bluuebunny/crossref_metadata_2025 huggingface dataset:
Open Banking: Gordian Legal Knots in the Uncomfortable Cohabitation between the PSD2 and the GDPR
Authors: Ferretti Federico
Published: May 2022

This work analyses problems in the legal framework of Open Banking enabled by the Payment Services Directive 2 (PSD2). It goes through the role of EU law in the regulation of payment services up to their transition towards digitalization and fintech, to show the scale of the changes brought by the PSD2 in a territory unfamiliar to traditional banking. The resulting conflation between banking and the data economy reveal a brand-new market. The normative intersection between the PSD2 and the General Data Protection Regulation (GDPR) expose not only poor coordination but also a growing entanglement of legal knots. The legal inconsistencies, loopholes, and interpretative difficulties are examined to expose operational risks beyond difficulties of legal technicism. A rethinking, or at least a correction, of the European regime of Open Banking is necessary to reconcile the needs of an emerging market and the protection of its users.
The Effects of Post-Brexit Insolvencies in Belgium, Germany and the Netherlands
Authors: Castin Louise
Published: May 2022

The one principle that is central to EU legislation on private international law, is that of mutual trust. States leaving the Union also leave that realm of mutual trust. That was the fate of the United Kingdom, as it officially left the union on 31 January 2020. UK Cross-border insolvency procedures started after the ending of the transition period on 31 December 2020 do not benefit from that principle anymore. The effect of these procedures in the different EU Member States is regulated by their own residual national framework. This article seeks to compare the recognition and execution frameworks of Belgium, Germany and the Netherlands. The question is raised whether further harmonization is needed.
Do the Minority Shareholders of Russian Corporations Need More Protection?
Authors: Mukhamedkarim Zhibek
Published: May 2022

Russian corporate governance has traditionally been viewed as lacking in contrast to that of Western states. The major concern has been controlling shareholders’ expropriation of minority shareholders, especially in the setting of state-owned enterprises (SOEs). However, in recent years, the law and court treatment of minorities’ rights have taken a positive turn, drawing more investors to joint-stock companies (JSC), the Russian equivalent of US corporations. This article examines whether such developments sufficiently protect minority shareholders’ interests in the areas of (1) access to information, (2) controlling shareholder transactions, (3) takeovers by a controlling shareholder, and (4) dividend distributions. This article examines the formation and current state of the law and court practice in these areas, and proposes legislative reform, where appropriate. The article concludes that, although there is room for improvement, the law and the courts generally afford sufficient protections to minority investors, but the key factor that may boost the quality of corporate governance is minority shareholders’ active participation in corporate affairs, especially in the general meetings of shareholders.

corporate governance, minority shareholder protection, Russian corporate law
Codes and Model Laws: A EU-US Comparison of Their Role in Shaping Company Law
Authors: Papadima Raluca
Published: May 2022

This article analyses the particular role played by soft law instruments (such as codes of corporate governance, codes of conduct, model law and other non-binding instruments) in sharping the legal framework applicable to European and American companies. It concludes that soft law is a very popular and successful girl nowadays, for legitimate reasons, but one that brings about a series of concerns as well. This article finds that soft law instruments upset the traditional hierarchy of sources of law and the distinction between civil law and common law countries. It also observes that soft law converges, and, in turn, provokes further convergence of the legal framework. Finally, it exemplifies (and criticizes) instances of transformation of soft law into hard law, accompanied by a general phenomenon of hardening of the legal framework, including because instruments sometimes labelled ‘soft law’ are in reality closer in effect to hard law.

soft law, company law, corporate governance codes, codes of conduct, directives, regulations, recommendations, green papers, comply or explain, EMCA, MBCA, ALI Principles
Hello Platform Governance; But Never Ending Corporate Governance
Authors: (John) Cai Qiang
Published: May 2022

Revolutionary and beneficial as it may be, the ever-increasing platform innovation effectuates regulatory issues that constitute a focal concern of the literature on platform governance. This article discusses, for the first time, the instrumental role of corporate governance in underpinning platform governance. Specifically, a stakeholder perspective provides a catalyst for the chemical combination of platform governance and corporate governance. While the stakeholder theory is not without criticism, the characteristics of online platforms lend extra support to the theory in the platform context. The article identifies several major mechanisms for channelling platform governance through corporate governance, i.e., board representation in an information capacity; independent directors; and stakeholder committees. In contrast, an economic analysis suggests that board representation in a voting capacity is not appropriate for the purpose of platform governance. As an ‘obiter dictum’, this article also challenges a position that corporate governance, which arose from traditional industrial capitalism, may impede platform innovation, which falls within the paradigm of the modern economy. It is demonstrated that corporate governance even in this traditional, shareholder-oriented formation provides an institutional framework that is conducive to entrepreneurship and innovation. Therefore, the new era of the platform economy highlights, rather than negates, the significance of corporate governance.

