This paper provides first of all the introduction to this special issue on ‘Legal constraints on the indeterminate control of “dangerous” sex offenders in the community: A European comparative and human rights perspective’. The issue is the outcome of a study that aims at finding the way legal control can not only be an instrument but also be a controller of social control. It is explained what social control is and how the concept of moral panic plays a part in the fact that sex offenders seem to be the folk devils of our time and subsequently pre-eminently the target group of social control at its strongest. Further elaboration of the methodology reveals why focussing on post-sentence (indeterminate) supervision is relevant, as there are hardly any legal constraints in place in comparison with measures of preventive detention. Therefore, a comparative approach within Europe is taken on the basis of country reports from England and Wales, France, Germany, The Netherlands and Spain. In the second part of the paper, the comparative analysis is presented. Similar shifts in attitudes towards sex offenders have led to legislation concerning frameworks of supervision in all countries but in different ways. Legal constraints on these frameworks are searched for in legal (sentencing) theory, the principles of proportionality and least intrusive means, and human rights, mainly as provided in the European Convention on Human Rights to which all the studied countries are subject. Finally, it is discussed what legal constraints on the control of sex offenders in the community are (to be) in place in European jurisdictions, based on the analysis of commonalities and differences found in the comparison.

This article presents an overview of the legal regime provided in the Spanish system of criminal sanctions regarding the control of dangerous sex offenders in the community. It focuses on the introduction, in 2010, of a post-prison safety measure named supervised release. We describe the context of its introduction in the Spanish Criminal Code, considering the influence of societal upheaval concerning dangerous sex offenders in its development, and also the historical and theoretical features of the Spanish system of criminal sanctions. We also analyse the legal framework of supervised release, the existing case law about it and how the legal doctrine has until now assessed this measure. After this analysis, the main aim of this article consists in evaluating the effectiveness and the proportionality of the measure, according to the principle of minimal constraints and the rehabilitative function of the criminal sanctions in Spanish law, stated in Article 25.2 of the Spanish Constitution.

After release from prison or a custodial preventive institution, offenders may come under supervision in Germany, which means that their conduct is controlled for a period of up to five years or even for life by a judicial supervising authority. Supervision is terminated if it can be expected that even in the absence of further supervision the released person will not commit any further offences. From the theoretical point of view, supervision is not considered a form of punishment in Germany, but a preventive measure that is guided by the principle of proportionality. After a presentation of the German twin track system of criminal sanctions and a glimpse at sentencing theory, the capacity of the principle of proportionality to guide and control judicial decisions in the field of preventive sanctions is discussed. The human rights perspective plays only a minor role in the context of supervision in Germany.

In the Netherlands, the legal possibilities for post-custodial supervision have been extended considerably in recent years. A currently passed law aims to further increase these possibilities specifically for dangerous (sex) offenders. This law consists of three separate parts that may all result in life-long supervision. In the first two parts, the supervision is embedded in the conditional release after either a prison sentence or the safety measure ‘ter beschikking stelling’ (TBS). This paper focuses on the third part of the law, which introduces an independent supervisory safety measure as a preventive continuation of both a prison sentence and the TBS measure. Inevitably, this new independent sanction raises questions about legitimacy and necessity, on which this paper reflects from a human rights perspective. Against the background of the existing Dutch penal law system, the content of the law is thoroughly assessed in view of the legal framework of the Council of Europe and the legal principles of proportionality and less restrictive means. In the end, we conclude that the supervisory safety measure is not legitimate nor necessary (yet). Apart from the current lack of (empirical evidence of) necessity, we state that there is a real possibility of an infringement of Article 5(4) ECHR and Article 7 ECHR, a lack of legitimising supervision ‘gaps’ in the existing penal law system, and finally a lack of clear legal criteria. Regardless of the potential severity of violent (sex) offenses, to simply justify this supervisory safety measure on the basis of ‘better safe than sorry’ is not enough.

