bluuebunny/crossref_metadata_2025_split huggingface dataset:
Judges Sitting on the Warsaw-Budapest Express Train: The Independence of Polish and Hungarian Judges Before the CJEU
Authors: Bakó Beáta 
Published: April 2022

This article is a contribution to the vital discussions about the rule of law in the EU, focusing on a specific and crucial element of the rule of law: judicial independence. Recently, the CJEU started to use Article 19 (1) of Treaty on European Union and Article 47 of the EU Charter of Fundamental Rights as a basis for enforcing judicial independence in the Member States in cases which do not contain any explicit cross-border elements. This is how some provisions of the heavily criticized reform of the Polish judiciary have already been declared as contrary to EU law by the CJEU. However, it is not only Poland where judges face difficulties. The main subject of this article is a Hungarian case: a preliminary reference issued by a Hungarian judge questioning his own independence. Judicial independence is not primarily threatened by explicit legal provisions but by the fact that the former head of the judiciary administration regularly misused her competence to invalidate judicial applications over several years. This article analyses the Hungarian preliminary reference and its chances in light of the CJEU’s recent, respective case law, especially the preliminary ruling concerning the Polish National Council of the Judiciary, the KRS (Krajowa Rada Sądownictwa) and the Disciplinary Chamber of the Supreme Court (joined cases C 585/18, C 624/18 and C 625/18).
Hungary, Poland, European Court of Justice, Article 19 (1) TEU, Article 47 EU Charter of Fundamental Rights, judicial independence, judicial councils, disciplinary chamber, right to an effective remedy, preliminary reference, infringement procedure, rule of law, C-564/19, joined cases C 585/18, C 624/18 and C 625/18
Autonomy of the EU Legal Order: A Concept in Need of Revision?
Authors: Öberg Marja-Liisa 
Published: April 2022

The issuing of Opinion 2/13 on the European Union’s (EU’s) accession to the European Convention on Human Rights by the Court of Justice of the EU (CJEU), followed by Case C- 284/16 Achmea and Opinion 1/17 on the compatibility with EU law of the Comprehensive Economic and Trade Agreement between Canada and the European Union (CETA), brought the concept of the autonomy of the EU legal order to the persistent limelight of scholarly attention. An important yet unanswered question that arises in the light of the CJEU’s case law is to what extent the concept of the autonomy of the EU legal order or its specific application by the CJEU has been outlived in the context of EU external relations. Closely connected to the expansion of the EU’s normative influence globally and in its neighbourhood is the necessity to set up effective institutional and procedural frameworks, including judicial protection mechanisms. The keen protection of the autonomy of the EU legal order in such instances conflicts sharply with the Union’s interests and foreign policy strategies and may well warrant a review of the current paradigm of the autonomy of the EU legal order. This article provides a critical account of the compatibility of the concept of autonomy as developed by the CJEU over the past several decades with the Union’s aspirations as a normative superpower.
Autonomy, EU legal order, Opinion 2/13, Achmea, Opinion 1/17, unity, effectiveness, norms export, EU external action, European Economic Area
The GDPR and Processing of Personal Data for Research Purposes: What About Case Law?
Authors: Reichel Jane 
Published: April 2022

