bluuebunny/crossref_metadata_2025 huggingface dataset:
The New Architecture of the European Economic Governance: A Leviathan or a Flat-Footed Colossus?
Authors: de Sadeleer Nicolas
Published: February 2017

Whilst the fiscal crisis lays bare the weaknesses within economic integration, it has not however sounded the death knell for a political Union, which has to some extent been reinforced. Taking account of the unprecedented scale of this crisis, the European Parliament and the Council of the European Union adopted, at the end of 2011, the ‘six-pack’ which represents hitherto the most drastic reinforcement of economic governance since the launch of the Economic and Monetary Union. Moreover, on 1 March 2012, 25 Member States signed the Fiscal Compact, an intergovernmental agreement which has been embroiled with controversy. It goes without saying that these different instruments significantly reinforce the control on national fiscal policies. The question arises as to how this succession of reform is likely to impact on the principle of institutional balance.
What is Effective Implementation of EU Law?
Authors: Nicolaides Phedon , Geilmann Maria
Published: February 2017

Article 197 TFEU refers to the ‘effective implementation of Union law by the Member States’. Yet, neither the TFEU, nor the case law define the concept of ‘effective implementation.’ The purpose of this article is to extract from the case law possible meanings and relate them to specific actions that must be taken by the Member States. The judgments of the Court of Justice on infringements by Member States point towards certain elements and practices which are indispensable for the proper application of EU law. It is possible to place these inferred elements and practices into categories concerning methods (such as for example use of objective criteria, evidence-based decision making), procedures (for example decisions have to be motivated and explained, implementation procedures have to be open and transparent), institutional structures (for example separation of functions such as assessment and enforcement) and outcomes (for example preference for the least restrictive or the least distortive options).
Analysing the Commission's Guidance on Enforcement Priorities in Applying Article 102 TFEU — An Efficiency Defence for Abusive Behaviour of Dominant Undertakings?
Authors: Baur Anna-Lena
Published: February 2017

Considering that in an EU competition law context, dominant undertakings have traditionally been placed under a more stringent regime than their non-dominant counterparts, the introduction of an efficiency defence in the latest Commission's Guidance on the application of Article 102 TFEU can be evaluated as a true novelty. Given the success of the Article 101-regime it is not surprising that the requirements for using the efficiency defence are very similar to the preconditions asked for under Article 101(3) TFEU. While it should be welcomed that efficiencies are acknowledged in an Article 102-context, it is questionable whether a defence that is modelled so closely along the lines of a regime applicable to non-dominant undertakings will be equally effective for dominant market participants. The following article gives an exhaustive overview of the development and possible employment of the newly introduced efficiency defence for dominant undertakings. While familiarizing the reader with the Guidance in general and the requirements of the efficiency defence in particular, the main focus of this article will be on whether the efficiency defence in its current form can be a useful tool for dominant undertakings in practice.
European Collective Action: Towards Coherence?
Authors: Money-Kyrle Rebecca , Hodges Christopher
Published: February 2017

Collective action procedures exist in many jurisdictions. The European Commission's policy goal is to harmonize collective redress in consumer and competition law, to improve access to justice, and to enhance deterrence against unlawful commercial practices. A European collective action process should include sufficient safeguards against abusive litigation, without compromising the procedure's effectiveness. This article considers which safeguards might be appropriate, drawing on comparative examples from national civil justice systems within and outside the European Union. It concludes that national idiosyncrasies as well as Commission policy aims should inform the design of a European collective action mechanism. Abusive litigation will not be prevented if safeguards are weak or poorly targeted, but highly restrictive safeguards will create insurmountable barriers to justice; both approaches could undermine existing national collective action processes. An ill-conceived collective action process could exacerbate rather than ameliorate disparities in access to justice across Member States. Alternative dispute resolution schemes may allow a more flexible approach, accommodating national differences, and so could potentially be effective in delivering the Commission's primary policy aims in a coherent way.
After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?
Authors: de Búrca Gráinne
Published: February 2017

This article examines the engagement by the Court of Justice of the European Union (CJEU) with the EU Charter of Fundamental Rights over the period since the Charter was made formally binding by the Lisbon Treaty in 2009. A survey of the output of the Court during that time reveals a sharp rise in the number of cases in which a provision of the Charter was cited or argued before the Court. Further, the Court has engaged substantively with and given prominence to the Charter argument in a growing number of these cases. In other words, the incidence of human rights adjudication before the CJEU has been significantly augmented by the adoption of the Charter as a binding legal instrument. The article considers the implications for the Court of Justice of the growing demand for it to function in certain cases as a human rights adjudicator. More particularly, it questions whether the long-standing judicial style and approach of the Court – its self-referential, formulaic and often minimalist style of reasoning – is appropriate to this expanded role. The article argues that the nature and context of the increasing number of human rights claims being made before the Court call for greater openness on the part of the CJEU to the use of international and comparative law and to the possibility of third party interventions. Further, and particularly given the evident unwillingness of the CJEU to countenance the practice of separate concurring or dissenting opinions, the Court should, particularly in cases involving human rights claims, rethink its increasingly frequent practice of dispensing with the Opinion of an Advocate General.
Reconciling Different Legal Spheres in Theory and Practice: Pluralism and Constitutionalism in the Cases of Al-Jedda, Ahmed and Nada
Authors: Eckes Christina , Hollenberg Stephan
Published: February 2017

