bluuebunny/crossref_metadata_2025 huggingface dataset:
Collective Action Problems in Chinese Takeover Rules: Deficiency and Difficulty in Protecting Target Shareholders in a Hybrid Regime
Authors: Shen Wei , Mengshan Xu Colin
Published: April 2022

China is in a process of upgrading its corporate law and corporate governance regime. The reform involves a learning process of incorporating corporate governance norms from other jurisdictions. In the field of takeover rules, China’s hybrid regime is a combination of some elements from both the US model and the UK model, reflecting China’s pragmatic approach towards rule of law and legislative reform. Though flexible and pragmatic, this transplant approach without taking into account China’s own economic, social and even political scenarios is of little help to address the agency problem embedded in China’s concentrated shareholding model faced by its SOEs and family–controlled enterprises let alone the shareholder protection rules investors are keen to have. A comparative study is conducted in this article to investigate the collective action problems the Chinse takeover rules fail to address.

Autonomy of sport, Private International Law, Public-private Governance, Corruption, Transnational Legal Order, Sports Economy, Legal Status of Sporting Organisations, Audit, Managerial Transparency, Economic Monitoring, International Sporting Convention
What to Expect from the Directive on the Protection of Whistle-blowers?
Authors: Kafteranis Dimitrios
Published: April 2022

Following several scandals, especially in the business sector, the European Union (EU) decided to adopt legislation on the protection of whistle-blowers. The Directive on the protection of persons who report breaches of Union law is an ambitious legal text complying with several international and European standards of whistle-blower protection. The fragmented legislative approaches of the EU member states will become more coherent as the Directive offers common minimum standards of protection. The Directive contains certain positive elements such as a clear definition for the whistle-blower or clear channels for disclosure. Nevertheless, the Directive does not address the issue of financial rewards and does not address clearly the issue of anonymity. The purpose of this contribution is to present the Directive and highlight its positive and negative elements. Due to the scarce legal literature upon this new EU legal act, this contribution is important and further research is needed.

Whistle-blower, EU law, protection, culture, financial rewards, financial scandals, financial law, enforcement, channels for disclosure, ECHR
Sovereignty, Legal Pluralism and Fundamental Rights
Authors: Itzcovich Giulio
Published: April 2022

The article analyses the first Italian doctrine and jurisprudence on European integration, concentrating on the Corte costituzionale's decisions in the cases Costa, Acciaierie S. Michele and Frontini. The account shows that the general attitude of Italian legal culture toward European integration was more European-friendly than is suggested by the traditional image of the long-lasting confrontation with the European Court of Justice on the issue of supremacy of Community law.
Mediation in Administrative Law: The Identification of Conflicting Paradigms
Authors: Boyron Sophie
Published: April 2022

In the three countries surveyed, England, France and Germany, commentators have expressed misgivings regarding the transformations that are occurring in administrative law. This article tries to design and test a comparative method to understand these evolutions and meet the demands of administrative lawyers. By resorting to a micro-analysis of mediation in the resolution of administrative law disputes, it is possible to identify and analyze a number of parallel evolutionary trends. If successful, this method could then be applied to other key areas of administrative law. In doing so, the research will uncover the dynamics and the implications of this process of deep change.
Democracy and Europe: New Times, Old Dilemmas
Authors: Poto Margherita
Published: April 2022

Democratic instances in European legal systems are still part of a developing phenomenon, even whilst the process towards a European Constitution is decelerating. The paper will analyse possible solutions to the lack of democracy and participation in European context, in order to understand if philosophical and economical approaches could give an effective contribution to the legal system. In particular, it will be asked whether the principles of subsidiarity and proportionality, as applied by the Constitutional Courts of different Member States pave the new way towards democracy.
Reconciling Regulatory Approaches to Corporate Social Responsibility: The European Union, OECD and United Nations Compared
Authors: Macleod Sorcha
Published: April 2022

In recent years the European Union, along with other international organizations has attempted to address the globally relevant problem of Corporate Social Responsibility (CSR). In doing so, the EU has restricted itself to the voluntary mechanisms advocated by business as a means of tackling the issues. This is in direct contrast to other organizations relevant in the European context such as the OECD and the UN. This article compares these three different regulatory frameworks for CSR. It asks which of them is most effective at reconciling the inherent tension between voluntarism and the case for hard regulation as its polar opposite. To this effect, the article examines the EU, the OECD and the UN’s most recent initiatives; that is, the Global Compact and the Norms on the Responsibility of Transnational Corporations and Other Business Enterprises with regard to human rights.
No Violations But Interesting: A Study of the Strasbourg Court’s Jurisprudence in Cases where no Breach of the Convention has been Found
Authors: Mowbray Alastair
Published: April 2022

