bluuebunny/crossref_metadata_2025 huggingface dataset:
Changing the Norm: Positive Duties in Equal Treatment Legislation
Authors: Fredman Sandra
Published: February 2017

This paper assesses the emergence of a new proactive model to achieve gender equality, and compares it with the more established complaints-led model based on individual rights. While transcending many of the weaknesses of the individual complaints model, the proactive model remains ambiguous in many crucial respects, particularly as to its objectives, its use of participation, and how compliance is to be achieved. The paper aims to shed more light on these key aspects by drawing on the experiences of such models in Canada, Northern Ireland, Britain, and the EU itself. This demonstrates that the location of proactive strategies on the borderline between law and politics makes them highly dependent on political will. The key challenge is therefore to ensure that proactive strategies are based on a recognition that equality is a fundamental right, not a discretion, without reverting to individualised complaints mechanisms with all their inbuilt weaknesses. I conclude by considering how we might achieve a fundamental and non-derogable core of rights within a proactive model.
A ‘Race to the Bottom’ in the EU?
Authors: Birkmose Hanne Søndergaard
Published: February 2017

The objective of this article is to analyse the incentives of Member States as well as of companies in order to establish whether or not the EU can expect to experience a situation in which there is competition for company incorporations.

In the European literature on competition between company law regimes, it has been argued that if conditions for competition were established in the EU then there would not be competition to the same extent as in the USA, primarily because the European Member States lack a financial incentive to compete. However, the financial incentive can not stand alone, and the full range of the Member States' incentives is therefore examined in the context of interest group theory.

Whether or not a company will forum shop for the most favourable company law depends on whether the decision-makers of the company have a personal incentive to do so. It is examined who the decision-makers are in different situations and it is concluded that regardless of who may be considered to be the actual decision-maker, it is likely that both the promoters of companies and companies themselves will have a number of incentives, varying in kind and intensity, to forum shop.
Implementation of the Article 13 Directives in Dutch Equal Treatment Legislation
Authors: Gerards Janneke H.
Published: February 2017

In the Netherlands, an elaborate legal system of legislative protection against discrimination has been in place since 1994. Partly with the aim of implementing the Article 13 Directives, two new statutes were added to the system in 2003 (disability discrimination) and 2004 (age discrimination) and a number of amendments have been made to the existing legal framework. This has resulted in a highly complex system of legislation. The complicated differences between the scope and exceptions of the various legislative acts will be difficult for most people to comprehend. As far as content is concerned, however, the Dutch legislation generally seems to comply with the requirements of the Directives and often even provides a higher level of protection. Most issues of debate in the Dutch implementation process concern relatively minor points, such as terminology (discrimination or “distinction”?). It is clear, however, that some elements of the Dutch legislation can be considered to be incompatible with the Directives, in particular the complete exclusion of religious institutions and the clergy from the scope of application of the ETA and the decision to define the elements of harassment cumulatively instead of alternatively.
Implementation of Equality Law: A Task for Specialists or for Human Rights Experts? Experiences and Developments in the Supervision of Equality Law in the Netherlands
Authors: Goldschmidt Jenny E.
Published: February 2017

In this article a link is given between the debates on the establishment of specialised bodies in the field of equality law and those on national human rights institutions in the Netherlands. The Equal Treatment Commission has now more than 10 years of experience, enabling it to provide insights into the strengths and weaknesses of such bodies. In particular, the power of the Commission to consider individual complaints has developed into an authoritative core task that provides materials for the exercise of other powers, e.g. training and advice. However, the restricted mandate of the Commission risks diminishing the effectiveness of its work. Current developments in the Netherlands to create a National Human Rights Institution may in due course fill this gap and provide broader perspectives for a more inclusive approach to human rights protection, including protection against discrimination. Even when it can be held that the power to deal with individual complaints is not absolutely necessary in the context of a Human Rights Institution, it is equally important that this power is retained in equality cases. More generally, protection against discrimination will always need specific attention in the protection of human rights.
Recent Developments and the Non-Discrimination Directives: Mangold and More
Authors: Waddington Lisa
Published: February 2017

The concluding paper of this special issue seeks to reflect on recent developments with regard to the non-discrimination Directives and their possible relevance for the United Kingdom and the Netherlands. Particular attention will be paid to the first case decided by the European Court of Justice on the basis of the Directives, Mangold.1 This case concerned the tricky question of the limits of the extended scope for justifying discrimination on the grounds of age, and the standards against which such exceptions to the non-discrimination principle should be measured. In addition, the attention currently being paid to the broader policy question of the need for, and desirability of, further EC non-discrimination directives will be noted.
Allocating Jurisdiction in Private Competition Law Claims within the EU
Authors: Fitchen Jonathan
Published: February 2017

