bluuebunny/crossref_metadata_2025 huggingface dataset:
The Country-of-Origin Principle and Balancing Jurisdiction between Home Member States and Host Member States
Authors: Engsig Sørensen Karsten
Published: April 2022

The country-of-origin principle is frequently used as the foundation for secondary legislation aiming to realise the internal market. Even if it does promote free movement, the principle also has the consequence that host Member States to some extent lose the ability to regulate and supervise activities occurring in their territories. In some situations, such a loss of regulatory and supervisory sovereignty may seem particularly unacceptable. When looking at how the country-of-origin principle is implemented, it becomes clear that there are different mechanisms in place to ensure that the host and/or the home Member State may prevent some of these unacceptable effects. Consequently, through the interaction of the legislator and the Court of Justice of the European Union the host Member States are not without protection.

 

The country-of-origin principle is used in many different areas of secondary law, but nevertheless, the solutions to the problem of balancing jurisdiction between the home Member State and the host Member State are more or less the same, and an overall model seems to be developing. To describe this model, the article examines how the interests of the host Member States are taken into account when issuing an authorisation, licence etc. Next, it examines the extent to which the host Member State has the duty to recognise the authorisation, licence etc., and the extent to which the host Member State may still regulate the activities of the holder of an authorisation, licence etc. These aspects are evaluated in the light of different areas applying the country-of-origin principle, and it is contrasting the solutions found in these areas with the solutions found in company law, where a very different version of the principle has emerged.
Towards a Collective Regulatory System of Private Equity Funds in China: Legislative Progress and Political Challenges
Authors: Zhang Chi
Published: April 2022

Private equity investment funds have been playing an increasingly significant role in the Chinese economy. Owing to the fragmented financial regulatory regime of the country, however, both the official supervision and self-regulation of private equity funds in China are still problematic, which has increased the potential risk in the market. This article investigates the political logic of the ongoing legislative and regulatory reform of private equity funds in China. It also explores a proposal for the legal reform of the Chinese private equity industry with reference to the experience of the United Kingdom and the European Union. It is suggested that a unified financial regulatory system as a fundamental institutional arrangement is a pre-requisite for establishing an effective and efficient regulatory regime for private equity funds in China. This can only be achieved when the political conflict between different regulators in the Chinese bureaucratic system is removed.
The Effect of Fundamental Rights on Contract Law in a Comparative Perspective
Authors: Alpa Guido
Published: April 2022

This paper is based on a keynote address at the European Summer School, University of Rome at Sapienza, 2018. It encompasses Professor Alpa’s long line of research in comparative private law, dealing with the issue of fundamental rights in contract law. The essay provides an overview of the development of discussions and the treatment of such rights in a number of European Member States, and ultimately, the challenges these pose for the harmonization project of European contract law.
Information Flows in the Insolvency of Enterprise Groups
Authors: Benedetti Lorenzo
Published: April 2022

The article deals with the information flows within restructuring proceedings of the companies groups, as the most important instrument for the coordination of the proceedings of the single members of them. The problem is analysed from a comparative perspective – considering Uncitral legislative Guide, EU Regulation (recast) about transnational insolvency, German insolvency law – as a premise to overview the possible solutions for the problem in Italian regulation.
Repo Markets Across the Atlantic: Similar but Unalike
Authors: Nabilou Hossein , Wu Songjiwen
Published: April 2022

This paper sketches the key differences in the EU and the U.S. repo markets to inform the policy recommendations for harmonization and standardization of rules governing repo contracts put forward by the international financial fora and standard setters. In so doing, it examines three main aspects of the repo markets. First, it highlights the differences in the legal framework governing repo markets, such as legal construction of repo contracts, special insolvency treatment, and legal treatment of the reuse of collateral. Second, it discusses the composition, structure and organization of the repo markets, such as differences in the composition of repo participants, maturity of repos and the composition of the underlying collateral in repo contracts. Finally, it investigates the differences in the issues related to the market infrastructure of repo markets such as differences in the clearing and collateral management stages. The main finding of this paper is that in spite of significant efforts to standardize and harmonize repo markets as well as their applicable legal framework in the past, there remains significant differences across the Atlantic. Such differences in the legal framework, composition, structure and organization of repo markets and repo markets infrastructure would require differential and more nuanced approach to regulating repo markets than what is pursued by the current international financial standard setters.
European Model Companies Act (EMCA): A Critical Review of Chapter 12  Annual Accounting and Auditing
Authors: Seehausen Jesper
Published: April 2022

