bluuebunny/crossref_metadata_2025 huggingface dataset:
Electronic Contracts and E-Mediation in EU Law: Time for the EU to Extend E-Mediation for the Benefit of SMEs in B2B Transactions?
Authors: Anagnostopoulou Despina
Published: April 2022

The article focuses on mediation and e-mediation in electronic contracts with the aim to explore the possibilities of SMEs to use e-mediation for low value electronic contracts in B2B cross-border transactions. It first analyzes soft law instruments at the international level pointing out at the work of UNCITRAL, and the work of International Chamber of Commerce (ICC) ADR Center. It then presents the successful EU legislation on mediation in civil and commercial disputes (Directive 2008/52/EC) and e-mediation in consumer disputes (Directive 2013/11/EU on ADR for Consumer Disputes and Regulation (EU) 524/2013 on online dispute resolution for consumer disputes). The position taken in the article is that the ODR platform should be extended to SMEs in electronic contracts in B2B relations. Indeed, the recent Commission proposal of April 26, 2018 on an EU Regulation on providers of electronic intermediary services (platform operators), which will establish fair and transparent general contract terms, demonstrates the need for mediation in B2B contracts. This need is also reflected in the recent initiatives of UNCITRAL for mediation in e-commerce that will be discussed in October 2018. The article ends with arguments that since the EU has adopted the general legislative framework as early as 2008 and has established the ODR platform, the EU has to extend e-mediation as a cost-effective and expeditious method for dispute settlement of electronic contracts for the benefit of SMEs in order to achieve the Digital Single Market.
Disclosure and Engagement: Stakeholder Participation Mechanisms
Authors: Macneil Iain , Esser Irene-Marié
Published: April 2022

Over the past years, voluntary self-regulatory instruments like the United Nations Global Compact and the Global Reporting Initiative have become important vehicles through which companies demonstrate their commitment to a more sustainable future, including adherence to environmental and social rules. In the UK, disclosure requirements of companies are to be found in company law and securities law and have recently been increased through the introduction of the strategic report. According to the amended CA 2006, the directors of a company must prepare a strategic report for each financial year of the company. The aim of the strategic report is to provide details on how s. 172 CA 2006 has been applied and how stakeholder interests have been integrated into board decision-making and the activity of companies. The question that this article will address is whether or not, with high levels of disclosure, additional reform is needed, by way of legislative amendments or soft law that will increase stakeholder participation resulting in an engaged stakeholder base during board decision-making.
Recognition of Professional Qualifications in the Single Market: A Recap
Authors: McCormack-George Dáire
Published: April 2022

This paper considers the circumstance in which EU and third-country nationals may have their professional qualifications recognised under and in accordance with EU law. The analysis is structured as follows. First, it considers the principle underlying the recognition of qualifications in the single market, namely the principle of mutual recognition. It then outlines the different conceptions of mutual recognition which have been adopted for the purposes of facilitating the recognition of qualifications in the Single Market as a background to the current law, namely Parliament and Council Directive 2005/36/EC on the recognition of professional qualifications, as amended. The Recognition Directive is then addressed and discussed in detail. It considers the effects the application of the Recognition Directive has on regulated professions and the circumstances in which third-country nationals might benefit from the terms of the Recognition Directive.
Conduct Risk: Meaning, Interpretation and Dissension
Authors: De Pascalis Francesco
Published: April 2022

Following serious and widespread episodes of misconduct in the financial services industry, regulators, international standard-setting bodies and financial institutions worldwide have been discussing opportune approaches to deal with conduct risk. Identifying, analysing and tackling this risk have become the keywords to make financial firms take proactive steps against a common problem. Significantly, the way misconduct risk is understood will determine the ways for dealing with it properly. Given the incentives and guidelines that regulators and policymakers have so far provided within the conduct risk debate, it is natural to review their appreciation of such a risk. In practice, this paper addresses the question of whether their interpretation constitutes a solid, clear and consistent basis for financial firms’ understanding and management strategies.

Risk, loss, misconduct, conduct risk, consumer protection, market integrity, firmbased definition, operational risk, subset, standalone risk
The Role of Compliance as a ‘Gate-Keeper’ Function in Financial Services: Reality vs Regulatory Conception
Authors: Brener Alan
Published: April 2022

This paper examines aspects of the role of the compliance department and the compliance officer, in the context of a range of control functions, in firms subject to financial services regulation. The issues and recommendations have global application beyond the UK. The traditional expectation is that the compliance operation advises senior management on the various regulations, and monitors and report adherence to regulatory requirements. However, this paper proposes that the compliance function needs to go further and venture beyond what some may consider its more conventional roles. Additionally, this paper questions the extent boards and regulators can place reliance on the compliance functions and the compliance officer. This will depend on a number of factors including the compliance units’ ‘authority’ within the business, their professionalism, and their ethical attitudes set within the context of the firm’s own cultures.

