bluuebunny/crossref_metadata_2025 huggingface dataset:
Initial Coin Offerings and EU Prospectus Disclosure
Authors: Maume Philipp
Published: April 2022

There is a growing consensus among regulators and commentators that some cryptocurrencies (so-called ‘investment tokens’) are securities, provided that they grant their owner rights that are comparable to those of an investor. As a consequence, EU initial disclosure regulation applies, requiring the issuer to draw up a prospectus that contains all the information relevant for an investor to make an informed decision. Issuers of investment tokens are also subject to prospectus liability if the prospectus is flawed or no prospectus was made available at all.

However, this conclusion is only the first step of the wider debate of the best regulation of investment tokens, and many questions remain. The elephant in the room is whether the current regulation can be sensibly applied to public offers of investment tokens. This article discusses open questions in this regard, such as which national regulator is responsible for prospectus review and administrative measures? How can issuers from outside the EU ensure they do not become subject to the EU initial disclosure obligations? Who would the ‘issuer’ be if the tokens were offered by a decentralised network?

The article concludes that EU initial disclosure regulation can be sensibly applied to initial coin offerings. However, the fact that supervision and enforcement are currently carried out on the national level poses serious problems that should be addressed in the future.

Initial coin offering, ICO, security token offering, STO, cryptocurrency, crypto token, crypto asset, prospectus, investment token, security token
Engaging Stakeholders in Corporate Decision-making through Strategic Reporting: An Empirical Study of FTSE 100 Companies (Part 2)
Authors: Chalaczkiewicz-Ladna Katarzyna , Macneil Iain , Esser Irene-Marié
Published: April 2022

Non-financial reporting has risen in significance in recent years as the role of stakeholders who are not shareholders has been recognised in corporate governance frameworks. In the UK the ‘strategic reporting’ provisions of the Companies Act 2006 give effect to this policy. In Part 1 we examined the strategic reports of the FTSE 100 companies from 2015 and 2016 and focused on compliance by companies with nonfinancial reporting requirements. We found that compliance with those requirements was very high, amounting even to super or over-compliance. This article (Part 2 of the project) assesses the quality of non-financial reporting through a series of interviews. It evaluates whether the current regulatory framework on non-financial reporting in the UK informs stakeholders adequately so as to facilitate effective engagement in corporate decision-making.

Companies Act 2006, section 172, strategic report, stakeholders, non-financial reporting, disclosure, engagement, sustainability, ESG , empirical studies
A Truly Future-Oriented Legal Framework for Fintech in the EU
Authors: Kapsis Ilias
Published: April 2022

This article reviews critically the recent EU legislation and proposals for the regulation of financial technology (‘fintech”) and makes recommendations for legal improvements in the proposed frameworks, which will help to accelerate fintech growth, a declared EU goal, in the years to come. The rise of fintech driven by nonbank entities (technology startups, finance, big tech and big retail companies) helps to transform financial services industry, but also threatens the market positions of traditional banks and through them potentially the stability of the financial system. The current EU proposals, as presented in the Commission’s Fintech Action Plan published in 2018 and follow-up measures, outlined a number of steps to support fintech, while ensuring the protection of market stability and consumers and the maintenance of level playing field in the financial services markets. The article argues that, while the Commission’s proposed policy mix contains certain positive measures for fintech, it remains, overall, conservative and favours the incumbents. It also argues that unless the Commission becomes bolder and adopts a more flexible legal framework for fintech (for which the article makes specific recommendations), the latter will not grow at the pace needed to help build a competitive advantage for the EU financial sector. The Commission’s continuing support of the established market landscape dominated by financial conglomerates employing traditional business models risks undermining the ability of the European financial system to adapt to the changing competition landscape created by advancing financial technologies and to fully address stability concerns, which emerged as a result of the financial crisis.

fintech, EU, crypto-assets, crowdfunding, regulation, plan, regtech, artificial intelligence, GDPR, big data
Fine-tuning Bank Governance and Resolution: The Case for Remunerating Bankers through Bail-Inable Debt
Authors: D. Martino Edoardo
Published: April 2022

This paper proposes a radical change in the current remuneration practices, including bail-inable debt within the variable component of remuneration packages.

In supporting such claim, the paper sets the economic rationale for remuneration and explains the quintessential role of debt in banking. Against such theoretical framework, the incumbent EU regulation reveals to be severely flawed.

Consequently, the paper shows why including bail-inable debt in remuneration packages provides incentives towards optimal risk-taking and develops a detailed policy proposal that focuses both on the content of the regulation and on the possible implementation strategies.

