bluuebunny/crossref_metadata_2025 huggingface dataset:
A Banks Duty of Care: Perspectives from European and Comparative Law  Part II
Authors: Busch Danny
Published: April 2022

In this article we place a bank’s duty of care in a European and comparative law perspective. We have chosen five topics which are hotly debated in theory and practice. The first topic is the scope and intensity of the essential duties which typically flow from a bank’s duty of care: duties to investigate, duties to disclose or warn, and – in exceptional cases – outright duties to refuse to render financial services or products. In some jurisdictions, financial disputes between investors and banks are not so much resolved by reference to a bank’s duty of care, but by reference to the traditional doctrine of error or mistake, and fraud. That is the second topic we discuss in this article. The third topic is the impact of the European Markets in Financial Instruments Directive (MiFID) on a banks’ duty of care. The fourth topic focuses on the role of the financial regulator in settling disputes between banks and clients. We conclude this article with the bigger picture and relevant reform perspectives.
De Jure Convergence, De Facto Divergence: A Comparison of Factual Implementation of Shareholder Derivative Suit Enforcement in the United States and the United Kingdom
Authors: Gibbs-Kneller David , Gindis David
Published: April 2022

Many legal systems have been converging toward a US shareholder-centric model of corporate law and governance. This includes de jure rules relating to derivative enforcement. Despite convergence of the UK system towards the US model, each system continues to diverge as regards levels of shareholder enforcement. This article suggests that this divergence can be explained by the way the courts implement the derivative procedure de facto. A comparative assessment of de facto implementation in the US and the UK reveals that while courts in both systems are reluctant to interfere with the business judgment of the board, the US courts are willing to analyse whether board decisions were substantively reached, contributing to the levels of enforcement based on the way costs are allocated. Conversely, ingrained traditions of the UK courts place a high evidentiary burden on the shareholder, which they are unlikely to meet. Since costs are allocated to the loser in the UK, the factual implementation continues to serve as a strong disincentive for private shareholder enforcement and good governance.

Derivative claims, enforcement, costs, civil procedure, judiciary, directors, shareholders, company law, corporate governance, convergence
Fairness and Integrity in High-Frequency Markets – A Critical Assessment of the European Regulatory Approach
Authors: Myklebust Trude
Published: April 2022

Over the past decades, financial markets have been fundamentally transformed by technological advances in combination with regulatory and institutional change. This has produced highly competitive and fragmented financial markets. It is in this market environment that the ultra-fast segment of high-frequency trading (HFT) has materialised. European regulators have addressed the potential adverse market impact of HFT in terms of increased systemic risk (e.g. ‘flash crashes’) and market abuse through provisions in MiFID II and in the MAR. But there is also an additional concern that so far has received less regulatory attention – the question of whether HFT is fair. This article explores whether and how HFT raises fairness-related concerns against the backdrop of the overarching policy goal of maintaining confidence in the financial markets. Finding that HFT does indeed raise such concerns, it then asks whether the newly instituted provisions on algorithmic trading and HFT in MiFID II and MAR do anything to alleviate this problem. The answer is to a certain extent yes. However, significant concerns remain unaddressed by the new regulatory context. The article suggests other provisions in MiFID II that in the author’s view should be assessed with a view to target fairness-related concerns raised by HFT.

High-frequency trading, algorithmic trading, fairness, market microstructure, MiFID II, unfair market practices, market confidence, market integrity, conflict of interest, systemic risk
Potentials and Limitations of Smart Contracts: A Primer from an Economic Point of View
Authors: Horsch Andreas , Seidel Enrico , Eickstädt Anja
Published: April 2022

Smart contracts are an innovative contract type best described as digital and decentralized agreements which are stored on a blockchain. The automatisms included in blockchain-based smart contracts as well as their transparency and irreversibility contribute to their increasing popularity and made proponents of smart contracts suggest that they will replace traditional written contracts and become the (only) contract type in the long run. However, seminal problems prevail, including technical, legal, and also economic questions. This paper addresses the latter: Using theoretical approaches of New Institutional Economics, such as the theory of transaction cost or the theory of agency, it shows that smart contracts are no cure-all, but another (process) innovation of considerable, but not unlimited potential.

Smart Contract, Blockchain, Distributed Ledger Technology, New Institutional Economics, Principal Agent Theory, Transaction Cost, Property Rights, Positive Economics, Synchronous Interaction, Datatrusted Exchange
Data, Innovation and Competition in Finance: The Case of the Access to Account Rule
Authors: Borgogno Oscar , Colangelo Giuseppe
Published: April 2022

Technological innovation can foster competition within the retail financial sector. However, in order to pave the way for the emergence of FinTech with the goal of promoting innovation and competition, policymakers need to address a data bottleneck problem. The access to account (XS2A) rule introduced by the revised EU Payment Service Directive (PSD2) is worth of attention as it mandates banks to provide access to customer account data to all authorized third payment service providers. If properly implemented, the XS2A rule may unlock competition in retail financial markets by mitigating consumer disengagement and information asymmetry problems that have traditionally affected retail financial markets. In this respect, as showed by the UK Open Banking experience, supervised application programming interfaces (APIs) standardization is crucial to deliver adequate levels of interoperability.