Financial services, compliance, control functions, regulation, ‘three-lines of defence’, Senior Managers Regime, compliant culture, risk management.
FinTech - Unbearably Lithe or Reasonably Agile? – A Critical Legal Approach from the German Perspective
Authors: Deipenbrock Gudula
Published: April 2022

The revolutionary disruptive digital transformation in financial markets – a scenario more challenging than the 2007/2008 financial crisis – requires swift, agile but sustainable responses by the law. Mapping and analysing the plethora of legal implications of rapidly further evolving financial technology have gained momentum. The paper aims to contribute to it. Focus is on the German view. The following questions have inspired the analysis: How might FinTech best be defined and its most important manifestations best be systematized for legal purposes? Have the most pressing legal issues been addressed, so far? The paper considers the legal challenges of FinTech as huge, reaching far beyond financial markets. It argues that artificial intelligence and machine learning deserve utmost attention particularly in this context. The paper postulates that the law – being well-equipped to control the complex, constantly morphing risks of financial innovation while allowing exploiting its benefits – shall not just react to but lead the transformation. The present author considers particularly legal academia responsible for continuously steering and shaping a balanced and objective discourse leading to adequate legal responses in the realm of FinTech. It is time to reassert the crucial role of law in times of deep technological change not only in financial markets.

fintech, artificial intelligence, machine learning, insurtech, invest-tech, proptech, regtech
Time to Revisit Capital Maintenance on Profits Distribution: Lesson from Carillion and Beyond
Authors: Xiong Xuedan (Shelly)
Published: April 2022

This paper aims to reengage the debate about capital maintenance as the regime for restricting the distribution of profits. Two arguments challenging the effectiveness of capital maintenance are made here. The first argument says that fair value accounting applicable to fixed assets creates complications for compliance with capital maintenance in the area of profits distribution. Prior literature has studied the link between fair value accounting and distributability of the revaluation reserve of fixed assets. Little research has been seen, however, relating to the complications this may cause to the compliance of capital maintenance. The second argument says that the effectiveness of capital maintenance as a creditor security mechanism is undermined by the fact that the satisfaction of capital maintenance in relation to profits distribution is not equal to company solvency. To make this argument, I examine the intersection between capital maintenance and accrual accounting principle through both theoretical analysis and a case study of the recent collapse of Carillion plc, and conclude that the intersection gives rise to aggressive accounting, and aggressive accounting creates a situation where capital maintenance is satisfied but company solvency is not. Capital maintenance facilitates aggressive accounting and therefore should be reformed.

Capital maitenance, company solvency, carillion, accrual, fair value, aggresive accounting
The EU Regulation on Screening of Foreign Direct Investment: A Game Changer?
Authors: de Jong Bas , Zwartkruis Wolf
Published: April 2022

In March 2019, the EU has adopted a Regulation on the screening of foreign direct investment (FDI) which will apply from 11 October 2020. Member States are allowed to use a national screening mechanism for FDI from outside the EU on grounds of widely defined public order or security, including the protection of key technologies. A cooperation mechanism is established between the Member States and the European Commission. The European Commission is authorized to give a non-binding opinion if the FDI affects Union interests.

The Regulation reflects a new attitude of the EU towards FDI, triggered by geopolitical developments especially involving Chinese state-owned enterprises taking over European companies with key technologies. However, the EU’s ambitions are faced by legal and practical challenges. From a legal perspective, the Regulation seems to require an extensive interpretation of the grounds for restriction of free movement as developed by the ECJ and codified in the Regulation. From a practical perspective, making coordination work will not be easy. It requires a significant effort from the Member States and the Commission, and success is by no means guaranteed.

Foreign direct investment, screening mechanism, public order and public security, free movement of capital, freedom of establishment
Behavioural Economics in European Corporate Governance – Much Ado about Nudging?
Authors: Madsen Marina B.
Published: April 2022

Shareholder engagement from institutional investors remains a topic on the agenda of both legislators and in the public debate. The recent amendment of the SRD can be seen as a token of a pan-European ‘hardening of shareholder norms’. The arising question is if this hardening is sufficient to change the behaviour of institutional investors. Using insights from behavioural economics, the article discusses if the European Union and national Member States can apply nudging or other insights from behavioural economics to increase shareholder engagement and argues that in order to follow a behaviourally informed strategy, a distinct justification of both the applied means and the pursued purposes is required.