A detailed analysis of four judicial responses to extreme pluri-contextual settings, the House of Lords' and the European Court of Human Rights (ECtHR)'s rulings in Al-Jedda, the UK Supreme Court's judgment in Ahmed, and the ECtHR's recent ruling in Nada, demonstrates that all three courts relied on elements of pluralist and constitutionalist logic. Elements of institutional hierarchy in international law are balanced against considerations that can be understood as substantive constitutional concerns. Sometimes their effects are counteracted by blunt pluralist claims. Radical pluralism and state-like constitutionalism are the two extreme poles on one scale. Both are ideal types and cannot exist in their pure form. The analysis further confirms the increased power of the judiciary, which, when determining the applicable normative framework, ultimately makes a choice between competing authorities representing competing values. ‘Communicative’ pluralism may contribute to the emergence of a shared frame of reference and ultimately to a shared understanding of the importance of certain substantive values.
Sources of Law, Regulatory Processes and Enforcement Mechanisms in EU Migration Policy: The Slow Decline of National Sovereignty
Authors: Wiesbrock Anja
Published: February 2017

As a relatively new area of EU law, the governance and enforcement of EU migration policies continues to differ in many respects from other EU policy areas. The quasi-absence of rights of third country nationals under EU primary law as well as the previously intergovernmental nature of the area of migration policies have led to a crucial importance of general principles of law, in particular the principle of effectiveness. Governance processes are characterized by a favouring of non-binding soft law mechanisms, the flexible application of common policy decisions and by efforts to ‘externalize’ migration management and control functions. Finally, challenges in the application of the preliminary ruling procedure have accentuated the importance of Commission infringement proceedings and the principle of effectiveness for the effective enforcement of EU migration law.
The Existence of Transaction Costs as the Rationale for Maximum Harmonization of the European Common Sales Law
Authors: Kovač Mitja
Published: February 2017

In recent years, an extensive debate on the need for harmonization of a European sales law has evolved. The existing diversity of contract laws in the Member States has been perceived as a barrier to trade and hence as burdensome for the European internal market. Moreover, recent impact assessment studies suggest that this diversity is a source of substantial transaction costs. The observed existence of such substantial transaction costs represents a per se overwhelming argument for the adoption of an optional instrument on the European Common Sales Law. The analysis and calculations of opportunity and transaction costs that have been made provide seemingly unbiased, unprecedented, empirical and affirmative answers. However, this paper challenges and critically analyses the results and shows that it might simply be impossible to calculate either the full transaction costs of legal diversity or costs of uniformity. This analysis also shows that: (1) calculations made by the EU Commission rely heavily on subjective observation and selectively biased data; (2) that the obtained results might be severely impaired and over conclusive; and finally (3) that those results merely generate an anecdotal evidence of the possible volume of transaction costs originating from that contract law's differences. In order to obtain a more affirmative answer on the actual amount of transaction costs, this paper provides a list of possible refinements and suggests a set of new quantitative measures that would permit more accurate cross-firm, cross-country and cross-industry comparisons.
Delegated Acts, Implementing Acts, and Institutional Balance Implications Post-Lisbon
Authors: Xhaferri Zamira
Published: February 2017

The Treaty on the Functioning of the European Union introduces two new typologies of non-legislative acts. Having an influence on the institutional balance of powers, this article reflects on the impact of the newly introduced changes of secondary legislation on the institutional balance, involving either of the co-legislators and the Commission. The overall results of this research point to the conclusion that the answers differ for each typology of non-legislative act.
Consumer Dispute Resolution Goes Online: Reflections on the Evolution of European Law for Out-of-Court Redress
Authors: Cortés Pablo , Lodder Arno R.
Published: February 2017

In this paper we discuss if and to what extent the 2013 EU Regulation on consumer online dispute resolution (ODR) in tandem with the EU Directive on consumer alternative dispute resolution (ADR) is likely to finally fulfil the expectations of ODR that policy makers and academics have had for many years. Part 1 examines the reasons why ODR has not yet taken off. Part 2 discusses previous EU initiatives that aimed to promote the use of ADR and ODR. Part 3 briefly examines the Directive on consumer ADR and the Regulation on consumer ODR, and it compares the EU approach with the UNCITRAL draft rules on ODR. Finally, Part 4 evaluates the obstacles faced in the implementation of the EU ODR Platform, and calls for the embedding of incentives in its operation, the provision of an online negotiation tool, a connection to small claims processes, and the incorporation of adequate tools to overcome language barriers.
The Penalty Clause Bias
Authors: Nordin Emily
Published: February 2017

Common law and civil law do not seem to agree on the function of punitive liquidated damages. Whereas penalty clauses are seen as a way of enriching contract law in France and the Netherlands, they are forbidden in the United States. Belgian law has its own hybrid approach to penalty clauses.

