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Case Law

2022/1 EELC’s review of the year 2021

Journal European Employment Law Cases, Issue 1 2022
Authors Niklas Bruun, Filip Dorssemont, Zef Even e.a.
Abstract

    Various of our academic board analysed employment law cases from last year.


Niklas Bruun

Filip Dorssemont

Zef Even

Ruben Houweling

Marianne Hrdlicka

Anthony Kerr

Attila Kun

Jean-Philippe Lhernould

Daiva Petrylaitė

Luca Ratti

Jan-Pieter Vos
Article

Access_open Is Euroscepticism Contagious?

How Mainstream Parties React to Eurosceptic Challengers in Belgian Parliaments

Journal Politics of the Low Countries, Issue 1 2022
Keywords Euroscepticism, parliaments, party competition, Belgium, federalism
Authors Jordy Weyns and Peter Bursens
AbstractAuthor's information

    Euroscepticism has long been absent among Belgian political parties. However, since the start of the century, some Eurosceptic challengers have risen. This article examines the effect of Eurosceptic competition on the salience other parties give to the EU and on the positions these parties take in parliament. Using a sample of plenary debates in the federal and regional parliaments, we track each party’s evolution from 2000 until 2019. Our findings both contradict and qualify existing theories and findings on Eurosceptic competition. When facing Eurosceptic challengers, all parties raise salience fairly equally, but government and peripheral parties adopted (soft) Euroscepticism more often than other parties.


Jordy Weyns
Jordy Weyns is a doctoral student at the European University Institute in Florence.

Peter Bursens
Peter Bursens is professor of political science at Universiteit Antwerpen, at the research group Politics and Public Governance and the GOVTRUST Centre of Excellence.

David Tait
David Tait is Professor of Justice Research, Western Sydney University, Australia.

Munzer Emad
Munzer Emad is a doctoral candidate in Law, Western Sydney University, Australia. Corresponding author: David Tait at d.tait@westernsydney.edu.au.

Gerry Johnstone
Gerry Johnstone is a Professor of Law at the University of Hull, UK. Corresponding author: Gerry Johnstone at J.G.Johnstone@hull.ac.uk.
Article

Access_open Dispute Resolution in the Chinese Belt and Road Initiative

The Role of Mediation

Journal Corporate Mediation Journal, Issue 2 2021
Keywords international commercial mediation, Belt and Road Initiative, Singapore Convention, China, international dispute resolution
Authors Henneke Brink
AbstractAuthor's information

    With unfaltering determination, China continues to expand its Belt and Road Initiative (BRI). This article focuses on the preference that is given to mediation for the resolution of BRI-related disputes. China, Hong Kong and Singapore proclaim that this approach better fits with ‘Asian’ cultural values than adversarial processes like arbitration and litigation. The BRI can be seen as an innovative field lab where mechanisms for international commercial conflict management and resolution are being developed and put to action - and where legitimacy is tested.


Henneke Brink
Henneke Brink is a Dutch lawyer, mediator, and owner of Hofstad Mediation. She carries out research and writes about topics concerning the relation between mediation and (inter)national formal justice systems.
Article

The Use of Technology (and Other Measures) to Increase Court Capacity

A View from Australia

Journal International Journal of Online Dispute Resolution, Issue 2 2021
Keywords court capacity, COVID-19, Australia, online dispute resolution, open justice, procedural fairness, access to justice, online courts, justice technology, judicial function
Authors Felicity Bell, Michael Legg, Joe McIntyre e.a.
AbstractAuthor's information

    The COVID-19 pandemic has forced courts around the world to embrace technology and other innovative measures in order to continue functioning. This article explores how Australian courts have approached this challenge. We show how adaptations in response to the pandemic have sometimes been in tension with principles of open justice, procedural fairness and access to justice, and consider how courts have attempted to resolve that tension.


Felicity Bell
Felicity Bell is a Research Fellow for the Law Society of NSW’s Future of Law and Innovation in the Profession (FLIP) research stream at UNSW Law, Sydney.

Michael Legg
Michael Legg is Professor and Director of the FLIP stream at UNSW Law, Sydney.

