Search result: 24 articles

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Year 2021 x
Article

Access_open Dividing the Beds: A Risk Community under ‘Code Black’?

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Cosmopolitan solidarity, COVID-19, Health care regulation, Risk society, Argumentative discourse analysis
Authors Tobias Arnoldussen
AbstractAuthor's information

    During the COVID-19 crisis a risk of ‘code black’ emerged in the Netherlands. Doctors mentioned that in case of code black, very senior citizens might not receive intensive care treatment for COVID-19 due to shortages. Sociologist Ulrich Beck argued that palpable risks lead to the creation of new networks of solidarity. In this article this assumption is investigated by analyzing the different storylines prevalent in the public discussion about ‘code black’. Initially, storylines showing sympathy with the plight of the elderly came to the fore. However, storylines brought forward by medical organizations eventually dominated, giving them the opportunity to determine health care policy to a large extent. Their sway over policymaking led to a distribution scheme of vaccines that was favourable for medical personnel, but unfavourable for the elderly. The discursive process on code black taken as a whole displayed a struggle over favourable risk positions, instead of the formation of risk solidarity.


Tobias Arnoldussen
Tobias Arnoldussen is Assistant Professor of Jurisprudence at Tilburg Law School.
Developments in European Law

Applicability of the GDPR on Personal Household Robots

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords artificial intelligence, robots, personal data, GDPR, scenarios
Authors Gizem Gültekin Várkonyi
AbstractAuthor's information

    Recent developments in artificial intelligence (AI) and robotics point to a close future collaboration between humans and machines. Even though the use of personal robots is not yet a phenomenon, findings in technical and legal literature highlight several possible risks inherent in the processing of personal data by such robots. This article contributes to the current discussions on the applicability of the GDPR to AI technologies from three aspects: (i) first, it encourages the use of a scenario method to predict possible future legal problems related to new technologies; (ii) second, it analyzes considerations with the support of the relevant case-law and present comparative expert opinions for overcoming the weak points of the GDPR relevant to AI; (iii) and finally, proposals made in the recommendations part aim to contribute to a better application of the GDPR to AI technologies in personal use.


Gizem Gültekin Várkonyi
Gizem Gültekin Várkonyi: junior research fellow, University of Szeged.

    The Employment Appeal Tribunal (EAT) has ruled that ‘gender critical’ beliefs are protected philosophical beliefs for equality law purposes, while confirming that a belief in ‘gender identity’ is also a protected characteristic. This means that it is unlawful to discriminate against someone because they do or do not hold either of those beliefs.


Bethan Carney
Bethan Carney is a Managing Practice Development Lawyer, Lewis Silkin LLP.
Landmark Ruling

ECJ 15 July 2021, joined cases C-804/18 and C-341/19 (WABE), Religious Discrimination

IX – v – WABE eV and MH Müller Handels GmbH – v – MJ, German cases

Journal European Employment Law Cases, Issue 3 2021
Keywords Religious Discrimination
Abstract

    An employer’s need to present a neutral image may justify a prohibition on any visible expression of beliefs, but must correspond to a genuine need, notwithstanding the specific national context end more favourable national provisions.

    The UK’s Supreme Court (SC) has ruled that retail staff of the supermarket chain Asda can compare themselves under UK law to higher-paid distribution depot staff for the purposes of an equal pay claim. In a separate case against Tesco, the ECJ subsequently confirmed that the company’s shop workers can rely directly on EU law to compare themselves to distribution centre workers for the purposes of such a claim.


Carolyn Soakell
Carolyn Soakell is a partner at Lewis Silkin LLP.

    Following up on the ECJ’s judgment in the Kalliri case, the Greek Council of State (Conseil d’État) held in a Plenary Session decision that a legal provision of Presidential Decree 90/2003 requiring that candidates for admission to the Greek Officers and Policemen School must be at least 1.70 m, independently of their sex, was indirectly discriminatory against female candidates. It based its decision on Directive 76/207/EEC as well as principles of the Greek constitution.