This article looks to the past, the present and the future role that penalty clauses (could) play in American contract law, by comparing the American situation with that of France, the Netherlands, Belgium, and the harmonization efforts in private law (such as the Draft Common Frame of Reference). It promotes an understanding of the different visions in common and civil law. While recognizing the risks inherent to penalty clauses, the article puts forward that these risks can be better tackled by allowing a judge to reduce excessive or abusive penalty clauses – a power judges already have when dealing with excessive covenants not to compete, or when confronted with excessive punitive damages. It finds support for this statement in law and economics, the nature of contract law and the theory of punitive damages.
The Regions within Multi-Level Governance: Enhanced Opportunities for Improved Accountability?
Authors: Cygan Adam
Published: February 2017

Multi-level governance has increasingly been recognized as a paradigm for EU integration. However, the role of regions and regional institutions within the integration process has been incoherent, and the participation of regions in EU decision-making has been varied. This is primarily because the involvement of regions has largely depended upon the internal constitutional arrangements of the Member States and the competences given to regions through internal (national) public law. The Treaty of Lisbon, by addressing the need for improved accountability, recognizes that regions should have a formal role to play in seeking to improve both the quality and legitimacy of legislation. The focal point for this comes in the form of the Treaty allocating the task of subsidiarity monitoring to the Committee of the Regions, alongside national parliaments. This article considers the new prerogatives which the Treaty has granted to the Committee of the Regions. It looks at the extent to which these represent recognition of regional competences and whether they reposition the EU's regions within the EU polity. In particular, this article addresses the question of whether subsidiarity monitoring by the Committee of the Regions is sufficient to protect the exercise of competences by regional institutions.
Coupling National Identity with Subsidiarity Concerns in National Parliaments' Reasoned Opinions
Authors: Guastaferro Barbara
Published: February 2017

This article builds on the assumption that both the concept of subsidiarity and the concept of respect for national identities were introduced by the Maastricht Treaty to carry out the constitutional accommodation of national values and interests in the European legal order, permeating the parliamentary debates related to the ratification processes. Against this backdrop, this article analyses the use of Article 4(2) TEU – requiring the EU to respect Member States' national identities – in some national parliaments' reasoned opinions scrutinizing the compliance of EU legislative proposals with the principle of subsidiarity. The aim is to assess if – and to what extent – national parliaments, as national actors exercising their monitoring functions, could reframe the subsidiarity inquiry from a ‘comparative efficiency test’ to a sort of ‘non-encroachment (upon Member States) test’ referring to the concept of respect for national identities.
An Assessment of the Effectiveness of International Private Regulation in the Corporate Social Responsibility Arena
Authors: Scheltema Martijn
Published: February 2017

The effectiveness of international private regulation can be assessed from many perspectives, including legal, behavioural, governance and consequential aspects, impact, acceptance/governance and behavioral aspects. Although all of these perspectives are of importance and, indeed, intertwined, this contribution focuses on the legal aspects. The legal aspects involve the objectives of the international private initiatives, whether the norms are specific, whether there is regular evaluation involving relevant stakeholders, whether the initiatives provide ‘conflict of law’ rules in connection with other private standards or public regulation, enforcement of private regulation, and conflict resolution.
Raising Points of Law on the Courts' Own Motion?
Authors: Fekete Balázs
Published: February 2017

This article examines how judges can raise points of law ex officio in a comparative context. Based on Schlesinger's case oriented factual method, it compares the relevant provisions of Italian, Hungarian, Swiss, French, Belgian, German and Austrian civil procedure. The main conclusion is that there is no common legal solution in Europe and that the national legal systems developed divergent approaches. However, two models can be identified: in the first system, the principle of judicial passivity plays a crucial role, while the second one is based on a general authorization under strict control with special regard to the requirements of a fair trial. Because of this duality, this paper argues that a unified model does not actually exist. However, contrary to the apparent divergences, a common core composed of two elements can be drafted.
Inward- and Outward-Looking Rationales behind Kadi II
Authors: Wimmer Michael
Published: February 2017