Joe McIntyre
Joe McIntyre is a Senior Lecturer in Law at UniSA: Justice and Society, University of South Australia.

Anna Olijnyk
Anna Olijnyk is a Senior Lecturer and Director of the Public Law and Policy Research Unit at Adelaide Law School, University of Adelaide, South Australia.
Article

Access_open Populism, the Kingdom of Shadows, and the Challenge to Liberal Democracy

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Populism, Liberal democracy, Political representation, Société du spectacle, Theatrocracy
Authors Massimo La Torre
AbstractAuthor's information

    Populism is a somehow intractable notion, since its reference is much too wide, comprising phenomena that are indeed in conflict between them, and moreover blurred, by being often used in an instrumental, polemical way. Such intractability is then radicalized through the two alternative approaches to populism, one that is more or less neutral, rooting in the political science tradition, and a second one, fully normative, though fed by political realism, founding as it does on a specific political theory and project. In the article an alternative view is proposed, that of populism as the politics that is congruent with the increasing role played by ‘screens’, icons, and images in social relationships and indeed in political representation. In this way populism is approached as the specific way politics is done within the context of a digitalized société du spectacle.


Massimo La Torre
Massimo La Torre is Professor of Philosophy of Law, ‘Magna Graecia’ University of Catanzaro, Italy, and Visiting Professor of European Law, University of Tallinn, Estonia.
Article

Access_open Living with Others in Pandemics

The State’s Duty to Protect, Individual Responsibility and Solidarity

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords SARS-CoV-2 pandemic, The state’s duty to protect, Duty to rescue, Responsibility, Solidarity
Authors Konstantinos A Papageorgiou
AbstractAuthor's information

    The article discusses a range of important normative questions raised by anti-COVID-19 measures and policies. Do governments have the right to impose such severe restrictions on individual freedom and furthermore do citizens have obligations vis-à-vis the state, others and themselves to accept such restrictions? I will argue that a democratic state may legitimately enforce publicly discussed, properly enacted and constitutionally tested laws and policies in order to protect its citizens from risks to life and limb. Even so, there is a natural limit, factual and normative, to what the state or a government can do in this respect. Citizens will also need to take it upon themselves not to harm and to protect others and in the context of a pandemic this means that endorsement of restrictions or other mandatory measures, notably vaccination, is not to be seen as a matter of personal preference concerning the supposedly inviolable sovereignty of one’s own body.


Konstantinos A Papageorgiou
Konstantinos A Papageorgiou is Professor of the Philosophy of Law at the National and Kapodistrian University of Athens, School of Law.
Article

Access_open Reflections on Digital Human Rights Practice Research and Human Rights Universality

Journal East European Yearbook on Human Rights, Issue 1 2021
Keywords non-coherence theory of digital human rights, network approach, universality of human rights, transversality effect
Authors Mart Susi
AbstractAuthor's information

    The idea of universality of human rights is under multidimensional challenges entailing the aspects of practice generalization and postmodern social theories with juridical ambitions. Competing theories continue to exist and the elements of choice between theories are determined by practice, convenience and economies and not necessarily by idealistic goals. Among the many arguments raised against the universality of human rights stands the network approach, which is characterized by permeability, its supportive purpose of vertical normative structures, its impact on the rise of social responsibility, obscuring effect on legitimacy and “reliance on trust”. Supportive purpose of vertical normative structures in a network means that private networks can articulate the claim for correctness in self-regulation due to the existence of the vertical normative backbone. One of the main reservations related to digital human rights law and remedies through the network approach is that of distortion of legitimacy. The article approaches these issues through a novel theoretical approach of non-coherence.