This study examines the uncharted area of Court judgments finding no violations of the ECHR. After a statistical analysis of the Court’s contemporary decision–making the study considers the types of rights being asserted in cases where the Grand Chamber eventually determined that no violations of the Convention took place. Then a detailed scrutiny of those judgments identifies a number of factors explaining why the Court may find no violations to have occurred. Conclusions are drawn as to the importance of the margin of appreciation doctrine in this area.
Shooting Down Hijacked Aeroplanes? Sorry, We’re Humanists
Authors: Beltrán de Felipe Miguel , Rodríguez de Santiago José María
Published: April 2022

The article analyzes a very remarkable decision of the Constitutional Court of Germany that struck down a piece of legislation (section 14.3 of the 2005 Air Security Law –Luftsicherheitsgesetz) that expressly authorized the federal government to shoot down hijacked airplanes, in case they were likely to be crashed against a target on the ground. The Court ruled that the state decision of deliberately killing innocent people on board is incompatible with the right to human dignity and to the right to life, as established in sections 1.1 and 2.2 of the 1949 Basic Law. The article focuses on some of the main issues addressed by the Court (among others, the absolute nature of human dignity, which makes it unconstitutional for the legislature and for the executive to balance the lives of the passengers on board and the lives of the victims of the crash), and tries to situate it in the context of the German and European case law on anti–terrorism and human rights. It contains also reflections on some questions not addressed by the Court, and ends with a critical assessment of the capacity of law to regulate emergency situations.
Jurimetrics in Slovakia
Authors: Vetrák Milan
Published: April 2022

Legislation is a combination of science and art with a contribution from computer technology.
Demanding Minority (Linguistic) Rights from the EU: Exploiting Existing Law
Authors: Ahmed Tawhida
Published: April 2022

This article is intended to provide a contrast to the criticisms raised by the EU in relation to its lack of concrete protection of minority rights. It explores the potentials of the EU’s existing legal framework in this field. Although competence on linguistic diversity (and indeed other aspects of minority rights) remains firmly with the EU Member States, nonetheless there are a variety of ways in which the EU’s ever-expanding activities can affect those rights. This article takes account of both present and potential impacts of EU law on linguistic rights; the assumption being that the scope of legal provisions as they stand need to be understood thoroughly before one can move on to assessing in a more informed manner the necessity for reform and the content of that reform. This article views the EU’s performance as part of the wider international community and thus, for present purposes, compares the EU’s progress on minority linguistic rights, with that of the Council of Europe and the United Nations. This article does not, however, exclude the value of assessing the EU according to other benchmarks, such as national law, and thus recognizes its contribution constitutes only one angle of a much wider, valuable debate.
Language Rights as Legal Norms
Authors: Arzoz Xabier
Published: April 2022

The discussion on language rights is affected by some confusion on the nature and status of rights. In this paper, a rigorous characterization of language rights is proposed. It is argued that the general assimilation or equation between language rights and human rights is not only erroneous as far as it is inaccurate, but it leads to a distorted image of the relationship between law and politics. While human rights do limit (at least, ideally) state behaviour, language rights are, more often than not, an issue devolved to the political process. The point being made in this paper is that recognition of language rights (as such or as part of minority rights) is based primarily on contingent historical reasons. Some tentative explanations on the poor status or unequal recognition of language rights in international and domestic law will also be offered throughout the paper.
Inhuman Punishment and Abolition of the Death Penalty in the Council of Europe
Authors: Yorke Jon
Published: April 2022

This article investigates the contribution of the prohibition against inhuman punishment within Article 3 of the European Convention on Human Rights, for the abolition of the death penalty. It analyses the evolution and orientation of the Council of Europe’s anti-death penalty discourse from the early post-Convention discussions to the most recent enactments of the Parliamentary Assembly and the Committee of Ministers. Then the jurisprudence of the European Court of Human Rights, which interprets this position, is detailed to determine whether Article 3 provides a per se prohibition against the death penalty, or whether it can only be used to isolate specific aspects of the capital judicial system. It is clear that Article 3 has provided a hegemonic platform from which abolition can be achieved. However, the different Council organs are not yet in complete agreement on the reach of Article 3 for the technical penological processes. Hence to clarify the abolitionist discourse, and establish a uniform position, it may be of benefit for the Council of Europe to adopt a new policy statement on how Article 3 is to be used to unequivocally denounce the punishment.
What Is ‘New’ about the ‘New Administrative Law Science’ in Germany?
Authors: Kahl Wolfgang
Published: April 2022