Platform governance, online platform, corporate governance, stakeholder theory, shareholder primacy
Corporate Restructuring Versus Financial Resolution: Benchmarks for the Lawful Treatment of Creditors and Shareholders
Authors: Psaroudakis Georgios
Published: May 2022

The paper explores the degree to which the recent European law of corporate restructuring may influence distributional decisions in financial resolution. Two fundamental issues arise: the minimum standard of protection for creditors and shareholders, and their treatment beyond this minimum standard.As to the first issue, the minimum distribution to these parties is based on their hypothetical treatment in a counterfactual. It is examined whether the liquidationbased counterfactual in resolution may be influenced by the concept of “next-bestalternative” in corporate restructuring.As to the second issue, while financial resolution allocates losses using a rather strict waterfall, corporate restructuring law may accommodate some broader flexibility, in particular if the novel relative priority rule is adopted. This degree of flexibility does not apply to financial resolution. But a certain parallel could be drawn between discretionary exclusions from bail-in in the BRRD and ad hoc derogations from priority rules in corporate restructuring.

Bank resolution, bail-in, insolvency law, corporate restructuring, Directive 2019/1023/ EU, no creditor worse off, best interest of creditors, absolute priority rule, relative priority rule, standard of proof
Beneficial Ownership Transparency: The Viability of Global Implementation of G20 High-Level Principles
Authors: Bagheri Mahmood , Zhou Jia
Published: May 2022

The concept of beneficial ownership originally came from dual ownership regime which allows the division of legal and beneficial ownership, serving good economic functions, i.e. protection of family property and personal privacy. However, as dual ownership structures, e.g. trust, have been abused to such an extent that the transparency now outweighs the economic values of dual ownership, at least for most developed economies of the world. The G20 High-Level Principles on Beneficial Ownership Transparency thus came into being, pushing forward an agenda for changing the law globally to make the identities of the beneficial owners transparent, with a broader term of beneficial ownership than its original use in trust law. In this paper, we argue that these Principles, made by and serving the interests of small exclusive group of developed countries, could not be applied universally as the rule-takers, i.e. developing countries, do not share the same concern as the developed world and are unwilling to counter a problem they did not consider as a priority. Under the pressure of robust review mechanisms and name-and-shame strategy deployed by FATF and relevant international financial bodies, the rule-takers are forced to make relevant changes, but the changes will just be artificial and superficial to bypass the Principles prescribed and recommended by the rule makers who are not themselves taking a serious step to implement them.

Legal and beneficial ownership, money laundering, transparency, G20, developed and developing economies, divergence of priorities.
Government Responses on Corona and Contracts in Europe: A Compilation of Extraordinary Measures in Times of Crisis
Authors: Jentsch Valentin
Published: May 2022

In March 2020, the new coronavirus (Covid-19) outbreak, which was eventually declared a pandemic by the World Health Organization, changed everyday life all over Europe from one day to another. Under those extraordinary circumstances, a wide range of issues concerning the law of contracts are becoming particularly important. In the early stages of the pandemic, during lockdowns and a subsequent reopening of the economy, many European countries have implemented significant and unprecedented measures in response to the current crisis. Against this backdrop, the more fundamental question arises whether and to what extent we need an extraordinary law of contracts in times of pandemic. Drawing on five important civil law jurisdictions (Germany, Austria, Switzerland, France, Italy), the paper provides for an analysis and discussion of various extraordinary measures taken by European governments and puts these measures into perspective. A functional and comparative approach is used to elaborate on how contract law should respond to the current crisis.

Coronavirus (Covid-19) pandemic, commercial contracts, consumer contracts, employment contracts, lease contracts
The Emergence of ‘Comply or Explain’ as a Global Model for Corporate Governance Codes
Authors: Macneil Iain , Esser Irene-Marié
Published: May 2022

The introduction of the Cadbury Code in the UK in the early 1990s marked an important turning point in the evolution of corporate governance around the world. The ‘comply or explain’ approach pioneered by the Cadbury Code prioritised flexibility and the role of market discipline in its approach. While those characteristics can be linked to earlier trends in the evolution of corporate governance in the UK, it is more difficult to explain why the Cadbury Code has exerted so much influence over systems which differ from the UK in their approach and evolution. In this article we focus on the extent to which the ‘comply or explain’ approach has been adopted in other countries and attempt to explain why this has occurred. We propose three explanations for the diffusion of ‘comply or explain’ codes around the world and undertake qualitative and quantitative (leximetric) analysis to test these propositions.

