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Article

Access_open What Solidarity?

A Look Behind the Veil of Solidarity in ‘Corona Times’ Contractual Relations

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Mechanical solidarity, Organic solidarity, Contract, Good faith, Punishment
Authors Candida Leone
AbstractAuthor's information

    The article uses three prominent examples from the Dutch context to problematize the relationship between contractual and social solidarity during the coronavirus crisis. The social science ideal types of ‘mechanical’ and ‘organic’ solidarity, and their typified correspondence with legal modes of punishment and compensation, are used to illuminate the way in which solidarity language in private relationships can convey and normalize assumptions about the public interest and economic order.


Candida Leone
Candida Leone is Assistant Professor at the, Amsterdam Centre for Transformative Private Law.
Hungarian State Practice

An Institution for a Sustainable Future

The Hungarian Ombudsman for Future Generations

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords intergenerational equity, rights of future generations, ombudsman for future generations, Hungary, right to environment
Authors Kinga Debisso and Marcel Szabó
AbstractAuthor's information

    The purpose of this article is to give an insight into the process leading up to the establishment of the Hungarian Ombudsman for Future Generations and its tasks: an almost 15-year-old, unique legal institution aiming to protect the interests of future generations. The Ombudsman for Future Generations is an example for the institutionalization of the principle of intergenerational justice. The article aims to introduce the characteristics and strengths of the current institutional design and the structural features that allow for the successful operation of the Ombudsman for Future Generations in Hungary. Following an introduction to the political and historical context in which the institution was established, the article describes in detail the Ombudsman’s work, responsibilities, most important functions, elaborating on some examples of its best practices and achievements. Finally, the article touches upon how the example and experiences of the Hungarian institution may be valuable for other countries in Europe and beyond.


Kinga Debisso
Kinga Debisso: political advisor, Ministry of Justice, Budapest.

Marcel Szabó
Marcel Szabó: professor of law, Pázmány Péter Catholic University, Budapest; justice, Constitutional Court of Hungary, Budapest.
Public Health Emergency: National, European and International Law Responses

European State Aid Rules in Times of Pandemic

Distorting Competition Between European Airlines?

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords state aid, air transport, airlines, COVID-19 pandemic, Ryanair
Authors Mónika Papp
AbstractAuthor's information

    The outbreak of the COVID-19 pandemic had an immediate and profound impact on mobility and, more specifically, on air passenger transport: airlines were quickly stranded, and the Member States granted aid to air carriers subject to specific eligibility criteria. The Commission reacted swiftly to challenges posed by the COVID-19 pandemic and adopted its Temporary Framework under which vast amounts could be disbursed to market operators. The most controversial eligibility condition set by the Member States is the holding of a national license. This article’s research questions are, first, to explore the conditions under which Member States can grant large amounts of state aid to airlines, and second, to assess whether the requirement to hold a national license is compatible with EU law. By addressing these issues, this article seeks to improve our understanding of EU law’s capacity to tackle distortions of competition.


Mónika Papp
Mónika Papp: research fellow, Centre for Social Sciences, Eötvös Loránd Research Network, Budapest; senior lecturer, ELTE Law School, Budapest.
Public Health Emergency: National, European and International Law Responses

State Aid in the Times of COVID-19 Pandemic

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords temporary framework, competition law, state aid, COVID-19, European Commission
Authors Katalin Gombos and Anikó Edit Szűcs
AbstractAuthor's information

    COVID-19 caused serious turbulence in the economy worldwide, severely damaging certain industries, while generating extra revenues for others. In order to be able to continue business as usual following the current crises there is a need to provide state aid to sectors and companies which could not have been imaginable previously. The EU has reacted extremely speedily. Under the Temporary Framework issued by the European Commission at the beginning of the pandemic a significant number of state aids has been approved. Although the Temporary Framework was adapted very quickly, the transitional rules ensure that state aids do not interfere with the functioning of the internal market except to the extent a necessary and proportionate. The present article highlights the various legal bases which can be invoked in the present COVID-19 pandemic situation for providing state aid, includes a comprehensive summary of every single state aid notified to the European Commission with respect to the effects of COVID-19 pandemic and presents numerous examples from the practice.


Katalin Gombos
Katalin Gombos: associate professor of law, National University of Public Service, Budapest; judge, Curia of Hungary, Budapest.