Corporate governance, European Union, shareholder engagement, active ownership, institutional investors, behavioural economics, choice architecture, nudging, biases, libertarian paternalism
Of Viruses, Economic Crises and Banks: The European Banking Union and the Response to Covid-19
Authors: Bassani Giovanni
Published: April 2022

This article provides an account of how the Covid-19 outbreak and its impact on the banking sector were tackled in the European Union. The Covid-19 crisis is the first economic crisis after the enactment of the regulatory reforms of the last decade and represents the first relevant test for the assessment of their effectiveness in particular in the Eurozone. The analysis focuses specifically on the new framework for Banking Supervision in the Euroarea, the Single Supervisory Mechanism within the Banking Union, and explains how ECB Banking Supervision reacted to the economic and financial shock generated by the Covid-19 outbreak until the end of 2020.

In this context, the article discusses the ECB’s policy interventions within the wider European and international context where also significant initiatives from the central bank side of the ECB, the European Commission, the European Banking Authority, the European Systemic Risk Board, the EU co-legislators and the Basel Committee on Banking Supervision took place.1 The Article also analyses the potential limitations of the existing European framework for crisis management, should a further severe shock with new waves of infections and lockdowns require extraordinary policy interventions.

The article is divided into 4 sections: section A sets the scene and briefly describes the unprecedented economic shock deriving from the outbreak of the virus followed by the various measures of containment and lockdown. Section B analyses the various policy initiatives taken by ECB Banking Supervision to tackle the crisis within the wider European and international context. Section C discusses the potential use of the European framework for crisis management in the banking sector, should a further severe economic shock with ample repercussions on the banking sector materialise. Section D concludes.

European Banking Supervision, Covid-19, microprudential supervision, macroprudential supervision, distribution restrictions, usable capital, crisis management framework, precautionary recapitalisation, non-performing loans, asset management company
European Group Law Reconsidered
Authors: Jung Stefanie , Krebs Peter
Published: April 2022

Despite several attempts to introduce corresponding legislation, the EU has not yet established rules governing company groups. Given the interest of the European Commission in this topic and the assumed benefits of a European group law, this paper proposes a new concept for a legally binding European group law. This paper aims to develop a proposal that is both, practicable for the parent company in the sense of an enabling law, and which simultaneously protects minority shareholders and creditors. The developed concept bases upon the term “management decisions”. These decisions include both instructions as well as decisions, which have an impact on the subsidiaries. The hereinafter-proposed concept suggests a distinction between subsidiaries with and without minority shareholders. A further distinction is made depending on whether the interests of the parent company and its subsidiaries are aligned or diverge. This results in eight basic constellations (1A to 4A and 1B to 4B). This paper proposes a possible regulatory framework for these constellations. Besides, a differentiation is made according to whether the management decision evidently results in a risk of insolvency for the company or merely reduces its creditworthiness. Within this framework, group solidarity poses an available option for company groups.
The Russian Constitutional Court
Authors: Henderson Jane
Published: April 2022

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Restoring Faith in Government: Transparency Reform in the United States and the European Union
Authors: Frost Amanda
Published: April 2022

On the surface, the transparency reform movements in the United States and the European Union appear to have much in common: both the US and the EU have embraced transparency as a means of bolstering public confidence in governance, and the EU's recently issued access regulation shares many features with the US Freedom of Information Act. The similarities end there, however. The goals of the EU reform movement are far more ambitious than those of the US. US reformers hoped that sunlight would put an end to the corruption and abuse of power that plagued the executive branch in the late 1960s and early 1970s, but they did not seek to change the decision-making process itself. In contrast, the EU has latched onto transparency reform as a means of democratizing and legitimizing EU governance. Unfortunately, reformers in the EU have yet to link transparency reforms with democratization of the legislative process. Although transparency is an invaluable tool with which the public can monitor EU governance, transparency alone, without concomitant increases in public opportunities to influence EU decision-making, cannot ameliorate the EU's infamous `democratic deficit'. Increased transparency must be coupled with public participation rights before reformers can accomplish their ambitious goal of bringing EU decision-making closer to Europeans.
Musical Counterpoint and Governance Problems in EU Law
Authors: McLucas Anne Dhu
Published: April 2022