Corporate governance, codes, ‘comply or explain’, listed companies, disclosure, transplantation
The Euro @20: Lessons for the Next Generation of Virtual Currencies
Authors: Chiu Yen-Lin Agnes
Published: May 2022

The euro is for many reasons a remarkable legal tender. Even though formally introduced only in 1999, it soon became the second most important currency after the US Dollar in the international monetary system. The 20th anniversary of the euro offers an ideal occasion to reflect on decisive factors underlying its successes and failures. Employing a combined approach that links aspired reforms of the Economic and Monetary Union with novel topics arising from financial technology, this article derives important lessons for the next generation of virtual currencies and furthermore proposes a set of guiding principles for modern regulation and supervision. As a result, the study contributes to safeguarding the financial order in a global and dynamic environment.

EU law, euro, virtual currency, crypto-asset, digital currency, legal tender, money, payment system, Economic and Monetary Union (EMU), European Central Bank (ECB), regulation and supervision, international standards, financial crisis, risk management, financial technology (fintech), Distributed Ledger Technology (DLT)
Controlling Tunnelling through Lending Arrangements: The Disciplining Effect of Lending Arrangements on Value-Diversion, Its Limits and Implications
Authors: Gözlügöl Alperen Afşin
Published: May 2022

The practices of corporate controllers to divert company value to themselves at the expense of (minority) shareholders and creditors (tunnelling) present a continuing challenge for lawmakers to address. While there is a variety of ways to control selfdealing in public companies, one less studied and appreciated lever against valuediversion is the role of lenders of such companies. This article examines the lending arrangements and common contractual provisions (undertakings, (non-)financial covenants, restrictions), and argues that such arrangements have considerable potential to monitor, deter and restrain value-diversion via self-dealing in the debtor companies. Likely limits to such a potential, and various important factors are also examined. The study concludes with possible implications of such findings.

Tunnelling, self-dealing, related party transactions, value-diversion, creditor protection, lending arrangements, covenants, debtor companies, lenders, creditor discipline
The Role and Potential of Blockchain Technology in Islamic Finance
Authors: Truby Jon , Dahdal Andrew , Ismailov Otabek
Published: May 2022

Blockchain is the underlying technology upon which cryptocurrencies such as bitcoin are built. Cryptocurrencies have received significant attention in recent years. This focus has obscured the real technical innovation in data storage and retention – that of the so-called ‘blockchain’ digital architecture. Blockchain – also known as ‘distributed ledger technology’ (DLT) – has the potential to change much more than the realm of conventional financial services. The ability to transfer, store and record non-fungible bits of information is an important technical accomplishment that brings the economic dynamics of supply and demand to the digital sphere. This article examines how DLT is (and may in the future) influence the world of Islamic finance. We argue that blockchain has the ability to mediate and harmonise differing shariacompliance regimes thus opening up a single digital market for Islamic financial products and services.

Fintech, Blockchain, Distributed Ledger Technology, Islamic Finance, Shariah-compliance, Cryptocurrency, Bitcoin, OneGram, Financial inclusion, Sustainable Development Goals (SDG).
Regulation of Algorithmic Trading: Frameworks or Human Supervision and Direct Market Interventions
Authors: Lee Joseph , Schu Lukas
Published: May 2022

This paper identifies the regulatory gaps that currently exist in algorithmic trading and provides a framework for machine learning regulation in finance. It compares the regulation of algorithmic trading in the capital markets by both human supervision and direct market intervention in the UK, the EU and the US to identify techniques they have in common, as well as local differences. Section II sets out what algorithmic trading is, how it is defined, which of its functions have a positive effect and which are negative for risk and impact. Section III examines how trading risks can be managed by human supervision. Section IV looks at how direct market intervention can mitigate the risks of algorithmic trading, focusing on the circuit breaker requirement. Finally, the liability of the parties involved (traders, firms, and trading venues) are examined and the possible enforcement actions that regulators may take are set out.

Algorithms, high frequency trading, machine learning, financial regulation, MIFIDII, ESMA, FCA, SEC, circuit breaker, systemic risk
The ESM Pandemic Crisis Support Facility: A Changing Conditionality?
Authors: Megliani Mauro
Published: May 2022

Since late 2019, the globe has progressively been affected by a pandemic caused by a new virus named Covid-19. To face the economic and social effects of this crisis, the European Union has predisposed a plan hinged on four pillars. The Support to mitigate Unemployment Risks in an Emergency to provide financial assistance for work and jobs. A fund established by the European Investment Bank in favour of small and medium enterprises. A Recovery Fund to stimulate and support European recovery. A Pandemic Crisis Support facility under which the European Stability Mechanism may provide resources without macroeconomic conditionality in favour of direct and indirect healthcare, cure and prevention related to the Covid-19 crisis. With specific reference to this facility, the absence of macroeconomic conditionality questions its compatibility with the ESM and EU Treaties. This problem could have been cured in the amending process of the ESM Treaty. Unfortunately, it was not so and the solution must be sought elsewhere. This may be done by interpreting the no bail-out rule, holding that the no bail-out rule is suspended or finding that the no bailout rule is satisfied by the national recovery and resilience plans. Alternatively, the facility could have been placed under different umbrellas. However, the exceptional features of the facility are not replicable in the ESM context.