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

Access_open Text-mining for Lawyers: How Machine Learning Techniques Can Advance our Understanding of Legal Discourse

Journal Erasmus Law Review, Issue 1 2021
Keywords text mining, machine learning, law, natural language processing
Authors Arthur Dyevre
AbstractAuthor's information

    Many questions facing legal scholars and practitioners can be answered only by analysing and interrogating large collections of legal documents: statutes, treaties, judicial decisions and law review articles. I survey a range of novel techniques in machine learning and natural language processing – including topic modelling, word embeddings and transfer learning – that can be applied to the large-scale investigation of legal texts


Arthur Dyevre
Arthur Dyevre is Professor at the KU Leuven Centre for Empirical Jurisprudence, Leuven, Belgium. arthur.dyevre@kuleuven.be.
Article

Access_open Big Data Ethics: A Life Cycle Perspective

Journal Erasmus Law Review, Issue 1 2021
Keywords big data, big data analysis, data life cycle, ethics, AI
Authors Simon Vydra, Andrei Poama, Sarah Giest e.a.
AbstractAuthor's information

    The adoption of big data analysis in the legal domain is a recent but growing trend that highlights ethical concerns not just with big data analysis, as such, but also with its deployment in the legal domain. This article systematically analyses five big data use cases from the legal domain utilising a pluralistic and pragmatic mode of ethical reasoning. In each case we analyse what happens with data from its creation to its eventual archival or deletion, for which we utilise the concept of ‘data life cycle’. Despite the exploratory nature of this article and some limitations of our approach, the systematic summary we deliver depicts the five cases in detail, reinforces the idea that ethically significant issues exist across the entire big data life cycle, and facilitates understanding of how various ethical considerations interact with one another throughout the big data life cycle. Furthermore, owing to its pragmatic and pluralist nature, the approach is potentially useful for practitioners aiming to interrogate big data use cases.


Simon Vydra
Simon Vydra is a Researcher at the Institute for Public Administration, Leiden University, the Netherlands.

Andrei Poama
Andrei Poama is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Sarah Giest
Sarah Giest is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Alex Ingrams
Alex Ingrams is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Bram Klievink
Bram Klievink is Professor of Digitization and Public Policy at the Institute for Public Administration, Leiden University, the Netherlands.
Research Note

Peer Assessment in Parliament

Promises and Pitfalls of a Marginalised Method in Parliamentary Research

Journal Politics of the Low Countries, Issue 3 2021
Authors Richard Schobess
AbstractAuthor's information

    Peer assessment is a rather marginalised method in political research. This research note argues that the collective expertise of MPs can complement other data to contribute to more comprehensive evaluations of MPs’ parliamentary work. Yet, this method is potentially flawed by low survey participation and rater bias among MPs. The experience with a peer assessment survey among members of three Belgian parliaments shows that participation does not necessarily need to be problematic. However, the empirical analysis suggests that scholars should control for various forms of rater bias.


Richard Schobess
Richard Schobess is a PhD candidate at the Department of Political Science of Ghent University. His research focuses on parliaments and elections.
Article

Access_open The Determinants of Committee Membership in Belgium and the Netherlands

Journal Politics of the Low Countries, Issue 3 2021
Keywords parliamentary committees, legislative organisation
Authors Tim Mickler
AbstractAuthor's information

    In this article I analyse whether differences in formal committee structures affect how parliamentary actors organise their work within them. I compare the allocation of members to specialised committees in the Dutch House of Representatives (Tweede Kamer) and the Belgian Chamber of Representatives (Kamer van Volksvertegenwoordigers/Chambre des Représentants) to test whether committee assignments are given more serious consideration when committees are strong. Despite many similarities, both parliaments differ in their internal institutional arrangements: committees in the Chamber of Representatives are, at least formally, considerably more powerful than those in the Dutch Lower House. The article uses the congressional theories of legislative organisation as heuristic devices to deduce several rationales of the assignment process. The role of parliamentary party groups is highlighted. The results indicate the presence of stable, reoccurring patterns in both parliaments. Even in the House of Representatives, where committees present lower opportunity structures, assignments are given due consideration.


