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Article

Access_open Age Limits in Youth Justice

A Comparative and Conceptual Analysis

Journal Erasmus Law Review, Issue 1 2020
Keywords youth justice, age limits, minimum age of criminal responsibility, age of criminal majority, legal comparison
Authors Jantien Leenknecht, Johan Put and Katrijn Veeckmans
AbstractAuthor's information

    In each youth justice system, several age limits exist that indicate what type of reaction can and may be connected to the degree of responsibility that a person can already bear. Civil liability, criminal responsibility and criminal majority are examples of concepts on which age limits are based, but whose definition and impact is not always clear. Especially as far as the minimum age of criminal responsibility (MACR) is concerned, confusion exists in legal doctrine. This is apparent from the fact that international comparison tables often show different MACRs for the same country. Moreover, the international literature often seems to define youth justice systems by means of a lower and upper limit, whereas such a dual distinction is too basic to comprehend the complex multilayer nature of the systems. This contribution therefore maps out and conceptually clarifies the different interpretations and consequences of the several age limits that exist within youth justice systems. To that extent, the age limits of six countries are analysed: Argentina, Austria, Belgium, the Netherlands, New Zealand and Northern Ireland. This legal comparison ultimately leads to a proposal to establish a coherent conceptual framework on age limits in youth justice.


Jantien Leenknecht
Jantien Leenknecht is PhD Fellow of the Research Foundation Flanders (FWO) at KU Leuven, Institute of Social Law and Leuven Institute of Criminology.

Johan Put
Johan Put is Full Professor at KU Leuven, Institute of Social Law and Leuven Institute of Criminology.

Katrijn Veeckmans
Katrijn Veeckmans is PhD Fellow at KU Leuven, Institute of Social Law and Leuven Institute of Criminology.
Article

Access_open Age Barriers in Healthcare

Journal Erasmus Law Review, Issue 1 2020
Keywords age discrimination, age equality, health care
Authors Rachel Horton
AbstractAuthor's information

    Age limits, minimum and maximum, and both explicit and ‘covert’, are still used in the National Health Service to determine access to a range of health interventions, including infertility services and cancer screening and treatment. Evidence suggests that chronological age is used as a proxy for a host of characteristics in determining access to healthcare: as a proxy for the capacity of an individual to benefit from an intervention; for the type of harm that may result from an intervention; for the likelihood of such benefit or harm occurring; and, in some cases, for other indicators used to determine what may be in the patient’s interest. Age is used as a proxy in this way in making decisions about both individual patients and wider populations; it may be used where no better ‘marker’ for the relevant characteristic exists or – for reasons including cost, practicality or fairness – in preference to other available markers. This article reviews the justifications for using age in this way in the context of the existing legal framework on age discrimination in the provision of public services.


Rachel Horton
Lecturer University of Reading.
Article

Interest Representation in Belgium

Mapping the Size and Diversity of an Interest Group Population in a Multi-layered Neo-corporatist Polity

Journal Politics of the Low Countries, Issue Online First 2020
Keywords interest groups, advocacy, access, advisory councils, media attention
Authors Evelien Willems, Jan Beyers and Frederik Heylen
AbstractAuthor's information

    This article assesses the size and diversity of Belgium’s interest group population by triangulating four data sources. Combining various sources allows us to describe which societal interests get mobilised, which interest organisations become politically active and who gains access to the policy process and obtains news media attention. Unique about the project is the systematic data collection, enabling us to compare interest representation at the national, Flemish and Francophone-Walloon government levels. We find that: (1) the national government level remains an important venue for interest groups, despite the continuous transfer of competences to the subnational and European levels, (2) neo-corporatist mobilisation patterns are a persistent feature of interest representation, despite substantial interest group diversity and (3) interest mobilisation substantially varies across government levels and political-administrative arenas.


Evelien Willems
Evelien Willems, Departement Politieke Wetenschappen, Universiteit Antwerpen, Antwerpen, Belgium.

Jan Beyers
Jan Beyers, Departement Politieke Wetenschappen, Universiteit Antwerpen, Antwerpen, Belgium.

Frederik Heylen
Frederik Heylen, Departement Politieke Wetenschappen, Universiteit Antwerpen, Antwerpen, Belgium.
Article

Access_open Is the CJEU discriminating in age discrimination cases?

