Search result: 163 articles

x

    The Supreme Court has ruled that a baker’s refusal to provide a cake with a slogan supporting gay marriage was not sexual orientation discrimination, nor discrimination on grounds of political belief. The Northern Ireland bakery was owned by Christians who had religious objections to gay marriage (they thought Christian doctrine holds that marriage can only take place between a man and a woman). Gay marriage is not legal in Northern Ireland, although it is in the rest of the United Kingdom. Gay couples can enter into a ‘civil partnership’ in Northern Ireland, which formalises the relationship and provides it with legal recognition in a similar way to marriage.


Soren Kristophersen
Soren Kristophersen is a Legal Assistant at Lewis Silkin LLP.
Case Reports

2019/10 Employee’s right of choice between transferor and transferee in the event of a business transfer (NO)

Journal European Employment Law Cases, Issue 1 2019
Keywords Transfer of undertakings, Employees who transfer/refuse to transfer
Authors Bernard Johann Mulder
AbstractAuthor's information

    As a result of a transfer of an undertaking an employee lost her pension scheme rights. The transferor was bound by the pension scheme covering the employee which had been agreed upon in a collective agreement. However, the transferee company gave notification that it did not want to be bound by the collective agreement and, thus, the pension scheme. The Norwegian Supreme Court (Høyesterett) considered this loss a material negative change to the employment relationship. Therefore, the employee had the right to make use of the non-statutory exception rule of the right to insist upon continuation of the employment with the transferor, a non-statutory right of choice.


Bernard Johann Mulder
Bernard Johann Mulder is a professor at University of Oslo, Faculty of Law, Department of Private Law.
Article

Consensus Democracy and Bureaucracy in the Low Countries

Journal Politics of the Low Countries, Issue 1 2019
Keywords consensus democracy, bureaucracy, governance system, Lijphart, policymaking
Authors Frits van der Meer, Caspar van den Berg, Charlotte van Dijck e.a.
AbstractAuthor's information

    Taking Lijphart’s work on consensus democracies as our point of departure, we signal a major shortcoming in Lijphart’s focus being almost exclusively on the political hardware of the state structure, leaving little attention for the administrative and bureaucratic characteristics of governance systems. We propose to expand the Lijphart’s model which overviews structural aspects of the executive and the state with seven additional features of the bureaucratic system. We argue that these features are critical for understanding the processes of policymaking and service delivery. Next, in order to better understand the functioning of the Netherlands and Belgium as consensus democracies, we provide a short analysis of the historical context and current characteristics of the political-administrative systems in both countries.


Frits van der Meer
Frits van der Meer, Professor Institute Public Administration, Leiden University.

Caspar van den Berg
Caspar van den Berg, Campus Fryslân, University of Groningen.

Charlotte van Dijck
Charlotte van Dijck, PhD Fellow Research Foundation Flanders (FWO), KU Leuven Public Governance Institute.

Gerrit Dijkstra
Gerrit Dijkstra, Senior Lecturer, Leiden University.

Trui Steen
Trui Steen, Professor, KU Leuven Public Governance Institute.
Article

Access_open Mobile Individualism: The Subjectivity of EU Citizenship

Journal Netherlands Journal of Legal Philosophy, Issue Pre-publications 2019
Keywords individualism, EU citizenship, depoliticisation, mobile individualism, citizenship and form of life
Authors Aristel Skrbic
AbstractAuthor's information

    The central aim of this article is to analyse the manner in which the legal structure of EU citizenship subjectifies Union citizens. I begin by explicating Alexander Somek’s account of individualism as a concept which captures EU citizenship and propose to update his analysis by coining the notion of mobile individualism. By looking at a range of CJEU’s case law on EU citizenship through the lens of the purely internal rule and the transnational character of EU citizenship, I suggest that movement sits at the core of EU citizenship. In order to adequately capture this unique structure of citizenship, we need a concept of individualism which takes movement rather than depoliticisation as its central object of analysis. I propose that the notion of mobile individualism can best capture the subjectivity of a model EU citizen, a citizen who is a-political due to being mobile.