This article demonstrates that the policies underlying EC competition law and EU private international law currently have a significant potential for conflict. This conflict is a result of a failure to adequately translate the ‘public’ nature of supranational EC Competition Law into the national context of ‘private’ forms of litigation. The conflict is explored in the context of the private litigation of cross border competition law disputes. It is suggested that whilst the conflict is unresolved the effective enforcement of EC competition law can not be assumed to follow naturally from either the current modernisation of EC competition law, or the provisions of the Commission's recent Green Paper concerning private damages actions for breach of competition law.
Exploring the Interfaces between Contract Law and Property Law: A UK Comparative Approach
Authors: Farran Sue , Cabrelli David
Published: February 2017

Contract and property law provide two examples of distinct legal approaches: pragmatism and coherency. The different natures and roles of contract law and property law also reflect the distinct qualities of the rights characteristic of both these branches of the law, namely rights in personam and rights in rem. The deviations between the approaches of contract law and property law can be seen most clearly in those transactions which rest upon the interface of property law and contract law. Two transactions lying at this interface are (1) the sale and purchase of property; and (2) the creation and constitution of rights in security over property. In this paper, the nature of these two transactions will be analysed through the looking-glass of two legal systems which are cited as providing examples of (i) the two extreme approaches of pragmatism and coherency and (ii) the comparative differences between them. These are the English law and Scots law systems.

The question is whether the positions adopted by Scots law and English law in respect of the two selected transactions are so different? In practical terms, the nature of the rights that sellers and purchasers and security granters and security holders have at different stages of the formation and completion of the transactions of sale and security is extremely important, since whether the right is a right in personam or a right in rem will determine the private international law rules, taxation rules and insolvency rules which are applicable, as well as the nature of the legal remedies which are available to such parties.

The comparative analysis of this article is conducted through the prism of five mandatory principles which are considered to be axiomatic in property law regimes grounded in the Civilian Law tradition. These principles are: separation, abstraction, numerus clausus, specificity and publicity. Once a comparative assessment of the applicability of these five principles to the Scots law and English law systems is made, the extent to which these principles are conceptually coherent and/or pragmatic will be considered and certain conclusions drawn.
The Case for a Considered Hierarchy of Discrimination Grounds in EU Law
Authors: Howard Erica
Published: February 2017

The EU has legislation, based on Article 13 EC, against discrimination on the grounds of sex, racial and ethnic origin, religion or belief, disability, age and sexual orientation, but the protection provided is not the same for all these grounds. It can be said that this EU legislation creates a hierarchy of discrimination grounds, with racial or ethnic origin at the top, closely followed by sex, with religion or belief, disability and sexual orientation below this and age at the bottom. In this paper, I argue that this hierarchy is the outcome of political pragmatism, rather than of a deliberate consideration of the different grounds. I will suggest that a hierarchy is not necessarily wrong, but that a more considered decision should be made about which grounds need stronger protection. I propose an alternative way of deciding this question, using the distinction of suspect grounds made by the European Court of Human Rights under the ECHR.
Recent Developments in the Area of European Criminal Law
Authors: Herlin-Karnell Ester
Published: February 2017

This contribution tries to highlight and scrutinize recent developments in the dynamic area of European criminal law at both the EC and EU level. In so doing the paper focuses on three judgments each providing new perspectives on, in particular, but not only, how far the Court of Justice is prepared to go in its role as integration activist; by identifying the principle of effectiveness as forming the leitmotif in the chase for constitutional evolution of European criminal law. The paper concludes, after also having discussed current legislative initiatives presented by the Commission, by asserting the need for caution and critical assessment.
Reflecting on Age Discrimination and Rights of the Elderly in the European Union and the Council of Europe
Authors: Meenan Helen
Published: February 2017

Since 2000 an abundance of rights is ostensibly available to persons living in the European Union. Among the new groups to emerge as visible recipients of rights are the elderly and victims of age discrimination. These groups are growing in importance not least because of demographic ageing in the European Union. This article examines the sources and nature of human rights for both groups and investigates whether they are better off in light of the European Convention of Human Rights, Protocol 12 ECHR, the European Union Charter of Fundamental Rights, and the Revised European Social Charter, in particular. Despite great advances, the reality is one of uneven protection of human rights for these groups throughout the European Union (EU), frequently due to the low rate of ratification of Council of Europe instruments. This reality has implications for individuals whose access to rights may depend on where they reside in the EU. The many positive developments also create a misleading image of a consistent human rights culture in the EU. The disjointed reality reinforces the important and complementary role of each element of the human rights' matrix examined here. It also highlights the need for ways of making it easier for ordinary people to be aware of their ‘age’ rights and how best to access them.
Orams V. Apostolides: A Case Study on the Application in English Law of the Brussels I Regulation in the Light of the Act of Accession 2003
Authors: Athanassiou Phoebus
Published: February 2017