FinTech, PSD2, payment services, access to account rule, big data, open banking, API, competition law, BigTech, standardization
Personalized Pricing Using Payment Data: Legality and Limits under European Union and Luxembourg Law
Authors: Tjon Akon Melvin
Published: April 2022

With the transposition of Directive (EU) 2015/2366 (PSD2) into Luxembourg law, payment service providers may have access to consumer payment data and share these data with third parties for the purposes of personalized pricing. In this article, the author analyses the legality and the limits of personalized pricing using payment data under European Union and Luxembourg law, focusing on consumer e-commerce markets. To this end, the author reviews economic studies on personalized pricing and consumer behavior and analyses the application of consumer protection, data protection, anti-discrimination and competition rules to the practice. Subsequently, the author investigates the limits imposed on personalized pricing in certain circumstances and proposes to adopt a data-driven approach to the regulation of the practice.

Pricing, payment services, data protection, personal data, discrimination, algorithms, consumer protection, personalization, profiling, economics
The Centralisation of Prudential Supervision in the Euroarea: The Emergence of a New ‘Conventional Wisdom’ and the Establishment of the SSM
Authors: Bassani Giovanni
Published: April 2022

This article provides an account of how, after the Eurozone sovereign crisis, the centralisation of banking prudential supervision in the Euroarea became ‘conventional wisdom’. But it also contends that the transition to a new centralising conventional wisdom is still partial and incomplete. To this end, the article analyses the legal prudential obstacles still preventing the emergence of a truly single prudential jurisdiction, coincident with the single monetary jurisdiction. The article is divided into five sections. Section 1 briefly describes the “historical novelty” of a single currency area comprising many separate prudential supervisory jurisdictions and its “permanence” until the Eurozone sovereign crisis. Section 2 analyses the legal framework applicable to the new Single Supervisory Mechanism and the degrees of legal variance in the applicability of prudential requirements across participating Member States. Section 3 summarily analyses one specific aspect of this legal variance: “national powers”. Section 4 briefly deals with the exercise of Options and Discretions available in Union Law within the SSM. Section 5 concludes.

Centralised Prudential supervision, Single Supervisory Mechanism, European Central Bank, European Integration, National Competent Authorities, Capital Requirements Regulation, Legal Framework, Banking Union, Euroarea, Single Currency
The ECB and the Application of National Law in the SSM: New Yet Old…
Authors: Biondi Andrea , Spano Alessandro
Published: April 2022

Art 4 (3) of the SSM Regulation allows, under certain conditions, the European Central Bank to directly apply national law in the exercise of its prerogatives. This article recaps the general framework of application of the SSM Regulation by looking in particular to the question of national law transposing relevant directives in the area and discusses the role of the ECB when interpreting and applying national law in the exercise of its prudential tasks and powers. Finally, it attempts to place the scope of application, the limitations and legislative instruments related to the application of national law by the ECB in a wider EU constitutional fram-ework.

European Union, European Central Bank, Banking Union, Banking Supervision, Single Supervisory Mechanism, Article 4(3), Application of National Law, Consistent Interpretation, EU Legal Order, Eurozone.
Origins, Evolution and Comparison of Moral Rights between Civil and Common Law Systems
Authors: Moscati Laura
Published: April 2022

The protection of moral rights embraces the now widespread personal sphere of copyright and originated much later than the economic exploitation of the work itself. Some of its components can be found in the English and German thought between the 17th and 18th centuries and, starting from the early 19th century, would have a substantial development through the contribution of both the French legal scholarship and case law. The legal foundations, in any case, date back to some codifications of the German area and to the earliest international treaties, making it a discipline that did not take into consideration the extent of the national territory. The purpose of this study is to evaluate the relevance of the European models and their influence in Italy after the national Unification, in particular in the first decades of the 1900s. In fact, the international protection of moral rights takes root in Italy during the 1928 Rome Conference for the revision of the 1886 Berne Convention. The United States joined it only later, in 1989, with the Berne Convention Implementation Act (BCIA). Thirty years later, the Copyright Office published in April 2019 an extensive study about the American protection of moral rights. The document is studied in this paper in comparison with the European Directives and with the Copyright Directive definitively approved a few days before the Copyright Office document. While in the USA the interest in moral rights up to now rather limited seems to be increasing, in Europe the protection of moral rights risks being waned as it is handed down to individual countries with the explicit declaration that it is not the subject matter of the Directives.