France literally ‘discovered’ sexual abuse following neighbour Belgium’s Dutroux case in the late 1990s. Since then, sex offenders have been the focus of politicians, media and law-makers’ attention. Further law reforms have aimed at imposing mandatory supervision and treatment, and in rare cases, preventive detention. The legal framework for mandatory supervision and detention is rather complex, ranging from a mixed sentence (custodial and mandatory supervision and treatment upon release or as a stand-alone sentence) to so-called ‘safety measures’, which supposedly do not aim at punishing an offence, but at protecting society. The difference between the concepts of sentences and safety measures is nevertheless rather blurry. In practice, however, courts have used safety measures quite sparingly and have preferred mandatory supervision as attached to a sentence, notably because it is compatible with cardinal legal principles. Procedural constraints have also contributed to this limited use. Moreover, the type of supervision and treatment that can thus be imposed is virtually identical to that of ordinary probation. It is, however, noteworthy that a higher number of offenders with mental health issues who are deemed ‘dangerous’ are placed in special psychiatric units, something that has not drawn much attention on the part of human rights lawyers.

EU law is a very wide-ranging legal system that comprises thousands of legal acts. It endeavours to regulate many relationships in the Member States of the European Union and effects everyday lives both of individuals and public bodies. EU law is, however, not always positively accepted. Such non-acceptance often follows from the increasing number of cases when EU law cannot be effectively applied on the national level. Significant reason for that lies in the poor quality of EU law.
The article describes features that cause ambiquity of EU legislation, its complexity and incompleteness, that have a very detrimental effect on the application of EU law on the national level. Further it refers to defects of form of certain pieces of EU legislation that give rise to questions concerning legal certainty and due implementation into national legal orders. The article contains many illustrative examples supporting the presented points of view and indicates ways to be taken in the future.

This article offers a reflection on asymmetry as an instrument of differentiated integration in the current phase of the EU integration process. As for the structure, this work is divided into four parts: First, I shall clarify what I mean by asymmetry as an instrument of integration relying on comparative law. This comparative exercise is particularly useful because it allows us to acknowledge the strong integrative function performed by asymmetry in contexts different from but comparable to the EU system. Second, I shall look at EU law and recall the main features of asymmetry in this particular legal system. In the third part of the article I shall look at the implications of the financial crisis, which has increased the resort to asymmetric instruments. In the last part I shall deal with some recent proposals concerning the differentiated representation of the Eurozone. The idea of differentiated integration and that of asymmetry have been extended and adapted to many different processes by scholars over the years, but to avoid misunderstandings I would like to make clear that in this work I shall analyse those forms of asymmetries that are allowed and carried out only when respect for an untouchable core of integration is guaranteed. This is crucial to conceive asymmetry as an instrument of integration.

This article is an original, first attempt at establishing a list of comparative criteria for the comparative study of legislative drafting or aspects of legislative drafting between the two families of legal systems: common law and civil law. Because of the limited bibliography in the field of legislative drafting – let alone in comparative legislative drafting between common law and civil law systems – this article adds to existing scholarship on the field aiming to become a basis for further comparative research in legislative drafting. The list of criteria can be used on its own for different jurisdictions within the same family of legal systems, or the two lists can be used to juxtapose civil and common law experiences in legislative drafting. As this is the first time that such lists of comparative criteria in legislative drafting have been produced, it should be stressed that the lists are certainly not exhaustive. The aim of this article is to generate comparative research in legislative drafting, and so, inevitably, such comparative research might add or even subtract criteria from the lists depending on results.

In one of the first high-profile cases under the Protected Disclosures Act 2014 (i.e. whistleblowing legislation), two employees have successfully secured an injunction in the Circuit Court which prevents their dismissal.