Case law regularly includes personal data on identifiable persons, often of a rather sensitive nature. This makes the EU General Data Protection Regulation (GDPR) relevant. However, the processing of personal data in case law has until recently not been questioned from the point of view of data protection of the individuals concerned. The Court of Justice of the European Union has taken steps ensure such protection for individuals appearing before the courts. Sweden has chosen another path. As transparency is a highly treasured in Sweden, including transparency in the judiciary, restricting access to the full verdict is sensitive. Instead, the processing of personal data has been restricted in a certain areas, such as research. In order to fulfill the requirements for an ‘appropriate safeguard’ under Article 89 GDPR, an ethical approval is needed for all research on specific categories of sensitive personal data, with no exception for publicly-available official documents like case law. The question posed is how the interest in protection of personal data retrieved from case law can be reconciled with the interest in transparency of the judicial process. It is concluded that even though requirements for an ethical approval of legal research hardly can be seen as a relevant ‘appropriate safeguard’, it cannot be denied that there is a legitimate interest of identifiable persons in case law to have their rights in personal data at least considered. Courts should therefore be stronger in elucidating when and why transparency is of overriding importance, and when and why data protection and the interest of secrecy should prevail.
Data protection, transparency, case law, official documents, secrecy, sensitive data, research exception, appropriate safeguard, ethical approval
Challenging Administrative Sovereignty: Dimensions of Independence of National Regulatory Authorities Under the EU Law
Authors: Szescilo Dawid 
Published: April 2022

The EU standards on independence of national regulatory authorities (NRAs) expanded significantly over the past two decades, including the most recent legislative developments relating to competition authorities and regulators in the sectors of audiovisual media and electronic communications. They appear to gradually challenge the principle of administrative sovereignty enabling the Member States to shape their administrative structures autonomously. The major aim of this article is to investigate the concept of independence, established in various acts of the EU law with regard to NRAs. In particular, the main attributes of ‘EU-made national independent authorities’ are explored, as well as the limitations of their autonomy deemed legitimate under the EU legislation. After reconstruction of the phenomenon of independent regulatory authorities, the paper reviews the EU standards on their independence. It then discusses similarities, differences and inconsistencies in interpreting the overarching principle of independence across various areas of the EU legislation, considering also additional guidelines stemming from the CJEU’s case law. Finally, the paper provides a summary of the main attributes of administrative independence guaranteed by the EU law to national regulators and analyses to what extent they pose a challenge to the principle of administrative sovereignty of the Member States.
national regulatory authorities, administrative independence, administrative sovereignty
National Identity and the Protection of Fundamental Rights
Authors: Claes Monica 
Published: April 2022

The article asks whether the European Union (EU)’s duty to protect national identities is a useful way to address diverging conceptions of fundamental rights, and it argues that it is not. On the basis of an examination of the text of Article 4(2) TEU, its history and the practice of the Court of Justice, it is argued that the concept of ‘national identities’ under Article 4(2) TEU does not cover particular national conceptions of fundamental rights, but admits that it may be difficult to make a clear separation between the more organizational or structural elements of national identity and their impact on the fundamental rights of individuals. The article then proceeds to look at national approaches, where fundamental rights tend to be included in the concept of constitutional identities to be protected by national courts. It is argued, however, that arguments based on constitutional identity under national law are not conducive for deciding cases on EU fundamental rights. Such identity claims operate as trump cards. Yet, there are other ways to accommodate diversity among the Member States in the area of fundamental rights. If these are used and respected also by the Court of Justice, unilateral recourse to constitutional identity is not needed.
Constitutional identity – national diversity – protection of fundamental rights – identity review – divergence – harmonization of fundamental rights protection – national choices
Migration and Sustainable Development in the EU: A Case Study of the Seasonal Workers Directive
Authors: Fudge Judy 
Published: April 2022

Most discussions of the EU’s development agenda that emphasize the social dimension of globalization in general or labour rights and standards in particular tend to focus on either trade agreements or aid. However, in 1999, the EU explicitly linked migration to its development objectives, and in 2011, the European Commission launched the Global Approach to Migration and Mobility (GAMM), which lists ‘maximizing the development impact of migration and mobility’ as one of its four pillars. A distinctive feature of the GAMM’s approach is that migrants are placed at the centre and their human rights are to be mainstreamed throughout the migration cycle. To what extent is the GAMM’s commitment to migrants’ rights being put into practice? How does the GAMM’s emphasis on migrants’ rights impact upon development? Using the recently adopted Seasonal Workers Directive as my focus, I will attempt to address these questions. First, I will examine the extent to which the Directive protects migrant workers’ human rights and ensures that they have access to meaningful labour standards. Second, I will explore the extent to which the Directive facilitates circular migration, which is seen as a key component of development-oriented migration. Third, I will consider the relationship between this Directive and Mobility Partnerships, which are the EU’s key instruments for linking migration to development, when it comes to migrant workers’ rights and circular migration.
The State Giveth and Taketh Away: Public Sector Labour Law, the Legitimacy of the Legislative Override Power and Constitutional Freedom of Association in Canada
Authors: Mummé Claire 
Published: April 2022

