bluuebunny/crossref_metadata_2025 huggingface dataset:
Direct Supervisory Powers of the European Securities and Markets Authority (ESMA) in the Realm of Credit Rating Agencies  Some Critical Observations in a Broader Context
Authors: Deipenbrock Gudula
Published: April 2022

Since its establishment in 2011, the European Securities and Markets Authority (ESMA) has considerably shaped the regulation and supervision of European capital markets. Being part of the European System of Financial Supervision (ESFS ), the three European Supervisory Authorities (ESA s) – ESMA, the European Banking Authority (EBA ) and the European Insurance and Occupational Pensions Authority (EIOPA) – share its main objective: safeguarding the stability of the European financial system. ESMA however is outstanding with respect to its role as direct supervisor particularly of credit rating agencies (CRA s) in the European Union (Union). Whereas many analyses of the regulatory and supervisory regime for CRA s in the Union mainly focus on its design and effects on CRA s and the credit rating market the present paper aims to focus on ESMA as direct supervisor in this sector. The paper is organised as follows. It starts with some methodological preliminaries and remarks on the role of legal academia in the realm of financial markets regulation and supervision thereby aiming to put the paper in the broader context of the relevant legal literature. Against the backdrop of some fundamentals on rating-directed regulation and supervision it discusses the fitness of ESMA’s institutional set-up for its role as direct supervisor of CRA s in the Union. The paper then explores and assesses the performance of ESMA as direct supervisor of the CRA s in the Union since 2011. This is complemented by some observations as to ESMA’s regulatory powers and performance in the European sector of CRA s. The paper then concludes with an outlook arguing in particular that ESMA in its role as direct supervisor of CRA s in the Union might well be considered a tried and tested example of a legitimate agencification at Union level paving the way towards the concept of a single capital markets supervisor.
Securing Effective Regulation of the Shadow Banking System
Authors: Mugasha Agasha
Published: April 2022

This article examines the recent regulatory reforms of the shadow banking system and why they were necessary. Using securitisation, securities financing and money market funds as illustrations, the article concludes that the diverse and extensive new regulations on shadow banking are likely to succeed because they build upon some core principles that have been trialled elsewhere in the contemporary and wider financial regulation. While those core principles extend the boundaries of conventional banking regulation, they aim to accomplish the same objective of financial stability. Viewed in that light, the article concludes, the new regulations on shadow banking constitute an evolutionary positive step that fortifies the core principles of modern financial regulation.
Engaging Stakeholders in Corporate Decision-Making through Strategic Reporting: An Empirical Study of FTSE 100 Companies
Authors: Chalaczkiewicz-Ladna Katarzyna , Macneil Iain , Esser Irene-Marié
Published: April 2022

The strategic report is the latest iteration of non-financial reporting in the UK. This project empirically analyses the practical implications and relevance of the production of a strategic report for shareholders and especially other stakeholders (e.g. employees, customers, suppliers, environmental agencies, social, community, and human rights bodies). The strategic reports of the FTSE 100 companies from 2015 and 2016 are scrutinised, using a methodology involving compliance coding. This study is especially significant as the practical implications and relevance of the production of a strategic report by company directors have not been discussed in depth in prior literature. This paper fills this gap by first providing empirical evidence on compliance with the relevant statutory provisions. It sheds light on the manner in which companies consider environmental, social and governance (ESG) issues in decisionmaking and the extent to which disclosure represents an effective strategy for engaging stakeholders in that process. It also evaluates the type of information transferred from the company to stakeholders in the form of the strategic report. This first systematic review of strategic reporting in the UK carries international implications due to the high international shareholder base in FTSE 100 companies.
Boardroom Culture: An Argument for Compassionate Leadership
Authors: Villiers Charlotte
Published: April 2022

In this paper I present an argument for introducing compassion into the boardrooms of large corporations. A series of corporate scandals and failures have led the UK’s government to investigate what has been going wrong in some large corporations. These investigations have identified destructive corporate cultures emanating from greedy and self-serving leaders in boardrooms. Problems in the economic and corporate system in which lack of trust is paramount point towards a need for change. Our economic landscape has also shifted from an industrial economy to a knowledge economy bringing about changes from industrial models and economies of scale towards a global, digital and more creative and changing economy that focuses on continuing innovation. The old ways of running a company are no longer appropriate and we require different skills and characteristics in our CEOs. Increasingly, it is becoming necessary to adopt a more compassionate way of running businesses. CEOs need to be more emotionally and socially intelligent. Compassion is a potentially progressive way forward in the world of business. It is already recognised in the medical world – the NHS has an embedded culture of compassion. Corporate actors might also learn from feminist ideals of caring and compassion that could provide direction for developing compassionate leadership models. Some progressive corporate leaders have shown the potential for successful alternatives. Already in law there is a recognised role for compassion in numerous fields which may signal some new approaches to be adopted in the company law and corporate governance context.
The Restructuring of Monte Dei Paschi di Siena. A Controversial Case in the EU Bank Resolution Regime
Authors: Miglionico Andrea
Published: April 2022