In March 2017, the final first edition of the European Model Companies Act (EMCA) was published. The title of Chapter 12 is Annual Accounting and Auditing, and the purpose of this article is to provide a critical, but at the same time constructive, review of that chapter. The article points to a number of appropriate additions to the existing EU legislation, made by Chapter 12 and highlights a few issues that are dealt with in the existing EU legislation that should also have been dealt with in Chapter 12. Furthermore, it points out a few issues on which Chapter 12 inappropriately follows the existing EU legislation. Finally, there are some inadequacies in both Chapter 12 and the existing EU legislation. Legislators, both at EU and national levels, should look for inspiration in EMCA, including Chapter 12, when further developing company law.
Consumer Credit Advertising in the United Kingdom and Italy: the Shortcomings of the Consumer Credit Directive and Scope for Review
Authors: Ferretti Federico , Bertarini Beatrice
Published: April 2022

This contribution examines comparatively the national laws of the United Kingdom and Italy transposing the provisions of consumer credit advertising as set by the Consumer Credit Directive on account of its review. The Consumer Credit Directive is a full harmonization measure that aims to create a single market in the area of consumer credit with a high level of consumer protection. At the same time, the provision on consumer credit advertising offers a legal choice to Member States as regards its transposition into domestic law. The United Kingdom and Italy have opted for different legal choices. The ultimate question is the extent to which the Directive achieves its goal of creating an internal market and an adequate standard of consumer protection in advertising credit services to consumers.

A comparison of the two jurisdictions suggests otherwise. This is due to a combination of the limited scope of the Consumer Credit Directive, its full harmonisation character, and the transposition of the legal choice explicitly left to Member States by the law.

Consumer credit, advertising, EU Law, national transposition, legal choice, comparative law, full harmonization, review
Partial Agreement and Contract Formation
Authors: Bottoni Francesco
Published: April 2022

The article discusses the possibility for contracts to be partially formed or not fully complete under the Italian Civil Code and how these are to be treated in relation to enforcement and remedies.

Partial agreement, incomplete contract, letter of intent, pre-contractual liability, breach
Audit Reports – Balancing Harmonisation, Standardisation, and Customisation
Authors: Seehausen Jesper
Published: April 2022

The purpose of this article is to discuss the increased harmonisation of the rules on audit reports across Member States caused both by EU legislation, i.e. the Auditing Directive and the PIE Regulation, and the International Standards on Auditing (ISAs). All things being equal, this harmonisation of the rules on audit reports across Member States, of course, entails increased standardisation of audit reports across companies but, interestingly, for PIEs both the PIE Regulation and the new and revised audit report ISAs also entail increased customisation of audit reports between companies. At first sight, this customisation of PIE audit reports between companies seems incompatible or inconsistent with the general standardisation of audit reports across companies. However, the article shows that this, in fact, is not the case. Pursuing this purpose, the article identifies and discusses three overall audit report trends: (1) increased harmonisation of the rules on audit reports across Member States; (2) increased standardisation of audit reports across companies; and, for PIEs, (3) increased customisation of audit reports between companies.

Auditing, Audit Reports, Audit Legislation, Auditing Directive, PIE Regulation, Public-Interest Entities (PIEs), International Standards on Auditing (ISAs), Key Audit Matters (KAMs)
Fueling the European Digital Economy: A Regulatory Assessment of B2B Data Sharing
Authors: Zoboli Laura
Published: April 2022

Data sharing activities among private players are an important drive for digitaldriven innovation, but they are still rare in the European Union. In its general effort to promote a European data economy, the Commission developed a policy aimed at incentivizing B2B data sharing. The article intends to unpack this policy and to verify whether its corresponding framework effectively enables B2B data sharing. To address this issue, the article identifies and discusses those factors that favor or hinder B2B data sharing practices in the European Union, including current practices, guidelines and regulation (or lack thereof). To complete the analysis, the article also investigates the conditions under which competition law can affect B2B data sharing. Finally, the author weighs all the issues and factors that have been raised, and discusses the measures to be adopted in order to properly incentivize B2B data sharing.

Data sharing, B2B, EU data economy, digital single market, free flow of data, data access, GDPR, Regulation 2018/1807, portability, interoperability
Facebook, the Attention Economy and EU Competition Law: Established Standards Reconsidered?
Authors: Spence William
Published: April 2022

This paper examines the fundamental features of attentional markets in which online platforms attract users’ time and sell access to that time to advertisers. Using Facebook as an extended case-study, it shows how the “free at the point of use” business model adopted by social media platforms raises significant challenges for established standards of competition law regarding market definition, evaluation of market power and assessment of mergers. It then advances two proposals for how existing EU rules could be reformed in order to facilitate greater competition in the market for social networking. Finally, the paper responds to potential counterarguments.