Moral rights, origins, codification, Europe, Italy, Berne Convention, international treaties, USA, EU Directives, Canada
Blockchain Smart Contracts: A Socio-Legal Approach
Authors: Peixoto Barbosa Leonardo
Published: April 2022

Smart contracts are computer protocols that self-enforce encoded terms. They arguably allow for individual freedom and increased sovereignty from inconveniences. The enthusiasm goes as far as foreseeing that smart contracts will make contractual legal oversight obsolete. However, whereas contract law theory evolved to acknowledge the importance of flexibility and relationality, smart contracts activists defend the opposite direction, arguing for contractual rigidness and denial of social norms supporting complex transactions. This paper departs from this paradox to argue that (i) smart contracts based on existing technology are unlikely to thrive in complex contractual settings, and (ii) contextual analysis is important for LawTech’s propositions.

Smart contracts, blockchain, system’s theory, social norms, transaction cost, flexibility, relationality, trust, co-operation, contractual governance
Reflexive Law and Section 172 Reporting: Evolution of Social Responsibility within Company Law Limits?
Authors: Okoye Adaeze
Published: April 2022

This article examines whether the evolution of company narrative reporting based on section 172 UK Companies Act 2006 can be characterised as reflexive law, which preserves the balance between utilitarian company law shareholder value approach and the corporate responsibility demands by society; thereby mediating between semi-autonomous sub-systems of company law and social responsibility.

It discovers an evolving process in company law, which has some indications of reflexive law and governance within self-imposed limits of non-interference in ‘private’ spheres of governance. The result is progressive in scope but incapable of delivering radical normative shift in company law towards stakeholder responsibility.

Company law, company reporting, reflexive law, reflexive governance, social responsibility.
Globalization and the Growth of Islamic Banking: The Authorization Process in Italy
Authors: Gimigliano Gabriela
Published: April 2022

This paper endeavours to ascertain how Islamic banking may operate within the Italian legal system, given that neither the Rome I regulation, and the incorporation approach cannot be applied. There are three main research questions: i) which is the mainstream Western approach to Islamic banking?; ii) if Sharia rules are considered as a system of social rules and Islamic banking is compared to ethical banking or socially responsible banking, to which extent the Italian banking law is applicable to?; iii) can we suggest building up Sharia rules as a system of normative prescriptions?

Globalization, Islamic banking, Sharia, Italian banking law, money, potential capital, usus, legal system, general clauses, lex mercatoria
Ombudsmen and the Development of Public Law
Authors: Bonnor Peter
Published: April 2022

The article is an inquiry into the legal source-function of ombudsmen, i.e. ombudsmen's contribution to the development of public law, and their role as legal reference sources. This legal source-function is potentially one of the most important aspects of ombudsmanship. This is demonstrated through a comparative study of two well-established and sophisticated European ombudsman systems which are very different and which operate in very different legal contexts, those in Denmark and Sweden. The relevance of the issue analyzed here is based on two observations: first, although ombudsmen belong to the European constitutional tradition, there is not yet a common understanding of the ombudsmen's main functions, nor a common pattern of response to their work. Secondly, the issue is very topical due to recent European developments on rules of `good administration', which reached a high point when a right to good administration was included in the EU Charter on Fundamental Rights. The article briefly explores the historical roots of the ombudsmen considered in this article, and explains how internal and external factors have given rise to their legal source-function. Three review fields demonstrate the law-developing function of the ombudsmen: general principles of law, discretionary powers and constitutional principles. The article also analyses the express and actual responses to the ombudsmen's legal source-function by courts, the legal literature and the drafters of preparatory works.
Developments in National Parliaments’ Involvement in Ordinary Foreign Policy and European Policy – Denmark
Authors: Krunke Helle
Published: April 2022

The article examines the development in parliamentary involvement in ordinary foreign policy and European policy in Denmark. It is shown how the interplay between the two areas has contributed to the development. Also, it is shown how the Treaty on a Constitution for Europe reflects the increased significance of the national Parliaments. The development in Denmark is explained partly as a process of demolition of the Prerogative and partly as a process of demolition of the Greek Temple Structure of the European cooperation.
The German Länder in the Process of European Integration between Föderalismusreform and Reform Treaty
Authors: Panara Carlo
Published: April 2022