The new regulatory tools introduced in the EU banking recovery and resolution regime that aim to reduce the intervention of supervisory authorities constitute a challenge for legislators and market actors. This article examines the controversial aspects of Monte dei Paschi di Siena (MPS) rescue plans, taking into consideration the adopted restructuring options. Although MPS is not global systemically important its collapse determined a serious impact in the EU banking sector. This article argues that to benefit from financial aid MPS had to be bailed-in, measure that policymakers and regulators are not always ready to implement. MPS represented a real concern to the Italian Central Bank and the European Central Bank, and it demonstrated that banks rely on government bailout, something that it is difficult to change in the regulatory approach to failing credit institutions.
Bail-in Tool and Bank Insolvency: Theoretical and Empirical Discourses around a New Legal (or Illegal) Concept
Authors: de Gioia-Carabellese Pierre , Zhang Daoning
Published: April 2022

In 2014, half a decennium after the eruption of the financial crises, the bail-in mechanism was introduced as a new pan-European legal tool in order to avoid the financial inefficiencies of the public bail-out of banks and financial institutions. Yet the system is still not immune from criticism. The dilemma that the new EU legislation has left unsolved relates to the excessive level of discretion still left to the resolution authority regarding the way in which the rights of stakeholders of the bailed-in bank (shareholders and bondholders) can be sacrificed.

 

Against this background, the paper attempts to discuss and analyse, via a methodology which is both theoretical and empirical, the legal provisions encompassed by the Bank Recovery and Resolution Directive and its applications to credit institutions within the context of recent crises. From a more epistemological point of view, the contribution aims to shed light on whether the new resolution tools still lie within the macro-area of the insolvency or, by contrast, they represent a new genus of crisis. More philosophically and intriguingly, the research examines whether, in light of the extensive powers granted to the resolution authority by the recent EU legislation, banking activity may still be regarded in Europe as business of a private nature.
Exit Britain Enter the Stakeholders: Could Brexit End the Cultural Wars within the European Union Company Law and Give Birth to a Truly “European Company”?
Authors: Koutsias Marios
Published: April 2022

The history of European Union company law is a very troubled one. It is a history of national conflicts and debates which resulted in the inability of the EU to create a common body of EU company law. The article will argue that national company laws are deeply rooted in national culture. Corporate governance in particular evolved into an arena where fierce corporate culture wars were fought for decades. This is why the European Company -the so-called Societas Europea- failed to evolve into a truly supranational corporate form. While all member states have their own distinctive systems of corporate governance, the failure in question has been mostly fuelled by the conflict between the two widely-opposed corporate governance systems of the UK and Germany. The UK endorses the so-called contractual model of corporate governance. Germany on the other hand employs the so-called stakeholder system of corporate governance. The rest of the member states of the EU lie between those two opposing poles. The conflict between the two European pillars of widely opposed corporate philosophies and consequently laws –the UK and Germany- has been so intense that it undermined any attempt to create a single European company. The article argues that Brexit can change that. The exit of one of the two main pillars of the conflict may pave the way for the dominance of the stakeholder model of corporate governance in the EU. A post-Brexit EU would lack the most vocal and influential supporter of contractualism. This should allow the remaining member states to converge into a standard that would be closer to the stakeholder model.

Company Law, Corporate Governance, UK, Germany, European Company, Societas Europea, Culture, Brexit, Stakeholder model, contractual model, European Union
Price Discrimination, Algorithmic Decision-Making, and European Non-Discrimination Law
Authors: Borgesius Frederik Zuiderveen
Published: April 2022

Our society can benefit immensely from algorithmic decision-making and similar types of artificial intelligence. But algorithmic decision-making can also have discriminatory effects. This paper examines that problem, using online price differentiation as an example of algorithmic decision-making. With online price differentiation, a company charges different people different prices for identical products, based on information the company has about those people. The main question in this paper is: to what extent can non-discrimination law protect people against online price differentiation? The paper shows that online price differentiation and algorithmic decision-making could lead to indirect discrimination, for instance harming people with a certain ethnicity. Indirect discrimination occurs when a practice is neutral at first glance, but ends up discriminating against people with a protected characteristic, such as ethnicity. In principle, non-discrimination law prohibits indirect discrimination. The paper also shows, however, that non-discrimination law has flaws when applied to algorithmic decision-making. For instance, algorithmic discrimination can remain hidden: people may not realise that they are being discriminated against. And many types of unfair – some might say discriminatory – algorithmic decisions are outside the scope of current non-discrimination law.