This article uses a recent ruling of the High Court of Justice of England and Wales as the starting point for an enquiry into the interpretation of Protocol no. 10 to the Act of Accession 2003 and, more particularly, into its effects on requests for the recognition and enforcement of Cypriot court judgments formulated on the basis of the Brussels I Regulation. The High Court's ruling is of some significance, not only because Protocol no. 10 becomes, for the first time since its adoption, the subject matter of judicial interpretation but, also, because of its value as a test case on the European judiciary's perception of the impact of the reforms wrought by the Brussels I Regulation on the status quo ante in this field and as an illustration of the wider legal complications inherent in the participation in the European Union of a de facto divided Member State. This article also anticipates some of the arguments that the Court of Appeal and, eventually, the European Court of Justice and the European Court of Human Rights might be faced with in deciding how best to address the broader legal issues that this case raises.
Perspectives of a European Law of Succession
Authors: Terner Paul
Published: February 2017

The article analyses the latest developments in the process of harmonisation in the area of succession law in Europe. The status quo of harmonisation is described and the plans to harmonise this area in the future – which have not been given much consideration in the jurisprudential literature so far – are examined in detail. Particular attention is drawn to the Green Paper ‘Succession and Wills’ which the European Commission has issued recently (COM(2005) 65 final). The preparatory works, the development and the content of the Green Paper are described, and the reactions to it, as well as its possible outcomes, are analysed.
The Community's Internal Market-Based Competence to Regulate Healthcare: Scope, Strategies and Consequences
Authors: Davies Gareth
Published: February 2017

Rights of patients to seek medical treatment from foreign providers are creating a European market for healthcare services which will require regulation. Legislation on the basis of the internal market can address numerous issues of pricing, accessibility of services and access to markets, competition and state aids, as well as consolidating and clarifying patient rights. Potentially this amounts to a significant role for the Community in the regulation of national health care systems, whose legal context may come to resemble that of other network industries such as telecoms and energy. The legal, political and social implications of this de facto transfer of competence are large, which is why a cautious approach is justified. It may be wise to focus initial legislation primarily on patient rights. Such legislation makes minimal direct demands of national systems, but uses the patient as an agent, who by exercising his/ her rights forces those systems to adapt their behaviour and structure, and become more open. The familiar internal market pattern then recurs, whereby enforcement of individual rights results in liberalization and some degree of natural harmonization, after which market regulating legislation becomes a necessary and natural step and the transfer of power is complete.
The Past, Present and the Future of Eurojust
Authors: Suominen Annika
Published: February 2017

The objective of this article is to shed some light on the current situation of co-operation in criminal matters in the EU, especially with regard to Eurojust. With the Lisbon Treaty, the area of freedom, security and justice is about to change. The co-operation in criminal matters will consequently also be subject to modifications. Due to the tension between effective crime control and preserving state sovereignty in co-operation in criminal matters, the establishment of a European prosecutor's office has in the past encountered objections. The past of the establishment of Eurojust is analysed and the present functioning of the unit is examined. The possible establishment of a European public prosecutor's office on the back of Eurojust is analysed in the light of the past developments and its future in co-operation in criminal matters is evaluated.
The Execution of Judgments of the European Court of Human Rights — A Political Battle
Authors: Marmo Marinella
Published: February 2017

The efficacy and effectiveness of the European Convention of Human Rights depends on the implementation of judgments of the European Court of Human Rights. In the past and until recently, the trust in and actual authority of the Court has predominantly compensated for the lack of direct and executive power over signatory parties to the European Convention. However, the workload of the Court is increasing at an exponential rate; at the same time, individuals from several new member states are not making full use of this enforcement machinery. As a result of these two elements, combined with the lack of execution of some judgments for legal–political reasons, compliance with the Court's judgments has become a priority in the political agenda of the Council of Europe. Some recent developments include Protocol 14 to the European Convention and the setting up of the Group of Wise Persons. These actions indicate that the Council of Europe has recognised that effective enforcement machinery is paramount for its credibility.
The Interpretation of European Private Law in the Light of Market Freedoms and EU Fundamental Rights
Authors: Schillig Michael
Published: February 2017