The recent reform of the German federal system in 2006 and the ongoing reform of the EU both arouse a new interest in the rights of the German Länder in EU decision–making. The article addresses four issues. First, how the transfer of powers of the Länder to the EU takes place. Second, the forms of direct and indirect participation of the Länder in EU decision–making. Third, the judicial defence of the Länder competences at both national and European level against invasions by the European Community (EC).Finally, the fulfilment of EU obligations in the internal sphere. It is submitted that a relevant loss of competences by the Länder is unavoidable in the context of the European integration, whose focus is on the Member States. Such a loss of competences cannot be fully compensated by the participation rights conferred on the Länder. Nonetheless,such participation rights are to be regarded as an essential element in order to remedy the EU democratic deficit and to preserve the federal structure of Germany.
‘Free Speech is not Valued if only Valued Speech is Free’: Connolly, Consistency and some Article 10 Concerns
Authors: Wragg Paul
Published: April 2022

This article suggests that different free speech principles apply in cases involving ‘journalists’ compared to ‘non–journalists’, as in Connolly v. DPP. Strict principles apply when a journalist’s right to speak is threatened because the media exercise a valuable public watchdog role worth protecting even when competing interests exist. When non–journalists speak the same strict principles are absent even though speech of similar public interest may be involved. The justification for allowing interference is that such extreme and unpopular speech is not sufficiently valuable. This distinction, though superficially appealing, is troubling, not least because non–journalists might also act as public watchdog.
The Lisbon Treaty and the Irish Referendum
Authors: Hogan Gerard
Published: April 2022

The defeat of the Lisbon Treaty in the Irish referendum on 12 June 2008 has sent shock waves throughout the European Union (EU). It is still premature to attempt to evaluate the full consequences of this referendum defeat. Whatever the legal and political merits of the Treaty itself, it is clear that Ireland’s standing within the EU has been diminished. Nor, as a matter of political reality, is Ireland in the position of either France or the Netherlands following the defeat of the European Constitution in those jurisdictions in the summer of 2005. For a start, the Lisbon Treaty was a further compromise – even if it did contain much of what had hitherto been in the ill-fated European Constitution – and the appetite for a wearisome further round of institutional reflection on the part of the Member States had diminished further. Just as critically, even if many voters in Ireland were in denial on this point, there is a difference in terms of realpolitik between a negative decision on the part of two key founder Member States on the one hand and a rejection in a small, peripheral country such as Ireland on the other. Again, irrespective of what one thinks of the merits of the Lisbon Treaty, in practical terms, it is hard to see how one small Member State can refuse to ratify a Treaty deemed essential by the other twenty-six Member States, at least without jeopardizing huge reserves of goodwill.

Ireland has, of course, been in this situation before following the first (negative) referendum vote on the Nice Treaty in June 2001. That defeat was highly embarrassing for both the Government and the country. We were the only country to hold a referendum on an innocuous treaty designed to facilitate the accession of new entrants, most of whom had suffered the yoke of communism and Soviet domination. The referendum did not engage the public; the quality of debate was poor and the turnout – 34% – unimpressive. A combination of domestic and EU pressures saw a successful second referendum in the Autumn of 2002. On that occasion, the Government campaign was much better, as was the quality of the political debate. The second referendum passed comfortably with a significantly higher turnout.

So far as the Lisbon referendum was concerned, many were of the view that that turnout would prove to be the key. On this occasion, the turnout at 54% was sufficiently high so as to remove the question of turnout as a factor in the defeat of the referendum. And yet despite an active – if at times uninspiring – campaign on the part of the Government and the main opposition parties, the referendum was defeated by 53% to 47%.
Secularism and the European Court of Human Rights
Authors: Gülalp Haldun
Published: April 2022

This article examines the variety of State-religion relations and the place of Islam in Europe through a critical analysis of the case law of the European Court of Human Rights (ECtHR, or the Court). This examination reveals both the patterns of litigation, hence the diversity in national political cultures, and the dominant normative assumptions about religion and secularism in Europe more generally, which are implicit in the Court’s reasoning. Although the Court grants a ‘margin of appreciation’ to individual states, the margin itself seems to vary according to those implicit normative preferences. The essay argues that although neither the Convention nor the Court prescribes a normative model of secularism or State-religion relations, there still seems to be an implicit pattern whereby the Court prefers some models to others. Historically ingrained cultural assumptions about not only the division between Christianity and Islam but also between Western and Eastern Christianity appear to have played a part in the reasoning of the judges of the ECtHR.
The Ties that Bind: The Environment, the European Convention on Human Rights and the Rule of Law
Authors: Pedersen Ole W.
Published: April 2022