price discrimination, price differentiation, personalised pricing, dynamic pricing, algorithmic decision-making, big data, artificial intelligence, fairness, law, equality, non-discrimination law, human rights, fundamental rights.
Artificial Intelligence and Transparency: A Blueprint for Improving the Regulation of AI Applications in the EU
Authors: J. Wulf Alexander , Seizov Ognyan
Published: April 2022

The adoption of Artificial Intelligence is steadily increasing, but the underlying algorithms have become so complex that they are no longer transparent. The EU has introduced some modest AI transparency requirements as part of its General Data Protection Regulation. However, two years after their introduction, the effectiveness of these rules remains questionable. Our aim is to contribute towards the further development of a governance framework for AI. We begin by explaining how the algorithms that enable the speed and data processing power of AI also obscure its transparency. We review how major guidelines on AI ethics operationalize algorithmic transparency, following which we assess whether these principles are adequately covered by the GDPR. We then present the results of semi-structured interviews of a heterogeneous sample of stakeholders of consumer information online (N=75). Our data provide evidence that the current implementation of the EU’s informed consumer paradigm fails to establish a satisfactory level of consumer protection and information online. If simple technological applications such as cookies remain non-transparent to consumers, the current approaches are entirely incapable of addressing the problem of complex AI applications. We conclude by formulating a policy proposal as to how the transparency of AI applications could be improved from the perspective of end users.

artificial intelligence, explainable AI, automated individual decision-making, profiling, consumer protection, data protection, GDPR, information disclosures, transparency, AI ethics
Automated Regulation and Supervision: The Impact of RegTech on Banking Compliance
Authors: Miglionico Andrea
Published: April 2022

Regulatory technologies (RegTech) are the new paradigm of supervision and compliance in the banking sector. However, the application of technological solutions to reduce compliance costs in supervising financial activities can interfere with the intervention of regulators. The extent to which compliance with the regulation can be automated by technologies raises the question whether the manual intervention is still required. This article examines the potential of RegTech solutions to automate rules and principles. Addressing the challenges of regulatory compliance with the use of technology allows bank regulators to embrace speed and agility, supported by cost savings, resource optimisation and value creation.

RegTech, banking compliance, automation, digitization, decentralization, disintermediation, financial technologies, data access, algorithmic decision-making, manual intervention.
The European Union Proposal for a Regulation on Cross-Border Crowdfunding Services: A Solemn or Pie-Crust Promise?
Authors: Staikouras Panagiotis
Published: April 2022

In March 2018, the European Commission presented a Proposal for a Regulation on (financial return) crowdfunding service providers (CSPs) with a dual objective: to set up a single, EU-wide authorization regime for CSPs; and to ensure that duly authorized CSPs operate in a safe and sound manner. Over two years later, in July 2020, the Council of the European Union adopted its First Reading Position which reflects the compromise reached in negotiations with the European Parliament and brings about significant changes to the Commission Proposal. This study critically analyzes the objectives, economic rationales, and fundamental principles of the proposed EU Regulation on crowdfunding; highlights its weaknesses and inconsistencies; and offers proposals for refinement and improvement.

Crowdfunding, fintech, authorization, supervision, suitability, KIIS, crowdfunding service providers
Brexit, MiFIR and MiFID II: Third-country Firms Providing Cross-Border Investment Services – An Overview of the Relevant Organisational and Business Conduct Requirements
Authors: Nemeczek Heinrich , Pitz Sebastian
Published: April 2022

Due to Brexit, large international banking groups have been restructuring their businesses with European clients since regulated institutions based in the UK will no longer be able to use the European Passport. While many firms have established new hubs in the EU 27, there are others which are considering providing services on a cross-border basis to European clients directly from the USA, Switzerland and other third countries, including the UK. This article addresses the question as to whether third-country firms are allowed to provide investment services in Germany without a license and whether German organisational and business conduct rules would apply.