Both musical counterpoint and EU law regulate relationships between complex entities: musical lines and legal orders, respectively. Musical counterpoint and EU law thus share an essential function. Clearly, there are contextual differences. However, these very differences mean that counterpoint may offer perspectives on EU law free of the historically and ideologically entrenched conceptions which often constrain study of governance problems in EU law. In the present paper analogies are drawn between musical notes and legal acts and between melodic lines and legal orders. The very exercise of making analogies between two different systems of thought may highlight certain features of each. The significance of highlighted features of EU law might, in the absence of such an exercise, be overlooked or obscured. The paper goes on to use the theory of musical counterpoint as a framework for analyzing EU law. This method brings into focus features of EU law that are critical for relationships between legal orders. Finally, compositional models derived from contrapuntal theory are used to evaluate recent reform moves in EU practice concerning such relationships and to suggest new possibilities for reform.
Soft Harmonisation: The Open Method of Coordination in the European Employment Strategy
Authors: Ashiagbor Diamond
Published: April 2022

This article examines the regulatory techniques adopted in pursuit of the European Union's Employment Strategy and their constitutional impact. The article argues that, through its creative use of soft law mechanisms, and in particular, the 'open method of coordination', the evolving Employment Strategy has the potential to forge a middle course through the regulatory choices facing the Union, between centralised harmonisation, on the one hand, and mutual recognition or regulatory competition, on the other.
European Controls on Member State Promotion and Regulation of Public Service Broadcasting and Broadcasting Standards
Authors: Varney Mike
Published: April 2022

Public service broadcasting is still widely supported in the European Union, despite technological developments which are now offering a challenge to many of the traditional justifications offered for the support of the concept. This article aims to demonstrate that public service broadcasting, along with associated measures designed to support high standards of quality in other broadcasting services, are still very important in the modern context due to the media's pivotal role in society. An analysis of the impact of 'European public law' which, in this context, is primarily restricted to the law on the freedom to provide services and the associated effects of the 'Television Without Frontiers' Directive and the law relating to state aids, aims to highlight the impact which European Public Law has had on media regulation. Some of the more recent developments, such as the European Court of Justice's decision in Ferring and Altmark, along with the Commission's corresponding change in attitude to state funding of public service broadcasting, are welcomed. The Court's more recent decisions taken under the freedom to provide services are questioned more closely, as it appears that these measures can be said to have had a more significant impact upon the traditions of media regulation within Member State constitutions.
The Impact of EU Membership on Finnish Constitutional Law
Authors: Ojanen Tuomas
Published: April 2022

The Constitution of Finland reflects a minimalist approach to the regulation of the European Union (EU). Nowhere is membership directly acknowledged, and one also looks in vain for a constitutional provision that permits limitations of sovereignty or the transfer of sovereign powers to international institutions in general, not to speak of the EU in particular. It is only in Chapter 8 that one finds any constitutional provisions touching upon the EU. These provisions are about regulating the domestic distribution of powers in EU affairs (Section 93, subsection 2), as well as the concrete forms through which the participation of Parliament in EU affairs is managed (Sections 96 and 97).
EU Freedom of Information: Determining where the Interest Lies
Authors: Flanagan Anne
Published: April 2022

A citizen’s ability to have access to information about his government and its actions is described as one of most important to the functioning of a democratic society by both contemporary and historical writers, including drafters of 18th century constitutions underpinned by Enlightenment theories of popular sovereignty. An informed citizenry that can participate in governing was perceived as ‘the very foundation for all those freedoms’ guaranteed by ‘the First Amendment’ of the United States Constitution and, by extension. ‘[T]he right of freely examining public characters and measures, and of free communication thereon, is the only effective guardian of every other right’ is how James Madison, U.S. president and author of the Bill of Rights of the U.S. Constitution in which the First Amendment is contained, described its pivotal role. In this article, the author examines EU access to information laws and where the balance of the public interest lies.
Public Liability for Administrative Acts under French Law
Authors: Scherr Kathrin Maria
Published: April 2022

This article examines the interplay between the concept of non–contractual liability under administrative law in France and the evolution of Member State liability under European Community law. It does so by exploring the development of the framework of public liability under French law. Starting from the basic principle of separation of courts under the French legal order, the article discusses the complex and yet decisive elements which led to the formation of State liability in France. Against this background, the article then provides a general reflection on how the initial one-sided influence of French law on the Community legal order has in fact been reversed, shifting from a unilateral to a mutually beneficial relationship between the Conseil d’État and the ECJ in recent years. Finally, the article seeks to unravel past and present problems of communication between the two Courts and offers a glimpse of the current and prospective relationship between the ECJ and the Conseil d’État.
France is ‘Already’ Back in Europe: The Europeanization of French Courts and the Influence of France in the EU
Authors: Granger Marie–Pierre
Published: April 2022

This article analyzes the recent ‘pro–European’ case law of the French Conseil d’État and Conseil Constitutionnel in the light of its wider legal and political context, in order to identify the reasons behind this jurisprudential evolution. It concludes that, paradoxically, this jurisprudence is not motivated by pro–European considerations, but by the desire to restore French influence in Europe, protect French fundamental values and interests, and increase the scope of judicial control over the French Legislator and Administration.