Anikó Edit Szűcs
Anikó Edit Szűcs: assistant lecturer, National University of Public Service, Budapest; associate, Bird & Bird International Law Firm, Budapest.
Editorial

Editorial Comments: COVID-19 – EU Citizenship and the Right to Free Movement in a Public Health Crisis

Foreword to Vol. 9 (2021) of the Hungarian Yearbook of International Law and European Law

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Authors Laura Gyeney
Author's information

Laura Gyeney
Laura Gyeney: editor; associate professor of law, Pázmány Péter Catholic University, Budapest.

    Ryanair and Crewlink have finally been found in violation of Belgian mandatory provisions following the ruling of the ECJ in cases C-168/16 and C-169/16 (Nogueira and Others) and ordered to pay certain amounts to the employees involved by virtue of Belgian mandatory provisions. Yet, this trade union victory has a bitter taste for those employees, who were refused their main claim, i.e. to be paid normal remuneration for on-call time at the airport.


Gautier Busschaert
Gautier Busschaert is an Attorney at Van Olmen & Wynant.

    The Vaslui Tribunal has recently annulled an individual dismissal decision issued during the state of alert in Romania due to formalities which had not been observed by the employer. While the judge invested with determining the matter limited their analysis to the elements contained in the individual dismissal decision, the judicial assistant ascertained, within a competing opinion, that the dismissal decision should have been annulled for other reasons, namely for the fact that, in reality, the employer had implemented a collective redundancy process without observing the procedure and employees’ rights in the event of such dismissal. Relying on the provisions of Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, the judicial assistant has made an exhaustive analysis of the conditions required for the existence of a collective dismissal.
    While the competing opinion does not have the same effect as a court ruling, it is part of the judicial procedure and, from this perspective, the independence and impartiality of all the members of the court and their obedience solely to the law is maintained.


Andreea Suciu
Andreea Suciu is Managing Partner of Suciu I The Employment Law Firm.

Andreea Serban
Andreea Serban is an attorney-at-law at Suciu I The Employment Law Firm.
Case Law

Access_open 2021/1 EELC’s review of the year 2020

Journal European Employment Law Cases, Issue 1 2021
Authors Ruben Houweling, Daiva Petrylaitė, Marianne Hrdlicka 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

Marianne Hrdlicka

Attila Kun

Luca Calcaterra

Francesca Maffei

Jean-Philippe Lhernould

Niklas Bruun

Jan-Pieter Vos

Luca Ratti

Andrej Poruban

Anthony Kerr

Filip Dorssemont
Article

Restorative justice conferencing in Australia and New Zealand

Application and potential in an environmental and Aboriginal cultural heritage protection context

Journal The International Journal of Restorative Justice, Issue 1 2021
Keywords restorative justice conferencing, environmental offending, Aboriginal cultural heritage offending, connection to the environment
Authors Mark Hamilton
AbstractAuthor's information

    Indigenous people may suffer harm when the environment, sacred places and sacred objects are destroyed or damaged. Restorative justice conferencing, a facilitated face-to-face dialogue involving victims, offenders, and pertinent stakeholders has the potential to repair that harm. This article explores the use of conferencing in this context with case law examples from New Zealand and New South Wales, Australia. As will be discussed, the lack of legislative support for conferencing in the Land and Environment Court of New South Wales means it is doubtful that such conferencing will develop past its current embryonic state. As well as using restorative justice conferencing to repair harm from past criminality, this article suggests that further research should explore the use of restorative justice to resolve present conflict, and prevent future conflict, where there is a disconnect between non-Indigenous use of the environment and Indigenous culture embedded in the environment.


Mark Hamilton
Mark Hamilton, PhD, is a lawyer and teaching fellow in the Criminology and Criminal Justice programme and the Law programme at the University of New South Wales, Sydney, Australia. Contact: mark.hamilton@unsw.edu.au.
Article

Why an atmosphere of transhumanism undermines green restorative justice concepts and tenets

Journal The International Journal of Restorative Justice, Issue 1 2021
Keywords green restorative justice, transhumanism, technological progress, animals, bioethics
Authors Gema Varona
AbstractAuthor's information

    Arising from the notions of green criminology and green victimology, green restorative justice can be defined as a restorative justice focused on environmental harm. Harm in this case is understood as criminalised and non-criminalised, and as individual and collective behaviours damaging the ecosystems and the existence of human and non-human beings. Impacts of environmental harm affect health, economic, social and cultural dimensions, and will be experienced in the short, medium and long term. Within this framework, after linking restorative justice to green criminology and green victimology, I will argue that the current weight of the cultural and social movement of transhumanism constitutes an obstacle to the development of restorative justice in this field. The reason is that it fosters individual narcissism, together with the idea of an absence of limits in what is considered technological progress. This progress is seen as inevitable and good per se, and promotes the perception of a lack of social and moral accountability. This reasoning will lead to some final reflections on how restorative justice has to constantly reinvent itself in order to keep creating a critical and inclusive justice of ‘otherness’. By doing so, restorative justice must join the current interdisciplinary conversation on biopolitics and bioethics.