BaFin, Brexit, business conduct requirements, ESMA, equivalence, MiFID, MiFIR, organisational requirements, reverse solicitation, waiver
Single-Limb Collective Action Clauses and the European Stability Mechanism Reform
Authors: Megliani Mauro
Published: April 2022

In December 2019, the Euro Summit did not approve the amendments to the ESM Treaty because of a disagreement among Member States on debt restructuring as a requirement for stability support in the case of unsustainable debt and questionable capacity of repayment. In this context, a key role is played by single-limb CACs which permit restructuring across all the bond series. On the one hand, this facilitates the restructuring process and neutralize the blocking action of vulture funds under single series. On the other hand, this poses some problems in relation to the protection of minor bondholders. The solution to these problems may come from inserting a sort of exemption clause in the model CACs that the EU Economic and Financial Committee is mandated to draft. This scenario is now exacerbated by the social and economic effects of the Covid-19 pandemic crisis that have caused a generalised increase in sovereign indebtedness and may imply debt restructuring.

ESM treaty reform, debt restructuring, single-limb CACs, protection of minor bondholders, Covid-19 crisis
Groups of Companies in European Comparative Law
Authors: Bouderhem Rabaï
Published: April 2022

Groups of companies are today key players in international trade through their crossborder activities. Their asset management – sometimes to the detriment of a subsidiary – or tax optimisation offered by a multitude of laws applicable to their subsidiaries make it essential to regulate groups more closely. It is unanimously accepted in France or the UK, for example, that the group of companies does not have its own nationality or a single lex societatis. However, this classic solution could be revisited and the group of companies could be apprehended as a single legal unit in specific cases. Today, few national laws deal with groups of companies as a legal unit. Very often, these are scattered provisions. In many European states, an economic unit of the group can sometimes be retained by certain legislative and regulatory provisions but also by the courts such as in competition law or in tax and social matters. The purpose of this article is to demonstrate that regulation of groups of companies deserves to be revived by the European authorities and that the economic, political and social challenges are considerable for all member states of the European Union and beyond. Indeed, the Court of Justice of the European Union has shown real normative power with regard to groups of companies, due to the absence of a directive or regulation applicable to groups. The German legislation on groups of companies is a prime example and the regulations relating to the European company remind us that a consensus is possible at the level of the European Union.
The ‘Rebirth’ of the EU as an Audit Legislator
Authors: Seehausen Jesper
Published: April 2022

In April 2014, important new audit legislation was adopted by the European Parliament and the Council, i.e. the 2014 Auditing Directive and the PIE Regulation. In the author’s opinion, the role of the EU as an audit legislator has significantly changed over time. More specifically, the new audit legislation indicates the ‘rebirth’ of the EU as an audit legislator. The article focuses on the role of the EU as an audit legislator, even though the EU also has an important role to play as an accounting legislator. The most important legislative acts when it comes to EU audit legislation are discussed. A number of important trends in EU audit legislation are also identified and discussed. These include an increased legislative focus on Public-Interest Entities (PIEs), a change from a ‘directive only’ to a ‘directive and regulation’ legislative paradigm, a legislative change from the ‘periphery’ to the ’core’ of auditing, ‘codification’ of provisions from the International Standards on Auditing (ISAs) in EU legislation as well as a discussion on a possible EU adoption of the ISAs.

Auditing, audit legislation, 8th directive, green paper, financial crisis, auditing directive, pie regulation, public-interest entities (pies), international standards on auditing (ISAs)
Insolvency, Competition, and the Theory of the Firm
Authors: Minervini Vitorio
Published: April 2022

The paper examines the recent developments in the field of business crisis management, with a focus on the European and US legal cultures. The main argument is the need for a consistent framework between insolvency and competition law in the theory of the firm. The present analysis reveals the need for a proper balance between the principle of competition on the merits and the philosophy of business-rescue in order to avoid dysfunctions in the application of insolvency and antitrust statutes. After an overview of the main contact cases between the two disciplines, the article addresses the main lawmakers’ responses to this problem. In this context, the regulation on banking crises management represents a first attempt to strike a proper balance between the (apparently compelling) goals underlying insolvency and competition law. This article aims at providing some guidance for a systematic reading of the two disciplines. Moving from a holistic understanding of the theory of the firm, it suggests assigning competition law a pivotal role in order to pursue efficiency in the market and consistency in legal theory.

Investment funds, reserved AIFs, share classes, fair treatment, seniority privilege, minimum interest privilege, non-contagion principle, preferential treatment, shift of wealth
The Europeanization of English Administrative Law: Judicial Review and Convergence
Authors: Hilson Chris
Published: April 2022

Much has been written about convergence in European administrative law. The aim of this article is to analyze the notion of the Europeanization of administrative law and to explore different aspects of Europeanization and convergence in the context of recent English case law on judicial review.
Beyond the State: the Europeanization and Globalization of Procedural Administrative Law
Authors: della Cananea Giacinto
Published: April 2022