ESM, Conditionality, Pandemic Crisis Support facility, Covid-19 Related Healthcare, Justifications
The Languages of Contract: A Comparative Law Perspective with a Focus on the CISG
Authors: Brutti Nicola
Published: May 2022

In nowaday’s international trade, the contracting parties often come from a different linguistic background. As a consequence, the use of foreign languages in contractual relationships raises many issues the implications of which are often underestimated. They are thereby analysed in a comparative law perspective and with reference to the CISG experience.Before invoking consent defects and invalidity, a central role must be devoted to the interpretation of contract. In particular, we have to mention the following criteria: the principle of good faith/fairness, the binding effects of agreed usages and established practice, the promotion of uniform languages and neutral terminologies with specific reference to business contracts. In the first Section, I briefly introduce the debate on language risk in contractual communication, discussing the implications of language barriers for the validity of the contract. Then, I outline the problem of legal constraints protecting offical languages that may significantly impact the choice of a foreign idiom in contractual relationships. The call for language uniformity in the international commercial framework and the prominent role of English, as a ‘lingua franca’, are also discussed. The last Section is devoted to the use of clauses aimed at preventing language inconsistencies in international contracts. Then I deepen the CISG experience by approaching the following key points: formation of contract, incorporation of standard terms, applicable law and foreign terms, non-conformity of the goods.

Language, Contract, Validity, Interpretation, Official Languages, Sales of Goods, Good Faith, Lingua Franca, Legal English, Controlling Language Clauses
Comment: The Law on Succession for Sole Proprietors in Austria, Poland and Switzerland
Authors: Wrzecionek Rafał
Published: May 2022

The death of a business owner leads to significant implications in business run by such person. The article presents the most important mechanisms aimed at smooth succession of one-person businesses in the Republic of Austria, the Swiss Confederation, and the Republic of Poland. They include appointment of a proxy and power of attorney, which do not expire as a result of death of businessman (principal) and regulations permitting business continuity after the death of a business owner (by the decision of his legal successors), who during his life did not take advantage of legal mechanisms ensuring business continuity after his death.The article focuses on the diversity and attractiveness of these regulations. Despite the fact that the regulations do not eliminate problems in handing over the business to a successor, they have a positive impact on the business succession issues. When granting a power of attorney (or appointment of a proxy), which can constitute a tool ensuring business continuity in Austria or Switzerland immediately after the death of its owner, requires activity of principal-businessman running a specific business activity, the right to continue business activity (continuity) after the deceased business owner who is a natural person is a possibility, which – despite the lack of business owner’s activity to grant such authorization – can be used by his successors.
The Bumpy Reform of EU Interest Rates and the Rule of Law
Authors: Sedano Varo Elena
Published: May 2022

This contribution estimates the legal risk of contract discontinuity posed by the transition to new interest rates benchmarks through a comparative study of four national doctrines of force majeure and contract frustration. A pluralistic landscape emerges. Whereas discharge is likely in the United Kingdom, the chances of discontinuity become rather remote in Italy. A middle way solution is found in France or Spain. The lack of harmonization stems from the separation between EU governance, which is regulatory in nature and whose aim is to remove barriers to trade within the internal market, and the traditional legal systems of Member States. Such dichotomy results in an unjustified distinction among market players depending on the jurisdiction they operate on, amounting to a contravention of the principle of generality, a key pillar of the rule of law. This article contends that the EU legislator should pass a legislative provision to ensure a smooth and just transition to new interest rates benchmarks.

Force majeure, contract frustration, interest rates, €STR, comparative private laws, internal market, rule of law, principle of generality, law and finance, free markets
Digital Finance and Beyond in the Third Decade of the 21st Century - Observations with a Focus on the EU Policy and Legal Perspective
Authors: Deipenbrock Gudula
Published: May 2022

The paper explores critically Digital Finance in the third decade of the 21st century. Focus lies on the more general policy and legal approach to Digital Finance at EU level. The paper argues that any legal, regulatory and supervisory approach to Digital Finance has to contemplate also the broader digital transition scenario. It concludes that managing the difficult balancing act between promoting digital innovation for the good of the economy, the society of the European Union and its Member States and tackling its (high) risks appears to be one of the biggest challenges for the coming years.