Recent initiatives in the area of European private law seem to rely ever more extensively on very broad, general and vague provisions, in particular the concept of ‘good faith and fair dealing’, a concept already present in the acquis communautaire. These and similarly vague terms will only have an impact if interpreted autonomously and unitarily by a central authority. Despite its cautious approach regarding the assessment of the fairness of contract terms, this task can rest only with the European Court of Justice. This article explores whether and to what extent the four market freedoms regarding the free movement of goods, persons, services and capital, as well as the fundamental rights developed by the Court's jurisprudence, now laid down in the EU Charter on Fundamental Rights, may contribute to the development of an autonomous European method of legal reasoning.
The 14th Ec Company Law Directive on the Cross-Border Transfer of the Registered Office of Limited Liability Companies — Now or Never?
Authors: Rammeloo Stephan
Published: February 2017

This paper analyses two academic legislative proposals concerning cross-border company migration. A ‘European’ proposal develops a future EC Directive EC, and a more national law-oriented approach is pursued by the ‘German’ proposal. First, the outcome of a Consultation round held by the European Commission for the business world and a brief overview of EC law as it currently stands are described. The description of the legal status quo concerning cross-border company migration on the community level is followed by a brief reference to pending Case EJ C-210/06 Cartesio, which appears to offer the opportunity of a link between the EC judicature and future EC legislation. Subsequently, both academic proposals, elaborated within the ambit of the Deutsche Rat für Internationales Privatrecht, are given detailed attention. The conclusion is that with a view to Article 44(2)(g) of the EC Treaty, the EC legislator cannot abstain from elaborating a clear secondary EC law instrument in order to safeguard the justified interests of both companies and firms migrating throughout Europe and of those doing business with these entities.
The Working Time Directive and the European Court of Justice
Authors: Nowak Tobias
Published: February 2017

This article sheds light on how judgments of the European Court of Justice can influence the legislative process of the European Community by analyzing the legislative process surrounding the Working Time Directive. In 2000 the European Court of Justice interpreted the Working Time Directive in SIMAP and ruled that the time spent on-call by doctors constitutes working time in its entirety. This ruling seems to have come as a surprise to the Member States and the Commission alike and plans were made to counter the ruling. Since then the ECJ has confirmed the approach it took in SIMAP in several cases. However, in Dellas the Advocate General called upon the ECJ to change its definition of working time in order to exclude time spent on-call and thus anticipate the will of the legislators. The opinion of the Advocate General in Dellas, but also the reactions to the judgments by other political actors, and the fact that the Council of Ministers finally reached a political agreement on a new text for the Directive, make the evolution of the Working Time Directive of particular interest.
‘See No Evil, Hear No Evil, Speak No Evil’: The Irish Referendum and Ratification of the Lisbon Treaty
Authors: De Parfouru Anatole Abaquesne
Published: February 2017

This article considers the appropriateness of ratifying EU Treaties by referendum and challenges the assumption as to the democratic nature of referenda when considering the complexity of legal documents such as the Constitutional Treaty or the Lisbon Treaty. Like the 2005 referenda on the Constitutional Treaty, the Irish referendum on the Treaty of Lisbon illustrates the lack of information possessed by the voters, as well as their misconceptions as to the contents of the Treaty submitted to their approval. This article begins by examining the scope of the Irish Government's discretion in deciding to hold a referendum on the Lisbon Treaty, as a result of the Crotty ruling. It then analyses the arguments used during the referendum campaign and confronts them with the text of the Treaty, before considering the reasons given by the electorate in voting for or against ratification of the Treaty.
Taking Revolutions Seriously: Rights, Risk and New Technologies
Authors: Murphy Thérése
Published: February 2017

This paper uses ‘revolution as a frame for examining rights and new technologies. It begins by trying to pin down the meaning of key terms, principally ‘new technologies' and ‘revolution’. It fails in this task; nonetheless, it goes on to argue that something revolutionary does seem to be underway in how human rights are viewed and valued. Describing this phenomenon as a new (anti-rights) ‘rights revolution’, it calls for a fight-back by human rights advocates. Two strategies to assist the fight-back are described in some detail: the first focuses on bringing out ‘the dignity of choice’; the second on bringing out ‘risk within rights’.
Fundamental Disjunctions in the EU Legal Order on Human Tissue, Cells & Advanced Regenerative Therapies
Authors: Favale Marcella , Plomer Aurora
Published: February 2017