Until quite recently, administrative law was seen as an enclave of the State. Things have changed, due to European integration. Both the Council of Europe and the European Convention on Human Rights have a growing influence on national administrative procedures and rules. The influence of the the European Community is still greater, it limits national procedural autonomy. A further transformation derives from the principles of administrative law developed by the panels of the World Trade Organization (WTO), like the right to be heard and the giving reasons' requirement, which are used to prevent administrative action from descending to arbitrary and unjustified discriminations. The question thus arises as to both the theoretical and practical consequences such a reshaping may have. It is submitted that the new, transnational administrative law needs a proper theoretical foundation, which cannot be that of the State.
Devolution in France: the Corsical Problem
Authors: Richards Claudina
Published: April 2022

This article analyses how successive French governments have sought to resolve the problem of political violence in Corsica by introducing measures of decentralisation for the island. The adoption of provisions specific to Corsica has proved problematic given the traditional understanding of the constitutional principles of national unity and equality as applied by the Constitutional court. The article examines the transformation of the region of Corsica, created in 1982 with an Assembly unique in its organisation and attributes, into the 'collectivité territoriale de Corse' with increased powers distinct from those of mainland local authorities. Measures to recognise legally the people of Corsica, to introduce the compulsory teaching of Corsican in schools and, most controversially, to permit the Assembly to derogate from Parliamentary laws have, however, been held unconstitutional. Finally, consideration will be given to the implications for Corsica of the constitutional reforms of 2003, ending with the rejection by the Corsican electorate in a referendum of further institutional reforms for the island.
The Fortress of Judicial Independence and the Mental Transitions of the Central European Judiciaries
Authors: Bobek Michal
Published: April 2022

This article critically examines some of the assumptions of the past and the current debate on judicial independence in the Czech Republic and in Central Europe generally. It addresses, against the notion of ?judicial independence?, issues of societal, personal and mental change within the judiciaries in the region. It suggests that the up-to-date debate has been excessively focusing on the (abstract) institutional structure of national judiciaries. The independence of the judiciary is, however, not about the institutions, but about the judicial mentality and self-image. Otherwise, judicial institutions and judicial reform are reduced to empty institutional mimicking.
Providing Legal Clarity and Securing Policy Space for Public Services through a Legal Framework for Services of General Economic Interest: Squaring the Circle?
Authors: Krajewski Markus
Published: April 2022

The body of European law which affects public services (services of general economic interest) is constantly growing, and thereby increasingly reducing the political autonomy of Member States and their regional and local subunits to finance and organize public services. This causes uncertainty among public authorities and service providers alike. A legal framework for services of general economic interest could reconcile EC law with public services and provide for greater legal clarity. However, such a framework raises a number of fundamental legal questions concerning its legal basis and its relationship with other sources of EC law. This contribution argues that a legal framework for services of general economic interest could clarify key terms of EC law affecting public services, and could be based on the current EC Treaty. A legal framework could not however, alter the overall framework of primary law with its emphasis on competition in a free market.
Animal Experiment Regulations as a Part of Public Law
Authors: Alexius Borgström Katarina
Published: April 2022

This article describes the Swedish rules about experiments on animals and the function of the Swedish animal ethics experimentation committees. A small survey of the rules about experiments on animals in Norway, Denmark, Finland, England and Wales, and the EU, is included. The Swedish rules on animal experimentation are examined in order to see how their form and functions relate to theories about different kinds of decision making in public law. The extents to which the rules agree with the aims of the law and with existing normative patterns are also examined. The difficulties to handle the ethical weighting between the importance of the experiment and the suffering of the animals are discussed.
The Revision of Regulation 1049/2001 on Public Access to Documents
Authors: Harden Ian
Published: April 2022

Regulation 1049/2001 governs the fundamental right of citizens and residents of the European Union to have access to documents held by the EU institutions. Adopted at a political conjuncture favourable to transparency, it has proven itself to be an effective piece of legislation. The Commission has put forward proposals for revision of the Regulation. Some of the proposals are clearly justifiable, but others would represent a step backward for transparency, especially in the light of recent case law of the community courts. The European Parliament seems likely to put forward its own more ambitious plans in the run up to the 2009 European elections.
Test Case for the Resilience of the EU’s Constitutional Foundations International Sanctions against Individuals: A Test Case for the Resilience of the European Union’s Constitutional F
Authors: Eckes Christina
Published: April 2022

Most recently, restrictive measures adopted against private individuals have stirred up a lot of controversy. Essentially, these measures identify natural and legal persons as terrorist suspects, freeze their assets, and impose travel bans against them. On the one hand, sanctions against individuals are considered to be more advanced than trade embargoes against states. Although they pursue the same aim of maintaining international peace and security, they do not indistinctly restrict the rights of whole populations. On the other hand, sanctions against individuals are adopted pursuant to essentially the same procedures as sanctions against states. Consequently, they are heavily criticized for disregarding well-established procedural rights. Certainly, individual sanctions are an illustrative example of how ‘global governance’ dealing with de-territorialized problems of today’s world directly impacts on the rights of individuals.
The Notion of Services of General Economic Interest Revisited
Authors: Karayigit Mustafa T.
Published: April 2022