The Kadi-‘saga’ has been a prime opportunity for the Court of Justice of the European Union (CJEU) to reaffirm both the constitutional foundations of the European Union and the relationship towards the United Nations legal order in the area of EU restrictive measures. There is a continuity between the rationale of the CJEU's first and second Kadi-judgments. The latter reveals a subtle interaction between internal and external driving forces. The major innovation is the formulation of a common law of EU sanctions. This framework balances EU constitutional standards with the preservation of the effectiveness of restrictive measures as a policy tool. Still, some fundamental rights gaps remain. From an external perspective, the judgment reflects some degree of openness, but does not provide a proper interface between international law and EU law, due to the asymmetric relations between the EU and the UN legal orders.
The Role of EU Competition Law in Tackling Abuse of Regulatory Power by Sports Associations
Authors: Van Rompuy Ben
Published: February 2017

In his opinion in Bosnian, Advocate General Lenz called attention to the function of EU competition law to control the private regulatory power of international sports associations. The true potential of EU competition law to protect athletes and other parties against regulatory overreach by sports associations, however, remains underexplored. This article examines the prospect of an increased use of EU competition law to challenge restrictive rules or abusive conduct and, consequently, to exert influence on the governance structure and institutional features of sports associations. First, it generally assesses the extent to which the rule-making activity of sports associations relating to the organization of sport satisfies the requirements for the application of Articles 101 and 102 TFEU. It will highlight that the analytical framework gives sufficient flexibility to take into account the specific characteristics of sport. Second, to practically illustrate the nature and function of EU competition law enforcement, it analyses European and national decisional practice regarding conflicts of interest between the role of sports associations as the regulator of their sport and their commercial interests in the events that they promote and organize.
Towards a Sporting Nationality?
Authors: Wollmann Anna Sabrina , Vonk Olivier , de Groot Gerard-René
Published: February 2017

Introducing a ‘sporting nationality’ that is completely independent of the standard legal nationality linking individuals to a state is neither feasible nor desirable, as the term nationality and its connotations are broader than the mere sporting context. Since the literature on sport law (lex sportiva) is not clear about the differences and similarities between sporting nationality and standard legal nationality, the concept of sporting nationality remains vague. This article argues that nationality should remain the underlying tie between athletes and their country of representation. Instead of introducing a sporting nationality, the recommendation is to establish a uniform set of rules that provides athletes with a ‘sporting license’ of the country of which they are nationals. This avoids confusion as to whether a sporting nationality entails some of the rights and duties traditionally linked to the concept of nationality.
Governing Networks
Authors: Watt Horatia Muir
Published: February 2017

What would be the governance implications if the introduction of the concept of network were to be made a technical-legal category of private international law? The idea behind the present contribution is an attempt to provide an alternative analysis, with technical purchase, which might in turn open the path towards a new pattern of jurisprudence in line with a global legal paradigm in three concrete instances which point to obvious inadequacies in the legal treatment of transnational private power (risk allocation between a parent company and its foreign subsidiary in respect of the conduct of the latter; transnational supply or value chains; and international commercial and investment arbitration). However technical the proposed change might appear, whether or not legal innovation is worthwhile on this point is ultimately a political assessment of the need for balance, responsibility and accountability in global governance.
English Contract Law and the Efficient Breach Theory
Authors: Al-Tawil Tareq
Published: February 2017

The ‘efficient breach’ theory holds that remedial orders, namely specific performance, compensatory damages and restitutionary damages for wrongs, should be designed in such a way as to maximize the production of efficient outcomes. For lawyer-economists, the goal of creating rules of law is to maximize the achievement of a particular outcome, that is, economic efficiency. This paper seeks to identify the major problems of adopting the efficient breach theory in English contract law. It also aims to explain and justify the existing scheme of remedies for breach of contract in the English contract law on (non efficiency-based) normative grounds.
Regulatory Stability under Russian and EU Energy Law
Authors: Boute Anatole
Published: February 2017

Regulatory instability and unpredictability are important concerns for energy investors in Russia – concerns that are exacerbated by the deteriorating economic situation, structural changes in global energy markets and increasing geopolitical tensions between Russia and the ‘West’. In these challenging times for energy investments, this article examines how Russia could benefit from the EU experience with the ‘stabilization’ of energy markets by looking at legal certainty and regulatory independence. A comparative analysis of regulatory stability in the EU and Russia highlights a common recognition of the importance of investment certainty for energy security. At the same time, this comparison brings forward shared difficulties to guarantee stability – in particular regarding the crucial issue of energy pricing – in a way that does not affect states' regulatory flexibility. Focusing on shared difficulties – rather than advocating EU law as ‘model’ – can help overcome the reduced ‘prestige’ of EU norms in Russia in the current geopolitical context.
The European Collective Redress Debate after the European Commission's Recommendation
Authors: Nagy Csongor István
Published: February 2017