The unprecedented expansion of EU controls on biological materials under the aegis of the EU's expanding remit on public health has caused a major reshaping of the regulatory landscape of the life-sciences in Member States. This article analyzes the challenges to national and supranational legal orders posed by the integration of ethical norms within the EU Human Tissue and Cells Directive 2004/23/EC and the Advanced Therapies Regulation (EC) 1394/2007. We show how the infiltration of substantive moral norms in morally contested fields of biotechnology is facilitated by the incorporation into the EU legislative texts of fundamental norms such as respect for human dignity contained in the EU Charter of Fundamental Rights and the Council of Europe's Convention on Human Rights and Biomedicine. The first part of the article sets out the constitutional and normative challenges posed by the EU legislative intervention on ethical matters in the field of health and new biotechnologies. The second part examines the substantive content of the integrated fundamental norms highlighting their open-ended and indeterminate character and the areas of overlap and disjunction. The third part introduces an analytical matrix which is deployed to analyze the reach of fundamental norms in shaping the more specific ethical controls in the legislative texts and reveals how the mix of technical and evaluative norms resolves the ethical and constitutional tensions in the EU texts.
The EU's Biopolitical Governance of Advanced Therapy Medicinal Products
Authors: Flear Mark L.
Published: February 2017

This paper focuses on the specific example of the newly operational Regulation on Advanced Therapy Medicinal Products to explore the potential for biopolitics, an arena in which biocitizens can demand and contest the exercise of EU power over life. The paper shows how the discourses producing, organizing and orchestrating citizen participation in the EU's governance of advanced therapies from above figure a ‘deficit model’ of citizens in need of education inter alia through their membership of patients' associations who have membership of the Committee on Advanced Therapies established by the Regulation. Biocitizens are shown to be incorporated to service the EU's legitimacy needs. The paper then warns against assuming biocitizens' (self-) reflexivity ensures they do not reiterate and reinforce their construction within the ‘deficit model’ by unwittingly deploying the terms of their subjection. After which the paper highlights some elements that provide a rhetorical and operational opening for participation, and which therefore can be used by biocitizens to reconstruct their engagement with EU governance from below, the wider governance of advanced therapies, as well as in their self-governance.
EU Soft Law in Domestic Legal Systems: Flexibility and Diversity Guaranteed?
Authors: Korkea-Aho Emilia
Published: February 2017

New modes of governance are proliferating at all levels, most prominently in the EU. One main characteristic of new governance is adjustability and revisability in the form of soft law. The non-binding nature of soft law is said to contribute to flexibility and diversity in Member States and to secure national autonomy. However, this article argues that while soft law may not be legally binding, it nevertheless has legal effects that throw flexibility and diversity of national action into doubt. Beginning by demonstrating that soft law may have discernible effects on practices in Member States, at the same time restricting Member State choices, the article goes on to develop a categorisation of those effects and to document them in detail. These are: judicial recognition by the European courts, explicit terms of soft law instruments, which demand special types of national implementing measures, the role played by non-state actors, and hybrid forms of regulatory instruments comprising soft and hard law provisions. The analysis shows a need to add variety to existing research on EU soft law, which has traditionally focused on the role of the judiciary in giving legal effects to soft law. Instead, we should be more attentive to the other three factors when discussing soft law. Besides the more holistic approach, research should also analyse soft law in a more case-specific manner in order to fully grasp the implications of choice of soft law in a domestic legal system.
On the Jurisprudential Significance of the Emergent State Practice concerning Foreign Nationals Merely Suspected of Involvement with Terrorist Offences
Authors: Chigara Ben
Published: February 2017

This article examines emergent state practice of European States concerning foreign nationals that are merely suspected but not charged with involvement with terrorist offences, including deportation to destinations where they risk torture, inhuman or degrading treatment or punishment – usually their own country of origin, contrary to the foremost rules of international human rights law. The article attempts a rule of law analysis with a view to evaluating the difficulty posed for States by the absence still of alternative mechanisms for ensuring both the national security interest on the one hand, and on the other, the human rights interest of terrorist suspects. The article argues that sustainable counter-terrorist strategies will be distinguished and characterised by their insistence on the recognition, promotion and protection of the dignity inherent in all individuals – including terrorist suspects whether or not they have been charged with terrorist offences. This calls for the urgent development of human rights steered national security policies that prioritize the recognition, promotion, protection and reinforcement of the dignity inherent in all individuals. Such policies will have at their core, strategies for the efficient resolution of the question of how best to deal with the individuals that are ‘merely suspected by States agents' of involvement in terrorist offences, particularly foreign nationals. The article examines jurisprudence arising from cases involving among others the UK, Italy, Sweden, Spain, the Netherlands and France and shows a worrying appetite by these pro-democracy States to minimize human rights protection of terrorist suspects as a means of progressing the fight against international terrorism. This approach contradicts the international paradigm of over six decades whereby the establishment and maintenance of international peace and security was premised on human rights. The article advocates the development of human rights steered policies and strategies to deal with foreign nationals suspected of involvement with international terrorism.
Supervisors' Liability: The Dutch Fireworks Case
Authors: Huijsmans Renée , Van Maanen Gerrit
Published: February 2017