The paper examines the concept of services of general economic interest in the light of delimitation of vertical competences and responsibilities between the Community institutions and the Member States. The concept of services of general economic interest is also analysed in terms of the related concepts of universal service, public service obligations, (public) undertaking and economic activity. Furthermore, limitations on the provision of services of general economic interest arising from the EC Treaty rules and exemptions from these general rules provided for in Article 86(2) are reviewed.
German Constitutional Law Cases 2007–2009
Authors: Aust Helmut Philipp
Published: April 2022

The contribution presents case law from the German Federal Constitutional Court in the period of 2007–2009 which has been selected for its importance for an international audience. It covers decisions on online searches (section 1), the prohibition of incestuous sexual intercourse between siblings (section 2), the limits of the freedom of the arts (section 3), the use of voting computers (section 4), the use of the German armed forces abroad (section 5) as well as the Lisbon Treaty of the EU (section 6).
The Lisbon Treaty’s Provisions on Democratic Principles: A Legal Framework for Participatory Democracy
Authors: Cuesta Lopez Víctor
Published: April 2022

Even though the Lisbon Treaty avoids the constitutional foundation of the European Union, it contains the same strategies as the Constitution for Europe to strengthen its democratic legitimacy. This article explores the Lisbon Treaty’s ‘Provisions on Democratic Principles’ and, particularly, the strategies of democratization based on the participation of citizens and organized civil society in European governance. The article provides a legal analysis of the principles of participatory democracy and the rules governing civil dialogue, external consultations and citizens’ initiative.
Blueprints for Babel: Legal Policy Options for Minority and Indigenous Languages
Authors: Arraiza José-María
Published: April 2022

Questions of language are questions of power. Legal policy decisions on minority languages reflect concrete ethno-national political struggles, which use culture as a platform. They also reflect a global policy shift towards multiculturalism, which legitimizes diversity. Choices in the key parameters of territoriality, recognition, institutional scope, and obligations for newcomers balance competing interests of majority and minority individuals while pursuing the stability of state structures. European regional standards offer a menu of options for this end. A comparison of the cases of Spain, where Basque, Galician, and Catalan enjoy territorially defined co-officialdom, Bolivia, where a constitutional reform has entrenched indigenous language rights, and the mixed case of Finland, where minorities and indigenous peoples enjoy protection, demonstrate the need for complex arrangements to address historical and cultural specificities. It also exposes the vulnerability of migrants and weaker minorities not mobilized in ethno-national terms.

Sharp nostalgia, infinite and terrible, for what I already possess.

Juán Ramón Jiménez
EU Competition Law and the Principle of Ne Bis in Idem
Authors: Di Federico Giacomo
Published: April 2022

After five years from becoming fully operative, Regulation No 1/2003 reveals its potentialin terms of effectiveness. However, the shift towards an ex post, decentralised system of controlwas not accompanied by a ban on multiple prosecutions and parallel application of Union and National antitrust lawsis admitted. This article explores the potential violations of the principle of non bis in idem in the enforcement of Articles 101 and 102 TFEU considering the newly binding EU Charter of Fundamental Rights and the envisaged accession to the European Convention on Human Rights. The review carried out herein singles out five distinct scenarios and a number of deficiencies which may ultimately require amendments to the existing rules.
Freedom of Information in the Russian Federation
Authors: Sayadyan Hayk
Published: April 2022

Russia's legal transformation includes significant reforms to freedom of information. The 1993 Constitution gives some entitlements, and these have been supplemented by two important federal laws. The Russian law 'On Personal Data' was enacted as a direct result of Russia joining the Council of Europe and came into force on 1 January 2011. The law 'On Ensuring Freedom of Information in the Activity of State Agencies and Agencies of Local Self-Government' came into force on 1 January 2010. These and other moves towards increased transparency, encouraged by President Medvedev, take Russia further away from her secretive Soviet past, although not without some reluctance.
Police Power to Conduct a Search without Reasonable Suspicion in Australia: A Comparative Perspective
Authors: Gray Anthony
Published: April 2022