Administrative law in Germany is traditionally influenced by the ‘juristic method’ (juristische Methode). This method is shaped by the concept of a systemic legal order and by the distinction between legislation (legal politics) and law application (legal dogmatics). It concentrates on the legal protection perspective and the ‘legal act’ (Rechtsakt) standing for the formal, binding, and intervening decision of an authority. However, since the early 1990s of the last century, a large group of more progressive German scholars is working on a reform concept in order to substitute the one-sided approach of the juristic method by a new approach denoted as the ‘new administrative law science’ (Neue Verwaltungsrechtswissenschaft). The new administrative law science is based on a more open, interdisciplinary method and a steering approach (Steuerungswissenschaft) focusing on decision making and on results (‘products’). The following article comprises the most significant assumptions and ideas of this new scientific stream and provides a differentiated evaluation.
Fundamental Rights and Security: The Difficult Position of the European Judiciary
Authors: Murphy Cian C.
Published: April 2022

EU security action has dramatically increased since the attacks in New York and Washington on 11 September 2001. Several different legal measures have been adopted to combat terrorism, including data surveillance legislation and targeted asset-freezing sanctions. This article considers three such measures and the decisions of the European Court of Justice (ECJ) on their validity: the Passenger Name Record (PNR) Agreements with the United States and the related decision in C-317/04 and C-318/04 Parliament v. Council; the Data Retention Directive and the judgment in C-310/06 Ireland v. European Parliament and European Council; and the asset-freezing sanctions regulations and the leading judgment in C-402/05 Kadi. The article concludes that the increased security activity at EU level has left the European judiciary in a difficult position as they attempt to balance compliance with the principle of conferred competence with the need to protect fundamental rights.
A Dernier Cri from Strasbourg: An Ever Formidable Challenge of Hate Speech (Soulas & Others v. France, Leroy v. France, Balsytė-Lideikienė v. Lithuania)
Authors: Belavusau Uladzislau
Published: April 2022

This article provides the analysis of three recent decisions of the European Court of Human Rights on the problem of hate speech, pertinent in the context of the danger of terrorism, an infamous (anti-immigration debate, and an extreme nationalist historical mythology. The author endeavours to answer if the ‘dernier judicial design’ of these decisions is actually posing a risk of chilling effect (as some scholars have recently argued) or the earlier Strasbourg proportionality is still à la mode.
Human Rights Litigation and Restrictive State Implementation of Strasbourg Court Judgments: The Case of Ethnic Minorities from Southeast Europe
Authors: Grozev Yonko , Anagnostou Dia
Published: April 2022

Legal action by members from ethnic minorities in Strasbourg has often been an alternative route or mobilization strategy aiming to redress broader problems beyond the individual grievances concerned and to pressure national governments to change the way they treat minorities. It is premised on a widespread, but also highly disputed, expectation that judicial rulings can vindicate minorities and exert pressure upon governments to change their relevant laws and practices. Focusing specifically on four countries of Southeast Europe (Greece, Bulgaria, Turkey, and Romania), this article explores the domestic implementation of the European Court of Human Rights (ECtHR) judgments addressing minority claims, as well as its impact (or lack of it) on the ways in which national authorities deal with minorities. Do national authorities implement Strasbourg Court judgments related to ethnic minorities, to what extent and under what conditions are they likely to do so? Does their implementation promote progressive reforms in state laws and policies towards historical minorities? What is the nature of European judicial and human rights influence – if any – at the national level?
Inter-institutional Dialogue and the Establishment of Enforcement Norms: A Decade of Financial Penalties under Article 228 EC (now Article 260 TFEU)
Authors: Smith Melanie
Published: April 2022

This article is concerned with the system of enforcement of Member State obligations in the European Union (EU). It will focus upon the final limb of the enforcement system, the financial sanctions, and will evaluate its evolution since the initial judgment against Greece in 2000. The discussion will centre upon the behaviour of the two key institutions in the enforcement process, the Commission and the Court of Justice, by analysing the practice and policy of these institutions. It will argue that the Commission and Court have had to devise an enforcement policy in a unique regulatory system, which is a regulatory system where the legislator has provided no guidance to the institutions responsible for the execution of enforcement policy as to its objectives or methodology. This regulatory gap has produced some interesting inter-institutional dialogue between the Court and Commission that has not occurred in the earlier phase of the enforcement process, despite a similar lack of legislative guidance. The inter-institutional dialogue has increased the transparency and efficiency of imposing financial sanctions, which has moulded it into a potentially significant deterrent to non-compliance. Deploying this approach in the earlier phase of the enforcement process could significantly increase the transparency and efficiency of the macro system of enforcement.
Lautsi v. Italy: The Display of Religious Symbols by the State
Authors: Panara Carlo
Published: April 2022