The paper examines, through the prism of the European Commission's Recommendation, the European approach on collective redress. First, it demonstrates that the introduction of collective redress in respect of small claims is necessary and the opt-out scheme is preferable. Second, it refutes the major arguments and fears against the opt-out system. Third, it demonstrates that the pivotal question of collective redress is financing and the law should provide a risk premium to the group representative.
Constitutional Judge, Social Rights and Public Debt Crisis
Authors: Martins Ana Maria Guerra
Published: February 2017

The purpose of this article is to demonstrate the consistence and coherence of the case law of the Portuguese Constitutional Court concerning social rights during the public debt crisis. The Constitutional Court accepts that the legislature has a wide margin of appreciation to reverse the level of protection of social rights. This includes the right to a fair wage, the right to a pension, and the right to social benefits. However, the retrocession of social rights shall pursue a significant public interest and respect the principles of equality, proportionality and legal certainty comprised in the rule of law. When the Constitutional Court considers that these principles are violated, it does not hesitate to declare a norm unconstitutional, even if, according to the government, the norm or norms in question are essential in order to fight the economic and financial crisis. The so-called ‘case law of the crisis' has been strongly criticized. This study will mainly analyse and contest the arguments of the critics.
The EU Civil Justice Framework and Private Law
Authors: Beaumont Paul , Danov Mihail
Published: February 2017

The diverse nature of substantive private law systems across Europe has amplified the development of an EU Civil Justice system based on harmonized EU private international law (PIL) mechanisms. The authors argue that the problems of jurisdiction, choice of law and recognition and enforcement of judgments will be recurrent for courts and litigants in a cross-border context, which may adversely affect the level of litigiousness. After analysing several types of PIL cases brought before the English courts, the authors make the case that there is a need for an appropriately conducted comparative study to collect empirical evidence which explains the cross-border litigation pattern and assesses the effectiveness of the EU PIL instruments. It is concluded that devising an appropriate institutional architecture for the interpretation and application of PIL legislative instruments is key to the creation of a genuine European area of justice as there cannot be rights without appropriate remedies.
Corrective and Distributive Justice in Tort Law
Authors: Loth Marc A.
Published: February 2017

Liability in tort law is traditionally justified by the notion of corrective justice, but what about the role of distributive justice? This simple question brings up fundamental issues, such as exactly what it is in which the victim is restored after the tort of the wrongdoer, and how to define the limits of this operation. The author defends a mixed theory of corrective and distributive justice in tort law, using the capability approach of Amartya Sen and Martha Nussbaum. According to this theory compensation is to be understood as the restoration of the autonomy of the victim, that is, of his or her capabilities. Since the capability approach is a theory of social justice, to be safeguarded by public institutions like the courts, this involves a minimal level of protection of the victim. Rethinking the role of justice in tort law opens a whole new range of questions.
Discretion in the Articles 258 and 260(2) TFEU Procedures
Authors: Várnay Ernő
Published: February 2017

The European Commission has absolute discretion in proceedings under Article 258 TFEU. It is free to decide against what kind of violation and against which Member State it will initiate proceedings as well as on the timing of these proceedings. The reasons of this wide discretion (limited resources, political considerations, efficient compliance management) and the arguments against it (the obligation of the Commission as the ‘Guardian of the Treaty’, the reasonable time limit requirement, the accountability approach opposing any unlimited discretion) are explained in this article. The Court's unlimited jurisdiction under Article 260 TFEU entails that it can impose financial sanctions without taking account of the proposal by the Commission. This may violate the principles of legal certainty and institutional balance. This article sheds light on the bureaucratic dimension which may contribute to a deeper understanding of the Court's sustenance of the absolute discretion and the role of bureaucratic self-interest in reluctance to give access to documents.
Serbian Consumer Law
Authors: Riefa Christine , Durovic Mateja
Published: February 2017

Serbian consumer law has ben transformed over the last 10 years through the quick succession of no less than 4 incarnation of the Law on Consumer Protection first introduced in 2002 and reformed in 2005, 2010 and 2014. The latest incumbent brings Serbian law in line with Directive 2011/83/EU on Consumer Rights. This article assesses the way in which consumer law has been implemented in the Serbian legal system and assesses its efficacy and prospect of success in future years. It argues that while the new law offers all the hallmark of a fully functioning legal system of protection, Serbian consumer law lacks the teeth needed on the ground to make it a reality. This can be explained by a series of factors including resistance towards the recognition of consumer as an autonomous branch of the law and non-application of consumer law by the Serbian courts, amongst others.
A Legal Analysis of the Gauweiler Case
Authors: Tridimas Takis , Xanthoulis Napoleon
Published: February 2017