Cet article analyse la récente jurisprudence ‘pro–européenne’ du Conseil d’État et du Conseil Constitutionnel à la lumière de son environnement légal et politique, afin d’identifier les raisons de cette évolution jurisprudentielle. Il conclut que, de façon assez paradoxale, cette jurisprudence n’est pas motivée par des considérations en faveur de l’intégration européenne, mais par un désir de restaurer l’influence française en Europe,de protéger les valeurs et intérêts fondamentaux de la France, et d’accroître la portée du contrôle juridictionnel sur le législateur et l’administration française.
Services of General Economic Interest: The Post–Altmark Scenario
Authors: Renzulli Annalisa
Published: April 2022

More than four years after the Altmark judgment, a number of questions concerning the treatment of services of general economic interest within the European Union still remain without an answer. In this article, the author discusses the developments since the Altmark decision.
Preliminary References by Public Administrative Bodies: When Are Public Administrative Bodies Competent to Make Preliminary References to the European Court of Justice?
Authors: Broberg Morten P.
Published: April 2022

Under Article 234 of the EC Treaty a ‘court or tribunal’ of a Member State may refer questions on the interpretation and validity of Community law to the European Court of Justice. Article 234 does not define what is meant by a ‘court or tribunal’, but over the years the European Court of Justice has considered this notion in a large number of cases. It follows from these cases that not only bodies which under national law are designated as courts or tribunals can make a reference for a preliminary ruling. Also, in a number of instances, organs that generally qualify as public administrative bodies under national law may be competent to make references. This article identifies the relevant criteria for determining whether an organ is competent to make preliminary references and it examines what types of public administrative bodies that normally may make such references.
The Transposition and Enforcement of the Services Directive: A Challenge for the European and the National Legal Orders
Authors: de Waele Henri
Published: April 2022

In the European Union, after a long and arduous struggle, agreement was reached on the adoption of the so-called Services Directive in 2006. This Directive aims to create a level playing field for services and to remove all remaining regulatory and administrative obstacles for service transactions in and between Member States. The present short contribution focuses not on the substantive aspects of the Directive but rather highlights its institutional and constitutional impact. Attention is drawn to the great challenge facing the European and national legal orders when it comes to the successful transposition and effective enforcement of its provisions. In order to rise to this challenge and meet the objective of a fully liberalized services market in Europe, a radical alteration in ECJ caselaw appears all but inevitable.
Towards a More Refined Economic Approach to Services of General Economic Interest
Authors: Fiedziuk Natalia
Published: April 2022

Since the presentation in 2005 of the European Commission’s State Aid Action Plan (SAAP), we have been witnessing a shift towards a more economically focused state aid policy. According to the SAAP, the key element of this ‘more refined economic approach’ is the analysis of market failures such as externalities, imperfect information, and coordination problems. In the SAAP, the European Commission (Commission) also committed to the provision of effective and high-quality services of general economic interest (SGEI). However, it is not clear from the document what impact, if any, the more refined economic approach has on the state aid assessment of SGEIs. The silence of the SAAP on this issue leaves many questions open: is it possible to increase the economic dimension of state aid assessment of SGEIs; can state aid to SGEIs address a market failure; and to what extent and how can the Commission apply the efficiency principle to state aid to SGEIs?
Adjudicating on the Origin of Products from Israel and the West Bank: Brita GmbH v. Hauptzollamt Hamburg-Hafen (C-398/06)
Authors: Cardwell Paul James
Published: April 2022

The Court of Justice has held that goods originating in the West Bank are not entitled to enter the European Union (EU) under the preferential tariff arrangements granted under the EC-Israel Association Agreement. The customs authorities of the Member States are not bound by the proof of origin status given by the exporting state when sufficient information is not provided, nor are they obliged to refer the matter to the Customs Cooperation Committee. The Court considers that the Association Agreements concluded with Israel and the Palestinian Authority (PA) must be interpreted in accordance with the rules and principles of customary international law. In doing so, the Court finds a way to resolve a technical dispute in a highly political context. The judgment sheds light on the Court’s view of the EU’s place within a wider set of norms governing the international system.
The ECtHR, National Constitutional Law, and the Limits of Democracy: Sitaropoulos and Others v. Greece
Authors: Ioannidis Michael
Published: April 2022