This article considers recent amendments and proposed amendments to Australian law, allowing police to conduct a search of an individual in prescribed cases without the need to show 'reasonable suspicion'. Similar legislation had been passed in the United Kingdom and was recently the subject of litigation in the European Court of Human Rights and the House of Lords, as it was at that stage. It is argued that. similar to the approach of the European Convention on Human Rights, the court should find such legislation to be contrary to the rule of law and to due process. The article also considers the extent to which international law is and should be taken into account in applying Australian law, in the absence of express human rights guarantees.
Counter-Terrorism and European Human Rights since 9/11: The United Kingdom Experience
Authors: Bonner David
Published: April 2022

This article explores the ways in and routes through which European human rights norms (Convention Rights) have had some shaping effect on United Kingdom counter-terror powers since 9/11. It considers decisions of the European Court of Human Rights in Gillan v. United Kingdom,A and Others v. United Kingdom, Othman (Abu Qatada) v. United Kingdom and Babar Ahmad and Others v. United Kingdom, as well as a range of United Kingdom court decisions on control orders and deportation with assurances. In doing so, it casts light on a developing but still fragile human rights' culture in the United Kingdom and identifies European human rights norms as at their most influential when in line with other political imperatives.
Human Dignity in Europe: A Foundational Constitutional Principle
Authors: Dupré Catherine
Published: April 2022

Human dignity has become one of the central issues in the international discussion of human rights and constitutionalism. It attracted special attention with the celebration of the sixtieth anniversary of the 1948 Universal Declaration of Human Rights adopted by the United Nations and, more recently, scholars have sought to explore human dignity's legal meaning in more theoretical terms, as well as to survey and catalogue its different manifestations across a number of legal systems worldwide. This article contributes to the international debate about human dignity's legal significance by focussing on another dimension, namely the ways in which the concept is understood and used in European constitutionalism, where it has been deployed since the end of World War II and its importance has become undisputed.
Czech Republic 20092012: On Unconstitutional Amendment of the Constitution, Limits of EU Law and Direct Presidential Elections
Authors: Slosarcik Ivo
Published: April 2022

In the years 2008 and 2009, the Czech Constitutional Court (CCC) attracted the attention of the international academic and political community, when it ruled twice on the compatibility of the Lisbon Treaty with the Czech constitutional order.1 In both cases, the CCC has constructed its review around a 'super-rigid', non-amendable, constitutional Article 9 paragraph 2, which bans changes of essential requirements for a democratic state governed by the rule of law. This super-rigid constitutional provision forms a material core of the Czech constitutional order and establishes, in the CCC's opinion, ultimate limits of transfer of competencies even to the European Union. In both its 'Lisbon' rulings, the CCC declared that the Lisbon Treaty has not unconstitutionally intervened into the 'material core' of the constitutional order and Czech participation in the post-Lisbon EU was constitutionally compatible.2 The process of elaboration of the concept of the constitutional material core by the CCC has not stopped there and the CCC used the years 2009-2012 to further develop its case law both regarding activities of the Czech Parliament and the European Union.
The ECJ as the Guardian of the Hungarian Constitution: Case C-286/12 Commission v. Hungary
Authors: Vincze Attila
Published: April 2022

Many feared that by adopting the new Hungarian fundamental law a 'light' version of constitutionalism will come into effect, a new constitutional system where classical understandings of individual liberty and separation powers are not valid anymore. Many areas spring to one's mind to demonstrate these concerns: data protection, media legislation or the very case in question, the early retirement of judges. Interestingly, both the European Court of Justice (ECJ) and the Hungarian Constitutional Court ruled on this issue, and as the case presents an interesting co-operation or co-dependence of Member State and European constitutional order both decisions will be portrayed.
The French Conseil Constitutionnel since Early 2010: Its Growing Caseload and Its First Contact with the Court of Justice of the European Union
Authors: Wright Susan
Published: April 2022

In the period under review, we have witnessed an explosion in the Conseil's case-law. This is not a result of the Senate elections in September 2011, the election of President Hollande in May 2012, the subsequent National Assembly elections in June 2012, or even any new constitutional amendments (of which there have been none). It is rather a direct consequence of the jurisdiction conferred on the Conseil in the field of 'priority preliminary rulings on the issue of constitutionality' (QPC).
National Courts of Last Instance Failing to Make a Preliminary Reference: The (Possible) Consequences Flowing Therefrom
Authors: Broberg Morten P.
Published: April 2022

