Search result: 12 articles

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Year 2019 x
Article

Access_open The Potential of Public Policy on Open Access Repositories

Journal Erasmus Law Review, Issue 2 2019
Keywords public policy, dissemination, governance, open access, repositories
Authors Nikos Koutras
AbstractAuthor's information

    To address the potential of public policy on the governance of OARs it is necessary to define what is meant by public policy and the importance of public policy in designing an efficient governance framework. Critical components are the subject matter of public policy and its objectives. Hence, it is useful to consider declarations, policies and statements in relation to open access practice and examine the efficiency of these arrangements towards the improvement of stakeholders’ engagement in governance of OARs. Secondly, policies relating to dissemination of scientific information via OARs should be examined. In this regard, it is relevant to consider the public policy basis for Intellectual Property (IP) laws that concerning the utility of OARs. Therefore, economic theories relevant with the role of IP laws should be examined. Such examination depicts to what extend these laws facilitate the utility of OARs. In order to specify justifications for the desirability of OARs the objectives of social theories should be also considered. Thus, there is consternation that without legal protection against copying the incentive to create intellectual property will be undermined. As scholarly communication infrastructure evolves, it is necessary to recognize the efforts of the relationship between Intellectual Property Rights (IPRs) and communication technologies in the context of public policy and after engagement with it. After employing such multilevel approach, the paper argues about a socio-economic framework to enhance the governance of OARs through public policy.


Nikos Koutras
Postdoctoral Researcher, Faculty of Law, University of Antwerp.
Article

Access_open Access and Reuse of Machine-Generated Data for Scientific Research

Journal Erasmus Law Review, Issue 2 2019
Keywords machine-generated data, Internet of Things, scientific research, personal data, GDPR
Authors Alexandra Giannopoulou
AbstractAuthor's information

    Data driven innovation holds the potential in transforming current business and knowledge discovery models. For this reason, data sharing has become one of the central points of interest for the European Commission towards the creation of a Digital Single Market. The value of automatically generated data, which are collected by Internet-connected objects (IoT), is increasing: from smart houses to wearables, machine-generated data hold significant potential for growth, learning, and problem solving. Facilitating researchers in order to provide access to these types of data implies not only the articulation of existing legal obstacles and of proposed legal solutions but also the understanding of the incentives that motivate the sharing of the data in question. What are the legal tools that researchers can use to gain access and reuse rights in the context of their research?


Alexandra Giannopoulou
Institute for Information Law (IViR) – University of Amsterdam.

Chris Straker
Chris Straker is a director, trainer and consultant at Restorative Thinking Ltd. (www.restorativethinking.co.uk) and a freelance restorative trainer registered with the Restorative Justice Council, UK.

Lies Van Cleynenbreugel
Lies Van Cleynenbreugel is an action researcher at the Leuven Institute of Criminology, KU Leuven, Belgium and in charge of the project ‘Leuven Restorative Cities’; she is also a restorative justice practitioner in the NGO Alba.
Article

Constitutional Resilience and Unamendability

Amendment Powers as Mechanisms of Constitutional Resilience

Journal European Journal of Law Reform, Issue 3 2019
Keywords constitutional change, constitutional resilience, unamendability, constitutional identity
Authors Xenophon Contiades and Alkmene Fotiadou
AbstractAuthor's information

    This article aims to explore the relationship between unamendability and constitutional resilience. Inspired by Roznai’s theory on the limits of amendment powers, this article seeks to examine how such limits may function as a mechanism of constitutional resilience exploring how unamendability may impact the resilience of a constitution, allowing it to withstand crises while retaining its core functions. The key question is whether entrenchment enhances resilience through its protective shield or, by contrast, fetters resilience by foreclosing adaptability – what does not bend often breaks. The complex relationship between unamendability and constitutional resilience unfolds in the context of different amendment patterns.


Xenophon Contiades
Xenophon Contiades is Professor of Public Law, Panteion University; Managing Director of the Centre for European Constitutional Law, Athens, Greece.