Journal Erasmus Law Review, Issue 1 2020
Keywords age discrimination, old people, young people, complete life view, fair innings argument
Authors Beryl ter Haar
AbstractAuthor's information

    Claims have been made that the Court of Justice of the European Union (CJEU) is more lenient in accepting age discriminating measures affecting older people than in those affecting younger people. This claim is scrutinised in this article, first, by making a quantitative analysis of the outcomes of the CJEU’s case law on age discrimination cases, followed by a qualitative analysis of the line of reasoning of the CJEU in these cases and concluding with an evaluation of the Court’s reasoning against three theoretical approaches that set the context for the assessment of the justifications of age discrimination: complete life view, fair innings argument and typical anti-discrimination approach. The analysis shows that the CJEU relies more on the complete life view approach to assess measures discriminating old people and the fair innings argument approach to assess measures discriminating young people. This results in old people often having to accept disadvantageous measures and young workers often being treated more favourably.


Beryl ter Haar
Beryl ter Haar is assistant professor and academic coordinator of the Advanced LL.M. Global and European Labour Law at Leiden University and visiting professor at the University of Warsaw.

M.I. Kouskouna
Assistant Professor in EU Law, Law School, National and Kapodistrian University of Athens
Article

New Sales and Contract Law in Argentina and France

Models for Reform Inspired by the CISG and the PICC?

Journal European Journal of Law Reform, Issue Online First 2020
Keywords contracts, sales, law reform, CISG, UNIDROIT Principles, Argentina, France, comparative law
Authors Edgardo Muñoz and Inés Morfín Kroepfly
AbstractAuthor's information

    The Argentine and the French civil codes have recently undergone substantial modifications to their contract law provisions. These novel statutes could serve as models for future B2B contract law reforms in Latin American jurisdictions and beyond, as former Argentine and French laws have done in the past. The authors offer a contribution that paves the way in that direction with a systematic comparative analysis. As a starting point, this article unveils the influence that the modern unified laws on contracts (UNIDROIT Principles on International Commercial Contracts (PICC) and United Nations Convention for the International Sale of Goods of 1980 (CISG)) have in Argentina’s and France’s new contract law. It also highlights the most obvious similarities and differences in both sets of rules. This contribution goes beyond simple tertium comparisons; the authors analyse which of the two laws offers better, or more effective, rules to achieve the desired contract law functions in various matters. Readers are provided with the best rule or solution to address the problem in question and, as the authors hope, they should conclude that both models provide for a range of complementary solutions for modern contract law reforms.


Edgardo Muñoz
Professor of Law, Universidad Panamericana. School of Law. Calzada Álvaro del Portillo 49, Zapopan, Jalisco, 45010, Mexico. Ph.D. (Basel), LL.M. (UC Berkeley), LL.M. (Liverpool), LL.B. (UIA Mexico), DEUF (Lyon), emunoz@up.edu.mx.

Inés Morfín Kroepfly
J.D., Universidad Panamericana, Guadalajara.
Discussion

Access_open Biopolitics and the Coronavirus

Foucault, Agamben, Žižek

Journal Netherlands Journal of Legal Philosophy, Issue 1 2020
Keywords Biopolitics, Coronavirus, Rule of law, Foucault, Agamben
Authors Lukas van den Berge
Author's information

Lukas van den Berge
Lukas van den Berge is assistant professor of legal theory at Utrecht University.

    In a surprise decision, with potentially wide-ranging ramifications, an Employment Tribunal (ET) has found that ‘workers’ as well as traditional ‘employees’ are covered by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).


Colin Leckey
Colin Leckey is a Partner at Lewis Silkin LLP.
Rulings

ECJ 26 March 2020, Case C-344/18 (ISS Facility Services), Transfer of undertakings, transfer, employment terms

ISS Facility Services NV – v – Sonia Govaerts and Atalian NV (formerly Euroclean NV), Belgian case

Journal European Employment Law Cases, Issue 1 2020
Keywords Transfer of undertakings, Employment terms, Transfer
Abstract

    In case of a transfer of undertaking involving multiple transferees, the rights and obligations arising from an employment contract may be divided between various transferees, if this is possible. If not (or if it is to the detriment of the employee), the transferees would be regarded as being responsible for any consequent termination under Article 4 of Directive 2001/23, even if this were to be initiated by the worker.

Case Law

2020/1 EELC’s review of the year 2019

Journal European Employment Law Cases, Issue 1 2020
Authors Ruben Houweling, Daiva Petrylaitė, Peter Schöffmann e.a.
Abstract

    Various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks.


Ruben Houweling

Daiva Petrylaitė

Peter Schöffmann

Attila Kun

Francesca Maffei

Jean-Philippe Lhernould

Niklas Bruun

Jan-Pieter Vos

Luca Ratti

Anthony Kerr

Petr Hůrka

Michal Vrajík

    Relying on the prohibition of age discrimination stemming from Directive 2000/78, the Brussels Labour Tribunal, in a judgment of 28 November 2019, ruled that an age limit of 25 for the recruitment of air traffic controllers constituted direct discrimination. Its decision was grounded on the fact that even if there are objective reasons related to air traffic safety which may justify setting an age limit for applicants, the employer must adduce concrete evidence based on scientific facts.