Mart Susi
Mart Susi is Professor of human rights law at Tallinn University, Editor-in-Chief, Action Chair of Global Digital Human Rights Network

    Terms-of-service based actions against political and state actors as both key subjects and objects of political opinion formation have become a focal point of the ongoing debates over who should set and enforce the rules for speech on online platforms.
    With minor differences depending on national contexts, state regulation of platforms creating obligations to disseminate such actors’ information is considered dangerous for the free and unhindered discursive process that leads to the formation of public opinions.
    Reactions to the suspension of Trump as not the first, but the most widely discussed action of platform companies against a politician (and incumbent president) provide a glimpse on the state of platform governance debates across participating countries.
    Across the countries surveyed politicians tend to see the exercise of content moderation policies of large platform companies very critically
    The majority of politicians in European countries seem to be critical of the deplatforming of Trump, emphasizing fundamental rights and calling for such decisions to be made by states, not private companies
    These political standpoints stand in an unresolved conflict with the constitutional realities of participating countries, where incumbents usually cannot invoke fundamental rights when acting in their official capacities and where laws with “must carry” requirements for official information do not exist for social media and would likely only be constitutional for narrowly defined, special circumstances such as disaster prevention.
    Facebooks’ referral of the Trump-decision to its Oversight Board sparked a larger debate about institutional structures for improving content governance. The majority of participating countries has experience with self- or co-regulatory press-, media- or broadcasting councils to which comparisons can be drawn, foreshadowing the possible (co-regulatory) future of governing online speech.
    Media commentators in participating countries interpreted the deplatforming of Trump as a signal that far-right parties and politicians around the world may face increasing scrutiny, while conservative politicians and governments in multiple participating countries instrumentalized the actions against Trump as supposed proof of platform’s bias against conservative opinions.
    Even without specific legal requirements on content moderation, submissions from several countries refer to a general – often: constitutional – privileging of speech of politicians and office holders. This could potentially support or even compel the decisions of platforms to leave content of political actors up even if it violates their terms of service.


Martin Fertmann
Martin Fertmann is a PhD student at the Leibniz-Institut für Medienforschung | Hans-Bredow-Institut’s research programme “Regulatory Structures and the Emergence of Rules in Online Spaces”

Matthias C. Kettemann
Prof. dr. Matthias C. Kettemann, LL.M. (Harvard) is head of the research programme “Regulatory Structures and the Emergence of Rules in Online Spaces” at the Leibniz Institute for Media Research | Hans-Bredow-Institut.

    The Court of Appeal (CA) has allowed an appeal by HM Revenue & Customs (HMRC) against a decision that there was insufficient mutuality of obligation and control for football referees to be treated as employees for tax purposes.


Colin Leckey
Colin Leckey is a partner at Lewis Silkin LLP.
Article

Legislative Effectiveness From a Legislative Drafter’s Perspective

Analysing the Transgender Persons (Protection of Rights) Act, 2019

Journal European Journal of Law Reform, Issue 3 2021
Keywords Effectiveness Test, legislative quality, drafting process, Transgender persons (Protection of Rights) Act, 2019
Authors Devika Gulati
AbstractAuthor's information

    This article discusses the effectiveness of Transgender persons (Protection of Rights) Act, 2019 and tests the legislation against Dr. Maria Mousmouti’s Effectiveness Test. The author first attempts to trace the real purpose of the Act in terms of specific and broad purposes, and the micro, meso and macro goals. Secondly, the author examines the content of the Act in terms of the legislative techniques used, compliance and enforcement mechanism, and legislative communication. Thirdly, the author studies the context of the Act in terms of its coherence, accessibility and the choice of superstructure.
    Finally, the author checks the Act against the element of result where she examines the monitoring, review and evaluation clauses of the legislation, and the mechanism to collect and assess the legislative results.


Devika Gulati
Devika Gulati is a former Legal Research Associate at the Legislative Department, Ministry of Law and Justice, Government of India. She holds an LLM in Drafting Legislation, Regulation, and Policy from University of London (IALS) The views expressed in this article are her own and do not reflect those of any organization.
Public Health Emergency: National, European and International Law Responses

On the Constitutionality of the Punishment of Scaremongering in the Hungarian Legal System

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords scaremongering, clear and present danger, COVID-19 pandemic, freedom of expression, Constitutional Court of Hungary
Authors András Koltay
AbstractAuthor's information

    Scaremongering criminalized as a limitation to freedom of speech in Hungarian law. In lack of relevant case-law, free speech commentators rarely discussed the provision until the Government took action to step up the fight against the COVID-19 pandemic, and the ensuing amendment of the Criminal Code in Spring 2020 brought the subject back to the forefront of public debate. The article analyses the constitutional issues related to the criminalization of scaremongering, taking the two available Constitutional Court decisions rendered in this subject as guideline. Though the newly introduced legislation attracted widespread criticism in Hungary and elsewhere in Europe, a thorough examination of the new statutory elements makes it clear that public debate and critical opinions may not be stifled by prosecuting individuals for scaremongering. Although the applicable standard cannot yet be determined with full accuracy, the Constitutional Court’s decisions and relevant academic analysis resolve the main issues in order to protect freedom of expression, while the clarification of further details remains a matter for the case-law.


