Search result: 9 articles

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Year 2020 x
Article

The Question of Jurisdiction

The Impact of Ultra Vires Decisions on the ECJ’s Normative Power and Potential Effects for the Field of Data Protection

Journal East European Yearbook on Human Rights, Issue 1 2020
Keywords ECJ, German Constitutional Court, principle of proportionality, primacy of EU law, data protection, principle of conferral, ultra vires judgments
Authors Carsten M. Wulff
AbstractAuthor's information

    The ultra vires judgment of the German Constitutional Court on the debt security purchasing of the ECB system sent shockwaves throughout Europe. Some scholars see the legal framework, specifically the principle of the supremacy of the European Union in danger. This article argues that the judgment is a challenge for Luxembourg; however, there have been warning signs from the Czech Republic and Denmark that constitutional courts will not shy away from criticizing, when the ECJ oversteps its jurisdiction. The author argues that the judgment may weaken the overall normative power of the court and will assess whether a similar judgment could occur in the field of data protection and national security exceptions. The only way back to normality will be for the court to ensure it does not overstep its jurisdiction and the European Institutions unconditionally backing the ECJ in the expected upcoming conflict with the constitutional courts of Member States.


Carsten M. Wulff
PhD Student, Tallinn University, Estonia.
Article

Access_open COVID-19-Related Sanitary Crisis and Derogations under Article 15 of the Convention

Considerations in Estonia

Journal East European Yearbook on Human Rights, Issue 1 2020
Keywords human rights, emergency situation, COVID-19 and sanitary crisis, Article 15 of the European Convention on Human Rights, European Court of Human Rights (the ECtHR), Estonia
Authors Maris Kuurberg
AbstractAuthor's information

    During the COVID-19 pandemic, Estonia was one of the states that decided to inform the Secretary General of the Council of Europe of the health-related emergency situation in Estonia and noted, with reference to Article 15 of the European Convention on Human Rights, that some emergency measures may involve a derogation from certain obligations under the Convention. The Government’s considerations proceeded from the unprecedented scale of the sanitary crisis and the scope of extraordinary measures taken to tackle it. Importance was attached to the fact that the Court has never before assessed health-related exceptions allowed in some of the articles of the Convention in a situation which affects the whole nation – not to mention the articles of the Convention which do not set out any exceptions at all. Article 15 of the Convention, on the other hand, is designed to be applicable in public emergency situations threatening the life of the nation.


Maris Kuurberg
Maris Kuurberg (mag.iur.) has been the Estonian Government Agent before the European Court of Human Rights since 2008 (the views expressed are solely those of the author). She works in the Ministry of Foreign Affairs. She is also a member of the Bureau of the Council of Europe’s Steering Committee for Human Rights, as well as a member of the same steering committee and a member of the Committee of Experts on the System of the European Convention on Human Rights. Since 1999, she has been a member of the Estonian Bar Association but her activity as an Attorney at Law is suspended since she joined the Ministry of Foreign Affairs.
Article

Access_open Mechanisms for Correcting Judicial Errors in Germany

Journal Erasmus Law Review, Issue 4 2020
Keywords criminal proceedings, retrial in favour of the convicted, retrial to the disadvantage of the defendant, Germany, judicial errors
Authors Michael Lindemann and Fabienne Lienau
AbstractAuthor's information

    The article presents the status quo of the law of retrial in Germany and gives an overview of the law and practice of the latter in favour of the convicted and to the disadvantage of the defendant. Particularly, the formal and material prerequisites for a successful petition to retry the criminal case are subject to a detailed presentation and evaluation. Because no official statistics are kept regarding successful retrial processes in Germany, the actual number of judicial errors is primarily the subject of more or less well-founded estimates by legal practitioners and journalists. However, there are a few newer empirical studies devoted to different facets of the subject. These studies will be discussed in this article in order to outline the state of empirical research on the legal reality of the retrial procedure. Against this background, the article will ultimately highlight currently discussed reforms and subject these to a critical evaluation as well. The aim of the recent reform efforts is to add a ground for retrial to the disadvantage of the defendant for cases in which new facts or evidence indicate that the acquitted person was guilty. After detailed discussion, the proposal in question is rejected, inter alia for constitutional reasons.


Michael Lindemann
Michael Lindemann is Professor for Criminal Law, Criminal Procedure and Criminology at the Faculty of Law of Bielefeld University, Germany.