Competition policy, attention economy, network effects, switching costs, data privacy, merger control, interoperability
The Impact of the OECD BEPs Project on Tax Treaties: Access, Entitlement and Investment Protection
Authors: Garbarino Carlo
Published: April 2022

In recent years aggressive tax strategies lead to a new phenomenon denominated by the OECD as ‘base erosion and profit shifting’ (Beps). The OECD and G20 countries adopted in 2013-15 a 15-point Action Plan to address Beps (the ‘Beps Project’). In respect to tax treaties the OECD adopted in 2016 a Multilateral Instrument and in 2017 issued a new release the Commentary to the OECD Model Tax Convention on Income and on Capital. These changes were approved as part of the Beps Project in Actions 2, 6, 7 and 14. The article describes the Model/Commentary 2017 and looks at the impact of the OECD Beps Pproject on tax treaties in terms of PE access, entitlement and investment protection The article focuses on three main dimensions for a resident of a Contracting State of doing business in the other Contracting State: first, the tests required for doing business through PE (section 2); second, the new set of requirements that need to be met to have full entitlement to the tax treaty (section 3); third, the basic rules for doing business through a corporate vehicle, once the entitlement requirements have been met (section 4). The article concludes with the discussion of tax treaty dispute settlement and enforcement by looking at the mutual agreement procedure, transfer price allocations in tax treaties, and tax treaties and information (section 5).

Base erosion, profit shifting, tax avoidance, multilateral tax treaties, OECD Model Tax Convention, BEP s
Product Governance: Paternalism Outsourced to Financial Institutions?
Authors: Colaert Veerle
Published: April 2022

The MiFID II product governance regime requires financial institutions to identify a target market of investors for all products they design or offer to clients, and to sell those products, as a rule, within the target market only.

Although the aim of the regime – reducing mis-selling – is commendable, it has been implemented in a less than perfect way. After briefly describing the MiFID II product governance rules, this contribution discusses four major shortcomings, which have a detrimental effect on investor protection and the level playing field between financial institutions. The author proposes small amendments, which not only deal with those shortcomings, but also alleviate the compliance burden for the sector and lessen the regime’s paternalistic edge.

Product governance, target market, financial regulation, MiFID II, investor protection, conduct of business rules, product manufacturer, product distributor, PRIIPs Regulation, ESMA
Internal Investigations in Compliance Matters: What Role for Legal Professional Privilege in Europe?
Authors: Kruessmann Thomas
Published: April 2022

Information is key to understanding possible wrongdoing in corporations. When allegations of wrongdoing occur, management often invites external counsel to conduct internal investigations because legal professional privilege is seen as crucial in protecting information. In the post-Brexit EU, the objective scope of such privilege is under debate while there is little alignment with developments in the UK. This paper will explore what the deepening divide in the understanding of legal professional privilege may mean. It proposes a policy model, summarizes recent developments in England and Germany and comes to some refined conclusions to serve a broader comparative analysis of internal investigations.
EU Governance Techniques in the Creation of a Common European Policy on Immigration and Asylum
Authors: Fletcher Maria
Published: April 2022

While the Treaty of Amsterdam succeeded in bringing immigration and asylum policy within the Community domain, it could not shake off some of the intergovernmental bad habits of its past. Title IV EC, described as a 'ghetto' in the EC Treaty, sidelines parliamentary involvement in decision-making, allows for the shared initiation of proposals by Member States and the Commission and limits judicial control by the Court of Justice. Moreover, the accommodation of diverse Member State interests through various opt-in/opt-out deals and the participation of non-EC states in the Schengen system have resulted in unprecedented levels of fragmentation and complexity in the field of immigration and asylum. Yet despite these institutional drawbacks it cannot be denied that the issues of immigration and asylum, for one reason or another, are now firmly established high on the Community's political and legislative agenda. Taking these realities - the complex, sensitive and 'en vogue' nature of this policy domain - as a starting point, this paper explores the means by which the Community has sought to develop and implement its immigration and asylum policy. Recent and ongoing debates about European governance provide the backdrop for a discussion of the nature and appropriateness of governance tools and instruments that have emerged in these related fields. While the broad combination of approaches appears eminently sensible at the moment, it is argued that careful attention must be given to how the Community is to accommodate further, inevitable, diversity in the future.
A Constitution for the European Union? A Letter from Home
Authors: Birkinshaw Patrick
Published: April 2022