The number of comparative tax law studies is substantial. The available literature on the methodology behind these tax comparisons, however, is rather limited and underdeveloped. This article aims to contribute to the theoretical background of tax comparisons by explicating methodological considerations in a comparative tax research on tax incentives for cross-border donations and relating it to the available methodological literature. Two aspects of tax law make comparative research in tax law a challenging endeavour: its complexity and fast-changing nature. To overcome these issues, this article proposes to divide jurisdictions into a limited number of categories. In this process the different legal levels are analysed systematically, resulting in categories of jurisdictions. Among the jurisdictions in one category, common characteristics are identified. This results in an abstract description of the category. I use the term ‘ideal types’ for these categories. The high level of abstraction in the use of ideal types allows for comparison of tax jurisdictions, without the risk that the comparison gets outdated. An additional advantage of working with ideal types is that the conclusions of the comparison can be applied to all jurisdictions that fit in the ideal type. This increases the generalisability of the conclusions of the comparative tax research.

The evolution of the case law in the field of free movement of goods has been marked by consecutive changes in the legal tests applied by the Court of Justice of the European Union for the determination of the existence of a trade restriction. Starting with the broad Dassonville and Cassis de Dijon definition of MEEQR (measures having equivalent effect to a quantitative restriction), the Court subsequently introduced the Keck-concept of ‘selling arrangements’, which allowed for more regulatory autonomy of the Member States, but proved insufficient to capture disguised trade restrictions. Ultimately, a refined ‘market access’ test was adopted, qualified by the requirement of a ‘substantial’ hindrance on inter-State trade. Contrary to the free movement of goods, the free movement of capital has not undergone the same evolutionary process. Focusing on the ‘golden shares’ case law, this article questions the broad interpretation of ‘capital restrictions’ and seeks to investigate whether the underlying rationale of striking down any special right that could have a potential deterrent effect on inter-State investment is compatible with the constitutional foundations of negative integration. So far the Court seems to promote a company law regime that endorses shareholders’ primacy, lacking, however, the constitutional and institutional legitimacy to decide on such a highly political question. It is thus suggested that a refined test should be adopted that would capture measures departing from ordinary company law and hindering market access of foreign investors, while at the same time allowing Member States to determine their corporate governance systems.

The article offers an overview of the most ambitious operation of law revision ever attempted in Italy, retracing its phases in order to give an overview of some of the major constitutional questions it raised. The article will focus, in particular, on principles and criteria of the delegation to the Government – which represented the core of the entire operation – as well as on the use of emergency instruments for the same purpose. Two examples of errors or political use of law revision will also be analyzed.

In modern society, the right to equality is not just a universal moral obligation; it is rather an expression of a generally accepted rule in international law that all people have equal rights, independently of differences based on innate or acquired personal characteristics. Prohibition of discrimination is a civilization heritage, and it is determined by systematically overcoming prejudices and stereotypes as key factors of discrimination, where educational institutions, media, public authority, and non-governmental organizations all have a vital role. Tackling with discrimination is not just the application of rules regulated by law and taking necessary measures towards social groups which are in an unequal position, but it is also a continuous development of tolerance when it comes to ethnicity, religion, gender, minorities, as well as acceptance of the existing interpersonal differences. It is well known that the area of West Balkans is often a breeding ground where stereotypes and prejudices thrive for decades. The strategic aim of the Republic of Serbia is membership in the European Union, and so nation-wide law regulation concerning this matter is directed at complying with the European Union Law since the prohibition of discrimination is one of the pillars of the European Union Law. In this article, the influence of the European Union Law and practical measures taken by the European Court of Human Rights in order to prohibit discrimination in a specific international and private domain are analyzed.

Law, particularly enacted law, needs to be as simple and as accessible as possible, clear and concise and – perhaps above all – fit for the purposes of modern society. Laws passed in one decade may prove to be less than adequate for the needs of later generations because of changes in the social fabric or social mores or because of technological advance or economic challenge. Societies needs mechanisms for keeping law under review, particularly when governments are focused on introducing more law – sometimes layered on top of existing law – to fulfil electoral promises. The position is compounded in common law systems where the senior judiciary add to the legal corpus.
Different jurisdictions have differing needs. The IALS Law Reform Project (at the Institute of Advanced Legal Studies, University of London) has set itself the task of identifying the range of law reform mechanisms employed across the common law and civil law worlds with a view to establishing which of the components are core, and identifying others which could be improved. The starting point, of course, is: what is law reform? Are reform and revision the same? Does reform need to be legislative? Why does codification work in civil law jurisdictions but is eschewed in parts of the common law world? This is about the processes of law reform; substantive reform is for another day.