Alkmene Fotiadou
Alkmene Fotiadou is Research Fellow, Centre for European Constitutional Law.
Article

Unamendability and Constitutional Identity in the Italian Constitutional Experience

Journal European Journal of Law Reform, Issue 3 2019
Keywords Unamendability, constitutional identity, republic, counterlimits, European integration, Italy
Authors Pietro Faraguna
AbstractAuthor's information

    The article explores the historical roots of the explicit unamendable clause(s) in the Italian Constitution. Following, it explores the scholarly debate over the interpretation of unamendable provisions. The article investigates theories of implicit unamendability of the Italian Constitution, and, in particular, it analyses the crucial role played by the Constitutional Court of Italy (ICC) and the principles that characterize Italian constitutional identity. Furthermore, the article explores the other side of constitutional identity, namely the theory of ‘counterlimits.’ The ICC specified that constitutional identity not only sets a limit to constitutional amendment powers but also sets ‘counterlimits’ to the entry of external norms (i.e., supranational and international law) in the domestic legal system. Finally, the article draws some conclusions and argues that the two sides of constitutional identity, although legally and logically independent, mutually reinforce each other and, ultimately, reinforce the counter-majoritarian nature of unamendability.


Pietro Faraguna
Pietro Faraguna is Assistant professor of constitutional law, University of Trieste.
Article

A View on the Future of Judicial Review of Constitutional Amendments in Turkey

An Invitation to Judicial Dialogue

Journal European Journal of Law Reform, Issue 3 2019
Keywords basic structure doctrine, Constitutional Court of Turkey, constitutional identity, judicial dialogue, immunity amendment, unconstitutional constitutional amendments
Authors Ali Acar
AbstractAuthor's information

    In this article, I discuss and analyse the Turkish case concerning judicial review of constitutional amendments in light of a recent decision by the Constitutional Court of Turkey (CCT). In the said decision, the CCT rejected carrying out judicial review over a controversial constitutional amendment, which lifted MPs’ parliamentary immunity. This decision urges to consider its implications for the possible future cases. I refer to comparative constitutional law with the hope to shed more light on the Turkish example and grasp it comprehensively. In this respect, I illustrate the most crucial arguments developed by the Supreme Court of India (SCI), the Bundesverfassungsgericht (BVG), and the Conseil Constitutionnel (FCC) in their case law. Based on the comparative account, I draw some lessons for the CCT and invite it to get into a judicial dialogue with other supreme/constitutional courts with regard to the issue.


Ali Acar
Cankaya University Faculty of Law and visiting researcher at Osgoode Hall Law School. I thank Richard Albert, Vicente F. Benítez-Rojas, and Mehmet Turhan for their comments and critiques, which were insightful to develop the ideas in this article.
Article

Transitional Constitutional Unamendability?

Journal European Journal of Law Reform, Issue 3 2019
Keywords transitional constitutionalism, constitutional unamendability, decline of constitutional democracy, constitution-making in Hungary, the Hungarian Constitutional Court
Authors Gábor Halmai
AbstractAuthor's information

    This article discusses the pros and cons for a suggestion to use unamendable provisions in transitional constitutions to protect the integrity and identity of constitutions drafted after a democratic transition. The presumption for such a suggestion could be that most democratic constitution-making processes are elite-driven exercises in countries with no or very little constitutional culture. The article tries to answer the question, whether in such situations unamendable constitutional provisions can help to entrench basic principles and values of constitutionalism with the help of constitutional courts reviewing amendments aimed at violating the core of constitutionalism. The article investigates the experiences of some backsliding constitutional democracies, especially Hungary, and raises the question, whether unamendable constitutional provision could have prevented the decline of constitutionalism.
    In order to discuss the issue of transitional unamendability, the article engages in the scholarly discussion on transitional constitutionalism in general, and deals with the relationship of constitutional law and constitutional culture. Another side topic of the article is whether such transitional unamendability provisions should also contain international or transnational values and principles, and what happens if those are not in conformity with the unamendable provisions that serve to build up a national constitutional identity. Again, the example of Hungary can be important here, how national constitutional identity protected by the Constitutional Court can serve to abandon the European constitutional whole.