In this article, the editor examines the content, implications and some difficulties raised by the Draft Constitution for the European Union.
The Legal Protection of the Individual against Regulations in European Union Law
Authors: Schwarze Jürgen
Published: April 2022

In this article, Professor Schwarze argues for enhanced judicial protection for individuals who wish to challenge Union measures. Certain limits in relation to legislative measures are, however, unavoidable.
Linguistic Minorities and Educational Rights in France – The Corsican Example
Authors: Mouthaan Solange
Published: April 2022

Europe, with the European Charter for the Protection of Regional and Minority Languages and the Framework Convention for the Protection of Minorities has acknowledged that the protection of its cultural identity, of which languages form part, is vital. Despite these efforts, States have adopted varying measures. France, for constitutional reasons, is unable to recognize officially any of its linguistic minorities. As a consequence, in practical terms, French legislation on the subject of minority language instruction at school cannot really promote, for example, the teaching of Corsican, because it must be seen to be of a voluntary nature. In other words, a minority language will be taught as long as it is not compulsory. This principle has the unfortunate corollary of threatening the existence and survival of France’s minority languages.
Evidentiary Standards of Inquisitorial versus Adversarial Asylum Procedures in the Light of Harmonization
Authors: Staffans Ida
Published: April 2022

European asylum procedures are, despite fierce harmonization, not converging to the extent required for reaching the aim of a Common European Asylum Procedure (CEAS).One of the reasons for continuously diverging trends, recognition rates and responses to harmonizing initiatives is the differences in the procedural framework apparent in the European context. This article sets out to identify the impact on harmonization of one of the grand dichotomies that characterizes European asylum procedures – the adversarial vs. inquisitorial forms of procedure – especially from the point of view of evidentiary standards and practices. The article argues that harmonizing rules ignoring the differences in procedural traditions and practices in fact may lead to both confusion in the stages of implementation and reactions against harmonization in the practices of concerned asylum procedures.
The Mandatory Contractor Exclusions for Serious Criminal Offences in UK Public Procurement
Authors: Williams Sope
Published: April 2022

The 2004 EC procurement directives made it mandatory for Member States to support EC policy against serious crime by excluding from public contracts suppliers who had been convicted of serious criminal offences. This article examines the UK’s approach to the implementation of these exclusions and provides a critical assessment of the provisions. The provisions are significant because they establish a principle for the use of public procurement to achieve EC objectives in a manner that is no longer optional for Member States. However, in implementing the provisions, it will be seen that the UK has adopted a ‘copycat’ approach to implementing the exclusions and has not clarified the lacunae in the EC procurement directives. The lack of clarity may affect the effectiveness of the provisions and lead to problems in the practical application of the exclusions. It is suggested that it may be appropriate for the EC to provide guidance to Member States on these issues. Finally, it remains to be seen whether if the mandatory exclusion prove successful, the EC will rely on a similar mechanism in the future to achieve other EC objectives.
EU Law and Access to Court: The Experience of Austria in the Telecommunications Sector
Authors: Glavanovits Georg
Published: April 2022

This article explores how Austrian administrative law rules on standing have been influenced by European Union law. Firstly, the EU law requirements concerning the right to have access to a court will be briefly explained. Secondly, the Austrian administrative procedural rules on standing will be presented. Finally, the case law of the Verwaltungsgerichtshof in the telecommunications sector will be analysed as to whether it complies with the EU law requirements.
A Spectre Is Haunting Europe: European Citizenship in the Area of Freedom, Security, and Justice
Authors: Marin Luisa
Published: April 2022

After a reconstruction of the traditional legal setting of extradition, the paper explores the European Arrest Warrant Framework Decision's nationality and residence clauses in their normative context: mutual recognition and mutual trust. It then discusses how these clauses have been implemented at Member States' level and the problems encountered therein with the surrender of a state national and with (some degree of) financial solidarity that the construction of the area of freedom, security, and justice (AFSJ) presupposes. Another section tackles the position taken by the European Court of Justice (CJEU) in its case law (Kozłowski and Wolzenburg) in order to analyse how it contributes to the emergence of an AFSJ in line with current developments of the European constitutional evolution, namely the (former first pillar) acquis on the European citizenship and the Member States' common constitutional traditions on sanctioning theories, placing a paramount attention on the principle of social rehabilitation of convicted persons. Finally, the paper draws attention to European citizenship, which is at present nothing but a 'spectre' of the AFSJ but has great potential for a sound AFSJ construct, where state powers cannot discriminate against individuals according to their status personae.
The Kadi Case: The Turkish Side of the Implementation Saga of Security Council Resolutions
Authors: Karayigit Mustafa T.
Published: April 2022