In the Lautsi v. Italy (hereinafter ‘ Lautsi’) case, the European Court of Human Rights (ECtHR) upheld the appeal of a mother who sought the removal of the crucifix from the classrooms of the public school attended by her two children. This case has opened a broad debate on the display of religious symbols in public establishments and, more generally, on the role of religion in contemporary society. This paper analyses the debate around the display of crucifixes in public establishments in Italy and in other European countries and examines the potential impact of the decision. The basic thrust is that an increasingly multicultural and multi-religious society needs a secular and neutral state. The decision of the European Court in Lautsi goes in the right direction.
General Principles of the EU and a Glimpse of Solidarity in the Aftermath of Mangold and Kücükdeveci
Authors: Fontanelli Filippo
Published: April 2022

In the Kücükdeveci judgment, the Court of Justice of the European Union confirmed the Mangold precedent and shed light on the legal effects of the general principles of the Union, which are directly applicable in dispute between private parties. Without referring to it expressly, the Court seemed to use the notion of incidental direct effect, which scholars had coined with respect to directives. This interpretation might have a consequential impact on horizontal controversies (especially after the entry into force of the Charter of Fundamental Rights) and could perhaps bring about an expansion of the principle of solidarity in the Union. Indeed, for the first time, private citizens are not only beneficiaries of fundamental rights under EU law, but they are also responsible (jointly and severally with the States) for their protection and implementation.
Delegation Is a Matter of Confidence
Authors: Voermans Wim
Published: April 2022

This contribution discusses the new delegation system of the Treaty of Lisbon (Articles 290 and 291 of the Treaty on the Functioning of the European Union (TFEU)) and the current debate between the EU institutions on the control over delegated legislation and on the future of comitology. The European Parliament (EP) opposes the strategy of the European Commission to involve the Council in some way or in some respect in delegated legislation other than via the mechanism that the Lisbon Treaty provides. Parliament wants comitology to end once and for all, or so it seems. Whether or not they are able to make the Commission and Council change course remains to be seen. By way of a preliminary conclusion, the contribution argues that - whatever the outcome of the current debate - delegation relies and needs to rely on confidence between the delegating authority and the delegate.
A Meeting of Minds on Impact Assessment
Authors: Alemanno Alberto
Published: April 2022

This article aims at exploring the interactions that may arise from the European institutions' increasing reliance on ex ante evaluation mechanisms of proposed legislation, such as impact assessment (IA), and ex post judicial review of adopted legislation. IA, the privileged ex ante evaluation tool adopted by the European Union (EU) to identify the expected effects of new legislation, by offering a legality check of each Commission proposal well before its adoption, may serve - as illustrated by the recent judgments in Vodaphone and Afton Chemical - not only as an aid to the legislator but also as an aid to the parties and an aid to court within the ex post review of adopted legislation. After systematizing the different encounters that might occur between IA and judicial review, this article anticipates, by relying on a few examples, a meeting of minds between the EU legislature and the judiciary on IA.
ECJ Advances Equality in Europe by Giving Horizontal Direct Effect to Directives
Authors: Howard Erica
Published: April 2022

In a large number of cases, the European Court of Justice (ECJ) has held that the principle of equality and non-discrimination is a general and fundamental principle of Community law, the observance of which the ECJ has to ensure. This article argues that the ECJ has, in a number of recent cases concerning the Equality Directives of 2000, taken further steps towards the development of this principle and has bestowed on these Directives horizontal direct effect based on the fact that they are specific expressions of the, both horizontally and vertically, directly effective principle of equality.
From Administrative Cooperation in the Application of European Union Law to Administrative Cooperation in the Protection of European Rights and Liberties
Authors: Lottini Micaela
Published: April 2022

European law scholars acknowledge that cooperation amongst public administrations in Europe has 'become the backbone of the EU's unique system of government and governance'. All in all, it has been pointed out that the principle of (administrative) cooperation is crucial for the correct application of European Union (EU) law. However, cooperation is also the very principle around that revolve several initiatives, launched to provide an alternative to the courts in protecting individuals against alleged misapplications of European law by national authorities. Hence, cooperation networks of national authorities (and European institutions) have been set up to provide a response to the needs of the European citizen who has to deal with a new 'European administration' and also to make administrative practices better and more consistent throughout Europe.