This article discusses the decision of the First Chamber of the European Court of Human Rights in the case Sitaropoulos and Others v. Greece. In this case, the Court was asked to examine whether the omission of Greece to provide two Greeks residing in France with effective means to exercise their voting right from abroad was compatible with Article 3 of the First Protocol to the ECHR. The Court found that the Greek omission violated the applicants' right to free elections as guaranteed by Article 3. This finding deserves close scrutiny not only because of its potential impact on the Greek political system, but also with regard to the Court's reasoning. Most importantly, the Sitaropoulos decision is based on a rather questionable reading of the Greek Constitution, which, moreover, gives the Court a controversial role in demarcating the limits of the Greek electorate.
European Administrative Law in the Light of the Treaty of Lisbon
Authors: Schwarze Jürgen
Published: April 2022

This contribution covers the development of European administrative law, in particular the changes which the Treaty of Lisbon has brought about. Next to a growing amount of secondary law, EU administrative law has been mainly shaped by the Court of Justice of the European Union. However, it still lacks a coherent structure. The author, thus, pleads for the codification of the major rules on administrative procedures in particular in the field of indirect implementation of European law - on a yet to be established legal basis in the Treaties which - in his view - the Lisbon Treaty still does not provide for.
Regions and Subsidiarity in the European Union: A Look at the Role of the Spanish and other Regional Parliaments in the Monitoring of Compliance with the Principle of Subsidiarity
Authors: de León Sergio Alonso
Published: April 2022

European regions have had a limited involvement in the European Union decision-making process, despite having an important role in the implementation of EU acts. The principle of subsidiarity, as established in the Treaty of Lisbon, has acquired an important regional dimension, which results in the possibility of the regional parliaments playing a role in the law-making process in the European Union for the first time.

However, the internal mechanism set up in Spain narrows the possible scope of involvement of the regional parliaments, subordinating it to the national Parliament's will and even placing the regional governments in a similar position as the legislatures.
Between Democracy and Nationality: Citizenship Policies in the Lisbon Ruling
Authors: Goldoni Marco , Mindus Patricia
Published: April 2022

When the German constitutional court expressed itself in the Lisbon ruling, on the 30 June 2009, the famous German newspaper Der Bild published the corrosive headline 'the end of federalism'. The aim of this paper is to present and discuss the arguments of the Court concerning (1) the nature of the EU as a confederation (Staatenverbund), (2) the illegitimacy of further development towards a federal state (Staatsverband) and (3) the determination of the EU's 'core competences', in order to shed light on why, within the EU, the relationship between federalism and democracy appears to be so tense. The point is that the claim that the EU cannot legitimately become a federation without calling for the constituent power of the German people (section 228) is grounded in a circular logic that ultimately depends on the definition of citizenry adopted. Two connected issues will thus be deepened. On one hand, we look at the problem of jurisdictional competence attribution, the 'ultra vires' and 'domaine réservé' doctrines. In particular, the adoption of criteria for determining the state's core competences on the basis of the principle of essentiality (Wesentlichkeitstheorie) will be assessed. On the other hand, the focus is on the theory of democracy that the German constitutional court embraces, according to which 'the democratic legitimacy derives from the interconnection between the action of European governmental entities and the parliaments of the Member States'.
The Margin of Appreciation Test and Balancing in the Area of Freedom Security and Justice: A Proportionate Answer for a Europe of Rights?
Authors: Herlin-Karnell Ester
Published: April 2022

The area of freedom security and justice (AFSJ) is currently one of the most dynamic EU integration areas. Largely absent from the debate on mutual recognition, which is the main regulatory practice in this policy field, within the AFSJ there has been the need to ensure a better balance between security focused instruments and due process rights in national courts. This paper discusses the impact of a proportionality test in the AFSJ and the function of the European Court in this balancing exercise. In addition the paper discusses the consequences, dangers and merits, of applying a margin of appreciation test in this area and what the EU can learn from Strasbourg with regard to the adequate protection of human rights.
An Unsteady Middle Ground: Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Commission and United Kingdom versus Yassin Abdullah Kadi (No. 2) [2013] ECR 00000 (18 July 2013)
Authors: Hooper Hayley J.
Published: April 2022