This article examines the link between environmental protection and human rights in a European context, with particular reference to the European Convention on Human Rights (ECHR). It is argued that the jurisprudence of the European Court of Human Rights (ECtHR) on the subject is best understood by reference to the rule of law and that the extension of the Convention to certain environmental issues is less controversial than critics assert. Moreover, this article argues that, on the normative level, environmental protection and human rights share a common base. This article concludes, however, that the use of human rights instruments is unlikely to lead to significant environmental improvements.
A Case for OLAF: The Place and Role of the Anti-fraud Office in the European Union Context
Authors: Kratsas George
Published: April 2022

This article examines the place and role of the European Anti-fraud Office (OLAF) in the context of the European Union (EU). OLAF is tasked with investigating instances of fraud that harm the financial interest of the EU. The author examines key aspects of OLAF's operation and cooperation with other bodies, such as national authorities and EU institutions, in order to identify the deficiencies inherent in OLAF's operational framework. As it is argued, many of the current problems faced by OLAF in the discharge of its functions are due to a lack of reflection as to its precise task and purpose from its early stages of existence and the inadequate coordination between OLAF and other actors in the process of combating fraud. The article concludes by making specific policy suggestions that may optimize OLAF's operation in the future.
The Right to Be Heard in the Charter of Fundamental Rights of the European Union
Authors: Rabinovici Itai
Published: April 2022

The right to be heard is the cornerstone of procedural guarantees for citizens in the administrative procedure. After forty years of case-by-case development by the EU courts, the entry into force of the Treaty of Lisbon, and with it, Article 41(2)(1) of the Charter of Fundamental Rights of the EU (hereinafter 'the Charter'), has introduced into the EU legal system a single binding abstract statement of the right to be heard to be the benchmark for the interpretation and application of the right. This article argues that Article 41(2)(1), more than adding to coherency, runs the risk of adding to the confusion. It is shown that the translation of the Article to the various official languages created in effect two statements of the law with significant differences in the scope of application of the right. This article identifies the formulation that was originally envisaged by the drafters of the Charter but shows that in the years that have passed between its drafting and its entry into force the EU courts have developed further the right to be heard and the law as it stands today cannot be easily settled with the language of Article 41(2)(1).This article concludes by offering an interpretive solution to the problem.
Human Rights and Acts by Troops Abroad: Rights and Jurisdictional Restrictions
Authors: Bjorge Eirik
Published: April 2022

Jurisdiction and immunity have tempered the emergence of human rights and remedies. They are often the first line of defence for authorities when a new area is brought in under judicial review. Government acts abroad, and in particular acts of war and occupation, are perhaps the last frontier. The recent judgments by the Grand Chamber of the European Court of Human Rights in Al-Skeini1and Al-Jedda2 rejected Government claims of lack of jurisdiction and attribution of acts by British soldiers to the UN instead of to the United Kingdom, which would have resulted in an effective immunity for the acts concerned, which included murder, torture, and arbitrary detention. The UK courts applied a restrictive jurisdictional principle with extra-territorial application only in narrowly defined exceptional categories, of which the House of Lords used only one. The European Court, however, enumerated circumstances which go so much further that they no longer constitute exceptions but a return to the principle that the European Convention is fully capable of extra-territorial application. The incremental application of this general principle in a new area brought before the Court in the cases, and the gradual rejection of Government defences that previously had been accepted under special circumstances of the interventions in the former Yugoslavia in the 1990s,3 are not surprising, and the outcome in Al-Skeini and Al-Jedda is difficult to criticize.
German Constitutional Law Cases 20102012
Authors: Berner Katharina
Published: April 2022

This contribution presents case law from the German Federal Constitutional Court (FCC - BVerfG) in the period of 2010-2012 which has been selected for its importance for an international audience. It covers decisions on data retention (section 1), on legal requirements imposed on transsexuals to enter into same-sex partnerships (section 2), on preventive detention (section 3), on the use of a 5% barrier clause for elections to the European Parliament (section 4), on the euro rescue package (section 5) and on the remuneration system for professors (section 6).
Constitutional Dialogue between Courts and Legislatures in the European Union: Prospects and Limits
Authors: Dawson Mark
Published: April 2022

The concept of 'constitutional dialogue' has become a focal point of US and Canadian public law scholarship. This concept sees judicial review not as a check on majority preferences but instead as part of a deliberation between the legislative and judicial branches over how constitutional commitments and general political objectives can be integrated. This article will explore the prospects and limits of developing the dialogue concept in the context of the present-day European Union (EU). The article will present a two-part argument: While the EU's political and legal diversity make the idea of a 'shared responsibility' for constitutional interpretation between judges and policy-makers normatively attractive, the existing institutional structure of the Union limits the incentives necessary for legal and political actors to constitutionally engage.
A General Law on Administrative Procedure, Legislative Competence and Judicial Competence
Authors: Craig Paul
Published: April 2022