Fintech, financial technology, Digital Finance, financial regulation, financial supervision, digital transformation, EU Digital Finance Strategy, 2030 Digital Compass, artificial intelligence, twin green and digital transitions
Reconciling Lopsided Mandates, Secondary Objectives and the Importance of Sustainability: The Role of the European Central Bank in the Single Supervisory Mechanism
Authors: Alexander Kern
Published: May 2022

The article analyses the institutional and legal framework governing the ECB’s monetary policy competence to promote price stability alongside its banking supervisory objectives as set forth under the Single Supervisory Mechanism Regulation. The article argues that the ECB’s primary mandate to promote price stability in the EU Treaty creates an imbalance in its institutional competence to pursue other secondary objectives referred to in the Treaty and in EU legislation. It is further argued that this so-called lop-sided mandate in favour of the price stability objective may undermine its effectiveness in pursuing other objectives, such as banking sector stability, climate change mitigation and in addressing other emerging financial risks. The article proposes some modifications to the current separation of competences within the ECB in order to achieve more institutional balance so that its objectives can be more effectively carried out.

Banking Union, Single Supervisory Mechanism, European Central Bank, banking supervision, price stability, secondary objectives, monetary policy, economic policy, sustainability, regulation
The Challenge of Regulatory Complexity
Authors: Horsch Andreas , Kleinow Jacob
Published: May 2022

Financial markets and firms are regulated based on extensive and detailed rulebooks, which numerous organizations enforce. Not only financial regulation but equally its complexity requires justification increasingly. This article addresses the phenomenon of regulatory complexity from an economic perspective. To this end, it revisits the concept of regulatory institutions and explains their increasing complexity. The focus is on European banking regulation. The paper stresses the role of economic and legal research in tackling the complexity of relevant regulation.

Theory of regulation, (regulatory) complexity, institutional change, EU banking regulation
Equivalence Decisions in the EU and UK Financial Services Sectors Post-Brexit
Authors: Nästega°rd Emil
Published: May 2022

Financial services are largely left out of the EU-UK Trade and Cooperation Agreement that was reached at the end of December 2020. The issue of cross-border market access for financial services firms based in the EU and in the UK could be resolved by the adoption of mutual equivalence decisions. The UK made a number of equivalence decisions pre-Brexit to allow EU-based financial services firms access to the UK market. The EU has not reciprocated. Consequently, UK-based financial services firms have moved business into the EU to maintain client access. The article discusses advantages and disadvantages of the EU and the UK’s different strategies as regards market access and whether equivalence decisions in the area of financial services can be used to build up a trustful relationship between the EU and the UK post-Brexit.

Equivalence decisions, Brexit, pre-Brexit regulation, post-Brexit regulation, financial services regulation, Joint UK-EU Financial Regulatory Forum, market efficiency, market relocation, Singapore-on-Thames, systemic risks
Judgment of the German Federal Constitutional Court (2 BvR 859/15) on the Public Sector Purchase Programme of the ECB: An Interdisciplinary Analysis
Authors: Herzog Bodo
Published: May 2022

On 5 May 2020, the Federal Constitutional Court of Germany announced in a momentous ruling that the Public Sector Purchase Programme (PSPP) of the European Central Bank (ECB) exceeds European Union (EU) competences. This decision initiated a lively debate in law and economics all over Europe. This article provides a unique interdisciplinary reading of the ruling in order to clarify the line of argument. Considering a cross-disciplinary view enlightens the understanding of the historic judgment.

Ultra-Vires, European Court of Justice, German Federal Constitutional Court, Public Sector Purchase Programme, European Central Bank, Monetary vs. Economic Policy, Economic and Monetary Union
The Quiet Architect Finds its Voice: The Primacy of the Law of the European Union after Press Release No 58/20 of the Court of Justice of the European Union
Authors: Puig Gonzalo Villalta , Vergara María Ezquerro
Published: May 2022

The principle of the primacy of the law of the European Union (EU) establishes that, where the law of the EU conflicts with the laws of its Member States (MSs), the law of the EU takes precedence over the laws of the MSs. This article evaluates the doctrinal status of the principle of primacy in response to the press release of the Court of Justice of the European Union (European Court of Justice (ECJ)) on the judgment of Germany’s Federal Constitutional Court of 5 May 2020, which breached the principle. It argues that respect of the absolute and exclusive, final jurisdiction of the ECJ under Article 267 of the Treaty on the Functioning of the European Union (TFEU) is – to quote from the press release – ‘the only way of ensuring’ the supremacy of EU law and also the direct effect and equality of EU law.