Bank Governance, Remuneration, Capital Requirement Directive, Bank Resolution, Bail-inable debt, Stability, Resolvability, Managerial Incentives; Excessive Risktaking; Material Risk-Takers
After the GDPR: Cybersecurity is the Elephant in the Artificial Intelligence Room
Authors: Degli-Esposti Sara , Ferrándiz Ester Mocholí
Published: April 2022

This article presents an analysis of data protection authorities’ (DPAs) enforcement actions undertaken since the implementation of the General Data Protection Regulation (GDPR) in May 2018. The analysis shows that corporations fail to adopt transparent data processing practices and appropriate technical and organisational measures to secure personal data. By focusing on two specific DPAs, the Spanish AEPD and the British ICO, we make practical suggestions on how to foster the healthy development of the European digital ecosystem and the deployment of trustworthy artificial intelligence in big data environments in the face of growing cybersecurity risks.

Data protection law, cybersecurity, artificial intelligence, ICO, AEPD, DPA, big data, compliance, supervisory authority, sanctions
Mandatory CSR Disclosure: An Empirical Analysis of UK Modern Slavery Statements
Authors: Blindell Luke
Published: April 2022

The Modern Slavery Act 2015 requires large firms doing business in the UK to disclose their efforts to prevent modern slavery within their global supply chains. This paper considers the extent to which companies have complied with the Act and provides an insight into engagement with its underlying objectives. This is achieved through a content analysis of the modern slavery statements published by 934 companies in 2016. As the largest systematic review of UK modern slavery reporting, this paper has international implications due to the globalized nature of modern slavery and the sizeable international shareholder base in large UK companies.

Transparency, disclosure, non-financial reporting, disclosure-based regulation, corporate governance, corporate social responsibility, stakeholder, modern slavery act, modern slavery statement, forced labour
The Future of the Special Duty of Care in the Financial Sector – Perspectives from the Netherlands
Authors: Busch Danny
Published: April 2022

A clear trend is evolving as more and more banks and other financial institutions are being successfully sued before the civil courts of the Netherlands for breaches of their special duty of care (‘bijzondere zorgplicht’). Whereas it was initially mainly banks that had reason to worry about claims for damages based on a breach of the special duty of care, other financial institutions too are now having to take the possibility of such claims very seriously. Another factor is that the special duty of care owed by financial institutions now seems to apply not only in their dealings with retail clients but also in relation to non-retail clients that need protection. The author discusses the main developments relating to the special duty of care, leading to a consideration of how things may evolve in the future.

Banks, financial institutions, MiFID (Directive 2004/39/EC), MiFID II (Directive 2014/65/EU), conduct-of-business rules, duty of care, product governance, product intervention, mistake, error, contract law, tort law, Dutch Civil Code, Unfair Contract Terms Directive (Directive 93/13/EEC), nudging, FinTech, sustainable finance, mass damage
Systematically Flogging the Wrong: EU Corporate Fines Violate the Fundamental Rights of Shareholders – The European Commission as Revenant of the Persian Great King Xerxes
Authors: Reuter Alexander
Published: April 2022

EU fines are imposed on companies, not managers. Economically, they hit the shareholders. Yet, the shareholders have typically not participated in the company’s wrongdoings, and corporate law often cuts-off shareholders from management. This article submits that the Commission’s corporate fines thus disproportionately restrict shareholders‘ rights under the EU Charter of Fundamental Rights: As corporate fines are manifestly unsuitable to reach their purpose, hit the wrong and hence do not „strike the right balance“, they are incompatible with the Charter. The increased significance of shares for citizens’ personal financial autonomy and old age provision resulting from the ECB’s low interest policy and the EU’s mushrooming fine amounts corroborate this finding.

Corporate fines, deterrent, purpose of corporate fines, shares, shareholders, fundamental rights, proportionality, suitability, restriction of rights, EU Charter of Fundamental Rights
The Italian Insolvency Law Reform
Authors: Zorzi Andrea
Published: April 2022

The Italian insolvency and pre-insolvency frameworks have been reformed recently (2019, due to enter into force in September 2021 but now probably in 2022). This article recalls the intense period of reforms in Italian insolvency law, started in 2005 and culminated with the new ‘Code of enterprise crisis and of insolvency’. The Code introduces new rules for court-confirmed debt restructuring agreements (similar to schemes of arrangement) and judicial composition with creditors, as well as with regard to new rules for insolvency of groups, international jurisdiction and directors’ liability. The article addresses these novelties pointing out some unresolved issues. Finally, the article touches upon the compatibility of the new law with the Directive on restructuring and insolvency (Directive 2019/1023).