In Gauweiler, in response to the first ever preliminary reference made by the German Federal Constitutional Court (Bundesverfassungsgericht; FCC), the Court of Justice gave the green light to the ECB's power to selectively purchase Eurozone government bonds in secondary markets (OMT programme). Whilst the Court of Justice sets some limits to European Central Bank's (ECB) authority relying on the golden standard of proportionality, it is a judgment of institutional empowerment. The tensions and instability arising from the separation of competences in monetary and economic policy gravitate to the advantage of the Union. By placing emphasis on the objectives rather than the effects of the programme and linking OMT power to conditionality, Gauweiler builds on Pringle providing normative legitimization to the austerity model whilst granting the ECB a distinct role not only in monetary policy but also in shaping the general economic policy of the Union. The Court of Justice's ruling also indicates a measured but firm response to the dialogue of conflict initiated by the FCC.
Pereat Iustitia, Fiat Mundus
Authors: Joerges Christian
Published: February 2017

Europe's responses to the crisis seem neither guided by one of the varieties of economic liberalism nor informed by a Keynesian or any other theoretical paradigm. What kind of rule are we then exposed to if we leave it to the European Central Bank to define the notion of monetary policy and to then develop and use its instruments? Neither the crisis management in general nor the politics of the ECB in particular can be accused of acting simply wilfully, let alone maliciously. They are exposed to, and driven by, emergencies. Courts cannot cure the crisis ‘through law’. Such pretences are overburdening the law and are risking damage to its integrity. The two dissenting judges of the German Constitutional Court have acted accordingly. The Court of Justice of the European Union does not act as a good guardian of European constitutionalism through the unconditional legalization of Europe's executive federalism.
The Ecb's Powers and Institutional Role in the Financial Crisis
Authors: Zilioli Chiara
Published: February 2017

In the Gauweiler decision the Court of Justice of the European Union has confirmed that the European Central Bank's (ECB) non-conventional measures fall within its monetary policy competence, fulfil the proportionality requirement and contain safeguards ensuring that the monetary financing prohibition is not infringed, fully legitimizing the ECB's crisis management measures. The ECB enjoys broad discretion: the existence of different opinions in these controversial questions does not put in doubt the legality of the decision taken after careful and accurate analyses by the Governing Council says the Court, supporting the ECB's search for new measures to tackle the still critical economic situation. Risk taking is an inherent part of monetary policy and it is for the ECB to assess how much risk can be accepted (and how best to share this risk within the Eurosystem). Finally, subjecting press releases to the Court of Justice's interpretation might impact on the scope of ECB press releases, balancing the two conflicting interests of increasing transparency and limiting liability.
Ultra Vires Review and the Demise of Constitutional Pluralism
Authors: Kühn Zdenek
Published: February 2017

The Czech Constitutional Court decision in the Czecho-Slovak pension saga, declaring a judgment of the Court of Justice ultra vires, represents one important step in the debate on the sustainability of the so-called constitutional pluralism in the relation of EU law and domestic legal systems. Although the Czech decision could be ridiculed as simple-minded and failing to leave any lasting footprint in the wider EU legal debate, the author of this article argues otherwise. Facing the specifics of the case, on the one hand, the author argues that the notion of constitutional pluralism remains largely an academic construct, which could be the subject of interesting scholarly debates, while for practitioners, on the other hand, it is flawed and has the potential to lead to dangerous outcomes for people in real life cases.
A New Conversation
Authors: Sciarra Silvana , Nicastro Giuseppe
Published: February 2017

This article offers a brief historical picture of the complex and at times controversial conversation established between the Italian Constitutional Court and the Court of Justice of the European Union. The first two preliminary references sent from Rome to Luxembourg suggest that it is worth comparing the attitudes of constitutional courts in search of their own style, when it comes to balancing national and EU competences. Article 11 of the Italian Constitution is brought forward as an interesting compromise, a way of balancing competences, whenever limits to sovereignty may be perceived as dangerous ones, unless a scope, common to other states, is to be reached. The Italian Constitutional Court shows awareness of its own national identity and, at the same time, seems capable to approach the Court of Justice in a cooperative manner.
The So-Called Pan-European Depositors' Protection Scheme
Authors: de Gioia-Carabellese Pierre , Chessa Corrado
Published: February 2017

This article focuses on the legal provisions of Directive 2014/49 on deposit guarantee schemes (the DGS Directive) and focuses on how the national schemes financially support each another by offering a critical analysis to demonstrate that the new legal framework is far from satisfactory. This is because the new ‘safety net’, still hinged on depositors' protections schemes that operate at the national level, is fettered by the quantitative limits and legal constraints of mutual borrowing. This ultimately still leaves the EU/EEA depositors with an element of uncertainty.