This article is divided into two main sections. The first section deals with the principle of administrative cooperation in the application of EU law and with the legal problems (especially in terms of judicial review) that stem from 'cross-border' composite decision-making procedures. The second section focuses on the cooperation networks that during the last decade have been developed to resolve problems arising when EU rights are not respected by national public authorities: namely the SOLVIT network, the Public Procurement Network and the Network of Ombudsmen. Finally, a brief account is given of the Single Market Assistance Services initiative.
The EU Free Movement of Persons from a Spanish Perspective: Exploring its Evolution and Derogations
Authors: Ferreira Nuno
Published: April 2022

Although Spain is often discussed in migration studies, both for its special characteristics and for its representativeness of a larger group of European countries, the free movement of European Union (EU) citizens across Spanish borders and within Spain is a matter so far insufficiently explored in legal literature. Spain has been a member of the EU for more than twenty-five years, however, the assessment of the implementation by Spanish authorities of EU law in this field has remained mostly limited to fairly descriptive analyses of the applicable statutory framework. This article goes beyond that and looks critically into the evolution of this statutory framework and, above all, its judicial application. Besides analysing the Spanish legal framework applicable to the free movement of EU citizens and their family members, this article explores a range of obstacles to that free movement. It concentrates particularly on the most striking obstacle to free movement - exclucsion orders - by exploring in detail the rules and case law (mainly produced by the Spanish Supreme Court) that have dealt with the possibility of expulsion of EU citizens and their family members.
The Dinghys Rudder: General Principles of European Union Law through the Lens of Proportionality
Authors: Wimmer Michael
Published: April 2022

The article aims at circumscribing the role of general principles of EU law within the Union's legal order, by using the principle of proportionality as an illustration of major developments and challenges and of how general principles interact with other sources of law. A narrow definition of general principles is advocated: only principles identified by the CJEU as such, i.e., as principles having the status of primary law, should be considered as general principles within the Union's legal order. This definition excludes principles of secondary law and mere policy principles. Still, general principles of EU law can be given expression in both primary and secondary law and are heavily dependent for their interpretation on the broader legislative and constitutional framework. The principle of proportionality maintains in this respect its central role in finding the proper equilibrium between various principles and objectives.
Independence of Regulatory Authorities: The Italian Case
Authors: Luppi Silvia A. Frego , Codini Ennio
Published: April 2022

The purpose of this paper is to analyse the independence of regulatory authorities (RAs) under Italian law. In this paper, reflecting a widespread opinion in Italy, we will address the idea of the inadequacy on the part of the Italian legal framework in ensuring the independence of RAs. The structure of the paper is as follows. After a brief presentation of Italian RAs, independence from politics and independence from stakeholders are both separately considered in light of Italian law. Before concluding, we also offer some insights concerning judicial review of RAs' acts. A part of the debate regards how to ensure and to improve their independence.
The Political Criteria for Accession to the EU in the Experience of Croatia
Authors: Cerruti Tanja
Published: April 2022

Croatia became the twenty-eighth member of the European Union following an intense preparation process that was heavily influenced by adherence to the so-called political criteria set for the fifth enlargement of the Union, but that were implicit also in previous phases. The additional conditions laid down in the criteria applied to the preparation process of the Western Balkan Countries reflecting the historical and political context of what was characterized, in the 1990s, by bloody ethnic conflicts. The strict application of the political criteria and the careful monitoring of their application by the European Institutions have spurred in Croatia a number of significant reforms, both at legislative and constitutional level, particularly concerning the judiciary. The outcome of the preparation process not only led to Croatia's accession to the EU, but also benefitted the Country itself. However, the management of this process and the overall EU scenario pose
The Primacy and Direct Effect of EU International Agreements
Authors: Gáspár-Szilágyi Szilárd
Published: April 2022

The rules on invoking EU norms before the Court of Justice and Member State courts are at the core of EU constitutional law. International agreements binding on the EU form an integral part of EU law and have primacy over inconsistent secondary EU legislation. Moreover, they also have primacy over inconsistent Member State law. This article aims to investigate, whether such primacy is capable of having effects independent of direct effect or it needs to be triggered by some form of 'direct effect' of the international agreement.
The Persecution of Religious and LGBTI Minorities and Asylum Law: Recent Trends in the Adjudication of European Supranational Courts
Authors: Annicchino Pasquale
Published: April 2022

Over the past few years, the rise of restrictions on religious freedom, and the denial of fundamental rights to Lesbian, Gay, Bisexual, Trans and Intersex people (LGBTI) minorities in many parts of the world have resulted in an increased number of the asylum requests in many European countries. This article compares and contrasts the approaches of the European Court of Human Rights and the Court of Justice of the European Union, highlighting common approaches and divergences. Part I serves as an introduction to the topic. Part II discusses recent developments in the case law concerning the persecution of religious minorities. Part III discusses recent developments concerning the persecution of LGBTI communities. Part IV highlights the common trends, key notions and legal uncertainties of the two sets of decisions. Finally, Part V offers some concluding remarks.
The Judiciarys Self-Determination, the Common Law and Constitutional Change
Authors: Boyron Sophie
Published: April 2022