Gautier Busschaert
Gautier Busschaert is an attorney-at-law at Van Olmen & Wynant, Brussels.
Rulings

ECJ 27 February 2020, case C-298/18 (Grafe and Pohle), Transfer of Undertakings

Reiner Grafe and Jürgen Pohle – v – Südbrandenburger Nahverkehrs GmbH and OSL Bus GmbH, German case

Journal European Employment Law Cases, Issue 1 2020
Keywords Transfer of undertakings
Abstract

    In the context of a takeover of an activity which requires substantial operating resources, not transferring the substantial operating resources cannot necessarily preclude the classification as a transfer of an undertaking, since other factual circumstances make it possible to establish that the identity of the economic entity has been retained.

    Failure to reinstate an employee upon her return from parental leave in her initial position or a similar position with equivalent remuneration can constitute indirect gender discrimination.


Claire Toumieux

Susan Ekrami
Claire Toumieux and Susan Ekrami are a partner and a senior associate with Allen & Overy LLP in Paris, www.allenovery.com.
Rulings

ECJ 19 December 2019, case C-465/18 (Comune di Bernareggio), Miscellaneous

AV, BU – v – Comune di Bernareggio (intervener: CT), Italian case

Journal European Employment Law Cases, Issue 1 2020
Keywords Miscellaneous
Abstract

    An unconditional right of pre-emption to pharmacists employed by the municipal pharmacy in a tendering procedure is contrary to the freedom of establishment.

Article

Still Consociational? Belgian Democracy, 50 Years After ‘The Politics of Accommodation’

Journal Politics of the Low Countries, Issue 1 2020
Keywords Belgium, consociational democracy, Lijphart, federalism, ethnolinguistic conflict
Authors Didier Caluwaerts and Min Reuchamps
AbstractAuthor's information

    Despite the enduring importance of Lijphart’s work for understanding democracy in Belgium, the consociational model has come under increasing threat. Owing to deep political crises, decreasing levels of trust in elites, increasing levels of ethnic outbidding and rising demands for democratic reform, it seems as if Lijphart’s model is under siege. Even though the consociational solution proved to be very capable of transforming conflict into cooperation in Belgian politics in the past, the question we raise in this article is whether and to what extent the ‘politics of accommodation’ is still applicable to Belgian democracy. Based on an in-depth analysis of the four institutional (grand coalition, proportionality, mutual veto rights and segmental autonomy) and one cultural (public passivity) criteria, we argue that consociational democracy’s very nature and institutional set-up has largely hollowed out its potential for future conflict management.


Didier Caluwaerts
Didier Caluwaerts is professor of political science at the Vrije Universiteit Brussel. His research deals with democratic governance and innovation in deeply divided societies. With Min Reuchamps, he has recently published “The Legitimacy of Citizen-led Deliberative Democracy: The G1000 in Belgium” (Routledge, 2018).

Min Reuchamps
Min Reuchamps is professor of political science at the Université catholique de Louvain (UCLouvain). His teaching and research interests are federalism and multi-level governance, democracy and its different dimensions, relations between language(s) and politics and in particular the role of metaphors, as well as participatory and deliberative methods.
Article

Gender-Neutral Drafting

A View from Wales

Journal European Journal of Law Reform, Issue 1 2020
Keywords gender, legislation, English, Welsh, LGBTQIA+
Authors Thomas Glyn Watkin
AbstractAuthor's information

    The gender classification of words in English is different from that in many other languages, including Welsh. The approach in Welsh is more closely aligned to that in languages such as French, Spanish or Italian, but there are also differences. The differences include the manner in which possessive pronouns and possessive adjectives are employed. These differences pose difficulties for bilingual drafting in English and Welsh.
    This article will consider some of those difficulties, their root causes and some possible solutions as well as look at issues that may or may not complicate matters further in the future.