András Koltay
András Koltay: rector and professor of law, University of Public Service, Budapest; professor of law, Pázmány Péter Catholic University, Budapest.
Anniversary: Commemorating the 90th Birthday of Ferenc Mádl, President of the Republic (2000-2005)

Back to the Future: Ferenc Mádl, The Law of the European Economic Community (1974)

Investment Protection Then and Now

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords Ferenc Mádl, investment protection, SEGRO and Horváth, Achmea, BIT
Authors Miklós Király
AbstractAuthor's information

    The first part of the article (Sections 1-2) reviews Prof. Ferenc Mádl’s magnum opus, published in 1974, emphasizing the importance of the monograph’s publication in the communist era. It discusses the unique structure of the volume, which, from the perspective of undertakings and companies, examined the fundamental economic freedoms and EEC competition law in parallel. The second part (Sections 3-5) highlights the issue of investment protection, noting that Mádl’s early academic theorem has been vindicated decades later by the case-law of the CJEU, in particular in its SEGRO and Horváth judgment: Provisions ensuring free movement of capital serve to protect foreign investments as well.


Miklós Király
Miklós Király: professor of law, ELTE Law School, Budapest.
Case Notes

The Afterlife of the Relocation of Judicial Cases

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords right to a lawful judge, National Judicial Council, relocation of judicial cases, reasonable time, length of proceedings
Authors Ágnes Czine
AbstractAuthor's information

    The requirement of an independent and impartial tribunal established by law is set out in Article 6(1) ECHR and Article XXVIII(1) of the Fundamental Law of Hungary. The elements of the definition of the right to a fair trial are closely tied to the requirement of judicial independence, impartiality and a court established by law. These guarantees’ purpose is to ensure that the applicant receive a judgment that is not prejudged by other branches of power, such as the influence of the executive, or the arbitrariness of the judiciary. This important human and fundamental rights requirement is monitored by bodies dedicated to the protection of democratic institutions. According to the laws of Hungary, lawsuits may be transferred to another court by the National Office for the Judiciary in order to reduce the workload. This solution has received strong international attention and scrutiny. Although these are actually not in force, they still have repercussions, which must be dealt with by the Constitutional Court. This article seeks to provide insight into the constitutional afterlife of this system of reallocation.


Ágnes Czine
Ágnes Czine: justice, Constitutional Court of Hungary, Budapest; associate professor of law, and acting rector, Károli Gáspár University of the Reformed Church, Budapest.
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

Access_open The Influence of Strategic Culture on Legal Justifications

Comparing British and German Parliamentary Debates Regarding the War against ISIS

Journal Erasmus Law Review, Issue 2 2021
Keywords strategic culture, international law, ISIS, parliamentary debates, interdisciplinarity
Authors Martin Hock
AbstractAuthor's information

    This article presents an interdisciplinary comparison of British and German legal arguments concerning the justification of the use of force against the Islamic State in Iraq and Syria (ISIS). It is situated in the broader framework of research on strategic culture and the use of international law as a tool for justifying state behaviour. Thus, a gap in political science research is analysed: addressing legal arguments as essentially political in their usage. The present work questions whether differing strategic cultures will lead to a different use of legal arguments. International legal theory and content analysis are combined to sort arguments into the categories of instrumentalism, formalism and natural law. To do so, a data set consisting of all speeches with regard to the fight against ISIS made in both parliaments until the end of 2018 is analysed. It is shown that Germany and the UK, despite their varying strategic cultures, rely on similar legal justifications to a surprisingly large extent.


Martin Hock
Martin Hock is Research Associate at the Technische Universität Dresden, Germany.
Article

Access_open The Role of the Vienna Rules in the Interpretation of the ECHR

A Normative Basis or a Source of Inspiration?