Man-made disasters like the Dutch Enschede Fireworks case often raise several questions; How did this happen? Who is responsible? How can we prevent this from happening again? And more important, who pays for the damages? Supervisors' liability has taken a different turn than was to be expected in the Netherlands. Municipality and state are not liable for failure of supervision on any basis. The Court appears to feel an aversion to state liability in man-made mass torts. This aversion can be explained by the fact that in almost all cases of failure of supervision the ‘real cause’ has to be found with the actual offender, not with the failing supervisor. Furthermore supervisors' liability might open the floodgate to claims. Even though the reluctance of the court to impose supervisors' liability can be elucidated, according to the above reasoning, the Dutch system is ambiguous when it comes to supervisors' liability. How do other jurisdictions deal with this? What are their judicial points of view with regard to supervisors' liability? Are there any emergent general rules for supervisors' liability or is the issue dealt with on a case by case basis? And does this make other systems, as indistinct as the Dutch system or not when we examine the Dutch fireworks case of Enschede? In this Article we will examine these issues and consider relevant legislation from three different European domestic jurisdictions. State liability throughout the Netherlands, the United Kingdom and Germany, will be compared in light of the Dutch Fireworks disaster.
The Orams Case, the Judgments Regulation and Public Policy: An English and European Law Perspective
Authors: Athanassiou Phoebus
Published: February 2017

Using as a starting point the landmark ruling of the European Court of Justice in Apostolides v. Orams this Article examines the interpretation of the concept of public policy and its concrete application in the jurisprudence of the English and other national and supranational courts as a bar to the recognition and enforcement of foreign judgments, with an emphasis on situations where the competing acts of unrecognized foreign states or governments are at stake.
Union Citizenship and the Legality of Durational Residence Requirements for Entitlement to Student Financial Aid
Authors: Van Der Mei A.P.
Published: February 2017

The recent ruling in Förster demonstrates that Union citizenship is not a magic judicial tool for expanding citizens' rights. The Court upheld a national rule that makes entitlement to maintenance grants for economically inactive nationals of other Member States conditional upon five years of prior residence on the national territory. The Court did not support its conclusion by persuasive reasons. The ruling suggests that the Court merely accepted the five-year residence requirement simply and only because the EU legislator had authorized it. While there is in principle nothing wrong with respecting legislative choices, this contribution argues that the Court showed far too much deference to the EU legislator. Förster constitutes an unnecessary step back on the road to a meaningful Union citizenship.
Injunctions at the Request of Third Parties in EU Competition Law
Authors: Cauffman Caroline
Published: February 2017

The European Commission recently made significant efforts to encourage the private enforcement of EU competition law, by inducing natural and legal persons who suffered damage as a result of competition law infringements, to bring actions for monetary damages before national courts. An important obstacle to the success of this type of actions is the difficulty to prove and assess the amount of damages. This problem could be evaded by bringing actions for injunctions instead of actions for damages. Surprisingly, however, actions for injunctions have received less attention in the debate as to the private enforcement of competition law. This article investigates the current possibilities to bring actions for such injunctions either in the course of administrative procedures or in the course of civil procedures and suggests proceeding to the introduction of a harmonized action for the cessation of competition law infringements.
EU Agencies: Does the Meroni Doctrine Make Sense?
Authors: Chamon Merijn
Published: February 2017

Two decades ago the process of agencification of the EU administration was initiated and has gained momentum ever since. Today there are about 30 agencies scattered across the EU, active in different policy fields and entrusted with different tasks. In a first part this article looks at the history and rationale of agency creation and at the political framework in which EU agencies operate. In a second part, building on the definition and classification of agencies by Griller and Orator, a closer look will be taken at the institutional position of the EU agencies. Because the creation of agencies was neither excluded nor foreseen in the Founding Treaties most authors search for clarification in the 1958 Meroni ruling of the CJEU This article challenges this line of reasoning by identifying a number of problems. Furthermore this article also challenges the way in which a number of authors deduct the principle of institutional balance from the Meroni ruling, applying it to the functioning of agencies, thereby misconstruing the original concern which the Court sought to express through this principle. In the last part the article links this legal discussion to the political discussions on the future framework for the agencies, identifying a critical role for the Commission in supporting the above mentioned dominant legal reasoning.
The Dynamics of Constitutional Property Clauses in the Developing World: China and South Africa
Authors: Mostert Hanri , Lei Chen
Published: February 2017