Aristel Skrbic
Aristel Skrbic is a PhD candidate and teaching and research assistant at the Institute of Philosophy at the KU Leuven.
Article

Post-Legislative Scrutiny in a Non-Westminster Parliament

Opportunities, Challenges and Considerations

Journal European Journal of Law Reform, Issue 2 2019
Keywords post-legislative scrutiny, parliamentary oversight, legislative process, Verkhovna Rada of Ukraine, French Senate, Belgian federal parliament
Authors Jonathan Murphy and Svitlana Mishura
AbstractAuthor's information

    Post-legislative scrutiny (PLS) has generated growing interest as a means both for strengthening the legislative process and for permitting parliament to more effectively integrate its legislative and oversight functions. Engagement throughout the cycle of legislative development, adoption and implementation enables parliament to assure laws are properly implemented and to rectify weaknesses either in original legislative conceptualization or in executive implementation. Carried out properly, PLS should improve governance and increase its democratic accountability. Recent attention to PLS has however focused mainly on its role and use in Westminster-type parliaments. This article explores PLS from the perspective of non-Westminster parliaments. It seeks to understand why PLS in non-Westminster parliaments has received comparatively less scholarly and parliamentary development practitioner attention. The article uses a case study of Ukraine to explore the context and challenges for effective PLS, a non-Westminster emerging democracy. It concludes by proposing rebalancing discussion of PLS to take better account of diverse parliamentary models and suggests approaches to supporting PLS development in parliaments where it has not previously been consistently used


Jonathan Murphy
Jonathan Murphy is Docent, University of Jyvaskyla, Finland and parliamentary development consultant.

Svitlana Mishura
Svitlana Mishura is Deputy Head of the Main Legal Department of the Administration of the Parliament of Ukraine. The authors would like to thank UNDP Ukraine and the Verkhovna Rada of Ukraine for their support to the development of this article, and Anastasia Petrova for her invaluable research assistance in collecting data on PLS in the Verkhovna Rada.
Article

Judging Reformers and Reforming Judges

Journal European Journal of Law Reform, Issue 1 2019
Keywords law reform, common law, judges, United Kingdom Supreme Court, legal reasoning
Authors James Lee
AbstractAuthor's information

    This article examines the practice and limits of judicial law reform. In particular, I consider the question of when initiation of a reform is appropriate for the judiciary as opposed to the legislature, an issue which has been a matter of controversy amongst the Justices of the United Kingdom Supreme Court. This question is assessed in the light of the institutional and constitutional competences of the courts, particularly with respect to the structure of common law reasoning. It is also argued that it is important to have regard to perspectives of the relevant judges, in understanding the individual and collective approaches to the judicial development of the law.


James Lee
James Lee is Reader in English Law and PC Woo Research Fellow 2016-2017 at The Dickson Poon School of Law, King’s College London, and Associate Academic Fellow of the Honourable Society of the Inner Temple; Senior Visiting Fellow, Gilbert + Tobin Centre of Public Law, University of New South Wales; and Visiting Professor, Hong Kong University. I am grateful to Enrico Albanesi, Mark Lunney, Jonathan Teasdale and all those who attended the Law Reform Workshop at the Institute of Advanced Legal Studies in November 2017 and a Kirby Seminar at the School of Law at the University of New England at which drafts of this article were presented. I thank both PC Woo & Co and the Faculty of Law at UNSW for the generous support for the project of which this article forms part. All views, and any errors, are my own.
Article

Lessons from a Single Jurisdiction with Two Governments

Governments and the Initiation of Law Reform in England and Wales

Journal European Journal of Law Reform, Issue 1 2019
Keywords law reform, UK devolution, law reform agencies, relations with governments, reform proposals
Authors Richard Percival
AbstractAuthor's information

    This article sets out the centrality of government to the initiation of law reform in respect of the (England and Wales) Law Commission and the Scottish Law Commission (and by extension, those law reform agencies based on the British model), and then considers in the light of recent experience how the existing approach works in the unique context of a single jurisdiction – England and Wales – which now has two governments – the UK Government for England, and the devolved Welsh Government. Having identified shortcomings, the article makes suggestions for improved institutional arrangements to meet the particular law reform needs of Wales.


Richard Percival
Richard Percival is Professor of Criminal Law and Practice (law reform) at Sheffield University, UK. An earlier form of this paper was presented at the third IALS Law Reform Project workshop on 1 November 2017.

    For workers without a fixed workplace, travelling time between their place of residence and the first customer and travelling time between the last customer and the place of residence constitutes working time.