Gema Varona
Gema Varona is a Senior Researcher at the Basque Institute of Criminology, University of the Basque Country, Donostia/San Sebastián, Spain. Contact author: gemmamaria.varona@ehu.eus.

    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 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 3 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 on Contracts 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
Ines Morfin Kroepfly, J.D., Universidad Panamericana, Guadalajara.
Article

The Windrush Scandal

A Review of Citizenship, Belonging and Justice in the United Kingdom

Journal European Journal of Law Reform, Issue 3 2020
Keywords Windrush generation, statelessness, right to nationality, genocide, apologetic UK Human Rights Act Preamble
Authors Namitasha Goring, Beverley Beckford and Simone Bowman
AbstractAuthor's information

    This article points out that the UK Human Rights Act, 1998 does not have a clear provision guaranteeing a person’s right to a nationality. Instead, this right is buried in the European Court of Human Rights decisions of Smirnova v Russia, 2003 and Alpeyeva and Dzhalagoniya v. Russia, 2018. In these cases, the Court stretched the scope of Article 8 of the European Convention on Human Rights, 1953 on non-interference with private life by public authorities to extend to nationality. The humanitarian crisis arising from the Windrush Scandal was caused by the UK Government’s decision to destroy the Windrush Generation’s landing cards in the full knowledge that for many these slips of paper were the only evidence of their legitimate arrival in Britain between 1948 and 1971.
    The kindling for this debacle was the ‘hostile environment policy’, later the ‘compliant environment policy’ that operated to formally strip British citizens of their right to a nationality in flagrant violation of international and domestic law. This article argues that the Human Rights Act, 1998 must be amended to include a very clear provision that guarantees in the UK a person’s right to a nationality as a portal to a person’s inalienable right to life. This balances the wide discretion of the Secretary of State under Section 4 of the Nationality, Immigration and Asylum Act, 2002 to deprive a person of their right to a nationality if they are deemed to have done something seriously prejudicial to the interests of the UK.
    This article also strongly recommends that the Preamble to the UK Human Rights Act, 1998 as a de facto bill of rights, be amended to put into statutory language Independent Advisor Wendy Williams’ ‘unqualified apology’ recommendation in the Windrush Lessons Learned Report for the deaths, serious bodily and mental harm inflicted on the Windrush Generation. This type of statutory contrition is in line with those of countries that have carried out similar grievous institutional abuses and their pledge to prevent similar atrocities in the future. This article’s contribution to the scholarship on the Human Rights Act, 1998 is that the Windrush Generation Scandal, like African slavery and British colonization, has long-term intergenerational effects. As such, it is fundamentally important that there is a sharp, comprehensive and enforceable legal mechanism for safeguarding the rights and interests of citizens as well as settled migrants of ethnically non-British ancestry who are clearly vulnerable to bureaucratic impulses.


Namitasha Goring
Namitasha Goring, Law and Criminology Lecturer Haringey Sixth Form College, LLM, PhD.

Beverley Beckford
Beverly Beckford, Barrister (Unregistered) (LLM).

Simone Bowman
Simone Bowman, Barrister (LLM Candidate DeMontford University).

    Within the context of a transfer of undertaking in an asset reliant group of companies, the court should not just focus on whether the assets have been transferred between the two separate group companies, but also on whether one group company had actual control over the operation of the other group company.


Zef Even
Zef Even is a partner at SteensmaEven, Rotterdam, professor at Erasmus School of Law and editor-in-chief of EELC.

Eva Poutsma
Eva Poutsma is an attorney-at-law at SteensmaEven, Rotterdam.
Article

Crimes Against Humanity in the “Western European & Other” Group of States

A Continuing Tradition

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords crimes against humanity, Western Europe and Other Group of States, WEOG, Draft Articles on the Prevention and Punishment of Crimes Against Humanity
Authors Beth Van Schaack
AbstractAuthor's information

    The Western Europe and Other Group of states have a long history with crimes against humanity. They were pivotal in the juridical creation of this concept, in launching prosecutions in both international and national courts, and in formulating the modern definition of the crime. However, some members have expressed concerns around the International Law Commissions Draft Articles on the Prevention and Punishment of Crimes Against Humanity. This article provides a summary of the history of crimes against humanity in the Western Europe and Other Group of states, as well as the current status of crimes against humanity in their legal systems. It argues that although these states have successfully incorporated crimes against humanity into their legal frameworks, it would be beneficial for them to embrace the proposed Crimes Against Humanity Convention.