The desirability having a general law on administrative procedure has been debated in the past and has now come back on the agenda, in part at least because of support from the Committee on Legal Affairs of the European Parliament. If such a law, or something equivalent thereto, is developed there will be a range of issues to address concerning its scope and content. This article considers the rationale for such an instrument, and the type of subject matter that might be included. The principal focus is however on the logically prior issue as to the competence to enact such an instrument. This was questioned in the pre-Lisbon world, and question marks remain post-Lisbon. It will be seen moreover that resolution of this question raises interesting and important issues concerning the relationship between legislative and judicial competence within the EU.
Europeanization of Legal Principles? The Influence of the CJEUS Case Law on the Principle of Legitimate Expectations in the Netherlands and the United Kingdom
Authors: Boymans Philippe
Published: April 2022

Europeanization, from a legal point of view, denotes the process by which national rules and structures are influenced by EU law and case law. Administrative law is a crucial field of law affected by the EU. The general principles of administrative law, developed in all Member States to safeguard the adherence to the rule of law by the government, are no exception to this. By examining the principle of legitimate expectations in two Member States, namely the Netherlands and the United Kingdom, this article reviews to what extent national legal principles have been influenced by the case law of the CJEU and whether the Court's interpretation is reflected in the corresponding national legal principles. This assessment is compared to the principle of legitimate expectations as developed by the CJEU, after which the influence of the Court on the possible (dis)similarities is discussed. In the second part, this paper reflects on the theory of legal autonomy and its portrayal of the Court as an integration actor, and its relation to the influence of the CJEU on the interpretation of legal principles.
One Ombudsman (EU) or Many (UK)? Interpreting the Singularity of Actors in the EU
Authors: Vogiatzis Nikos
Published: April 2022

This paper aims at explaining a paradox. At the European Union (EU) level, a vast entity often characterized by diversity and multilevel governance, one Ombudsman operates, based in Strasbourg. On the contrary, in certain EU Member States, including the UK, which will serve as a case-study here, a plethora of ombudsmen has emerged, an 'ombudsmania' according to some scholars, which extends to the private sector. It will be argued that this asymmetry may be explained if we compare the constitutional priorities further to which the Ombudsman (or the Ombudsmen) was (were) created in the respective polities. The paper finds that in Europe, the Ombudsman and his/her maladministration control was mainly activated to bring the citizens closer to the EU and to bridge the democratic gap; in this context, the role of the Ombudsman cannot be dissociated from the strengthening of the European demos. In the UK, the goal was to increase efficiency in administration by addressing maladministration; this has been achieved via a variety of ombudsmen, frequently operating under an explicitly defined mandate, offering specialized knowledge and expertise. The singularity or plurality of actors may be seen as corresponding to two different ombudsman 'models' in a given polity. Finally, the creation of the European Ombudsman in accordance with the abovementioned constitutional priority could serve as further evidence of the particularity of the polity when compared to international organizations.
The Implementation of the Aarhus Convention in Spain: Progresses and Paradoxes
Authors: González Jorge Agudo
Published: April 2022

Spanish Administrative Law has evolved under foreign influences and, in contrast with those States with a strong tradition of Administrative Law, Spanish Law is in a better position to receive further influences due to its own idiosyncrasy. The implementation of the Aarhus Convention (AC) is clearly a further example of new inputs, but in this case from international/European Law. This Article will focus on the three pillars of the AC making contrast between the pre- and the post-implementation phase, trying to emphasize progresses and paradoxical steps backward.

The principles underlying the Spanish legal order concerning the three pillars of the AC have a different depth in the Spanish legal system. Access to information has traditionally been limited to a defensive perspective related to the audit alteram partem principle and progress is evidently related to a top-down influence.

Regarding participation, there exists an old tradition not only linked to the right to be heard, but to public participation in and of itself. Finally, with regard to access to justice, the Spanish legal order underwent major development after the Constitution of 1978 was enacted. A broad legal standing had been recognized by case law before the new Administrative Justice of 1998 was passed.
Basic Structures of Information Management in the European Administrative Union
Authors: Schneider Jens-Peter
Published: April 2022

The legal analysis of information management in European administrative procedures is still at an early stage. Comparative legal analyses of standard problems of national as well as EU administrative law are needed. Examples are the allocation of responsibilities between public authorities and private parties for the establishing of facts in (investigatory or adversarial) administrative procedures. Equally important are problems of information management which transcends vertical or horizontal boundaries in the European multi-level and transnational administrative space. Therefore, more classic methods of information sharing (mutual assistance) as well as more integrated European information networks (shared databases) should attract the attention of scholars of European administrative law.
Turkey in the Last Two Decades: From Democratization to Authoritarianism
Authors: Yazici Serap
Published: April 2022