Autonomy of sport, Private International Law, Public-private Governance, Corruption, Transnational Legal Order, Sports Economy, Legal Status of Sporting Organisations, Audit, Managerial Transparency, Economic Monitoring, International Sporting Convention
Standing, Rights, and the Structure of Legal Argument
Authors: Craig Paul
Published: April 2022

There is an extensive case law and literature on standing to seek judicial review in EU law. The ECJ's decision in the UPA case was nonetheless eagerly awaited. This was in large part because of the powerful Opinion of Advocate General Jacobs, which contained a wide-ranging critique of the existing law, combined with proposals for reform. The ECJ declined to follow the Advocate General's lead, and suggested that reform would have to be undertaken through Treaty amendment. The Court's decision and the Advocate General's Opinion are fascinating in many respects and are discussed in the following article.

This article will explore the issues raised in four parts. There will be a brief overview of the law on standing to seek review prior to the UPA case. This will be followed by an analysis of the way in which the right to effective judicial protection was used by the Advocate General and the Court. The fact that rights can influence the development of doctrine in EU law is well recognised. It is less often that we are presented with such a good example of the different ways in which the same right can be used within legal discourse, and where this difference can have such a marked impact on the final outcome. The third part will focus directly on the arguments for expanding the standing requirements articulated by the Advocate General, and the ECJ's response. The article will conclude with a glimpse at the future and the extent to which reform might be forthcoming in the political forum.
Refashioning Rights in Central and Eastern Europe: Some Implications for the Region’s Roma
Authors: Pogány István
Published: April 2022

This article seeks to provide some insight into the multiple human rights challenges facing the Roma of Central and Eastern Europe (CEE). Under Communism, the bulk of the Roma benefited from wide-ranging social and economic rights introduced in the CEE states including rights to work, housing, healthcare and education. Paradoxically, the transition to democracy, economic liberty and a new emphasis on civil and political rights has precipitated a massive crisis for the region’s Roma. Subject to spiralling unemployment and sharply escalating living costs, most Roma have not been able to take advantage of the political, cultural or economic opportunities now available to them. Similarly, the recognition of minority rights in both regional instruments and national legislation, particularly since 1990, has had relatively little impact on the Roma of Central and Eastern Europe. Against a background of heightened racial animosity and persistent assaults on Roma victims, many Roma are afraid to assert their identity. For the mass of impoverished Roma, notions of minority rights are irrelevant. Finally, the article explores the failure of criminal justice systems in Central and Eastern Europe to respond to widespread physical intimidation directed against Roma subjects.
Digital War and Peace: Regulation and Competition in European Digital Broadcasting
Authors: Ariño Monica
Published: April 2022

This article evaluates how sector specific regulation and competition law, in particular merger control, have influenced the evolution of digital broadcasting markets in Europe. Recent developments in the Spanish market are examined, as they illustrate well what are the principal challenges faced by public authorities when intervening in rapidly changing markets. The crucial and often controversial issue of market definition is discussed in greater detail. Finally, a general reflection on how competition law fails to address non-economic considerations that specifically apply to the media, such as the protection of pluralism, is presented.
Broadcasting, the Free Market and the Public Interest: Is the Italian Path to Pluralism Viable?
Authors: Gardini Gianluca
Published: April 2022

The television and the mass media in general have a vital function in the creation of the democratic process, similar to that of institutions. The basic argument of this article is that television is not a simple market commodity and general competition laws cannot protect adequately the public interest of citizens in broadcasting.

In Italy, in particular, the television sector has always suffered for lack of pluralism, a highly concentrated market, strong influence of political forces over public broadcasting. For these reasons the Italian experience represents an interesting case, as it allows one to observe the effects of a transition from a broadcasting framework entirely based on specific public regulation (monopoly) to a system hinged on general competition laws and technological development After looking at the evolution of broadcasting in Italy, the author will try to suggest some remedies for the Italian television sector.
Civic Citizenship and Migrant Integration
Authors: Bell Mark
Published: April 2022

In the 1999 Tampere Agenda, the European Council committed itself to creating ‘a set of uniform rights’ for third country nationals with a view to promoting better integration. Subsequently, the Commission suggested that this could lead to a new status of ‘civic citizenship’. Since this idea was floated, the Union has adopted a considerable body of legislation on immigration. This article examines these instruments, most notably the Long-Term Residents Directive, in order to decipher both the criteria for membership of civic citizenship and the rights and duties attached to this imagined status. A fragile and complex framework has been constructed for third country nationals, whilst in the same period the status of Union citizenship has been strengthened by the Court of Justice. This reveals a tension between the exclusive prerogatives of Union citizenship and the objective of improving migrant integration.
The Dutch General Administrative Law Act: Europe-proof?
Authors: Widdershoven Rob
Published: April 2022