Journal Erasmus Law Review, Issue 2 2021
Keywords European Convention on Human Rights, European Court of Human Rights, techniques of interpretation, the Vienna Convention on the Law of Treaties
Authors Eszter Polgári
AbstractAuthor's information

    The interpretive techniques applied by the European Court of Human Rights are instrumental in filling the vaguely formulated rights-provisions with progressive content, and their use provoked widespread criticism. The article argues that despite the scarcity of explicit references to the Vienna Convention on the Law of Treaties, all the ECtHR’s methods and doctrines of interpretation have basis in the VCLT, and the ECtHR has not developed a competing framework. The Vienna rules are flexible enough to accommodate the interpretive rules developed in the ECHR jurisprudence, although effectiveness and evolutive interpretation is favoured – due to the unique nature of Convention – over the more traditional means of interpretation, such as textualism. Applying the VCLT as a normative framework offers unique ways of reconceptualising some of the much-contested means of interpretation in order to increase the legitimacy of the ECtHR.


Eszter Polgári
Eszter Polgári, PhD, is assistant professor at the Department of Legal Studies of the Central European University in Austria.
Article

Cancelling proposed debates

Agenda Setting, Issue Ownership and Anti-elitist Parliamentary Style

Journal Politics of the Low Countries, Issue 3 2021
Keywords agenda-setting, parliaments, anti-elitism, issue-ownership
Authors Simon Otjes and Roy Doedens
AbstractAuthor's information

    The Dutch Tweede Kamer is unique among parliaments because here the agenda is actually determined in a public, plenary meeting of all MPs. In the Dutch Tweede Kamer 30 members of parliament (MPs) can request a plenary debate. Many opposition parties request these debates, but only 23% of these are actually held. We examine the question ‘under what conditions do political party groups cancel or maintain proposals for minority debates?’ as a way to gain insight into the black box of parliamentary agenda setting. We examine two complementary explanations: issue competition and parliamentary style. We trace all 687 minority debates that were proposed between 2012 and 2021 in the Netherlands. This allows us to see what proposals for debates MPs make and when they are retracted. We find strong evidence that anti-elitist parties maintain more debate proposals than do other parties


Simon Otjes
Simon Otjes is assistant professor of Dutch Politics at Leiden University and researcher at Documentation Centre Dutch Political Parties. His research focuses on political parties, legislative behaviour and interest groups in Europe and the Netherlands specifically. He has previously published on legislative behaviour in West European Politics, the Journal of Legislative Studies and Party Politics.

Roy Doedens
Roy Doedens studied Philosophy and International Relations and International Organizations at Groningen University and Political Science at Leiden University. Currently, he works as a public affairs advisor at Erasmus University.
Article

The Praise for a ‘Caretaker’ Leader

Gendered Press Coverage of Prime Minister Sophie Wilmès in a COVID-19 Context

Journal Politics of the Low Countries, Issue 2 2021
Keywords political leadership, crisis, care, Belgium, gendered media coverage
Authors Clémence Deswert
AbstractAuthor's information

    Studies on media coverage of women politicians have underlined how the media contribute to the association of the figure of the political leader with masculinity. Yet, the social construction of leadership seems to evolve towards a more ‘femininity-inclusive’ definition. Research on the ‘glass cliff’ phenomenon suggests that stereotypical feminine attributes might be expected from political leaders in a time of crisis. We investigated the gendered construction of political leadership in the press in a COVID-19 context through the case of former Belgian Prime minister Sophie Wilmès. In line with the ‘think crisis-think female’ association, our discourse analysis shows an appreciation of traditionally feminine traits, and particularly care-related qualities, in the evaluation of what a ‘good’ leader should be in pandemic times, although some characteristics traditionally associated with masculinity are still considered valuable assets in the journalistic portrayal of Wilmès’ leadership.


Clémence Deswert
Clémence Deswert is a PhD candidate at the Political Science Department of the Université libre de Bruxelles (ULB). Her research interests include political communication and political representation of women. Declaration of interests: I confirm that this article was not submitted to or publicised in another journal. No conflict of interest exists.
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