Dr. Pieter Pecinovsky
Dr. Pieter Pecinovsky is Of Counsel at Van Olmen & Wynant in Brussels www.vow.be, Assistant at Leuven University and Invited Professor at Université Catholique de Louvain.

    In a recent decision, the Labour Court awarded an employee € 7,500 for working in excess of 48 hours a week, contrary to working time legislation. The complainant allegedly regularly checked and responded to emails outside of business hours, occasionally after midnight. The Labour Court reiterated it is the employer’s responsibility to ensure that employees are not permitted to work beyond the statutory maximum period and that if an employer is aware that an employee is working excessive hours, must take steps to curtail this.


Lucy O’Neill
Lucy O’Neill is an attorney-at-law at Mason Hayes & Curran in Dublin, Ireland.
Rulings

ECJ 7 november 2018, case C-432/17 (O’Brien), Part-time work

Dermod Patrick O’Brien – v – Ministry of Justice, UK case

Journal European Employment Law Cases, Issue 4 2018
Keywords Part-time work
Abstract

    Periods of service prior to the deadline for transposing Directive 97/81/EC (amended by Directive 98/23/EC) must be taken into account for the purpose of calculating the retirement pension entitlement.

Part II Private Justice

Using Technology and ADR Methods to Enhance Access to Justice

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords ODR, ADR, mediation, online court, e-court, consumer ADR, CADR, CDR, ombudsman
Authors Pablo Cortes
AbstractAuthor's information

    This article discusses how technology and extrajudicial processes can provide a solution to the access-to-justice problem for self-represented litigants. The article first observes the need for efficient dispute resolution processes based on a wider concept of access to justice and argues for greater integration amongst courts and extrajudicial bodies, especially in the consumer sphere where dispute resolution bodies are currently undergoing an institutionalization process as a result of recent EU legislation. Accordingly, it is argued that access to justice for consumers will only be achieved if they have access to either an accountable and effective extrajudicial scheme that offers adjudication or a truly user-friendly and accessible online court that incorporates alternative dispute resolution techniques as the United Kingdom has endeavoured to deliver. To that end, this article examines the policy options for the English Online Court with a particular focus on the challenges faced by litigants in person. Finally, this article submits that dispute system design changes need to be informed by empirical research and a holistic policy strategy on dispute resolution.


Pablo Cortes
Pablo Cortes is Professor of Civil Justice, Leicester Law School, University of Leicester.
Article

Access_open Evidence-Based Regulation and the Translation from Empirical Data to Normative Choices: A Proportionality Test

Journal Erasmus Law Review, Issue 2 2018
Keywords evidence-based, regulation, proportionality, empirical law studies, law and society studies
Authors Rob van Gestel and Peter van Lochem
AbstractAuthor's information

    Studies have shown that the effects of scientific research on law and policy making are often fairly limited. Different reasons can be given for this: scientists are better at falsifying hypothesis than at predicting the future, the outcomes of academic research and empirical evidence can be inconclusive or even contradictory, the timing of the legislative cycle and the production of research show mismatches, there can be clashes between the political rationality and the economic or scientific rationality in the law making process et cetera. There is one ‘wicked’ methodological problem, though, that affects all regulatory policy making, namely: the ‘jump’ from empirical facts (e.g. there are too few organ donors in the Netherlands and the voluntary registration system is not working) to normative recommendations of what the law should regulate (e.g. we need to change the default rule so that everybody in principle becomes an organ donor unless one opts out). We are interested in how this translation process takes place and whether it could make a difference if the empirical research on which legislative drafts are build is more quantitative type of research or more qualitative. That is why we have selected two cases in which either type of research played a role during the drafting phase. We use the lens of the proportionality principle in order to see how empirical data and scientific evidence are used by legislative drafters to justify normative choices in the design of new laws.


Rob van Gestel
Rob van Gestel is professor of theory and methods of regulation at Tilburg University.