Thomas Glyn Watkin
Queen’s Counsel (honoris causa); Fellow of the Learned Society of Wales; Honorary Professor of Law, Bangor University. First Welsh Legislative Counsel (2007-2010); Professor of Law, Bangor Law School (2004-2007); Professor of Law, Cardiff Law School (2001-2004).
Article

Access_open Access and Reuse of Machine-Generated Data for Scientific Research

Journal Erasmus Law Review, Issue 2 2019
Keywords machine-generated data, Internet of Things, scientific research, personal data, GDPR
Authors Alexandra Giannopoulou
AbstractAuthor's information

    Data driven innovation holds the potential in transforming current business and knowledge discovery models. For this reason, data sharing has become one of the central points of interest for the European Commission towards the creation of a Digital Single Market. The value of automatically generated data, which are collected by Internet-connected objects (IoT), is increasing: from smart houses to wearables, machine-generated data hold significant potential for growth, learning, and problem solving. Facilitating researchers in order to provide access to these types of data implies not only the articulation of existing legal obstacles and of proposed legal solutions but also the understanding of the incentives that motivate the sharing of the data in question. What are the legal tools that researchers can use to gain access and reuse rights in the context of their research?


Alexandra Giannopoulou
Institute for Information Law (IViR) – University of Amsterdam.
Article

Access_open Text and Data Mining in the EU ‘Acquis Communautaire’ Tinkering with TDM & Digital Legal Deposit

Journal Erasmus Law Review, Issue 2 2019
Keywords Web harvesting, data analysis, text & data mining, TDM, computational text
Authors Maria Bottis, Marinos Papadopoulos, Christos Zampakolas e.a.
AbstractAuthor's information

    Text and Data Mining (hereinafter, TDM) issue for the purpose of scientific research or for any other purpose which is included in the provisions of the new EU Directive on Copyright in the Digital Single Market (hereinafter, DSM). TDM is a term that includes Web harvesting and Web Archiving activities. Web harvesting and archiving pertains to the processes of collecting from the web and archiving of works that reside on the Web. In the following analysis we will elaborate briefly upon provisions in EU Copyright law which were discussed during the proposal for a new Directive on Copyright in the DSM as well as provisions which are included in the text of art.3 and art.4 of the new Directive 2019/790/EU per TDM. In addition, the following analysis presents legislation in very few EU Member States which pertains to TDM and preceded the rulings of Directive 2019/790/EU. Digital legal deposit remarkable examples from EU Member States are also presented in this paper. The example of Australia is also presented below hereto because it is one of the oldest and most successful worldwide. The National Library of Australia’s digital legal deposit is state-of-the-art.


Maria Bottis
Associate Professor, Department of Archives, Library Science and Museology, Ionian University, Corfu, Greece.

Marinos Papadopoulos
Attorney-at-Law, PhD, MSc, JD, Independent Researcher, Athens, Greece.

Christos Zampakolas
Archivist/Librarian, PhD, MA, BA, Independent Researcher, Ioannina, Greece.

Paraskevi Ganatsiou
Educator, MA, BA, Coordinator of Educational Projects in the Prefecture of Ionian Islands, Corfu, Greece.

    This article relies on the premise that to understand the significance of Open Access Repositories (OARs) it is necessary to know the context of the debate. Therefore, it is necessary to trace the historical development of the concept of copyright as a property right. The continued relevance of the rationales for copyright interests, both philosophical and pragmatic, will be assessed against the contemporary times of digital publishing. It follows then discussion about the rise of Open Access (OA) practice and its impact on conventional publishing methods. The present article argues about the proper equilibrium between self-interest and social good. In other words, there is a need to find a tool in order to balance individuals’ interests and common will. Therefore, there is examination of the concept of property that interrelates justice (Plato), private ownership (Aristotle), labour (Locke), growth of personality (Hegel) and a bundle of rights that constitute legal relations (Hohfeld). This examination sets the context for the argument.


Nikos Koutras
Postdoctoral Researcher, Faculty of Law, University of Antwerp.
Article

Reunification, Integration and Unification of Law

Germany and Korea

Journal European Journal of Law Reform, Issue 4 2019
Keywords reunification, Korean nation, integration, Constitution, human rights, social market economy
Authors Ulrich Karpen
AbstractAuthor's information

    The meetings of US President Donald Trump and North Korean leader Kim Jong-un, on 12 June 2018 in Singapore, as well as of South Korean President Moon Jae-in and Kim Jong-un, on 18 and 19 September 2018 in Pyongyang, intensified hopes of a step-by-step process aimed at the reunification of Korea. This development may follow the patterns of (West) German Chancellor Willy Brandt’s ‘East Policy’ with the Soviet Union and the (East) German Democratic Republic in 1970-71, which led to the reunification of Germany under Chancellor Helmut Kohl, in 1990. This article deals with similarities and differences in regard to Germany’s and Korea’s recent histories. It analyses the political, economic and legal aspects of a possible way to achieve Korean unity.


Ulrich Karpen
Prof. Dr. Ulrich Karpen, Faculty of Law, University of Hamburg, Germany.
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