Due to the inadequate fundamental rights protection in the UN legal order, the implementation of Security Council resolutions imposing smart sanctions, which seem irreconcilable with the principles of constitutions and international conventions, raises some legality concerns in the domestic legal systems. Numerous courts have taken various stances toward their implementation depending on their priorities and the place attributed to international law in their domestic legal systems. Having scrutinized the stances of the Turkish courts in comparison with that of the EU courts, the article discusses the spillover effect of the notorious Kadi judgment of the Court of First Instance on that of the Plenary Session of the Administrative Law Divisions of the Council of State.
The Peoples Last Sigh? Referendums and European Integration
Authors: Tierney Stephen
Published: April 2022

The proliferation in the use of referendums in processes of accession to and ratification of European Union treaties is part of a growing trend towards direct democracy in constitutional decision-making. This article addresses the challenge which this important and under-theorized feature of contemporary politics poses for constitutionalism, many of the empirical and indeed normative precepts of which are built upon the implicit presupposition of an exclusively representative model of government and law-making. An important question, made more pressing by this development, is whether constitutional referendums can be truly democratic as an instrument of republican government. The article seeks to explore how referendums on EU integration complicate the democratic issue. This occurs partly by the ways in which referendums cast light on the democratic defects of the EU constitution-making process itself and partly by how they raise the thorny issue of the demos by bringing back the people in direct and vernacular contributions to what is otherwise supposed to be a post-national constitution-building project.
Axa v. Lord Advocate: Putting the Axa to Parliamentary Sovereignity
Authors: Ronchi Paolo
Published: April 2022

This paper considers the UK Supreme Court decision in Axa v. Lord Advocate. Although it might appear a purely Scottish case, dealing with damages produced by asbestos and the possibility of recovering them by virtue of an Act of the Scottish Parliament, it is argued that this case clarifies the status of Acts of the Scottish Parliament and the nature of his powers. Furthermore, relevant considerations of the UK constitutional principles of parliamentary sovereignty and the rule of law are addressed.
A Separation of Powers Approach to Non-efficiency Goals in EU Competition Law
Authors: Kieran Francis
Published: April 2022

Certain provisions of the TFEU call for the integration of non-efficiency goals, like health and environmental protection, into the implementation of EU policies and activities, including, it would seem, competition law. This article argues that courts and other adjudicators applying EU competition law should be pre-empted from taking cognisance of a non-efficiency gain once the State in which competition is restricted has put measures in place to achieve the objective in question, even if those measures are not the most protective possible. This approach is explanatory of recent and older decisions, and can be reconciled with the Commission's 2010 Horizontal Cooperation Guidelines. Sanctioning a restriction of competition to achieve either efficiency or non-efficiency gains is argued to approximate to the exercise of distributive justice. Unlike constitutional balancing generally, the courts are inferior to other branches of government, even to agencies, in the exercise of distributive justice for democratic and institutional-design reasons. However, different considerations apply to efficiency gains which government is generally unable to secure throughout the economy.
The Crisis of Democracy in East Central Europe: The New Constitutionalism in Hungary
Authors: Pogány István
Published: April 2022

'Above all, being a democrat means not being afraid; not being afraid of people with different opinions, different mother tongues, or people from different races…not being afraid of all those imaginary fears which are only made real by our fear of them.'

István Bibó, The Misery of the Small States of Eastern Europe (1946)

Drawing on the work of the twentieth century Hungarian political scientist, István Bibó, this article offers a critical examination of Hungary's new Constitution, or Fundamental Law, which entered into force in January 2012. Hungary's Fundamental Law and various associated legal texts have been heavily criticized by the European Union (EU) Parliament, the Organization for Security and Cooperation in Europe (OSCE), the Council of Europe's Venice Commission, the US State Department, major human rights NGOs and foreign as well as Hungarian scholars. This article argues that the constitutional regime that operated in Hungary from the end of communist rule until January 2012 represented a broadly satisfactory framework for the consolidation of liberal democracy, the rule of law and the protection of human and minority rights. By contrast, the Fundamental Law, related legal instruments and various policies of the present government have diluted or threatened essential democratic freedoms and have resulted in the removal of many of the checks and balances that previously operated within the Hungarian constitutional system. These regressive measures suggest that elements of what István Bibó described as the 'deformed' political culture of pre-World War II Hungary have reasserted themselves.
Networks of Supervisory Bodies for Information Management in the European Administrative Union
Authors: Marsch Nikolaus
Published: April 2022