The Brexit debate is often analysed from the perspective of politicians, and in particular their views on and understandings of European law and politics. In contrast, this article concentrates on identifying the views of the senior judiciary. To do so, it analyses five extra-judicial speeches made between October 2013 to February 2014, a period particularly fertile in cases in the UK’s top courts concerning the law of the European Union or the European Convention of Human Rights. In doing so the article charts the senior judiciary’s vision of Europe. More particularly, it highlights the judiciary’s strategies to limit the impact of both European treaties on the British constitution in what might be termed ‘a search for judicial self-determination’. In addition, the article argues that a new extra-judicial process of constitutional change might be emerging. Finally, it concludes on the advantages and drawbacks of such a process of change.
Truly Competitive Public Procurement as a Europe 2020 Lever: What Role for the Principle of Competition in Moderating Horizontal Policies?
Authors: Graells Albert Sanchez
Published: April 2022

Public procurement is a pillar in the Europe 2020 strategy and one of the core policies derived from the Single Market Acts I and II. Majoritarian views advocate for an interventionist approach and instrumental utilization of procurement for the promotion of horizontal policies seen as deeply embedded in the Europe 2020 strategy. Conversely, public procurement can only make such a contribution by promoting the maximum degree of competition and being open to market-led innovation, instead of trying to mandate or ‘drive’ such innovation or ‘greening’ of procurement.

This article takes the view that the principle of competition is the main tool in the post-2014 procurement toolkit and the moderating factor in the implementation of any horizontal (green, social, innovation) policies under the new rules. That is, that competition remains the main consideration in public procurement and that the pursuit any horizontal policies, including those aimed at delivering the Europe 2020 strategy, need to respect the requirements of undistorted competitive tendering. In other words, the article argues that competition considerations should take precedence over national non-economic policies whose effects impair or jeopardize the goals set at EU level. To substantiate that claim, the article focuses on the interpretation of Article 18(1) of Directive 2014/24, which consolidates the principle of competition, and proposes a strict proportionality test applicable to the promotion of horizontal procurement policies where such ‘strategic’ or ‘smart’ use of public procurement can generate market distortions.
A Living Constitution in Times of Emergency? Sweden
Authors: Lind Anna-Sara
Published: April 2022

During the past couple of years, Sweden has as many other European countries encountered several challenges being the results of globalization, financial crisis and a migration tide. In this report, some trends and changes in the constitutional setting are commented upon as the constitution, political setting and the welfare state are put to the test by these challenges. The language used in media and by the politicians underlines the perspective of the country facing a crisis. The constitution, however, has not often been referred to and the complex challenges that counties, municipalities and national agencies meet are handled with pragmatism not opening up for the constitutional dimension. During the past couple of years, Sweden has as many other European countries encountered several challenges being the results of globalization, financial crisis and a migration tide. In this report, some trends and changes in the constitutional setting are commented upon as the constitution, political setting and the welfare state are put to the test by these cDuring the past couple of years, Sweden has as many other European countries encountered several challenges being the results of globalization, financial crisis and a migration tide. In this report, some trends and changes in the constitutional setting are commented upon as the constitution, political setting and the welfare state are put to the test by these challenges. The language used in media and by the politicians underlines the perspective of the country facing a crisis. The constitution, however, has not often been referred to and the complex challenges that counties, municipalities and national agencies meet are handled with pragmatism not opening up for the constitutional dimension.
Is the Living Instrument Approach of the European Court of Human Rights Compatible with the ECHR and International Law?
Authors: Theil Stefan
Published: April 2022

The article offers a rebuttal of prominent criticisms directed against the ‘living instrument’ interpretative approach of the European Court of Human Rights. The article initially introduces the basic application of the interpretative approach as adopted by the Court and then considers whether it is compatible with the Convention and broader International Law. The article argues that the Preamble, subsequent State practice and preparatory work offer inconclusive evidence to both critics and supporters of the ‘living instrument’. However, the interpretative approach can claim democratic endorsement through States, while arguments based on the necessity to consider domestic interpretations of the European Convention on Human Rights (ECHR) cannot support a restrictive interpretation as a matter of International Law. The ‘living instrument’ further appears compatible in the context of state sovereignty in International Law, and broader institutional concerns with the role of judges in the adjudication of rights. Ultimately, the ‘living instrument’ interpretative approach therefore appears legal under the Convention and relevant International Law.
Authority to Carry in the United Kingdom: The Right to Travel, the Privatization of Security and the Rule of Law
Authors: Scott Paul F
Published: April 2022