The aim of this article is to describe the mechanisms that are used in the civil law system to review existing legislation. The case study will be based on the Italian system. In the civil law system we are not familiar with the concept of law reform, in the sense used in the common law system, because there is no law reform agency in the civil law world. The mechanisms used to review the existing law in civil law systems are: codification, consolidation, repeal, law revision and legal restatement. To understand how the mechanisms used to review existing legislation work in Italy, an overview of the Italian law-making and drafting processes will be carried out here, underlying the bad impact that the Italian equal bicameralism has on the quality of legislation and also on the mechanisms to review existing legislation. After this, the article will focus on the specific tools that are used in Italy for codification and consolidation (decreti legislativi), for law revision (the so-called taglia-leggi) and for legal restatement (examining the role of the Consiglio di Stato). Particular attention will also be paid to the parliamentary scrutiny on the quality of legislation. Finally, the article will focus on the constitutional amendment process Italy carried out in 2014-2016 and that was expected to fundamentally change the Italian law-making process, superseding the equal bicameralism arrangement (a referendum on this was held on 4 December 2016, and the reform was rejected by the Italian people).

This article presents an account of sovereignty as a concept that signifies in jural terms the nature and quality of political relations within the modern state. It argues, first, that sovereignty is a politico-legal concept that expresses the autonomous nature of the state’s political power and its specific mode of operation in the form of law and, secondly, that many political scientists and lawyers present a skewed account by confusing sovereignty with governmental competence. After clarifying its meaning, the significance of contemporary governmental change is explained as one that, in certain respects, involves an erosion of sovereignty.

This article uses the rise of referendum democracy to highlight the tenacity of modern nationalism in Western Europe. The proliferation of direct democracy around the world raises important questions about the health of representative democracy. The paper offers a theoretical re-evaluation of the role of the referendum, using the 2014 referendum on Scottish independence to challenge some of the traditional democratic criticisms of popular democracy. The final part of the paper addresses the specific application of referendums in the context of sub-state nationalism, addressing what might be called `the demos question'. This question was addressed by the Supreme Court in Canada in the Quebec Secession Reference but has also been brought to the fore by the Scottish reference and the unresolved issue of self-determination in Catalonia.

This article challenges the assumption, widespread in European constitutional discourse, that ‘national identity’ and ‘constitutional identity’ can be used interchangeably. First, this essay demonstrates that the conflation of the two terms lacks grounding in a sound theory of legal interpretation. Second, it submits that the requirements of respect for national and constitutional identity, as articulated in the EU Treaty and in the case law of certain constitutional courts, respectively, rest on different normative foundations: fundamental principles of political morality versus a claim to State sovereignty. Third, it is argued that the Treaty-makers had good reasons for writing into the EU Treaty a requirement of respect for the Member States’ national identities rather than the States’ sovereignty, or their constitutional identity.

Legal and sociological theories of sovereignty disagree about the role of legal and social matters in grounding state power. This paper defends a constructivist view, according to which the constitution is a judgment of practical reason. The paper argues that a constitution sets out a comprehensive institutional architecture of social life in terms of principles and official roles that are necessary for any legitimate scheme of social cooperation to exist. It follows that legal and sociological theories of sovereignty capture only part of the truth of sovereignty. Legal reasoning engages with political power, but it is not determined by it. There is no causal chain between power and validity, as suggested by the legal positivists. The relation between power and law is interpretive, not causal. It follows that the circularity of law and the constitution, namely the fact that the law makes the constitution and the constitution makes the law, is not a vicious circle. It is part of an ordinary process of deliberation.