The last report on Turkey written by Professor Esin Örücü analysed the 2010 constitutional amendments. These reforms were perhaps the last step in Turkey’s democratization process that had been going on for a long time, sometimes with determination, sometimes with hesitant steps, with the aim of harmonizing its political system with European values. Even though all political parties promised a new constitution on the eve of the 2011 general parliamentary elections, this attempt was not successful. But the principal events that destroyed the hopes of democratization were the Gezi Park protests in May-June 2013, and the major corruption allegations that were publicized on 17/25 December. The Gezi Park events were the scene of disproportionate use of the police force under the orders of the government. The corruption charges led the government to establish its control over the judiciary and the security forces in violation of the principles of the rule of law. Such violations were also observed in the process of presidential election that took place in 10 August 2014.These practices, before and after the election, were in violation not only of the constitution in force, but also of the European Convention of Human Rights and the rulings of the European Court of Human Rights. In the process, many critical journalists and academics lost their jobs. Thus, a drift toward authoritarianism was observed starting with the elections of 2011.
The Unique Case of Turkey: The European Unions Method in the Quest of Fundamental Rights
Authors: Costanzo Caterina Di
Published: April 2022

Analysis of Turkey-EU relations shows a unique point of view that deepens the understanding of some internal and external dynamics of the EU integration process. The fundamental questions the author will try to answer in this article are: what is the state of relations between the EU and Turkey? What are the main achievements of this long lasting relationship? During the half century of relations, a particular pattern of behaviour emerges with regard to how the EU interacts with Turkey. After an overview of the fundamental milestones in the Turkey-EU relations, this article analyses the specific forms of progressive implementation used during the Turkish EU accession process. This perspective allows us to shed lights on the peculiarity of the Turkish case in respect to other accession processes. The hypothesis of this article is that, within the context of relations between Turkey and the EU, the implementation of a specific EU approach, developed within the internal integration process, is traceable.
European Union Bailouts and Credibility: The Constitutional Dimension
Authors: Estella Antonio
Published: April 2022

Since the Great Recession started, there have been eight bailouts to European Union (EU) Member States, which cost the EU around EUR 380 billion. The aim of this article is to analyse the legal-constitutional issues that this major bailing out operation has brought about. The conclusion is that the EU was not only ill-prepared from an economic perspective to make bailouts; it was also ill-prepared from a constitutional perspective, above all if one understands law, as this article does, as a credibility device. Absent further reforms and clarifications, the current EU system of bailout governance may be prone to generate important credibility problems in the future.
Administrative Transparency in Portugal
Authors: de Freitas Tiago Fidalgo
Published: April 2022

The Portuguese legal order foresees a broad duty to disclose instrumental and non-instrumental administrative information, i.e. both information related to ongoing administrative procedures and information that should be made available to all citizens. After a short investigation to determine the underlying constitutional values of (the right to) administrative transparency, this article scrutinizes the regime of access to administrative information in Portugal. Apart from its objective and personal scopes, determining its bearers and its addressees, this paper focuses on both the administrative procedure, on the one hand, and administrative and judicial guarantees, on the other.
The Abyss of Complexity: Some Remarks on European and German Law in the Migration Crisis
Authors: Sölter Nicolas
Published: April 2022

This article focusses on dysfunctions of European and German law in the face of mass migration. In particular, it reflects the German debate on the relation of domestic constitutional provisions and EU asylum law. Special attention is paid to the domestic separation of powers and tensions for federalism.
Fundamental Animal Rights in European Law
Authors: Driessen Bart
Published: April 2022

Law is fundamentally anthropocentric. However, the philosophical and scientific assumptions underpinning this assume that animals lack any capacity for moral choices, identity or even sentience. In Europe there is a considerable body of animal welfare law, but the current standards of animal welfare legislation do not bridge the gap between those assumptions and scientific reality. This article explores the philosophical concepts underlying the status of animals in law in Europe and the United States and compares them to current biological science. The conclusion is drawn that there is a discrepancy between the assumptions underlying legal systems and recent biological findings. The article suggests that a modern legal approach to the relationship between man and sentient animals should depart from the idea that animals have certain fundamental rights. It then proposes an approach to fundamental rights for animals in Europe and argues why such an approach has to be treaty based.
A Hard Core Under the Soft Shell: How Binding Is Union Soft Law for Member States?
Authors: Láncos Petra Lea
Published: April 2022