The decision of the Grand Chamber of the Court of Justice of the European Union (CJEU) in Commission and United Kingdom v. Kadi (No. 2) is important in several respects. First of all, it represents the first opportunity of the Grand Chamber to clarify the meaning of key passages in their landmark ruling in C-402/05 P and C-415/05 Yassin Abdullah Kadi v. Commission (No. 1) relating to terrorist asset-freezing measures pursuant to United Nations Security Council Measures. Second, it reasserts the CJEU's position that Regulations implementing United Nations Measures are not immune from the jurisdiction of the European judicature. This comment takes the view that the judgment takes an appropriate line between legal principle and pragmatism, but nonetheless important questions remain unanswered about the future of balancing security sensitive information with the rights of the defence and the right to effective judicial protection in EU law.
Government Transparency in Albania and the Role of the European Union
Authors: Spahiu Irma
Published: April 2022

The recognition of transparency as an essential element of good governance is very important for new democracies because it leads to greater public support for their governments' economic and political decisions. This has been clearly understood by the countries in the Western Balkans which following the fall of communism entered a path of rapid democratization struggling to be opened and transparent. This paper explores transparency and open government in Albania looking at how the Albanian legal administrative framework and practices guarantee the principle of transparency in decision-making and the role the EU in complying with this principle. It introduces the concept of 'transparency through integration' as a model which encapsulates the transparency developments in Albania and Western Balkans and looks at how transparency can be transformed from a principle of good governance to a legalistic instrument holding a place in the hierarchy of legal norms. This research focuses on how transparency becomes part of a policy paradigm which can transform a country's politics from secretive and authoritarian to transparent and democratic. In addition, it suggests that the EU has a role to play as a transformative power to induce positive reforms and improve transparency in the decision-making in Albania.
The Legal Limits of Citizenship Deprivation as a Counterterror Strategy
Authors: Cloots Elke
Published: April 2022

This article studies the legal issues that arise when terrorists are deprived of their citizenship. Although the rules governing the loss of nationality are among the last bulwarks of states’ sovereign discretion, this article shows that international law, Convention rights and even EU law place significant constraints on the exercise of this discretion. It also advances a series of recommendations that could help states minimize the risk of their terrorist denationalization laws being found to be in breach of those higher legal standards. Observance of those recommendations, however, will not prevent terrorist denationalization laws from remaining vulnerable to major criticism, especially concerning their effectiveness, their applicability, and the ‘slippery slope’ on which they put the state.
Search Engines and Press Archives Between Memory and Oblivion
Authors: Katsirea Irini
Published: April 2022

Search engines ’ comprehensive digital memory has led to a desire for greater informational selfdetermination. The seminal judgment in Google Spain gave impetus to the development of data protection law as the preferred legal remedy for claimants who seek to erase their digital past. This article argues that the ‘ right to be forgotten ’ is a contourless and ill-conceived right, which can apply to a variety of markedly dissimilar cases, while paying insufficient regard to the fundamental rights of search engine users, website publishers and of the search engines themselves. Even though the decoupling of names from search results does not interfere with the original expression, it is intended to suppress this expression by drastically reducing its findability and hence its significance in the digital age. Search engines, with their intransparent modus operandi, are entrusted to unravel the Gordian knot between data protection and freedom of expression. But as the ‘ right to be forgotten ’ begins to cast its overly broad net over press archives, the Gordian knot risks tightening further.
Recent Trends in European Citizens Initiatives: The General Court Case Law and the Commissions Practice
Authors: Inglese Marco
Published: April 2022

This article analyses recent trends in European citizens’ initiatives. Starting from the assumption that this instrument enhances the level of citizens’ democratic participation in European Union life, we will turn our attention to the case law developed by the General Court. Then we move on to an analysis of the principles of good administration and the duty to give reasons as a necessary counterbalance over the wide-ranging regulatory powers enjoyed by the Commission in all the phases of a European citizens’ initiative. Consequently, we depict the Commission as the real procedural gatekeeper focusing, in particular, on its role both in the registration and in the final follow-up phase, in which the Commission is called to express its own political and legal views. Finally, we argue that, despite the numerous administrative hurdles enshrined in Regulation 211/2011, a European citizens’ initiative may very well represent an instrument to give people their say in setting institutions’ agenda, especially in steering the legislator when dealing with highly controversial subject matters.
Exit or Voice? Débat Public Goes to Italy
Authors: della Cananea Giacinto
Published: April 2022

Participation
Reversible Transparency: A Study of the New Danish Access to Information Act
Authors: Gottrup Rikke , Koch Pernille Boye
Published: April 2022