European Union, Court of Justice of the European Union/European Court of Justice, European Union Law, Primacy/Supremacy, Direct Effect, Equality
Revisiting the Ruiz Zambrano Doctrine and Exploring the Potential for Its Extensive Application
Authors: Ferri Delia , Martinico Giuseppe
Published: May 2022

With the tenth anniversary of the seminal Ruiz Zambrano judgment looming, there is scantly a better time to reassess its legacy and reflect on how its doctrine can be brought forward to foster the protection of fundamental rights in the European Union (EU). This article looks back at the reasons that make this decision a landmark in EU law, and discusses the potential for an expansive reading of the Ruiz Zambrano doctrine. It analyses to what extent the doctrine’s scope can be extended to subjects other than minors within the specific context of derived residence rights for third country nationals. On the whole, this article argues in favour of the expansive application of this doctrine by looking at a case study: that of persons with disabilities. In testing the potential application of the Ruiz Zambrano doctrine to protect the genuine enjoyment of rights that the status of EU citizens confers upon persons with disabilities, the article problematizes the idea of ‘dependency’. While this concept might be perceived as problematic from a disability perspective, the article reconciles this apparent tension by applying the concept of ‘empowering dependency’. The article concludes by highlighting the constitutional spill-over that a broader application of the Ruiz Zambrano doctrine may bring.

Ruiz Zambrano, EU citizenship, fundamental rights, persons with disabilities, constitutional spill-over
Prevalence of an Economic Right/Freedom Over a Social Right in a Horizontal Litigation Once Again
Authors: Karayigit Mustafa T.
Published: May 2022

The article primarily examines the Achbita judgment within the context of the struck balance of competing rights/freedoms, i.e., the right to manifest religion and the freedom to conduct a business. It argues that with its lenient and one-sided application of proportionality and by affording the freedom to conduct a business of an employer almost an unfettered prerogative against the right to religious manifestation of an employee, the Achbita judgment could be included into the line of case law, such as Viking, Laval, Alemo-Herron and AGET-Iraklis, which provides for preference and prevalence of economic rights/freedoms over conflicting social rights. The judgment even extends that preference and prevalence to the fields having no crossborder element. If not having confirmed horizontal direct effect of Article 16 of the Charter and so recognized it in nature as a right rather than a principle in the sense of Article 52(5) of the Charter, the CJEU paves the way for consolidating this judicial trend. As a consequence in respect of the principle of non-discrimination on certain grounds, the judgment establishes different levels of protection for different grounds of discrimination and consolidates it by downplaying the right to manifest religion towards the bottom.

Headscarf, the Principle of Non-Discrimination on the Grounds of Religion, Freedom to Conduct a Business, Corporate Neutrality Policy, the Margin of Appreciation of the Member States, the Hierarchy between the Grounds of Discrimination, Intersectional Discrimination
Strengthening the Charter’s Role in the Fight for the Rule of Law in the EU: The Cases of Judicial Independence and Party Financing
Authors: Morijn John , Kochenov Dimitry
Published: May 2022

This article discusses how the application the EU Charter of Fundamental Rights contributes to the fight for the rule of law in the EU. After outlining the connections between the two it focuses on two examples of how the Charter could and should play a more significant role in upholding the rule of law. As to Member State-level rule of law breakdowns, we demonstrate that the Charter has either been missing in the shadow of Article 19(1) of the Treaty on European Union or threatened to undermine the fight for the rule of law when the principle of judicial independence was reduced to Article 47 Charter standing alone. As to supranational level rule of law issues, where the Charter’s applicability under Article 51 CFR is uncontroversial, we show that it has nonetheless so far been applied to a problematically limited extent. This is particularly clear with regard to party-financing at EU-level. This file offers a case in point to show how taking the Charter seriously could make a significant difference in protecting the rule of law in the EU.

Article 7 TEU, Charter of Fundamental Rights of the European Union, judicial independence, party financing, rule of law
Transformations of Directives into Regulations: Towards a More Uniform Administrative Law?
Authors: Křepelka Filip
Published: May 2022

In the last two decades, the European Union (EU) legislative institutions transformed dozens of directives into regulations. The General Data Protection Regulation (GDPR) is the most familiar, even to the general public. For various reasons, however, EU legal scholars discuss these transformations sporadically. Framework nature justified the existence of directives. However, EU directives gradually become detailed, narrowing the margin of appreciation exercised by the Member States. We suggest a favourable view of such expansion of uniform frameworks, ranked to the administrative/public law addressing various economic activities in most cases. Transformations reduce the complexity of directives and national law implementing them. Decreasing expenditures and lesser effort in implementation, increased transparency, streamlining of interpretation could result from these transformations. Preference for regulations can enhance both efficiency and legitimacy of supranational policies of the EU shattered with multiple crises. However, prevailing decentralized enforcement of EU law requiring supplementing national legislation together with the EU multilingualism resulting in discourses separated by language barriers limit the advantages of regulations as supranational statutes. At the moment, there is no consensus on the desirability of these transformations. Further discussion is needed.

the European Union, Directives, Regulations, Legislation, Supranationality, Statutory law
The European Court of Human Rights’ Advisory Opinions Legally Affect Non-ratifying States: A Good Reason (From a Perspective of Constitutional Law) to Ratify Protocol No. 16 to the ECHR
Authors: Albanesi Enrico
Published: May 2022