With the proliferation of European Union soft law instruments (Oana Andreea Ştefan, European Union Soft Law: New Developments Concerning the Divide Between Legally Binding Force and Legal Effects, 75(5) Modern L. Rev., 879, 879 (2012).) since the nineties, the legal bindingness of these measures has been the subject of several studies, (Most prominently, Gustaaf M. Borchardt & Karel C. Wellens, Soft Law in European Community Law 14(5) Eur. L. Rev. (1989); Linda Senden, Soft Law in European Community Law (Hart 2004); Linda Senden, Soft Law and Its Implications for Institutional Balance in the EC, 1(2) Utrecht L. Rev.(2005); Jürgen Schwarze, Soft Law im Recht der Europäischen Union,1 EuR (2011); Anne Peters, Soft Law as a New Mode of Governance, in The Dynamics of Change in EU Governance, 21–51 (Udo Diedrichs, Wulf Reiners & Wolfgang Wessels eds, Edward Elgar 2011); Oana Andreea Ştefan, Soft Law and the Enforcement of EU Law, in The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (András Jakab & Dimitry Kochenov eds, Oxford University Press 2016).) indeed, various approaches (rationalist, constructivist, hybridity) (David M. Trubek, Patrick Cottrell & Mark Nance, ‘Soft Law’,‘Hard Law’, and European Integration: Toward a Theory of Hybridity, 02(05) Jean Monnet Working Paper (2005); Oana Andreea Ştefan, Hybridity Before the Court: A Hard Look at Soft Law in the EU Competition and State Aid Case Law, 37(1) Eur. L. Rev. 49–69 (2012).) have been deployed to define and delimit soft law from hard law, even arriving at a sophisticated taxonomy of soft and hard measures. (Fabien Terpan, Soft Law in the European Union – The Changing Nature of EU Law. Working Paper Nr. 7 Sciences Po Grenoble (Nov. 2013); Anne Peters, Typology, utility and Legitimacy of European Soft Law, in Die Herausforderung von Grenzen. Festschrift für Roland Bieber, 405–428 (Astrid Epiney, Marcel Haag & Andreas Heinemann eds., Nomos 2007); Peter Christian Müller Graf, Das Soft Law der Europäischen Organisationen: Einführung, in Das soft law der europäischen Organisationen, 146–154 (Julia Iliopoulos-Strangas & Jean-Francois Flauss eds., Nomos 2012).) While these inquiries are of fundamental importance to formulate an ontology of European soft law, national courts and authorities implementing and applying soft law are faced with the more practical problem of the bindingness of these measures in a given case. Member States are often at a loss for which measures they are expected to apply and may ʻunexpectedlyʼ find themselves bound by certain soft law measures. Since the jurisprudence of the Court of Justice of the European Union sheds some light on the legal obligations ensuing from the different types of European soft law, the present article is an attempt to categorize and determine the bindingness of such measures for national courts and authorities based on the relevant case-law of the Court.
Judicial Independence & National Judges in the Recent Case Law of the Court of Justice
Authors: Zinonos Panagiotis
Published: April 2022

Judicial independence did not only become more visible in the recent case law of the Court of justice but has also been analysed as a systemic parameter of the Union. This article discusses a sample of three cases, Associação Sindical dos Juízes Portugueses, Achmea, and L.M., to assess the notion of judicial independence as applying regarding the national judges in the judicial system of the Union. Judicial independence, as a notion of EU law, is primarily a constitutional requirement presumably deferent to Member States’ standards and pursuing the proper functioning of the Union’s judicial system, namely its effectiveness. However, the recent case law testifies the emergence of a common EU standard of judicial independence, which does not only apply as a minimum standard throughout the Union but also affects the national legal orders. Ultimately, the analyses of the paper point out a curious harmony regarding judicial independence between the principles of effectiveness of Union law and of effective judicial protection under that law without clarifying their articulation.

Judicial Independence, Effective Judicial Protection, Rule of law, Structural Requirement, effectiveness, common standard, Judicial System of the Union, Constitutionalization of the EU.
Interoperable Information Sharing and the Five Novel Frontiers of EU Governance: A Special Issue
Authors: Curtin Deirdre M. , Bastos Filipe Brito
Published: April 2022

Information exchanges between authorities located at different levels of administration, and in different Member States, have always constituted a central feature of European Union governance. Nevertheless, the increasingly pervasive phenomenon of interoperable information-sharing, where information systems pertaining to different policy fields are joined up to facilitate exchanges of (personal) data, generates new structural challenges to the European Union from a political, legal, and indeed constitutional perspective.

In this introduction, besides offering a brief overview of the contributions to the special issue, we argue that interoperability shifts the frontiers of EU governance in at least five distinct respects. It shifts existing boundaries in the divisions of power within the EU; in the reach of its data protection laws; in the tensions between the EU’s commitment to fundamental rights and the principle of mutual trust between the Member States; in the relations between EU, third state, and international authorities; and lastly, between the technicalities of information technologies and critical ethical and constitutional imperatives.

interoperability, information-sharing, European administrative governance, data protection, accountability