Are the provisions of the Dutch General Administrative Law Act (GALA) in line with European law? If not, are amendments of this Act necessary or can the problems be resolved otherwise? A recent evaluation shows that, for one part, there are no serious tensions between European law and the GALA and that many of the potential conflicts can be resolved by interpreting the concepts and rules of the GALA in conformity with EC law requirements. However, in certain areas, particularly in relation to the rules on subsidies, legislative amendments of the GALA are either necessary or, at least, advisable.
The German Constitutional Court’s Friendliness towards European Law: On the Judgment of Bundesverfassungsgericht over the Ratification of the Treaty of Lisbon
Authors: Ziller Jacques
Published: April 2022

Novel features of the VerfG’s judgment in relation to the previous ‘solange’ and Maastricht jurisprudence are: (1) the very strong link between democracy and sovereignty in the implementation of the principle of conferral; and (2) the indication that the Constitutional court will be the sole interpreter of what constitutes Germany’s constitutional identity. The Court does not indicate what would happen in procedural terms if it were to find a provision of EU law in contradiction with Germany’s constitutional identity or which would not respect the principle of conferral. This writer’s view is that the only correct way to solve such an issue would be for a Constitutional court to refer to the European Court of Justice (ECJ) for a preliminary ruling on the invalidity of such a provision.
Gendered Rights on the European Stage: Do Marginalized Groups Find a ‘Voice’ in the European Court of Human Rights?
Authors: Brayson Kimberley
Published: April 2022

This article examines the pursuit of gender equality rights before the European Court of Human Rights from a comparative perspective. Drawing on material from case reports from a number of European countries, this article investigates the application of Article 14 of the European Convention on Human Rights (the non-discrimination provision) to instances of gender discrimination. Using a theoretical framework of ‘intersectionality’, this article suggests that many cases that arguably have a gender component to them are not viewed as such by the European Court of Human Rights. Instead, they are treated as generic claims raising other civil or political rights and are thereby stripped of their important gender dimension. Two recent cases of the Court brought against Bulgaria (MC and Bevacqua) are, however, celebrated for a more gender specific analysis of the ‘private’ harms suffered by the victims in these cases.
European Integration in the Aftermath of the Ratification of the Treaty of Lisbon: Quo Vadis?
Authors: Harpaz Guy
Published: April 2022

On 2 October 2009, the Irish electorate, in a mandatory and legally binding referendum, approved the Treaty of Lisbon (hereinafter ‘Lisbon Treaty’).That vote, followed by the signing of the Lisbon Treaty by the Czech President on 3 November 2009, completed the ratification process of the Lisbon Treaty and paved the way for its entry into force. The corpus of literature on the ratification of EU Treaty revisions, particularly on national referenda on European integration, is growing. According to the taxonomy offered by Taggart, scholarship on national referenda on European integration can be classified into four broad categories. The first pertains to the broader normative issue of direct democracy; the second, to single-case, national studies; the third, to the dynamics of referenda in general; and the fourth, to models of turnout and of outcomes. The focus of this contribution is somewhat different. Its focal point is the two Irish referenda and other major milestones in the ratification process of the Lisbon Treaty in the other EU Member States. Yet its objective is to go beyond Irish socio-political borders and to probe the broad constitutional implications and ramifications of the ratification of the Lisbon Treaty for the future of European integration.
General Principles of EU Law and Horizontal Direct Effect
Authors: Cabral Pedro , Neves Ricardo
Published: April 2022

This article comments upon the Kücükdeveci judgment of the Court of Justice of the European Union of 19 January 2010. The decision, issuing from the Court's Grand Chamber in a procedure involving observations from six Member States, is of huge significance. Not only does it represent an important contribution to the development and consolidation of European Union law on non discrimination in the context of employment but also, and most crucially, it is a fundamental milestone in the Court's jurisprudence concerning horizontal direct effect and general principles of EU law.
Dating Cinderella: On Subsidiarity as a Political Safeguard of Federalism in the European Union
Authors: Martinico Giuseppe
Published: April 2022

The aim of this article is to provide a brief overview of the debate on the subsidiarity principle. Subsidiarity is one of the most ambiguous and debated notions in law, and it definitively belongs to all the legal disciplines, from EU law to constitutional and administrative laws, passing through human rights law. The debate on this principle has been enriched recently by a number of articles and books focused on the new provisions concerning national parliaments included in the Lisbon Treaty.

When dealing with subsidiarity, the impression, at the first glance, is that of a Cinderella principle because of its evanescent nature (rule or principle?) and of its difficult justiciability. This article suggests that just a strong change in the European Court of Justice's (ECJ's) case law might transform our Cinderella into a real constitutional principle.