According to Article 267 of the Treaty on the Functioning of the European Union (TFEU), Member State courts may – and sometimes must – refer questions on the interpretation or validity of EU legal measures to the Court of Justice of the European Union for a binding preliminary ruling. But what are the consequences if a Member State court fails to make a preliminary reference in a situation where it was legally obliged to do so? The article shows that such failure may constitute an infringement of the right to a fair trial as laid down in Article 6(1) of the European Convention of Human Rights. It may also form the basis for a claim for damages under EU law. Moreover, it may instigate the European Commission to institute infringement proceedings against the Member State in question. Finally, in some situations, a failure to make a preliminary reference may affect the validity of the Member State court’s judgment, and there may also be a requirement on Member State administrative authorities to reopen the case file if, after the ruling by the Member State court, it becomes apparent that this court erred with regards to EU law.
Deepening Supranational Integration: Interstate Solidarity in EU Migration Law
Authors: Bast Jürgen
Published: April 2022

The Treaties on which the EU is founded hardly ever mention the notion of solidarity between citizens. The type of solidarity owed according to the terms of the Treaties mostly concerns the relationship between Member States. This also holds true in the chapter providing the legal basis for the EU’s migration policies. The present article discusses the concept of solidarity in the Dublin System for determining the State responsible for examining an application for asylum. This case is especially critical because the Dublin System has given rise to sharp conflicts pertaining to interstate solidarity. The Dublin example demonstrates that in EU law the principle of solidarity operates in a field of tension between a high degree of supranational integration and, simultaneously, a high degree of heterogeneity among its Member States. It aims to compensate an asymmetric distribution of burdens generated by further steps on the supranational path of European integration.
The Enforceability of Subsidiarity in the EU and the Ethos of Cooperative Federalism: A Comparative Law Perspective
Authors: Panara Carlo
Published: April 2022

In this article, I will tackle the issue of the enforceability of subsidiarity in the EU and, more specifically, I will deal with the following questions: if and to what extent subsidiarity is justiciable; if the full justiciability of subsidiarity would be politically sustainable; and if there are any alternatives to the judicial enforcement of subsidiarity. I will argue that subsidiarity is justiciable, even though its judicial enforcement should be limited to particular situations. I will also argue that full justiciability of subsidiarity would be politically unsustainable in the long run and that a balanced combination of judicial review, procedural arrangements and political cooperation is the only alternative to an all-encompassing judicial enforcement of subsidiarity. In tackling this issue, I will use a comparative law approach in that I will make extensive reference to the legal systems of Germany and Italy.
The Place for Prisoners in European Union Law?
Authors: Mancano Leandro
Published: April 2022

In recent years, a territorially unbounded power to imprison individuals within the European Union (EU) has been developing. Such a dynamic has significantly impacted on EU citizenship law, which in turn has been strengthened by basing on residence the conferral of many rights. In this article, I investigate what role prison and prisoners can have in EU law, with specific regard to EU citizenship. In order to answer such a question two scenarios are outlined, which embody the ways in which detention and Union citizenship have intertwined hitherto. Firstly there are intersections between EU-grounded detention and EU citizenship. This group includes actual connections (as is the case of Wolzenburg, Koslowski, Lopes Da Silva and I. B. Court of Justice of the European Union [CJEU]’s decisions), as well as interplays which have not concretized yet (as shown by the Framework Decisions on transfer of prisoners and on probation measures). Secondly, the mutual influence between state-grounded detention and EU citizenship is worth analysing. Recent CJEU cases such as Onuekwere and M. G. demonstrate that detention is capable of significantly affecting the rights provided for by EU citizenship. By reading these two scenarios through the conceptual couple integration/reintegration, I show strengths and weaknesses of the conditions of prisoners as EU citizens.
Final Deposition of Losses Through the European Central Banks Balance Sheet
Authors: Danzmann Max
Published: April 2022

The European Central Bank (ECB)’s unlimited potential to create money and its ability to indefinitely stave off insolvency, enable it to act as a ‘Bad Bank’. This can be implemented by using the ECB’s balance sheet to permanently deposit financial market participants’ losses which would otherwise jeopardize financial stability. While final deposition of losses is used as a policy instrument to establish financial stability, it also has a number of economic effects, such as redistributive effects, misdirected incentives and inflationary dangers. Against the backdrop of the ECB’s independence and the instable financial condition of the European Monetary Union, these consequences raise questions as to the Member States’ sovereignty.
Extent and Limits of Devolution in Spain
Authors: Arzoz Xabier
Published: April 2022

This article contests the view of Spain as a federation based solely on the notion of the constitutionally entrenched devolution of powers through the rigidity of the national and regional constitutions. To that effect, the article looks at the broader system of the distribution of competences from a legal perspective, an aspect which has been neglected in comparative studies on the nature of Spanish decentralization. The analysis concludes, firstly, that the powers of autonomous communities are not enshrined in the same way as in federal models; secondly, that their Statutes of autonomy are not above the legislation of the central government; and, lastly, that the constitution is not rigid enough to prevent the intrusion from the centre on regional competences.