Peter van Lochem
Dr. Peter van Lochem is jurist and sociologist and former director of the Academy for Legislation.
Article

The European Court of Human Rights and the Central and Eastern European States

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords Case law regarding Central and Eastern Europe, ECHR, human rights, reform, European system of Human Rights
Authors András Baka
AbstractAuthor's information

    At the time of its creation and during the following 30 years, the European Court of Human Rights was a Western European institution. It was not until the sweeping political changes in 1989-1990 that the Central and Eastern European countries could join the European system of individual human rights protection. The massive and relatively rapid movement of accession of the ‘new states’ to the European Convention on Human Rights had a twofold effect. On the one hand it led to a complete reform of the human rights machinery of the Council of Europe, changing the structure and the procedure. A new, permanent and more efficient system emerged. What is even more important, the Court has had to deal with not only the traditional questions of individual human rights but under the Convention new issues were coming to the Court from applicants of the former eastern-bloc countries. On the other hand, being part of the European human rights mechanism, these countries got a chance to establish or re-establish the rule of law, they got support, legal standards and guidance on how to respect and protect individual human rights. The article addresses some of these elements. It also points out that public hopes and expectations towards the Court – especially nowadays in respect of certain countries – are sometimes too high. The Court has its limits. It has been designed to remedy certain individual injustices of democratic states following common values but cannot alone substitute seriously weakened democratic statehood.


András Baka
Former judge of the ECtHR (1991-2008); former president of the Hungarian Supreme Court.
Article

Politics and Pragmatism

The Constitutional Court of the Russian Federation and Its 20 Years of Engagement with the European Convention on Human Rights

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords Constitutional Court of the Russian Federation, European Court of Human Rights, Russia
Authors Bill Bowring
AbstractAuthor's information

    After the highly controversial YUKOS judgment of 19 January 2017, on 23 May 2017 the Constitutional Court of the Russian Federation (CCRF) delivered a warmly received judgment, in which the provisions of the administrative offences legislation prohibiting stateless persons to challenge the reasonableness of their detention in special detention facilities was found to be unconstitutional. The CCRF was addressed by leading Russian human rights advocates. The judgment referred not only to Article 22 of the Russian Constitution but also to the analogous Article 5 of the ECHR. The judgment paid special attention to case-law: Guzzardi v. Italy (1980), Kemmache v. France (1994), Kurt v. Turkey (1998), Aleksei Borisov v. Russia (2015), and Z.A. v. Russia (2017), as well as Alim v. Russia (2011), Shakurov v. Russia (2012) and Azimov v. Russia (2013). Indeed, Strasbourg jurisprudence has played a central role in the development of the CCRF’s jurisprudence since Russia’s ratification of the ECHR in 1998. This article analyses and seeks to explain what in the author’s view is the CCRF’s serious engagement with a body of pan-European quasi-constitutional law, with which Russian jurists feel surprisingly comfortable and experienced. Is there really a cultural incompatibility between Russian and ‘Western’ approaches to human rights law?


Bill Bowring
Professor of Law, Birkbeck College, University of London.

    The Irish Court of Appeal recently clarified the obligations of employers towards employees with a disability.
    The judgment suggests that an employer is not required to alter the duties of a position held by an employee with a disability in order to accommodate that employee’s return to work if the duties, which the employee is no longer capable of performing, are considered essential to the employee’s position.


Lucy O’Neill
Lucy O’Neill is an attorney at law at Mayson Hayes & Curran.
Case Reports

2018/20 Labour Court sets out employers’ equal treatment obligations following the transfer of a business (FI)

Journal European Employment Law Cases, Issue 2 2018
Keywords Transfer of undertaking, General discrimination, Terms of employment
Authors Janne Nurminen
AbstractAuthor's information

    The Finnish Labour Court recently decided a case about the transfer of a business and the associated obligation to harmonise employees’ salaries. The Court held that the employer had not shown good reasons for continuing to pay different salaries to employees with equivalent responsibilities long after the transfer.


Janne Nurminen
Janne Nurminen is a Senior Associate with Roschier in Helsinki, www.roschier.com.
Article

Federalization through Rights in the EU

A Legal Opportunities Approach

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords EU Charter of Fundamental Rights, Federalization, Integration, Legal change, Legal opportunities, Litigation, Scope of application
Authors Marie-Pierre Granger
AbstractAuthor's information

    While academic contributions abound on the reach and impact of the European Union (EU) system of fundamental rights protection, and notably on the desirability of a more or less extensive control of Member States’ actions in light of the rights protected by the EU Charter of Fundamental Rights, there have been few attempts to explain the dynamics of integration-through-rights in the EU. This article proposes an explanatory framework inspired by a legal opportunities approach, which emphasizes the relevance of national and EU legal opportunities, and interactions between them, in determining the actual scope and pace of federalization through rights in the EU. It suggests that the weaker the legal opportunities for fundamental rights protection are at the domestic level, the greater the federalizing pressure is, and call for more empirical comparative studies to test this framework out.