Despite the vast existing literature, I have decided to focus on a few, in my view, fundamental readings on this point by attempting to describe the noble design behind the introduction of the subsidiarity principle in EU law and the re-evaluation of the weight of this concept in the practice of courts. In doing so, I started from the recent contribution of Robert Schütze, in Chapter 5 of his book, From Dual to Cooperative Federalism: The Changing Structure of European Law, which defines subsidiarity as a 'political safeguard' of EU federalism.

The first part of this article thus will be devoted to the analysis of this work. As will be evident after a few lines, I share the comparative approach chosen by Schütze, but despite this methodological convergence, our conclusions are different.

In the second part of this article, I will try to show how the interpretation of subsidiarity, as followed by the ECJ, is misleading and, consequently, how the choice of the Lisbon Treaty to rely on the national parliaments as the most suitable watchdogs of subsidiarity has to be regarded as unsatisfactory.
Sanctions for Infringement of EU Law after the Treaty of Lisbon
Authors: Peers Steve
Published: April 2022

Article 260 TFEU (the former Article 228 EC) now provides for financial sanctions to be applied more easily and in more situations. This paper examines the operation of the new rules and the impact that they could have on the enforcement of EU law in practice.
The Implementation of the European Landscape Convention and Public Participation
Authors: Cartei Gian Franco
Published: April 2022

The European Landscape Convention adopted in 2000 is only now beginning to attract attention from scholars and public institutions. It is the first international act adopted by a European institution with the aim of promoting the protection, management and planning of the European landscape. The novelty of the Convention is that it offers a multifaceted perspective of landscape. Nonetheless the absence of specific rules to be applied risks hindering the implementation and enforcement of the Convention. Therefore, it appears necessary to invoke the aid of international law notably the prescriptions of the Aarhus Convention and European legal rules enshrined in the EC environmental directives for European Impact Assessment and Strategic Environmental Assessment.
The 1921 Constitution of the Democratic Republic of Georgia: Looking Back after Ninety Years
Authors: Papuashvili George
Published: April 2022

The Article concerns the 1921 Constitution of the Democratic Republic of Georgia. Soon after the adoption of the constitution, Georgia was occupied by Russia and the Constitution was suspended. During Soviet rule, analysis and evaluation of the Constitution were taboo and only minor works on the constitution by foreign and Georgian authors working abroad have been preserved. The 1921 Constitution can unquestionably be considered as one of the most advanced and perfect supreme legislative acts oriented towards human rights in the world for its time that is, the beginning of the twentieth century. The author argues that it reflects the most progressive legal and political discourse in practice or theory at that time in Western European countries or the USA. As the main law of an independent democratic state, it established representative democracy as well as the system of democratic governance based on popular sovereignty by ensuring an independent judicial system.
Liberty before Security: Case T-85/09 Yassin Abdullah Kadi v. Commission (No. 2) [2010] ECR 00000 (30 September 2010)
Authors: Hooper Hayley J.
Published: April 2022

This comment examines the ruling in Yassin Abdullah Kadi v Commission (No. 2) in which the European Union General Court applied the ratio decidendi of the landmark Grand Chamber ruling in Yassin Abdullah Kadi v Commission (No. 1), in a way which intensified the due process protection for those individuals subject to UN Security Council imposed terrorist asset-freezing measures at the behest of the European Union. This comment argues that the decision of the General Court is to be welcomed, especially when read against the jurisprudence of other jurisdictions which addresses the due process implications of the same United Nations Security Council powers.
The French Parliament and European
Authors: Dyevre Arthur
Published: April 2022

Through successive constitutional reforms over the past two decades, French parliamentarians have gained new rights and instruments to monitor policy-making at EU level and to exert tighter scrutiny over the executive branch. Yet the more structural and long-standing obstacles to the reparliamentarization of EU issues have not been removed, which explains why the reforms have failed to deliver the hoped-for Europeanization of parliamentary debates. While some progress has undoubtedly been made - notably with respect to MPs' access to information and expertise on EU legislative proposals - Parliament's overall influence in EU matters remains low and the innovations introduced by the Lisbon Treaty are unlikely to bring about any significant change to this state of affairs.
Regional Governance, Subsidiarity and Accountability within the EUs Multi-Level Polity
Authors: Cygan Adam
Published: April 2022