This article examines the theoretical development of Chinese constitutional property law, compared with the experience in South Africa, which is another emerging jurisdiction of constitutional property law. Being cautious of the political, economic and social differences between two countries this endeavour is nevertheless important, because of its potential to spark renewed interest in the comparability of property law systems worldwide. It highlights that the third-generational constitutions of the developing world focus not only on participatory and political rights, but also on social rights and responsibilities of citizens, and in fact supports actionable socio-economic rights. Perceptions of property that may be regarded in the developing world as ‘Eurocentric’, i.e. that a system of ‘individual’ property interests is the predominant form of organization, are losing support. From the Chinese perspective, there seems to be an awareness of the increasing need to limit the vast regulatory reach of the state and to afford the individual better protection and opportunities to engage in personal wealth-enhancing activity. Yet, the promotion of individual property right should be comprehended in the view of the communitarian needs.
Compatibility of Dutch School Benefits with EU Law
Authors: Nicolaides Phedon , Shamskho Siavash
Published: February 2017

In the Netherlands, students are eligible to receive a subsidy – the so-called ‘tegemoetkoming scholieren’. However, the Dutch Ministry of Education, Culture and Science limits the granting of this subsidy only to those students that choose to study in the Netherlands. The question is whether this policy violates the provisions in the Treaty on the Functioning of the European Union (TFEU), which protect the rights of EU students to move freely in order to obtain education in their country of choice.

We explain that Member States are bound by EU law not to adopt measures that limit student mobility. More specifically, the non-granting of the Dutch school subsidy to students who pursue education in other Member States infringes Article 21 TFEU.

We also consider why the Dutch measure is still in force and why it has not been challenged by the many Dutch students who study abroad or by the European Commission. We test whether the national legal or EU system can assist aggrieved students and we conclude that it is very difficult for them to find redress when Dutch policy is not even recognized as being contrary to fundamental EU principles.
Discrimination and beyond in European Economic and Social Law
Authors: Davies Gareth
Published: February 2017

In practice and comments on EU internal market law, the Court and commentators often refer to the notion of ‘market access’ as if it is the keystone of the EU integration process and as if this would go beyond anti-discrimination rules. However, one cannot go beyond ‘non-discrimination without entering the sphere of ‘positive action. Yet, there is no legal, political or economic basis for positive action in the internal market context. A comparison with social law, where discrimination is a more developed concept, shows that the arguments for positive action are inappropriate to the economic context and that what are sometimes described as non-discriminatory rules constituting a restriction to free movement in fact usually constitute indirect discrimination. As for market access, economic theory tells us that the only rules that inhibit market access are those that have a discriminatory component. Thus anti-discrimination continues to be the essence of market-making and of market access and talk of ‘going beyond’ it is mere confusion. The goal and the logic of internal market law is substantive equality for all market actors – similarly to social law, from which it can learn much about the relevant concepts.
‘Reverse Discrimination’ in EU Law: Constitutional Aberration, Constitutional Necessity, or Judicial Choice?
Authors: Hanf Dominik
Published: February 2017

This contribution revisits the phenomenon of ‘reverse discrimination in the light of the latest Treaty amendments, recent developments in the CJEU's case law and evolutions in the law of selected Member States.

It follows that ‘reverse discrimination’ caused by national measures applying to internal situations in non-harmonized policy fields remains acceptable under EU law as a matter of principle. The Union's non-unitary constitutional structure compels the CJEU to exercise judicial restraint when reviewing such rules against the fundamental freedoms of the Treaties as long as the Union legislator does not address the issue. Although the CJEU's traditional and increasingly incoherent case-law on ‘purely internal situations’ is not a necessary corollary of this reasoning, alternative judicial approaches risk unduly undermining Member States' competences and constitutional identities.

Whilst much of the academic debate on reverse discrimination focuses on possible remedies under EU law, this paper also looks at solutions available under national law. Member States are well equipped to address reverse discrimination and to progressively live up to their responsibility in this respect. Evidence from different Member States suggests that national law (subject to an external control of the ECtHR) can provide a valuable and effective tool to assess whether or not restrictions of individual freedoms can be justified by overriding constitutionally recognized principles.
The End of EU Citizenship and the Means of Non-Discrimination
Authors: de Witte Floris
Published: February 2017

This contribution discusses the limits of the use of the principle of non-discrimination as an instrument for the development of the concept of Union citizenship. It argues that, particularly in relation to social rights, which are sustained by bounded notions of diffuse solidarity and generalized reciprocity, Union citizenship cannot be understood in isolation from the national citizenships upon which it is parasitic. In developing the social rights attached to the status of Union citizenship, the Court should therefore take careful account of how migrant citizens relate to nationals of the host state.
Enhancing the Protection of Third-Country Nationals against Discrimination: Putting EU Anti-Discrimination Law to the Test
Authors: Muir Elise
Published: February 2017