The hypothesis of the article is that advisory opinions of the European Court of Human Rights (ECtHR) under Protocol No. 16 to the European Convention on Human Rights (ECHR), although non-legally binding on the requesting court or tribunal, legally affect States, including those which have not ratified the Protocol. This will be demonstrated here conceptualizing the notion of ‘vertical’ non-binding effect of advisory opinions (i.e., that effect, regarding the requesting court or tribunal, under Article 5 of Protocol No. 16 which states that ‘Advisory opinions shall not be binding’) and the notion of their ‘horizontal’ legal effect (i.e., that ‘undeniable legal effect’ which comes from the fact that advisory opinions are ‘valid case-law’ which the ECtHR ‘would follow when ruling on potential subsequent individual application’). From a wider perspective of constitutional law, it will be then argued here that the producing of the aforementioned ‘horizontal’ effect constitutes a good reason for States to ratify Protocol No. 16 in light of judicial dialogue: non-ratifying States would be affected by them but at the same time there would be no opportunity for their highest courts or tribunals to contribute in creating that case-law via judicial dialogue (i.e., by requesting advisory opinions).

Protocol No. 16, European Convention on Human Rights, ratification, advisory opinions, European Court of Human Rights, legally non-binding effect, requiring courts, caselaw, constitutional law, Constitutional Courts, judicial dialogue
EUIPO Boards of Appeal in the Light of the Principle of Fair Trial
Authors: Greco Ginevra
Published: May 2022

The EUIPO’s Boards of Appeal are called upon to decide on appeals against decisions by the bodies of ‘first instance’.

However, their judicial function has always been denied. Conversely, the essay tends to place the Boards of Appeal of the EUIPO in any case within the concept of ‘court’, as defined by the ECtHR, within the framework of Article 6 ECtHR, because it assesses their independence, impartiality, and in general the guarantees required by the ‘fair trial’, until concluding that it is a paradigmatic model in the overall administration and judicial system.

EUIPO Boards of Appeal, European Court of Human Rights, Court of Justice of the Eurpean Union, EU Charter of Fundamental Rights, Fair trial
Kosher and Halal Slaughtering Before the Court of Justice: A Case of Religious Intolerance?
Authors: Reich Arie , Harpaz Guy
Published: May 2022

In December 2020 the Court of Justice of the EU approved the legality of a decree, adopted by the Flemish Region in Belgium, which introduced an outright ban on slaughtering of animals by means of traditional Jewish and Muslim rites. The Court, which did not adopt the opinion of Advocate General Hogan, effectively nullified an express derogation for ritual slaughtering found in the EU’s regulation on slaughtering. This article will critically examine the Judgment, arguing that it has not only misinterpreted EU regulations, but also compromised the rights of European minorities to religious freedom under the Charter on the basis of questionable and inconsistent arguments of animal welfare.

Animal Welfare, Kosher Slaughtering, Halal Slaughtering, Religious Freedom, Religious Minorities in Europe, European Court of Justice
Current Issues on Regulation: A View from France
Authors: Perroud Thomas , Deffains Bruno
Published: May 2022

The objective of the article is first to show there are worrying signs that the consensus about independent regulation is cracking in several countries that matter. We then go on to demonstrate that there are blind spots in the European framework of public service regulation. Regulation in the EU focuses too much on competition and not enough on other objectives. Finally we attempt to rethink the regulatory framework of public services in Europe in a way that would take all the competing interests of society into account. Although the main focus of the article falls on French and European experiences, it also adopts a broader view.

regulation, public services, competition law, monetary policy, cost-benefit analysis, indirect administration, accountability
European Sharing and Collaborative Cities: The Italian Way
Authors: Pavani Giorgia
Published: May 2022

The article analyses the issue of Sharing and Collaborative Cities from a primarily methodological perspective. Starting from statistical data that confirm the constant growth of the urban population, and taking into account the major issues that affect urban policies (environment, inequalities, poverty), the author focuses on the different methodological approaches in the study of collaborative cities. Subsequently, an Italian case study is presented, which involves shared administration and the main implementation tools involved (Regulation of the management and regeneration of urban commons, including collaboration agreements).

sharing city, collaborative city, smart city, cooperative economy, sharing economy, urban regeneration, urban commons, local government, city legal studies, urban public policies
The New Era of Climate Law in Denmark and in the EU
Authors: Tvarnø Christina
Published: May 2022