The Treaty of Lisbon addressed the status of regional governance and includes several provisions designed to improve its constitutional relevance. Most importantly Protocol 2 TEU formally engages the Committee of the Regions in the task of subsidiarity monitoring within the Community method. In addition, Articles 5 and 6 TFEU seek to involve regional actors in the process of soft law, but this raises questions of competence creep, legitimacy and accountability. This article analyses participation by the Committee of the Regions in subsidiarity monitoring and the extent to which this may improve the accountability of both the Community method and soft law. The article also examines the accountability paradox that has accompanied the growth of regional autonomy in the EU. Though subsidiarity monitoring may improve legislative legitimacy, the expansion of regional autonomy has created a disjuncture between the exercise of political authority by regions and their accountability for the implementation of EU law.
Constitutional Foundations of, and Limitations to, EU Integration in France
Authors: Vranes Erich
Published: April 2022

The constitutional bases of EU integration in France as well as the limitations for the integration process derived from these provisions have been subject to considerable interpretative developments in the case law of the supreme decision-making bodies exercising judicial functions in France in recent years. This article gives an overview of the relevant constitutional provisions that open up the French legal order towards EU law and examines these crucial developments in French jurisprudence. The article does so in adopting a systematic approach that differentiates between, first, the constitutional foundations of EU integration, second, the constitutional limitations to the further transfer of competences to the EU through amendments of primary law, and, third, the constitutional confines to the legal effects of secondary law.
Education and Religious Symbols in the United Kingdom, Italy and Spain: Uniformity or Subsidiarity?
Authors: Cranmer Frank , Oliva Javier García
Published: April 2022

The argument about the display of religious symbols in schools is ostensibly about the extent to which they might have any detrimental effect on impressionable minors. However, its more fundamental importance is as part of the broader debate about the place of religion in wider society: both the extent to which personal religious preferences should be accommodated and the degree to which liberal democracies may legitimately exhibit any kind of overt religious character - and both are fundamental to the issue of social cohesion.
A Microphysics of European Administrative Law: Administrative Remedies in the EU after Lisbon
Authors: de Lucia Luca
Published: April 2022

This article aims to offer a view of the principal administrative remedies toward the European administration and to illustrate the effect that the Lisbon Treaty has on these. In particular, three types of administrative remedies governed by secondary laws are presented: those relating to internal review, those decided by independent commissions instituted within European agencies and those involving the European Commission against acts of European agencies. Following this the relationship between administrative appeals and the regulation of certain executive acts of the European Union will be looked at in order to formulate some considerations on the role of such tools inside the 'European administrative justice' system.
Contemporary Aspects of the Promotion of Democracy by the European Court of Human Rights
Authors: Mowbray Alastair
Published: April 2022

This article examines the recent jurisprudence of the European Court of Human Rights concerning States obligations in regard to the maintenance and enhancement of democratic political activities within their societies. A selection of leading cases involving freedom of expression, freedom of association and free elections are analysed. These encompass controversial issues such as symbolic protests, the dissolution of non-governmental organizations and the restriction of voting rights applied to particular groups. Conclusions are drawn regarding how the contemporary case-law has built upon the foundations established by the original Court. Areas of uncertainty within the jurisprudence are identified together with case-law where the Court has exceeded its legitimate interpretative function. The Court's jurisprudence is also linked to debates within the philosophical world and amongst public international lawyers.
Efficiency, Citizens and Administrative Culture. The Politics of Good Administration in the EU
Authors: Leino Päivi
Published: April 2022

So far the debate on good administration in the EU has mainly focused on whether the EU institutions could adopt rules on good administration, and whether they should indeed wish to do so. The questions relating to a possible legal basis have been addressed by the reforms included in the Treaty of Lisbon (Article 298 TFEU together with the Charter). While EU citizens continue to battle with the fundamentals of good administration when interacting with the EU institutions, the Commission seems determined to direct the discussion to the further improvement of national administrations, even if the greatest gaps in regulation currently concern its own actions and direct EU administration more generally. Even if the Charter of Fundamental Rights includes a right to good administration, its main contribution relates to the specific questions addressed by the provision, and do not extend to requirements concerning a need to observe the requirements of good administration more generally. This paper argues that currently the balance is heavily on institutional interests, which are deemed difficult to reconcile with citizens' rights, leaving the institutions to emphasize efficiency, flexibility and both substantive and procedural discretion. The recent legislative initiative by the European Parliament with recommendations to the Commission on a Law of Administrative Procedure of the EU has potential to shift the balance, in particular as it aims at a closer regulation of the administrative procedure. However, ultimately Article 298 TFEU involves a number of political questions relating to finding the appropriate balance between the various interests that come into play when defining what actually counts as good administration. These questions should not be left to the administration itself to settle with reference to its own institutional preferences.
Legal Risk Management in EU Organizations
Authors: Tracol Xavier
Published: April 2022

English abstract:

Legal risk management is a methodology to manage legal norms which apply to the activities of the organization. Lawyers have been applying it to human resources and business law to increase the efficiency of their functions. This methodology may be adapted to the framework of the EU and the specificities of EU organizations since in-house lawyers who work for them are expected to realistically assess legal risks run by the administration.