This article analyses the new Danish Access to Information Act, specifically how it has controversially reduced public access to information when it comes to the most central political decisions. These changes represent an interesting development in a state usually considered an exponent for a high level of transparency in the public sector. We analyse how the Act has made it possible to reject applications for information to be used for ministerial advice and pertaining to documents exchanged between ministers and MPs, and we discuss the introduction of an article enabling the rejection of applications solely on the grounds that they will use considerable administrative resources. A remarkable shift in the approach to access to information has taken place, resulting in diminished public access to the background material for significant political decisions. Pointing out the need for further investigation, we compare this Danish tendency to international standards and pose the question of whether the Danish case is an example of a more general trend towards a reversal in the level of transparency in liberal democracies.
Clashing Interpretations of EU Rights in Domestic Courts
Authors: Thornton Liam
Published: April 2022

This article examines Ireland’s implementation of the right to work for protection applicants, post Ireland’s opt-in to the EU Reception Conditions Directive Recast (RCDr) in 2018. Ireland sought to exclude persons potentially subject to Dublin Regulation transfers from accessing the labour market. Competing legal interpretations on this issue, now exist in Ireland, between the International Protection Appeals Tribunal (IPAT) and the High Court. Engaging in an analysis of the legislative intent and emerging domestic case-law, it is argued that Ireland’s wholescale exclusion of persons potentially subject to a Dublin transfer from the labour market is not permitted under EU law. With this ultimately to be decided by the Court of Justice, it is argued that the legal interpretation of IPAT, which would grant protection applicants within the Dublin transfer process an entitlement to enter the labour market, is to be preferred to the interpretation of the RCDr proffered by the Irish High Court. The focus of the High Court on ‘abuse of rights’ obfuscated key legal protections EU law provides to protection applicants.

International protection, Common European Asylum System, Dublin III Regulation, Reception Conditions Directive (recast), Labour Market, Abuse of Rights.
Just Say No! Appeals Against Orders for a Preliminary Reference
Authors: Butler Graham , Cotter John
Published: April 2022

Can an order for a preliminary reference to the Court of Justice of the European Union (the Court), made by a lower instance national court, be subject to an appeal to a higher instance national court? To date, the Court has not been sufficiently clear on an answer to this exact question. The Court’s Cartesio judgment mandated that national law could not permit a higher instance national court from varying an order for reference, setting aside an order for reference, or ordering the resumption of national proceedings whilst awaiting the return of the preliminary reference. However, the Court did not say that appeals against an order for reference, more generally, were incompatible, per se, with Union law. This article contends that such breadth given to higher instance national courts is contrary to the intent of Article 267 TFEU, which aims to ensure effective judicial dialogue between all national courts and the Court, uninterrupted by national law and practice. This article makes the case for ending this regime of undue deference to national procedural autonomy on this question, which is problematic in circumstances where the rule of law and judicial independence in all Member States cannot be assumed.

National courts, Court of Justice of the European Union, Preliminary reference procedure, national procedural autonomy, Appeals, Appellate courts
Shrinking Space for Civil Society: A Case Study of Poland
Authors: Ploszka Adam
Published: April 2022

This article discusses the phenomenon of shrinking space for civil society organizations in Poland, a Member States of the European Union and Council of Europe. It describes the tools used by Polish public authorities to restrict the operational capacity of civil society and compares these tools with the applicable constitutional and human rights standards. The article’s summary presents recommendations concerning the methods of addressing this phenomenon in Poland, which are capable of being applied in a broader context of other countries of Central and Eastern Europe.

human rights, ECHR, shrinking space, civil society
Brexit and the Trade and Cooperation Agreement: Endgame or Prolegomenon?
Authors: Birkinshaw Patrick
Published: April 2022

On 31 December 2020 at 11.00pm after forty-eight years the United Kingdom and European Union concluded the UK departure from the EU when the Transition Period (TP) following the Withdrawal Agreement (WA) came to an end and the Trade and Cooperation Agreement (TCA) between the UK and the EU was signed. From 11pm 31 December 2020, Britain was no longer bound by EU law and the jurisdiction of the EU Court of Justice (CJEU). It had left the single market and the customs union. The UK was set loose to find its way in the world. It is quite clear that while the treaty opens a new phase in relations between ourselves and Europe there is deep uncertainty as to what the future holds in our relations with the Union. Although the relationship had frequently been turbulent it was almost unthinkable until shortly over five years ago that the UK would depart from the Union. The purpose of this article is not to revisit past reflections on the indelible influence of EU law on UK law and its legacy (See P. Birkinshaw, European Public Law: The Achievement and the Brexit Challenge (3rd ed. 2020)). It will offer an account of the TCA and its provisions, future difficulties that the TCA is likely to present as it unfolds; what returning sovereignty, and sovereignty, mean; and to offer some thoughts on the future relationship and influence of EU law on our domestic law.

Path to the Trade and Cooperation Agreement (TCA), the TCA, Contents, Consequences, Sovereignty, Future influence of EU law in UK