In June 2020, the Danish Parliament adopted a new Climate Act that included legally binding measures. Two months earlier, in March 2020, the European Commission presented a proposal for a European Climate Law Regulation based upon the content of the Paris Agreement. Subsequently, the EU adopted the EU Climate Law Regulation in April 2021. This article presents a comparative legal analysis of the Danish 2020 Climate Act and the 2021 European Climate Law Regulation and investigates these new types of climate acts that have risen as results of the Paris Agreement and international climate law in general. Moreover, the article presents and discusses some examples of the implementation results in Denmark and the latest EU climate strategies. It is concluded that both the Danish and the EU Climate Acts can be considered umbrella legislation presenting the binding climate objectives and legal bases for future climate law however without presenting substantive legal provisions that implement the climate objectives.

climate law, public law, Danish law, EU law, comparative law, international climate law
Privacy International and Quadrature du Net: One Step Forward Two Steps Back in the Data Retention Saga?
Authors: Tzanou Maria , Karyda Spyridoula
Published: May 2022

The present contribution aims to critically reflect on the future direction of data retention at the EU and the national levels by discussing the lessons arising from two seminal Court of Justice of the EU (CJEU) decisions: Privacy International and Quadrature du Net. The article addresses four main themes: (1) the broad reach of EU data privacy law, (2) the detailed typology of permissible data retention models and the conditions applicable to these, (3) the evolving interaction between the CJEU and the European Court of Human Rights (ECtHR) in cases of bulk surveillance, and (4) the relevant legislative developments regarding data retention enshrined in the proposed ePrivacy Regulation. It advances four main lines of criticism. The first concerns the Court’s reasoning regarding the expansive scope of application of EU data protection law that – while anticipated – appears unconvincing. The second regards the shortcomings and weaknesses in the CJEU’s analysis laying down a taxonomy of permissible data retention systems. The third line of criticism is broader and concerns the progressive re-legitimisation of bulk as well as other surveillance models that seems to be the path undertaken by both the CJEU and ECtHR. Finally, we criticize the ways the EU legislature is trying to ‘circumvent’ the CJEU’s data retention rulings.

data retention, EU fundamental rights, Privacy International, Quadrature du Net, bulk data retention, EU data protection law, European Court of Human Rights Big Brother Watch, GDPR, ePrivacy, UK adequacy decisions after Brexit
Regulating the Smart City in European Municipalities: A Case Study of Amsterdam
Authors: Voorwinden Astrid
Published: May 2022

This article studies how local governments interface with the adoption of smart city initiatives, and the challenges this poses from a public law perspective. Although every smart city develops within an administrative territory regulated by a local government, this dimension often remains overlooked in legal and smart city literature. Municipal governments can act as regulators through their existing competences in spatial planning, environmental protection, local by-laws, financial subsidies, and partnerships. However, through an analysis of the Amsterdam Smart City program, this article shows that the smart city challenges this traditional role as regulator. Specifically, it observes four elements: (1) fragmentation, (2) networked governance, (3) multilevel governance, and (4) experimentation. These elements illustrate four challenges for the role and position of municipalities in the smart city: (1) collaborating across municipal departments, (2) steering smart city programs through public-private networks, (3) navigating the limits of local government’s powers on smart city issues, and (4) experimenting with new forms of public procurement. These challenges push municipal governments to find new ways to fulfil their role as public authorities, such as the creation of new municipal departments, the development of soft law instruments, and the use of innovative procurement. Legal research needs to examine these shifts in a context where citizens’ rights are put under pressure.

smart city, municipal government, local government, public-private partnerships, networks, governance, privatization, digitization
The Right to Be Forgotten in the European Union: Towards a Uniform Approach?
Authors: Zelger Bernadette
Published: May 2022

This article aims to shed light on the application of the ‘right to be forgotten’ in the case law of the Court of Justice of the European Union (CJEU or Court) as well as the German Highest Courts, that is, the German Federal Constitutional Court (Bundesverfassungsgericht) and the German Federal Court of Justice (Bundesgerichtshof) from a fundamental rights perspective, thereby also considering the principles established by the European Court of Human Rights (ECtHR). While the CJEU in its decision in Google Spain (Case C-131/12) established a rebuttable presumption of supremacy in favour of the right to privacy, the German Highest Courts have ever since acknowledged the equal weight of fundamental rights in order to ensure a fair balancing of the latter against each other. However, considering the CJEU’s decision in GC and Others (Case C-136/17), the Court has arguably shifted its approach, thereby getting closer to an actual fair balancing of fundamental rights. It will be argued that such change in paradigm arguably provides for an approximation of the latter approaches in favour of the approach of the German Highest Courts. Such development is welcome, not only because it is in line with the principles established by the ECtHR and thus provides for a uniform standard of protection of fundamental rights within the EU, but also because of the existing lack of a hierarchy of the respective fundamental rights concerned which, as a consequence and matter of principle, obstructs the presumption of supremacy of one over the other.

artificial intelligence, GDPR, digital humanism, rule of law, human dignity, constitutionalism