 French abstract:

La gestion des risques juridiques peut être définie comme une méthodologie de traitement des normes juridiques qui s'appliquent aux activités d'une organisation. Les juristes l'appliquent aux ressources humaines et au droit des affaires afin d'accroître l'efficacité de leurs fonctions. Cette méthodologie peut être adaptée au cadre de l'U.E. et aux particularités des organizations de l'U.E., dans la mesure où les juristes qui travaillent au sein de ces organisations ont pour mission de fournir une évaluation réaliste des risques juridiques encourus par l'administration.
The Institutional Balance, an Ill-Fated Principle of EU Law?
Authors: Chamon Merijn
Published: April 2022

The institutional balance is a concept often used in EU legal doctrine as well as being regularly invoked by parties before the Court. In theory, it is a genuine self-standing principle of EU law as recognized by the Court of Justice, in practice however it is simply used as an easy shorthand for the (Treaty-defined) rules governing the relations between the institutions. An analysis of the Court's jurisprudence indeed shows that despite having qualified the institutional balance as a legal principle, the Court is unreceptive towards arguments based thereupon. In combination with recent developments, inter alia related to the political responses to the euro crisis, flouting the EU's institutional balance, it may be questioned whether the institutional balance really is an actionable principle of EU law. The Court should clarify the situation by actually enforcing the institutional balance or by reconsidering its qualification of that balance as a legal principle.
Dismissal of the President of the Hungarian Supreme Court: ECtHR Judgment Baka v. Hungary
Authors: Vincze Attila
Published: April 2022

The right-wing Hungarian Government has not fully respected the judicial independence since the landslide victory of 2010 which has confirmed many worries and critiques. As it was reported in this journal earlier, many judges were forced to retire by a constitutional amendment in 2012.The European Court of Justice (ECJ) found this to be contrary to EU law especially to the antidiscrimination directive. The new Fundamental Law of Hungary also renamed the former Supreme Court to Kúria and this enabled the dismissal of the President of the Supreme Court who lodged an individual complaint before the ECtHR. The ECtHR found a violation of Article 10 (freedom of expression) and Article 6 (the right to access to court) confirming the alleged illegality. Moreover, the case is also of interest to demonstrate the very complex interplay between national and international legal remedies.
The Judicial Academy as conditio sine qua non for the Effectiveness and Efficiency of the Serbian Judiciary
Authors: Kmezic Marko
Published: April 2022

The Serbian judiciary is inefficient, politically dependent, expensive, and placed in a perpetual reform cycle. This is why the reform of the Serbian judicial apparatus is set high on the European Accession negotiations agenda. Reasons for the underperformance of the judiciary are manifold, and, for the need of this study, I will try to associate them with two independent variables. The primary source of the crisis of the judiciary is reflected in the deficiencies of general legal education and expert training, as well as the outdated system of evaluation for prudence and skills of the holders of judicial functions. Secondary sources are derived from permanent endeavours of the executive powers, and other, more informal, sources of power that place the judiciary under their patronage. Precisely along these lines, are the European Commission’s demands that Serbia should establish a transparent and open method of entering into the judiciary through the process of selecting successful candidates. With this study, it is my goal to analyse the extent to which the newly established Serbian Judicial Academy is capable of remedying observable problems, and contributing to the establishment of a competent and efficient judicial apparatus. Normative and empirical scrutiny of the Judicial Academy is coupled by a set of practical recommendations aiming to further strengthen the position of this young institution, within the Serbian judicial system.
Independent Administrative Review Within the Structure of Remedies under the Treaties: The Case of the Board of Appeal of the European Chemicals Agency
Authors: Bolzonello Luca
Published: April 2022

Independent administrative review, administered by Boards of Appeal, ensures the control of the legality and soundness of certain administrative decisions in European Union law. This article examines the nature and role of Boards of Appeal with particular reference to the Board of Appeal of the European Chemicals Agency. It subsequently discusses the scope of review of scientifically complex decisions. Finally, it suggests a placement within the system of remedies under the Treaties. This article is in part a response to a previous article published in this journal.
Sanctioning Under Article 260 (3) TFEU: Much Ado About Nothing?
Authors: Várnay Erno
Published: April 2022