The rights to enter and exit the United Kingdom are limited in a number of ways which have in common a desire to protect the national security of the country. One of the relevant mechanisms, the legal basis of which has recently been overhauled, is that of ‘ authority to carry ’ (ATC) schemes, which require transport companies to request permission to bring persons in and out of the UK and punish them if they do so without permission. This article outlines the relevant law and considers it from two points of view: first, the rule of law issues raised by the past and present operation of the relevant schemes and, second, the lessons of ATC schemes for the privatized enforcement of national security norms and the possible attenuation of the scope for legal accountability for their operation.
The Single Supervisory Mechanism in Action: Institutional Adjustment and the Reinforcement of the ECB Position
Authors: Recine Fabio , Chiti Edoardo
Published: April 2022

This article discusses some aspects of the functioning of the Single Supervisory Mechanism (SSM) since its launch in November 2014. By examining a number of practices developed by the European Central Bank (ECB), it argues that two important and complementary processes have characterized the functioning of the SSM so far. First, the ECB has regulated its interactions with the national authorities in such a way to consolidate and promote supranationalism within the SSM: more precisely, transnationalism has been put at the service of supranationalism. Second, the ECB has expanded its supervisory powers, by making an extensive use of the narrow regulatory powers that it enjoys under the SSM Regulation and by using its adjudicatory powers in a quasi-regulatory manner. Admittedly, both processes were largely predictable and do not alter the fundamental legal and institutional features of the SSM. However, they should not be considered as marginal adjustments of the legal framework established by the SSM Regulation. They are important developments, raising some concerns and capable of conditioning the future developments in the SSM.
The Binding Nature and Enforceability of Hybrid Global Administrative Bodies Norms Within the National Legal Order: The Case Study of WADA
Authors: Jenart Cedric
Published: April 2022

There is growing attention in legal scholarship for global administrative law and the changing nature of public law in general. Still, few authors have bridged the gap between hybrid global administrative bodies, which often construe soft law norms, and nation states, which increasingly make these norms binding and enforceable in the national legal order. The question arises as to how soft law norms are made binding and enforceable within nation states after they were drafted by hybrid global administrative bodies. The manner in which the Flemish federated entity in Belgium incorporates the World Anti-Doping Agency’s norms represents an instructive case study to formulate a tentative response to this research question. The World Anti-Doping Agency is an example of a global hybrid actor that was founded and continues to exist through the partnership between governments and private (sports) organizations.

The article first shows that national legislation may be a necessary method to transpose hybrid global norms in the national legal order. Second – out of at least three techniques to adopt legislation (reception, delegation and dynamic referral) – the latter technique could represent the compromise between efficiency and constitutionality. However, the dynamic referral technique is equally limited by constitutional law and the European Convention on Human Rights. The article concludes with a number of recommendations for national legislatures or executives when they refer dynamically to hybrid global norms as a technique of modern public lawmaking.
The Role of Private Actors in Preventing Work-Related Risks: A Law and Economics Perspective
Authors: Philipsen Niels J.
Published: April 2022

This contribution considers the regulation of work-related risks such as industrial accidents and occupational diseases, and more specifically the role of employers and employees in the regulation and prevention of such risks. First, a law and economics perspective will be provided on the delegation of regulatory design and enforcement tasks to private actors. Thereby it will be assessed (for the specific case of work-related risks) what are the theoretical advantages and disadvantages of private regulation and enforcement compared to public regulation and enforcement, taking efficiency as a main goal. Efficiency in that respect relates to finding an optimal way of dealing with market failures, such as externalities in the form of work-related accidents and diseases. Secondly, confronting theory with practice, examples of private regulation of work-related risks will be provided for the Netherlands, which largely relies on collective labour agreements and private enforcement mechanisms. The role of liability insurers as an important potential driver of actions taken by employers and employees will be highlighted, as well as the importance of having (e.g. in administrative law) a smart mix between public law and self-regulatory mechanisms.
Obligations Imposed on Private Parties by the GDPR and UK Data Protection Law: Blurring the Public-Private Divide
Authors: Butler Oliver
Published: April 2022

A profound shift across European public law has occurred as public authorities and private actors are increasingly interconnected in the exercise of public functions. This article explains the differences between the obligations imposed on private parties and public authorities by the European Union General Data Protection Regulation and UK Data Protection Bill, which is currently before the UK Parliament. It considers whether such a divide is justifiable, especially in light of private parties increasingly performing public functions, and makes recommendations for the interpretation and development of the public-private divide in the future. Although the structure adopted in the UK Data Protection Bill has the ability to achieve a coherent and appropriate public-private divide, it will present a considerable administrative challenge and must be monitored closely in the future.
New Forms of Local Governance and the Transformation of Administrative Law
Authors: Colombo Carlo Maria
Published: April 2022