Fabienne Lienau
Fabienne Lienau is Research Assistant at the Chair held by Michael Lindemann.
Article

Access_open State Obligations to Counter Islamophobia: Comparing Fault Lines in the International Supervisory Practice of the HRC/ICCPR, the ECtHR and the AC/FCNM

Journal Erasmus Law Review, Issue 3 2020
Keywords Human rights, positive state obligations, islamophobia, international supervisory mechanisms
Authors Kristin Henrard
AbstractAuthor's information

    Islamophobia, like xenophobia, points to deep-seated, ingrained discrimination against a particular group, whose effective enjoyment of fundamental rights is impaired. This in turn triggers the human rights obligations of liberal democratic states, more particularly states’ positive obligations (informed by reasonability considerations) to ensure that fundamental rights are effectively enjoyed, and thus also respected in interpersonal relationships. This article identifies and compares the fault lines in the practice of three international human rights supervisory mechanisms in relation to Islamophobia, namely the Human Rights Committee (International Covenant on Civil and Political Rights), the European Court of Human Rights (European Convention on Human Rights) and the Advisory Committee of the Framework Convention for the Protection of National Minorities. The supervisory practice is analysed in two steps: The analysis of each international supervisory mechanism’s jurisprudence, in itself, is followed by the comparison of the fault lines. The latter comparison is structured around the two main strands of strategies that states could adopt in order to counter intolerance: On the one hand, the active promotion of tolerance, inter alia through education, awareness-raising campaigns and the stimulation of intercultural dialogue; on the other, countering acts informed by intolerance, in terms of the prohibition of discrimination (and/or the effective enjoyment of substantive fundamental rights). Having regard to the respective strengths and weaknesses of the supervisory practice of these three international supervisory mechanisms, the article concludes with some overarching recommendations.


Kristin Henrard
Kristin Henrard is Professor International Human Rights and Minorities, Erasmus School of Law, Rotterdam, the Netherlands.
Article

Regional Differentiation in Europe, between EU Proposals and National Reforms

Journal European Journal of Law Reform, Issue 3 2020
Keywords regional differentiation, regional disparities, autonomy, regionalism, subsidiarity, European Union, multilevel governance
Authors Gabriella Saputelli
AbstractAuthor's information

    Regions and local governments play a very important role in the application of European law and in the implementation of European policies. The economic crisis of 2008 has accentuated territorial and social differentiation and highlighted the negative effects of globalization. This circumstance has created resentment among peripheral and marginal communities in the electoral results, but also a strong request for involvement, participation and sometimes independence from territories. These developments raise new questions about the relationship between the EU and the Regions and, more widely, about the role of subnational entities in the EU integration process, as they are the institutions nearest to citizens.
    The aim of this article is to contribute to that debate by exploring the following research question: ‘is subnational differentiation positive or negative for European integration?’ Towards a possible answer, two perspectives are examined from a constitutional law approach. From the top down, it examines the attitude of the EU towards regional differentiation, from the origins of the EU integration process and its development until recent initiatives and proposals. From the bottom up, it analyses the role of subnational entities by presenting the Italian experience, through the reforms that have been approved over the years until the recent proposal for asymmetric regionalism. The aim is to understand whether regional differentiation still represents a positive element for the European integration process, considering the role that subnational entities play in many policies and the challenges described earlier.


Gabriella Saputelli
Researcher of Public Law at the Institute for the Study of Regionalism, Federalism and Self Government (ISSiRFA) of the National Research Council (CNR).
Article

The ECB’s Independence and the Principle of Separation

Journal European Journal of Law Reform, Issue 3 2020
Keywords ECB, Banking Supervision, Banking Supervision Centralization, Prudential Supervision, European Union, EU Law, Banking Union, Central Banking Independence, SSMR, SSMR
Authors Pamela Nika
AbstractAuthor's information

    This article addresses the question of whether the European Central Bank’s (ECB’s) involvement in banking supervision is compatible with its independent status as provided by the European Union’s (EU’s) primary law, specifically with reference to the principle of separation between the ECB’s monetary policy and supervisory powers. It is found that the Single Supervisory Mechanism (SSM) Regulation provides the ECB with a set of prerequisites in pursuit of its supervisory objectives under a high level of independence. However, the article argues that the current EU regulatory framework poses risks to the overall independence of the ECB. In particular, the principle of separation, as one of the mechanisms aimed at safeguarding the ECB’s independence, is not fully achieved. In addition, the boundaries and application of macro-prudential operation of the ECB in both the SSM and European Systemic Risk Board (ESRB) remain blurry and uncertain. The article concludes by suggesting that the only way to safeguard the independence of the ECB is by carefully revising the ECB’s competencies, which may require treaty amendment.