The article deals with the administrative supervision of the information management in the European Administrative Union with a focus on the enforcement of data protection law. After presenting the most important bodies of internal and external supervision, the various forms of cooperation between these bodies are analysed. Especially in the Area of Freedom, Security and Justice (AFSJ) and in the Commission's proposal for a General Data Protection Regulation (GDPR) the cooperation is marked by a development of vertical centralization of supervision.
A Legal Review of EU Boards of Appeal in Particular the European Chemicals Agency Board of Appeal
Authors: Navin-Jones Marcus
Published: April 2022

Boards of Appeal, established under EU law, are a relatively new legal construct. As the number of EU Agencies, Offices and similar EU decision making bodies has grown, so too has the number of EU Boards of Appeal, established to review certain aspects of their decision making. On the one hand, EU Boards of Appeal may be regarded as a welcome means of ensuring that the actions of all EU decision-making bodies are subject to EU legal scrutiny and that the general principles of EU law pervade all areas of EU regulation regardless of how technically or scientifically complex any one area, or any one decision in a particular area, may be. On the other hand, the legal status of EU Boards of Appeal, their legal powers, and the exercise of those powers is an area which has, to-date, been relatively unexplored by legal academics and practitioners. This paper aims to highlight some of the most important legal aspects regarding Boards of Appeal in the EU. It focuses on a newly established EU Board of Appeal: The European Chemicals Agency (ECHA) Board of Appeal, although references other EU Boards of Appeal including The Office for Harmonization in the Internal Market (OHIM) Boards of Appeal.
To Hold a Referendum or Not?
Authors: Biering Peter , Lehrer Susanne
Published: April 2022

As European leaders were discussing the establishment of a European banking union, a groundbreaking case with potential implications for Denmark's membership of the European Union was decided by the Danish Supreme Court on 20 February 2013. The ruling of the Supreme Court did not receive a lot of attention at national or European level, most likely because the Supreme Court reaffirmed the Danish legislature's longstanding understanding of the Constitution (Grundloven) in relation to Denmark's membership of the EU. The Supreme Court did, however, point its finger at the Danish Parliament (Folketinget) and Government, implying that future developments in the EU legal framework will be subjected to a stricter judicial scrutiny by the Danish courts.
Ewaen Fred Ogieriakhi v. Minister for Justice and Equality, Ireland
Authors: Berneri Chiara
Published: April 2022

One of the key innovations of Directive 2004/38 EC is the introduction of Article 16 on the right of permanent residence in the host EU Member States of EU citizens and their third-country national family members. For the first time EU citizens and their third-country national family members, regardless of whether they are engaged in employment, are eligible to the right of permanent residence after having resided in the host Member State for a continuous period of five years. The acquisition of the right of permanent residence grants EU citizens and their family members’ enhanced protection against expulsion. In addition, those who have such a right shall enjoy equal treatment with the nationals of that Member State also in terms of social benefits and tax credits.

The advantages deriving from this provision led many EU citizens and third-country nationals to try rely on it in different circumstances. For this reason, often, national courts have found it necessary to stay proceedings and refer to the Court of Justice of the European Union in order to seek clarifications regarding its application. This occurred also in Case C-244/13, Ogieriakhi v. Minister for Justice and Equality.
EUs Harmonization of National Criminal Law: Between Punitiveness and Moderation
Authors: Chaves Mariana
Published: April 2022

At a time when the Treaty of Lisbon has expanded and reinforced EU’s competence to harmonize national criminal law, this article aims to shed further light on the past and future influence of harmonization measures upon national criminal law. It argues that although EU’s harmonization of substantive criminal law is leading to more formal criminalization at national level (more ‘law in the books’) there are moderating elements which increasingly nuance the repressive emphasis of these measures. The article first examines framework decisions and directives aiming at harmonizing national substantive criminal law and suggests that these measures are leading to a more severe criminal law at national level. It then turns to discuss these findings in light of three main questions: why is this expansion in criminal law taking place, whether this increase in formal criminalization necessarily leads to more punishment, and whether there are alternative effects that can be derived from EU’s harmonization.
The Concept of Intent in Rulings of the Court of Justice of the European Union
Authors: ten Voorde Jeroen
Published: April 2022

The concept of intention is used in different ways in many regulations of the EU. The Court of Justice of the EU has given a description of intention and accepted dolus eventualis as a form of intention. This article examines several relevant judgments of the Court, especially case C-396/12.These judgments show a double emancipation process. Not only are legal concepts used in the European Union emancipated from those concepts used in the national legal traditions of the Member States. These concepts are also emancipated from the field of law in which they were developed in the Member States.
European Union Law in the Jurisprudence of French Supreme Courts: Europe-Friendliness with a French Touch
Authors: Ziller Jacques
Published: April 2022