Gábor Halmai
Gábor Halmai is Professor and Chair of Comparative Constitutional Law, European University Institute, Florence; email: gabor.halmai@eui.eu.
Article

Consensus Democracy and Bureaucracy in the Low Countries

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

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


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

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

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

Gerrit Dijkstra
Gerrit Dijkstra, Senior Lecturer, Leiden University.

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

Better Regulation and Post-Legislative Scrutiny in the European Union

Journal European Journal of Law Reform, Issue 2 2019
Keywords parliaments, post-legislative scrutiny, better regulation, European Union, legislation, regulation, democracy
Authors Davor Jancic
AbstractAuthor's information

    This article analyses the manner in which the EU’s Better Regulation Agenda impacts pre-legislative and post-legislative scrutiny by national parliaments, as two important dimensions of their function of democratic control over EU decision making. To this end, the article critically assesses the institutional arrangements and procedures foreseen under the Commission’s 2015 Better Regulation package and examines the 2017 review of the Better Regulation Agenda, which is a fresh push towards its enhancement. The article is structured as follows. After an overview of the legal grounding and evolution of better regulation in EU law, the analysis surveys the implications for parliaments of the Juncker Commission’s package of reforms, which are laid out in a Communication and implemented through a set of guidelines, a refurbished toolbox for practitioners, a revised Regulatory Fitness and Performance Programme (REFIT), and an Interinstitutional Agreement on Better Lawmaking adopted in 2016. On this basis, the article discusses post-legislative scrutiny of EU legislation on its own merits as well as from the perspective of its relationship with pre-legislative scrutiny. The latter is important since it is the most efficient way for parliaments to influence the contents of EU policies. The article concludes that the Better Regulation Agenda maintains the status quo in domestic parliamentary participation in EU affairs and misses the opportunity to fortify the latter’s European embeddedness.


Davor Jancic
Dr Davor Jancic is Lecturer in Law, Director of the English & European Law LLB programme, Department of Law, Queen Mary University of London.
Article

The Role of National Human Rights Institutions in Post-Legislative Scrutiny

Journal European Journal of Law Reform, Issue 2 2019
Keywords National Human Rights Institution, parliament, legislation, reporting, post-legislative scrutiny
Authors Luka Glušac
AbstractAuthor's information

    This article explores the role of national human rights institutions (NHRIs) in post-legislative scrutiny (PLS), a topic that has been notably neglected in existing literature. The present research demonstrates that (1) legislative review is actually part of NHRIs’ mandate and (2) the applicable international standards (e.g. Belgrade and Paris Principles) provide for their actorness in all stages of legislative process. The main hypothesis is that NHRIs have already been conducting activities most relevant for PLS, even though they have not often been labelled as such by parliaments or scholars. In other words, we argue that their de facto role in PLS has already been well established through their practice, despite the lack of de jure recognition by parliamentary procedures. We support this thesis by providing empirical evidence from national practices to show NHRIs’ relevance for PLS of both primary and secondary legislation. The central part of this article concentrates on the potential of NHRIs to act as (1) triggers for PLS, and (2) stakeholders in PLS that has already been initiated. The article concludes with a summary of the results, lessons learned, their theoretical and practical implications and the avenues for further research.


Luka Glušac
Luka Glušac received his PhD in Political Science from the University of Belgrade; Faculty of Political Sciences. His PhD thesis explored the evolution of national human rights institutions (NHRIs) and their relations with the United Nations. He is adviser in the Secretariat of the Ombudsman of Serbia, since 2011. In 2018, he served as a National Institutions Fellow at The Office of the United Nations High Commissioner for Human Rights (OHCHR) in Geneva. He can be contacted at lukaglusac@gmail.com.
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