Non-discrimination and migration constitute two areas of EU law and policy that have greatly evolved since the entry into force of the Amsterdam Treaty. Both are of particular relevance to third-country nationals whose status, mobility and integration may depend highly on EU migration law and the EU's prohibition of discrimination. In between these two fields of EU law, there exists however a grey zone that remains insufficiently explored: it is a challenge for the coherence of EU anti-discrimination law. Should and can EU law enhance the protection of the third-country nationals whose status it regulates against nationality discrimination and against other forms of discrimination that may result from EU migration law?
The Horizontal Effect of the Free Movement Provisions
Authors: Karayigit Mustafa T.
Published: February 2017

The article scrutinizes the issue of horizontal effect in the field of fundamental freedoms. In that regard two main sub-issues are explored: First, the ratione materiae and ratione personae scope of horizontal direct effect of the Treaty provisions on freedom of movement for workers, freedom to provide services and freedom of establishment is examined with their main rationales. Second, in addition to indirect horizontal direct of the Treaty provisions on free movement of goods, it is examined whether horizontal direct effect in the field of free movement of goods is provided by these provisions on the basis of the same rationales, if not, by the general principle of non-discrimination on grounds of nationality of EU law.
More Consistency and Legal Certainty in the Private Law Acquis: A Plea for Better Justification for the Harmonization of Private Law
Authors: van Schagen Esther
Published: February 2017

The use of Article 114 TFEU to harmonize private law seems to be based on standard justifications that have facilitated legislative practices that may undermine the quality of the private law acquis. Arguably, better justification might limit these practices. Firstly, better justification entails exploring more thoroughly which aim should be pursued by the harmonization of private law, and to make this aim explicit in directives reforming and repealing older directives. Secondly, better justification of the degree of harmonization would have been based on a careful analysis of which degree of harmonization should be pursued in what cases, rather than choosing a degree of harmonization, and abandoning it if disadvantages emerge. Moreover, a careful analysis of the advantages and disadvantages of the different degrees of harmonization might prompt a reconsideration of maximum harmonization, especially in rapidly developing areas. Thirdly, better justification would involve consideration of which aims blanket clauses in the acquis are to pursue, whether they are likely to further flexibility and fair decisions, and which disadvantages may arise from the use of blanket clauses. Also, there would be more attention paid to the availability of a hierarchical court structure and enforcement mechanisms, as these elements may significantly affect the effectiveness of blanket clauses.
New Imperialism (1870–1914) and the European Legal Traditions: A (Dis)integrative Episode
Authors: van der Linden Mieke
Published: February 2017

During the partition of Africa at the end of the 19th century, the focus of European states was no longer on just maximizing power and profits by extending markets for the mother country by monopolizing trade. A political dimension was added by the belief of Europeans that they were responsible for promoting civilization and establishing governments in the countries under their imperial authority. This integrative movement, from a European point of view, fuelled by the legal doctrine of positivism, developed into our familiar and present-day system of international law, which applies to all participating states, including those from the African continent. However, in the days of the partition of Africa, New Imperialism was seen as a disintegrative force by the African populations. It implicated that border lines were drawn, territory was divided and whole peoples were disturbed, split up and assimilated to European civilization. New Imperialism forms an ambiguous European tradition, also considering the international tradition in the 19th century: it was simultaneously integrative in its motivation and disintegrative in its effect.
The Enigma of Civil Justice in Imperial China: A Legal Historical Enquiry
Authors: Chan Peter C.H.
Published: February 2017

This article seeks to reveal the true nature of civil justice in China's imperial history. Developing on the ground-breaking findings of Huang, the author argues that China's imperial civil justice was neither ‘Kadi’ justice nor an elaborate form of civil justice based on Weberian formalism and procedural sophistication. Contrary to the view that the magistrate was unrestrained by the law and only played the role of a mediator, state law had profound influence over magisterial adjudication. Yet the magistrate did not apply the law in a positivist sense. The adjudicative discourse involved searching for a balanced solution that took into account the statutory law and non-statutory norms (local customs and Confucian moral values). However, civil justice in imperial China lacked fundamental attributes of a modern civil justice system, such as judicial specialization, an autonomous (and sophisticated) civil procedural regime and a systemic enforcement of civil law based on the jurisprudential understanding of individual rights. This article questions the benefit of straightjacket Weberian categorizations and argues that the true nature of China's imperial civil justice could only be revealed by considering the country's unique historical circumstances.