Tim Mickler
Tim Alexander Mickler is an assistant professor at the Institute of Political Science at Leiden University. Corresponding author: Tim Mickler at t.a.mickler@fsw.leidenuniv.nl.
Rulings

ECJ 12 May 2021, Case C-130/20 (INSS (Complément de pension pour les mères – II)), Gender Discrimination, Pension

YJ – v – Instituto Nacional de la Seguridad Social (INSS), Spanish case

Journal European Employment Law Cases, Issue 2 2021
Keywords Gender Discrimination, Pension
Abstract

    Directive 79/7 on equal treatment for men and women in matters of social security does not apply to national legislation which grants a pension supplement to women with at least two children who retire (early) on grounds of law but not in case of voluntary early retirement, as the Directive concerns discrimination between men and women.

Landmark Ruling

ECJ 3 June 2021, case C-624/19 (Tesco Stores), Gender Discrimination, Discrimination General

[Employees] – v – Tesco Stores Ltd, UK case

Journal European Employment Law Cases, Issue 2 2021
Keywords Gender Discrimination, Discrimination General
Abstract

    The principle, laid down by EU law, of equal pay for male and female workers can be relied upon directly, in respect both of ‘equal work’ and of ‘work of equal value’, in proceedings between individuals.

Article

Access_open Invisible before the law

The legal position of persons with intellectual disabilities under the Dutch Care and Compulsion Act (Wzd) in light of Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD)

Journal Family & Law, June 2021
Keywords dicrimination, guardianship, incapacitated adults, legal (in)capacity
Authors F. Schuthof LLM
AbstractAuthor's information

    In the Netherlands, the use of involuntary treatment in the mental health care sector is governed by the Dutch Care and Compulsion Act (Wzd). This study examines the legal position of persons with intellectual disabilities under this Act. The Wzd is analyzed in light of the human rights standards of Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD). The findings of this study show that the Wzd does not meet the standards of Article 12 in several cases. The Wzd does not recognize the legal capacity of persons with intellectual disabilities, it continues to allow for substituted decision-making and support measures are not complemented by adequate safeguards. From a theoretical point of view, an imbalance between the protection of and the respect for the autonomy of persons with intellectual disabilities can be observed. This article formulates several recommendations in order to restore this balance.
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    De Nederlandse Wet zorg en dwang (Wzd) ziet toe op de rechten van mensen met een verstandelijke beperking bij onvrijwillige zorg of onvrijwillige opname. Dit artikel onderzoekt de juridische positie van mensen met een verstandelijke beperking ten aanzien van deze wet. De Wzd wordt geanalyseerd in relatie tot artikel 12 van het Verdrag inzake de Rechten van Personen met een Handicap (VRPH). De bevindingen van dit onderzoek laten zien dat de Wzd in verschillende gevallen niet voldoet aan de normen van artikel 12 VRPH. Zo wordt onder andere de handelingsbekwaamheid, ofwel ‘legal capacity’, van mensen met een verstandelijke beperking niet erkend en blijft plaatsvervangende besluitvorming mogelijk. Vanuit theoretisch oogpunt is er sprake van een disbalans tussen de bescherming van en het respect voor de autonomie van mensen met een verstandelijke beperking. Dit artikel doet daarom meerdere aanbevelingen om dit evenwicht te herstellen.


F. Schuthof LLM
Fiore Schuthof conducts research into better empowerment and protection of the elderly as a PhD student at Utrecht University (UU).
Article

Access_open What does it mean to be ‘illiberal’?