Beth Van Schaack
Leah Kaplan Visiting Professor of Human Rights, Stanford Law School.
Article

Access_open Nationale constitutie versus internationale jurisdictie?

De rol van de rechter vanuit internationaalrechtelijk perspectief

Journal Netherlands Journal of Legal Philosophy, Issue 2 2020
Authors Anneloes Kuiper-Slendebroek
AbstractAuthor's information

    Voor het evenwicht tussen de staatsmachten, maar ook voor de ontwikkeling van internationaal recht, is de wijze waarop de nationale rechter zijn rol vervult van belang: gedraagt hij zich als rechtsvormer of als een rechtshandhaver? Zowel de legitimatie en vorming van het internationale recht als de handhaving van de internationale verplichtingen van de Staat op nationaal niveau zijn hiervan afhankelijk. Deze belangen worden bezien vanuit internationaal perspectief en uiteengezet aan de hand van recente jurisprudentie.


Anneloes Kuiper-Slendebroek
Anneloes Kuiper-Slendebroek is universitair docent privaatrecht aan de Universiteit Utrecht.

    The central question in this case was what was the objectively applicable law to an employment contract concluded between a Turkish airline and a Dutch co-pilot, in accordance with Article 8 Rome I. The ruling is particularly interesting for the relation between the habitual place of work and the exception clause and points to the elements that should be taken into account.


Amber Zwanenburg
Amber Zwanenburg is a PhD candidate at the Erasmus University in Rotterdam and member of the editorial board of EELC.

Jan-Pieter Vos
Jan-Pieter Vos is a teacher and PhD candidate at Erasmus University Rotterdam, and member of the editorial board of EELC.
Article

Access_open Mercosur: Limits of Regional Integration

Journal Erasmus Law Review, Issue 3 2019
Keywords Mercosur, European Union, regionalism, integration, international organisation
Authors Ricardo Caichiolo
AbstractAuthor's information

    This study is focused on the evaluation of successes and failures of the Common Market of the South (Mercosur). This analysis of Mercosur’s integration seeks to identify the reasons why the bloc has stagnated in an incomplete customs union condition, although it was originally created to achieve a common market status. To understand the evolution of Mercosur, the study offers some thoughts about the role of the European Union (EU) as a model for regional integration. Although an EU-style integration has served as a model, it does not necessarily set the standards by which integration can be measured as we analyse other integration efforts. However, the case of Mercosur is emblematic: during its initial years, Mercosur specifically received EU technical assistance to promote integration according to EU-style integration. Its main original goal was to become a common market, but so far, almost thirty years after its creation, it remains an imperfect customs union.
    The article demonstrates the extent to which almost thirty years of integration in South America could be considered a failure, which would be one more in a list of previous attempts of integration in Latin America, since the 1960s. Whether it is a failure or not, it is impossible to envisage EU-style economic and political integration in South America in the foreseeable future. So far, member states, including Brazil, which could supposedly become the engine of economic and political integration in South America, have remained sceptical about the possibility of integrating further politically and economically. As member states suffer political and economic turmoil, they have concentrated on domestic recovery before being able to dedicate sufficient time and energy to being at the forefront of integration.


Ricardo Caichiolo
Ricardo Caichiolo, PhD (Université catholique de Louvain, Belgium) is legal and legislative adviser to the Brazilian Senate and professor and coordinator of the post graduate programs on Public Policy, Government Relations and Law at Ibmec (Instituto Brasileiro de Mercado de Capitais, Brazil).
Article

An Important Planning Instrument: Strategic Environmental Assessment (EU Directive 2001/42).

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords environmental impact assessment, Directive 2001/42, strategic planning, assessment of plans, environmental report
Authors Ludwig Krämer
AbstractAuthor's information

    Directive 2001/42 requires the elaboration of an environmental impact assessment, before certain national, regional or local plans or programs related to the environment are adopted. The paper presents the content of the Directive and summarizes the case-law of the CJEU on the Directive. Furthermore, it raises a number of legal questions hitherto left undiscussed by the European courts.


Ludwig Krämer
Derecho y Medio Ambiente S.L., Madrid
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