, Pázmány Péter Catholic University, Budapest; justice, Constitutional Court of Hungary, Budapest.
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