Journal Netherlands Journal of Legal Philosophy, Issue 1 2021
Keywords Liberalism, Illiberalism, Illiberal practices, Extremism, Discrimination
Authors Bouke de Vries
AbstractAuthor's information

    ‘Illiberal’ is an adjective that is commonly used by scholars. For example, they might speak of ‘illiberal cultures’, ‘illiberal groups’, ‘illiberal states’, ‘illiberal democracies’, ‘illiberal beliefs’, and ‘illiberal practices’. Yet despite its widespread usage, no in-depth discussions exist of exactly what it means for someone or something to be illiberal, or might mean. This article fills this lacuna by providing a conceptual analysis of the term ‘illiberal practices’, which I argue is basic in that other bearers of the property of being illiberal can be understood by reference to it. Specifically, I identify five ways in which a practice can be illiberal based on the different ways in which this term is employed within both scholarly and political discourses. The main value of this disaggregation lies in the fact that it helps to prevent confusions that arise when people use the adjective ‘illiberal’ in different ways, as is not uncommon.


Bouke de Vries
Bouke de Vries is a postdoctoral research fellow at Umeå University and the KU Leuven.
Article

Unwrapping the Effectiveness Test as a Measure of Legislative Quality

A Case Study of the Tuvalu Climate Change Resilience Act 2019

Journal European Journal of Law Reform, Issue 1 2021
Keywords effectiveness test, legislative quality, drafting process, Tuvalu Climate Change Resilience Act 2019
Authors Laingane Italeli Talia
AbstractAuthor's information


Laingane Italeli Talia
Laingane Italeli Talia is Senior Crown Counsel, Attorney General’s Office of Tuvalu

    In 2014, the ECJ was presented with a preliminary reference from the District Court in Kolding on the matter of whether EU law provides protection against discrimination on grounds of obesity with regard to employment and occupation. Following the ECJ’s ruling, first the District Court and later the High Court found that an employee’s obesity as such did not constitute a disability within the meaning of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation since his obesity had not constituted a limitation or inconvenience in the performance of his job.


Christian K. Clasen
Christian K. Clasen is a partner at Norrbom Vinding.

    On 16 December 2020, the Supreme Court of Lithuania (Cassation Court) delivered a ruling in a case where an employee claimed that the employer, JSC ‘Lithuanian Railways’, did not apply the regulations of the company’s employer-level collective agreement and did not pay a special bonus – an anniversary benefit (i.e. a benefit paid to employees on reaching a certain age) – because the employee was not a member of the trade union which had signed the collective agreement. According to the employee, she was discriminated against because of her membership of another trade union, i.e membership of the ‘wrong’ trade union.
    The Supreme Court held that combatting discrimination under certain grounds falls within the competence and scope of EU law, but that discrimination on the grounds of trade union membership is not distinguished as a form of discrimination. Also, the Court ruled that in this case (contrary to what the employee claimed in her cassation appeal) Article 157 of the Treaty on the Functioning of the European Union (TFEU) is not applicable because it regulates the prohibition of discrimination on other (sex) grounds. Moreover, the Court found that there was no legal basis for relying on the relevant case law of the ECJ which provides clarification on other forms of discrimination, but not on discrimination based on trade union membership.


Vida Petrylaitė
Vida Petrylaitė is an associate professor at Vilnius university.
Case Reports

2021/4 Budget considerations can justify indirect discrimination (UK)

Journal European Employment Law Cases, Issue 1 2021
Keywords Discrimination General, Age Discrimination
Authors Carolyn Soakell
AbstractAuthor's information

    If an employer has a policy which is indirectly discriminatory and the employer’s aim is no more than saving money, the Court of Appeal (CA) has ruled that this cannot justify the discrimination. However, needing to balance the books can potentially be a valid justification for indirect discrimination.


Carolyn Soakell
Carolyn Soakell is a partner at Lewis Silkin LLP.
Rulings

ECJ 21 January 2021, C-843/19 (INSS), Gender Discrimination, Pension

Instituto Nacional de la Seguridad Social (INSS) – v – BT

Journal European Employment Law Cases, Issue 1 2021
Keywords Gender Discrimination, Pension
Abstract

    Requiring a minimum pension amount for allowing early retirement is not contrary to Article 4(1) of Directive 79/7 even if it puts female workers at a particular disadvantage, provided that this is justified by legitimate reasons of social policy which are not related to gender discrimination.

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
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