Marie-Pierre Granger
Associate Professor, Central European University, Budapest. The development of the conceptual framework proposed in this article was inspired by empirical studies on France and Hungary carried out within the EU-funded project ‘bEUcitizen: barriers towards EU Citizenship’ under the FP7 programme (Grant agreement 320294). This volume (The EU Bill of Rights' Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets `Momentum' Research Group.
Article

The Architecture of American Rights Protections

Texts, Concepts and Institutions

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords American constitutional development, American legal history, Architecture, Bill of Rights, Congress, constitutional interpretation, constitutionalism, discrimination, due process, equal protection, equality, institutions, statutes, U.S. Constitution, 14th Amendment
Authors Howard Schweber
AbstractAuthor's information

    This article examines the architecture of American rights protections. The term ‘architecture’ is used to convey the sense of a structure system with points of entry, channels of proceeding, and different end points. This structural understanding is applied to the historical development of national rights protections in the United States in three senses: textual, conceptual and institutional. The development of these three structured systems – architectures – of rights reveals dimensions of the strengths, limitations and distinctive character of the American rights protections in theory and in practice.


Howard Schweber
Professor of Political Science and affiliate faculty member of the Law School, Legal Studies, and Integrated Liberal Studies at University of Wisconsin-Madison. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

The Harmonization Potential of the Charter of Fundamental Rights of the European Union

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords application of EU law, Article 51 of the Charter, Charter of Fundamental Rights of the EU, Court of Justice, jurisdiction of the Court of Justice, market freedoms, spontaneous harmonization
Authors Filippo Fontanelli and Amedeo Arena
AbstractAuthor's information

    This article discusses two underrated and connected aspects that determine the applicability of the EU Charter on Fundamental Rights to Member State measures. First, the Charter can be a decisive standard of review for domestic measures only when they are covered by EU law but are not precluded by it. In this respect, the distinction between non-preclusion and non-application of EU law has been overlooked by legal scholarship. Second, because the scope of application of EU law and that of the Charter are identical, the latter suffers from the same uncertainties as the former. This article concludes that the entry into force of the Charter has exposed the blurred contours of the application of EU law, in particular in the area of the market freedoms. As a result, a certain spontaneous harmonization of human rights protection has emerged.


Filippo Fontanelli
Respectively, Senior Lecturer in International Economic Law, University of Edinburgh; and Associate Professor, Università degli Studi di Napoli ‘Federico II’. The work is the outcome of both authors’collaboration. Amedeo Arena drafted sections A to C, Filippo Fontanelli drafted sections D to G.

Amedeo Arena
A previous version of this work appeared in M. Andenas, T. Bekkedal & L. Pantaleo (Eds.), The Reach of Free Movement, Springer, TMC Asser Press, 2017, p. 293-312. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

The Sovereign Strikes Back

A Judicial Perspective on Multi-Layered Constitutionalism in Europe

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords Constitutional identity, constitutionalism, fragmentation, globalization, multilayered constitution, sovereignty, trust
Authors Renáta Uitz and András Sajó
AbstractAuthor's information

    The supranational web of public law is often described as a new constitutionalism. It emerged in a globalized world together with global markets. In the course of the multilayered constitutional experiment, the old, national constitutional framework had lost its ability to deliver on the key features associated with constitutionalism: limiting the exercise of political powers and preventing the arbitrary exercise thereof. In the multilayered era it has become difficult to pinpoint the centre of authority. Ultimately, someone needs to govern, if not for other reasons, at least to avoid chaos. Is it possible to have the guarantees of freedom, rule of law and efficiency that a constitutional democracy seems to provide in a system where there is no sovereign with authority?


Renáta Uitz
Renáta Uitz is Professor, Chair of the Comparative Constitutional Law Program, Department of Legal Studies, Central European University, Budapest.

András Sajó
András Sajo is University Professor, Central European University, Budapest. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Showing 1 - 20 of 163 results
« 1 3 4 5 6 7 8 9
You can search full text for articles by entering your search term in the search field. If you click the search button the search results will be shown on a fresh page where the search results can be narrowed down by journal, category or year.