This paper tries to explain the present day attitudes towards EU law of the three French Supreme Courts to a public of non-French lawyers, with the aim of revisiting the traditional view of a slightly sceptical jurisprudence in European Union matters, which dates from the 1970s; that former attitude could be compared to the present day attitude of the Bundesverfassungsgericht. Nowadays however, while the latter Court appears often to pay lip service to the development of European integration with its own concept of Europafreundlichkeit – which is repeatedly used in the Lisbon Judgment of 2009 of the German Constitutional court and in its following rulings – French supreme courts appear having a truly Europe-friendly attitude since a decade or so, because they have understood that the best way not to be overflown by the tide of EU law is to participate again in its further development, a point that lawyers such as Maurice Lagrange had well understood since the early 1950s.The paper starts with a summary presentation of the French judicial system, in order to clarify why it would not be accurate to concentrate comparisons on the sole constitutional court (section 1), before analysing French jurisprudence on the issue of treaty revision (section 2), and on the application of EU law in France, especially on the transposition of directives (section 3). As a conclusion, the paper tries to explain the intricacies of the apparently diverging jurisprudences of French supreme courts as to the compatibility between the recent system of ‘priority question of constitutionality’ as illustrated by the Melki and Abdeli case of 2010 (section 4).
Leaving the EU?
Authors: Wall Sir Stephen
Published: April 2022

This essay provides a detailed historical account of United Kingdom’s accession and participation in the EU. Full awareness of the historical events and dynamics is crucial to understand the forces agitating the current debate. In particular, through an exploration of the key steps that led the United Kingdom to accede the EEC and the dynamics of its participation ever since, the main finding that emerges is that the United Kingdom joined the EEC reluctantly, and that this attitude has crucially continued ever since. It is thus fair to say that the United Kingdom, at heart, never wanted to join the European Communities and, at heart, never stopped hankering after a world where it would be safe for it to leave. This ambivalence does not prevent, however, from highlighting a few strong reasons that militate in favour of staying in.
Judicial Independence and Separation of Powers: A Case Study in Modern Court Management
Authors: Bovend’Eert Paul P.T.
Published: April 2022

The construction of a court management organization in the judiciary touches the heart of judicial independence and separation of powers. It is vitally important to have sufficient safeguards against outside pressures from executive branch authorities, to maintain the independence of the judiciary and respect separation of powers.

In the Netherlands, a modern court management organization has been established to improve judicial efficiency and enhance the quality of the administration of justice. Executive branch authorities, such as the Minister of Security and Justice, obtained broad supervisory powers concerning the operational management of the courts of the judiciary. In supervising the operations of the courts, these non-judicial authorities turn out in practice to be intensively involved in the way in which the judges handle cases. This organizational structure does not satisfy standards of judicial independence and separation of powers. Fundamental changes in this management structure have to be considered.
Controlling Nordic Municipalities
Authors: Mäkinen Eija
Published: April 2022

This study has partially been financed by The Swedish Cultural Foundation of Finland. The aim of this article is to show how local governments in the Nordic countries are controlled by the state and the citizens. These countries have a strong local self-government and all of them are welfare states highly ranked in international comparisons. The main research question is what kind of differences and similarities there are in the legal control mechanisms and competences between the states. How do the various control methods fit in the European Convention of Local Self-Government? In comparative law, Nordic countries are often said to form a family of their own; but it is also possible to speak about the Eastern and Western models. This distinction can be seen in this article. The similarities between Norway and Denmark make it possible to speak about grouping (the Western group) and the similarities between Finland and Sweden justify speaking about another group (the Eastern group).
Promoting Human Health and the Functioning of the Internal Market: The Reaffirmation of the Tobacco Products Directives Key Objectives in Poland v. Parliament and Council, Pillbox 38 and Philip Morris Brands and Others
Authors: Varvaštian Samvel
Published: April 2022

The regulation of tobacco in the EU has a history of tough negotiations and legal challenges and the new 2014 Tobacco Products Directive has already proven to be no exception. Striving to promote the functioning of the internal market, yet at the same time maintain high level of health protection, this piece of legislation proliferated from international standards under the World Health Organization (WHO) Framework Convention on Tobacco Control and introduced more stringent marketing requirements for tobacco and its products than its predecessor. However, the Directive was immediately challenged by the industry and some Member States, which claimed that the new requirements on packaging and labelling as well as trade of tobacco and related products were inconsistent with the primary law. This analysis provides an insight into three recent parallel judgments of the European Court of Justice in cases Poland v. Parliament and Council, Pillbox 38 and Philip Morris Brands and Others, which upheld the legality of the Tobacco Products Directive and reaffirmed the importance of preserving the balance between the smooth functioning of the internal market and the promotion of human health within the EU.
Independence Under Threat: The Role of Private Actors in the Setting of Global Pharmaceutical Standards and Resulting Challenges for European Public Law
Authors: Röttger-Wirtz Sabrina
Published: April 2022