In policy areas in which the cities are today leading, networked collaborations between state and nonstate actors to co-define the public good are increasingly supplementing classic models of administrative governance. While triggered by the combination of spatial interconnection, internal density, and knowledge creation in contemporary urban spaces, these hybrid structures come at a price. Although created to pursue a public interest as much as any other administrative body, the discretion exercised in these organizations is horizontally fragmented across a set of actors, each of whose individual reflexion is equally needed to generate the common goal of the collaboration. The dilemma this appears to create comes down to one question: what is the role of administrative law in ensuring the legal accountability of these forms of collaborative urban governance? This article looks at Brainport Eindhoven, a Dutch triple-helix cooperation pursuing economic innovation. Based on this illustrative case study, it argues that, to cope with this institutional innovation, scholarship must abandon the classic public law paradigm of administrative law and explore rules and mechanisms to ensure that partners effectively collaborate to achieve the desired common outcome together.
Whither Administrative Justice in Hungary? European Requirements and the Setting Up of a Separate Administrative Judiciary
Authors: Varju Marton , Várnay Erno
Published: April 2022

rule of law; judicial reform in Hungary and Poland; administrative courts; judicial independence
The Curious Case of the Fundamental Rights Agency’s Mandate: Legal Shrouding and Democratic Politics
Authors: Ovádek Michal
Published: April 2022

European Union, Fundamental Rights Agency, Legal Services, Multiannual Framework, police and judicial cooperation, EU agencies, transparency, democratic participation, legal basis, fundamental rights
Managing Misconceptions about EU Citizens’ Access to Domestic Public Healthcare: An EU-Level Response?
Authors: De Mars Sylvia
Published: April 2022

This article explores the interaction between EU movement of persons and the access to and financing of public healthcare in the UK, Ireland, Belgium, and the Netherlands. The article will show that particularly in a time of relative austerity and a seeming lack of cross-border solidarity, the non-discrimination obligations in the EU Treaties may encourage the Member States to cut back on tax-funded healthcare so as to not have to extend such care to nonnationals. It suggests that if the Member States cannot effectively rebut the persistent public concerns of ‘EU welfare tourism’ with statistics, it may be preferable for them to seek to address those fears at the EU level (by a re-coordination of responsibility for health care coverage) than to respond to them through domestic law (by increasing individual responsibility for health care costs).

Free Movement of Persons, Public Healthcare Organisation, Welfare Tourism, Social Security Coordination
Austerity-Based Labour Market Reforms in Greece v. Fundamental Rights in the Aftermath of the European Debt Crisis: An Analysis of Supranational and National Bodies’ Jurisprudence
Authors: Papadopoulos Nikolaos A.
Published: April 2022

The recent debt crisis in Europe has resulted in a significant number of structural reforms implemented in EU Member States across various fields, including the labour market, either in the context of the bailout mechanisms or the EU Economic Governance framework. This development has provoked fundamental rights concerns and has consequently given rise to litigation strategies that put austerity reforms under the test of legality before supranational and national competent bodies and courts. However, the jurisprudence that has developed in that regard seems incoherent and shows real differences in approach. This study analyses the paths of judicial reasoning that supranational and Greek bodies have adopted in fundamental rights cases challenging austerity-based labour market reforms implemented in Greece during the European Debt Crisis. It concludes that different paths of reasoning have been adopted, which could even be regarded as conflicting at several instances. They are thus reflecting the well-known particularities and discrepancies of fundamental rights protection in Europe as well as the conflicting relationship of social rights with economic and fiscal considerations imposed by austerity in times of crisis and beyond.

Austerity, Greece, labour market reforms, fundamental rights, European Debt Crisis, social rights, labour law, ECHR, European Social Charter, Court of Justice of the European Union
The Bundesverfassungsgericht’s Glaring and Deliberate Breaches of EU Law Based on ‘Unintelligible’ and ‘Arbitrary’ Grounds
Authors: Ziller Jacques , Galetta Diana-Urania
Published: April 2022

The authors believe that the judgment of the German Federal Constitutional Court contains serious breaches of EU law and is manifestly erroneous. The German judges refuse to apply the CJEU’s judgment and arrogate the power to assess the legality of European Central Bank (ECB) decisions and to review the reasoning of the CJEU, which they qualify as being ‘unintelligible and arbitrary’ for the sole purpose of declaring it ‘ultra vires’. They use the principle of proportionality in a legally incorrect way, ignoring the difference in scope between the latter and the principle of conferral. They make highly questionable use of the principle of democracy and of economic analysis to assess the merits of ECB decisions. A careful analysis of the judgment leads us to wish for the initiation of an infringement procedure.

Breach of EU law by the judiciary conferral, democratic principle, dialogue between courts, EU competences, infringement procedure, manifest error, primacy, proportionality, ultravires