This contribution also seeks to illustrate that the recent mass withdrawal from bank deposits in Greece (in June/July 2015) was an unsuccessful test case for the new legislation, which was ironically already in force at the time the crisis unfolded. This case study of Greece is coupled with the important Landslaki dictum which is given equal attention in this article. Together they give significant credibility to the view that the DGS Directive, seemingly not fully aware of the lessons to be learnt from the 2011 Eurozone crisis, is obsolete and should be amended as soon as possible.
Balancing the Rights to Data Protection and Freedom of Expression and Information by the Court of Justice of the European Union
Authors: Jozwiak Magdalena
Published: February 2017

The main legislative instrument for the protection of personal data in the EU is the Data Protection Directive. It has an extremely wide scope because most data that is shared can be classed as personal data and most activities concerning data can be seen as the processing of it. It also covers a large amount of modern communication methods that fall under the protection of the right to freedom of expression and information under Article 11 of the Charter of Fundamental Right of the European Unions. To address the tension between the rights, the Data Protection Directive provides for different mechanisms to balance them. This article departs from the premise that European courts prioritize certain interests in a given social context through this balancing exercise. The purpose of this article is to verify how the Court of Justice of the European Union (CJEU) sets those priorities where the rights to data protection and freedom of expression and information conflict, especially in the context of developing communication technologies.
Data Protection Rights and Tax Information Exchange in the European Union: An Uneasy Combination
Authors: Schaper Marcel
Published: February 2017

Tax administrations in the European Union exchange an ever-increasing amount of information on taxation matters on a mandatory and automatic basis. This development gives rise to data protection concerns. The aim of this article is to examine how these data protection concerns have been recognized by the Union legislator in the recent and fast process towards a comprehensive automatic exchange of tax data of private taxpayers in the European Union. It will be shown that the combination of data protection rights and exchange of tax information legislation proves to be an uneasy one as the Union legislator appears reluctant to provide for data protection safeguards in Union legislation on tax information exchange.
Effective Redress of Grievance in Data Protection: An Illusion?
Authors: Varney Mike
Published: February 2017

This article questions whether the current data protection legislative framework in the EU to provide effective redress of grievance for those who are affected by a breach of data protection law. It considers the extent to which the principle of effective judicial protection is satisfied where judicial redress is sought and also considers whether supervisory authorities are able to grant adequate administrative redress. In undertaking this analysis the article seeks to demonstrate that there are a number of areas where judicial protection is uncertain. There is a lack of consistency in the award of compensation, particularly in cases of non-pecuniary loss and some uncertainty as to what an ‘effective remedy’ might be in some data protection cases. Furthermore, substantial procedural differences exist between Member States for those seeking to bring data protection cases before national courts resulting in a situation where the conditions of access to judicial remedy are uneven.
The Contribution of Local and Regional Authorities to a ‘Good’ System of Governance within the EU
Authors: Panara Carlo
Published: February 2017

The participation of the local and regional authorities in EU processes should be promoted and enhanced by the EU, the Member States and the same local/regional authorities. These should perform a stronger role in the constitutional architecture of the EU. In this way they would contribute more effectively to a limited, balanced and legitimate system of governance based on constitutionalism within the EU. The participation of sub-national authorities in the EU reconciles European integration with the multi-level systems of governance of the Member States; strengthens the legitimacy of EU and national (EU-related) decision-making processes; and reinforces the legal limitation of the decision-making power of both Union institutions and national authorities.
The New Acquired Rights Directive and its Implications for European Employee Relations in the Twenty-First Century
Authors: Hardy Stephen , Painter Richard W.
Published: February 2017

The European Commission found it difficult to secure EU Member States' agreement on the content of a revised Acquired Rights Directive. After four years of negotiation and the production of two drafts, the Council of Ministers finally agreed to adopt the Amending Directive at the Cardiff Summit in June 1998. However, this new Directive bears all the hallmarks of an EU compromise: hardly radical in outlook and still leaving unanswered some difficult questions concerning the rights of employees caught up in contracting-out and out-sourcing exercises across the EU.
Outbreak of highly pathogenic avian influenza in Minnesota in 2015
Authors: Fitzpatrick Ann , Mor Sunil K. , Thurn Mary , Wiedenman Elizabeth , Otterson Tracy , Porter Robert E. , Patnayak Devi P. , Lauer Dale C. , Voss Shauna , Rossow Stephanie , Collins James E. , Goyal Sagar M.
Published: February 2017

The incursion of highly pathogenic avian influenza (HPAI) into the United States during 2014 resulted in an unprecedented foreign animal disease (FAD) event; 232 outbreaks were reported from 21 states. The disease affected 49.6 million birds and resulted in economic losses of $950 million. Minnesota is the largest turkey-producing state, accounting for 18% of U.S. turkey production. Areas with concentrated numbers of turkeys in Minnesota were the epicenter of the outbreak. The first case was presumptively diagnosed in the last week of February 2015 at the Minnesota Veterinary Diagnostic Laboratory (MVDL) and confirmed as HPAI H5N2 at the National Veterinary Services Laboratories on March 4, 2015. A total of 110 farms were affected in Minnesota, and the MVDL tested >17,000 samples from March to July 2015. Normal service was maintained to other clients of the laboratory during this major FAD event, but challenges were encountered with communications, staff burnout and fatigue, training requirements of volunteer technical staff, test kit validation, and management of specific pathogen–free egg requirements.
Acanthomatous ameloblastoma with atypical foci in five dogs
Authors: Malmberg Jennifer L. , Howerth Elizabeth W. , Powers Barb E. , Schaffer Paula A.
Published: February 2017