This article analyses the setting of global pharmaceutical standards in the International Council for Harmonization (ICH) and the implementation of these global standards in the European framework of pharmaceutical regulation. It thereby highlights the conflict between the publicprivate nature of the ICH process and the European administrative law principle of independence of public regulators. While the ICH is a public-private partnership between regulatory authorities and pharmaceutical industry associations, in the regulation of pharmaceuticals in the European Union public regulators are subject to a strict requirement of independence from the industry they are regulating. Nonetheless, the ICH standards are implemented into the regulatory framework for pharmaceuticals in the European Union, although the standard-setting process on the global level fundamentally contradicts the procedural standards of EU administrative law. In this regard, the article calls for a more coherent approach for the EU’s participation in global standard-setting bodies and the implementation of global standards in the EU.
Brexit and the Common Law Constitution
Authors: Anthony Gordon
Published: April 2022

This article considers the implications that Brexit holds for the UK’s ‘common law constitution’ – the body of principles and norms that the courts have developed in case law on EU membership, fundamental rights, and devolution. Focusing on the Supreme Court’s ruling in Miller, it argues that Brexit may have paradoxical effects within the case law. These start with the fact that the Supreme Court rationalized EU withdrawal in terms of Parliamentary sovereignty, but did so in a manner that casts doubt on the utility of distinctions between ‘internal’ and ‘external’ law. However, it is in the context of rights and devolution that the Supreme Court’s reliance on Parliamentary sovereignty as UK law’s ‘rule of recognition’ is most problematic, and the article notes a number of tensions in the law. In relation to rights, these are a result of an apparent retreat from a line of case law that had previously indicated that the courts might impose substantive limits on the powers of the Westminster Parliament. The tensions around devolution are a result of the subordinate role that the rule of recognition accords to the devolved institutions and its inability to accommodate any conception of ‘divided sovereignty’.
An Unhealthy State: Using Legislation to Address Public Health Issues in Ireland
Authors: Macmaoláin Caoimhín
Published: April 2022

Ireland has one of the least healthy populations in the European Union. It is amongst the very highest for rates of premature death, disability years and societal harm caused by poor diet and alcohol abuse. In response, the Irish Government has introduced two new laws. The first sets higher rates of taxation on sugar-sweetened drinks, as has been done elsewhere. The second, more controversially, restricts the marketing of alcohol in a variety of ways. The imposition of minimum unit pricing and the exertion of additional controls over advertising, sponsorship and branded clothing are all part of a range of measures designed to reduce alcohol misuse. Most significantly, a suite of compulsory health warnings have been proposed for labels. This has raised the ire of producers, retailers, and organizations opposed to protectionism. Noting the limitations placed on these schemes by international legal obligations, this report examines the problems and solutions available to contemporary legislators in Member States such as Ireland who seek the amelioration of public health issues through legislative and other controls.
Limited Authorisations Between EU and Domestic Law: Comparative Remarks from Dutch Law
Authors: Wolswinkel Johan
Published: April 2022

Where the number of authorizations available for grant is limited in advance to a maximum number, public authorities have to make a choice between qualified applicants through a selection procedure. EU law has played a major role in developing legal rules on the issuing of these limited authorizations, through, amongst other methods, the development of the obligation of transparency. However, the allocation regime under EU law, in particular as it arises from the internal market freedoms, has some inherent restrictions, only applying to economic activities and sometimes requiring cross-border interest in addition. Thus, in order to develop a general legal regime that applies to any process for the issuing of limited authorizations, the development of an allocation regime rooted in domestic law is necessary. This article discusses recent developments in Dutch case law, where a domestic allocation regime has been derived from the (national) principle of equal treatment. It endorses the adoption of this principle as the central basis for an allocation regime, rooted either in domestic or in EU law, since this principle does not only include the key issues inherent to an allocation context, but also allows for the development of allocation rules at the level of both individual decision-making and general rule-making.

administrative law, authorisations, allocation of scarce resources, equal treatment, competition, transparency, general principles of administrative law, legal comparison, EU law, internal market.