Pamela Nika
Dr Pamela Nika is a lecturer in Corporate and Finance Law at Brunel University London.
Article

The ECtHR on Constitutional Complaint as Effective Remedy in the Hungarian Legal Order

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords ECHR, Constitutional Court of Hungary, constitutional complaint, exhaustion of domestic remedies, subsidiarity
Authors Péter Paczolay
AbstractAuthor's information

    Since 2012 a new regulation of the constitutional complaint was introduced to the Hungarian legal system that since then also includes the full constitutional complaint against final court decisions. Besides this new remedy , two other exist: a complaint against a legal provision applied in court proceedings (in force since 1990), and an exceptional form of the complaint against a legal provision, when there are no real and effective remedies available. Before 2012 the ECtHR did not consider the constitutional complaint to be an effective domestic remedy that needs to be exhausted. In two decisions taken in 2018 and 2019 the ECtHR declared that – under the respective conditions and circumstances – all three kinds of constitutional complaints may offer an effective remedy to the applicants at domestic level. The case note presents the two cases summarizing the main arguments of the ECtHR that led to this conclusion.


Péter Paczolay
Péter Paczolay: professor of law, University of Szeged; judge, ECtHR.
Article

The Protection of the Right to Local Self-Government in the Practice of the Hungarian Constitutional Court

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords right to local self-government, protected powers, European Charter of Local Self-Government, Hungary, Constitutional Court of Hungary
Authors Ádám Varga
AbstractAuthor's information

    A specific trait of local self-governments is that they exercise public power, while public power is also exercised against them. This means that those functions and powers that are obligations on the side of local self-governments, can be construed as rights against central public bodies. For this reason, the protection of the right to local self-government is a priority. The Charter of Local Self-Government takes the view that the autonomy of local self-governments shall be guaranteed against central public bodies. It is necessary to establish a legal framework which ensures that strong central public bodies cannot enforce their own political or professional preferences against the will of local communities with different political or professional beliefs. In my opinion, the central issue, also in Hungary, is that local self-governments are entitled to the protection of the Constitutional Court. Decision No. 3311/2019. (XI. 21.) AB sets out that local self-governments are entitled to turn to the Constitutional Court in their own right by submitting a constitutional complaint if the law violates their rights guaranteed in the Fundamental Law (including powers enshrined in the Fundamental Law). While the decision is still very recent, nevertheless, thanks to its local self-governments may expect the substantive review of their petitions by the Constitutional Court in the future.


Ádám Varga
Ádám Varga: visiting lecturer, Pázmány Péter Catholic University, Budapest; assistant lecturer, National University of Public Service, Budapest; counselor, Constitutional Court of Hungary, Budapest.
Article

Like Mother, Like Daughter?

Linkage Between Local Branches and Their National Party Headquarters in Belgium

Journal Politics of the Low Countries, Issue 2 2020
Keywords local branches, national party headquarters, linkage, integration, multilevel parties
Authors Kristof Steyvers
AbstractAuthor's information

    This article scrutinises local-national linkage in Belgium to better understand territorial power relations in multilevel parties. Drawing on a survey of local chairs of national parties, it adopts an innovative, informal and bottom-up approach. The descriptive analysis reveals two central axes in the morphology of linkage: scope (downward support and upward influence) and surplus (benefits versus costs). However, (the valuation of) this interdependence appears as a matter of degree. The explanatory analysis therefore probes into the effect of macro- (between environments), meso- (between parties) and micro- (within parties) level factors. It demonstrates that variance is explained by different parameters. For scope, differences between parties trump those within them. For surplus, specific differences between parties as well as within them matter. The answer to our guiding question is therefore variegated: it depends on for what and for whom.


Kristof Steyvers
Kristof Steyvers is Associate Professor in the Department of Political Science of Ghent University (Belgium). His research is conducted in the Centre for Local Politics, where he focuses on topics such as local political leadership, parties and elections at the local level, local government in multilevel governance and local government reforms (often from a comparative perspective).
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