Acanthomatous ameloblastoma is a common, locally invasive, nonmetastasizing tumor of the canine oral cavity. The long-term prognosis for canine acanthomatous ameloblastoma is good if complete excision can be achieved, usually by maxillectomy or mandibulectomy. A variant of acanthomatous ameloblastoma with atypical foci was noted in 5 dogs. There was no age, breed, or sex predisposition. Atypical cells were pleomorphic with a high mitotic rate. They were immunohistochemically negative for cytokeratin, vimentin, melan A, PNL2, CD3, Pax5, CD18, chromogranin A, and synaptophysin. Ultrastructurally, the atypical cells had modest amounts of electron-lucent cytoplasm, abundant rough endoplasmic reticulum, zonula adherens junctions, cleaved or irregular nuclei, and occasional cytoplasmic structures consistent with secretory granules or lysosomes. Complete excision was achieved by maxillectomy or mandibulectomy in 3 dogs; the lesion was incompletely excised in 2 dogs. No ancillary therapy was elected in any patient. No local recurrence or distant metastasis was reported in any case. One patient died of heart failure 20 mo following complete excision; all other patients were alive at last follow-up (average follow-up: 18.8 mo, range: 6–30 mo). The histogenesis of the atypical foci is unclear, but atypical foci within acanthomatous ameloblastoma do not appear to be associated with metastasis or with a poor prognosis relative to acanthomatous ameloblastoma with typical histologic morphology.
Development and validation of a real-time PCR assay for the detection of Toxoplasma gondii DNA in animal and meat samples
Authors: Marino Anna Maria Fausta , Percipalle Maurizio , Giunta Renato Paolo , Salvaggio Antonio , Caracappa Giulia , Alfonzetti Tiziana , Aparo Alessandra , Reale Stefano
Published: February 2017

We report a rapid and reliable method for the detection of Toxoplasma gondii in meat and animal tissues based on real-time polymerase chain reaction (PCR). Samples were collected from cattle, small ruminants, horses, and pigs raised or imported into Sicily, Italy. All DNA preparations were assayed by real-time PCR tests targeted to a 98-bp long fragment in the AF 529-bp repeat element and to the B1 gene using specific primers. Diagnostic sensitivity (100%), diagnostic specificity (100%), limit of detection (0.01 pg), efficiency (92–109%), and precision (mean coefficient of variation = 0.60%), repeatability (100%), reproducibility (100%), and robustness were evaluated using 240 DNA extracted samples (120 positives and 120 negative as per the OIE nested PCR method) from different matrices. Positive results were confirmed by the repetition of both real-time and nested PCR assays. Our study demonstrates the viability of a reliable, rapid, and specific real-time PCR on a large scale to monitor contamination with Toxoplasma cysts in meat and animal specimens. This validated method can be used for postmortem detection in domestic and wild animals and for food safety purposes.
Factors affecting the gamma interferon test in the detection of bovine tuberculosis in cattle
Authors: de Lisle Geoffrey W. , Green Richard S. , Buddle Bryce M.
Published: February 2017

The gamma interferon (IFN-γ) test has been used for many years as an ancillary test in the detection of bovine tuberculosis. We investigated the effect of skin testing and the length of time between blood collection and processing on the performance of the IFN-γ test. A series of blood samples were taken from groups of experimentally infected cattle ( n = 10), naturally infected ( n = 11), and uninfected animals ( n = 12) that were examined with a caudal fold skin test. Blood was taken on the day of tuberculin injection, 3 d later when the skin tests were read, and 11–19 d post–tuberculin injection, and was processed for the IFN-γ test at 8, 30, and 36 h postcollection. There were significant decreases in the IFN-γ responses with increasing time between blood collection and sample processing. Significantly greater responses were observed in both the purified protein derivative (PPD) and early secretory antigenic target protein 6/culture filtrate protein 10 IFN-γ tests for samples processed at 8 h postcollection compared with the same samples at 30 and 36 h postcollection, and greater responses for samples processed at 30 h compared with 36 h on 2 different days for the experimentally infected animals. There were no significant effects on IFN-γ responses that could be attributed to skin testing. The recommendation for IFN-γ testing in New Zealand is that samples should not be processed if in transit for >30 h, but blood samples can be collected for IFN-γ testing regardless of the timing of the skin test.