Article 260(3) TFEU, which was introduced into the Lisbon Treaty with the aim of compelling the Member States to implement directives in time, created the possibility for the Commission to apply before the Court of Justice for imposing financial sanctions on the Member State concerned in addition to producing a declaration of failure to fulfil the obligations stemming from EU law under the framework of Article 258 TFEU. This article analyses how the Commission has interpreted the scope of this procedural option and how it has made use of it in policing Member State infringements. So far the Court of Justice has not issued a ruling under Article 260(3) TFEU, mainly because its practice has been to wait until the Commission withdrew its application, which means that very little information is available regarding the Court's sanctioning policy under this instrument. The silence of the Court may indicate that the aim of the new provision was merely to raise the stakes for non-compliant Member States by threatening them with a new financial sanction.
Subsidiarity in Directive 2014/104 EU on Damages Actions for Breach of EU Competition Law
Authors: Petrucci Carlo
Published: April 2022

The article is concerned with subsidiarity in Directive 2014/104 EU on actions for antitrust damages. After providing an overview of private enforcement of competition law and subsidiarity in EU law, it examines the arguments presented by the Commission in the relevant Impact Assessments. While most of the arguments were based on the need to prevent adverse cross-border effects, of particular interest was the argument that Member States were slow or unresponsive in providing effective measures designed to compensate antitrust victims. Subsequently, it shows that the Commission’s assessment of the underlying problems was discretionary and played a pivotal role before the considerations on subsidiarity were made. On this basis, this article makes the case for subsidiarity to be understood as Member States’ constructive engagement in EU action, rather than constraint on EU action.
State Aid Rules in the Financial Sector During the Economic Crisis: A Disguised but yet Necessary Retreat or an Honest Compromise? The Case of Greece
Authors: Athanasaki Vasiliki
Published: April 2022

The present study refers to the issue of interpretation as well as implementation of EU state aid rules in the financial sector, given the recent, ongoing and still evolving economic and financial crisis and the extraordinary conditions it entailed for the EU Member States, with an emphasis in the case of Greece, which was intensely affected by such crisis. The study focuses on the general legal and regulatory framework as concerns state aid law within the context of the financial system, analyses the respective historic and factual background and, afterwards, deals with the specific case of Greece and its complex particularities, presenting a brief synopsis and commentary of the most important measures implemented, in order to conclude whether a disguised but necessary retreat or an honest compromise has taken place with regard to the applicable state aid rules.
About Silent Objects and Barking Watchdogs: The Role and Accountability of Environmental NGOs
Authors: Peeters Marjan
Published: April 2022

Within environmental law, Environmental NGOs (hereafter NGOs) – being private actors established by civil society – often enjoy special procedural rights in order to help to achieve the public interest of a sound environment. Particularly when governments fall short in their public task to protect the environment, it will be crucial that NGOs – acting as watchdogs – step in by defending the voiceless interest of a sound environment. This contribution examines how NGOs are indeed able to contribute to the protection of the environment, and which challenges exist when NGOs act in the pursuance of this public interest. Core focus goes to the right of access to environmental information as being currently provided in EU law, and several opportunities and limits will be discussed. In view of the potential great informational power of NGOs, this contribution will also shed a light on the question of accountability of the NGOs themselves, and the way how the right to freedom of expression protects their freedom of speech in case they want to make accusations of malpractice or illegal behaviour of governments or industries.
Public Administration in the Era of Database and Information Exchange Networks: Empowering Administrative Power or Just Better Serving the Citizens?
Authors: Galetta Diana-Urania
Published: April 2022

Data collection and Data Management; ICT; digitized Data; Data collection and Data exchange; new Network-Systems of Public Administrations; Database and Information Exchange Networks.
Constitutional Reasoning in the European Union and the Charter of Fundamental Rights: In Search of Public Justification
Authors: Frantziou Eleni
Published: April 2022

This article argues that the CJEU’s use of the EU Charter of Fundamental Rights in situations falling within the scope of EU law needs to be supplemented by clearer constitutional reasoning about the role of fundamental rights in the public order of the European Union. The article demonstrates, through an analysis of the Charter’s drafting context, that the primary function of this instrument is to highlight the centrality of a set of public goods in the EU, rather than merely to add to the number of individual rights to whichEU law gives rise. It is then argued that, in order for this function to be fulfilled, an interpretation of fundamental rights is required that both acknowledges their constitutional value as distinct from other sources of rights protection in the Union and offers adequate reasons for the application of the Charter standard. The idea of public justification provides a suitable starting point, particularly in situations of conflict with national laws, because it would give rise to a much-needed judicial debate about what the best standard of fundamental rights protection would be for the Union. However, such an interpretation of the Charter is currently lacking from the case law which, instead, utilizes problematic forms of constitutional and quasi-constitutional discourse, through continued reliance on a conception of rights as tools of enforcement of EU law, which it had advanced in its earlier case law.While this type of reasoning was well suited to the idea of theEUas a social market economy, it structurally precludes the re-imagination of rights as collectively authored claims about good government under the Charter framework.