This article investigates the role of courts and legislatures in the design and enforcement of labour laws in the context of public sector employment. It does so by focusing on government employers’ legislative ability to temporarily override public sector labour rights, or to displace outcomes achieved under their processes. This issue is analysed through a case study of Canada, a country which offers constitutional protections for freedom of association, but which is also constructing a highly deferential approach to the constitutional review of override statutes. As a result of this deference, governments have been afforded significant leeway in the use and design of override legislation, which serves to undermine the legitimacy of the underlying public sector labour law regime. The result is to shake the confidence of public sector employees in the promise of workplace power redistribution and workplace voice and to undermine the legitimacy of public sector labour law. Because override legislation can so fundamentally undermine public sector labour rights, the courts should avoid excessive deference and instead undertake an active constitutional review of their use, where constitutional protections are available.
Judicial Deference; Public Sector Labour Law; Legislative Override; Freedom of Association; section 2(D); The Canadian Charter of Rights and Freedoms; The Expenditure Restraint Act, Pre-Legislative Consultation; Legitimacy; Special Interests
Is That Lawful? Data Privacy and Fitness Trackers in the Workplace
Authors: Collins Philippa , Marassi Stefania 
Published: April 2022

Data collected from fitness trackers worn by employees could be very useful for businesses. The sharing of this data with employers is already a well-established practice in the United States, and companies in Europe are showing an interest in the introduction of such devices among their workforces. Our argument is that employers processing their employees’ fitness trackers data is unlikely to be lawful under the General Data Protection Regulation (GDPR). Wearable fitness trackers, such as Fitbit and AppleWatch devices, collate intimate data about the wearer’s location, sleep and heart rate. As a result, we consider that they not only represent a novel threat to the privacy and autonomy of the wearer, but that the data gathered constitutes ‘health data’ regulated by Article 9. Processing health data, including, in our view, fitness tracking data, is prohibited unless one of the specified conditions in the GDPR applies. After examining a number of legitimate bases which employers can rely on, we conclude that the data processing practices considered do not comply with the principle of lawfulness that is central to the GDPR regime. We suggest alternative schema by which wearable fitness trackers could be integrated into an organization to support healthy habits amongst employees, but in a manner that respects the data privacy of the individual wearer.
Fitness Trackers, GDPR, Privacy, Data Protection, Employment, Principle of Lawfulness, Fitbit, Apple Watch
The EU-China Agreement on Maritime Transport
Authors: Noussia Kyriaki 
Published: April 2022

For Europe, shipping has always been a key factor for its economic growth. The EU has a longstanding commitment to open and fair competition in shipping and also to quality shipping, hence its support for specialized international organizations and its strong and growing network of bilateral maritime agreements and dialogues with key shipping and trading partners, which purport to the maturing of its comprehensive strategic partnership with third states.
The maritime transport agreement of 2002 between the Commission, the Member States, and China and the various ongoing EU bilateral negotiations at regional level are good examples of such agreements, which – whether implicitly or explicitly characterized as mixed – bear features of mixity.
The European Commission’s Practice on Exporters Found Not to Dump in the Aftermath of WTO Mexico Rice
Authors: Dascalescu Florin Dorian 
Published: April 2022

The WTO Panel has found in Mexico Rice that, as set forth by Article 5.8 of the Anti-Dumping Agreement, there shall be ‘immediate termination’ of an anti-dumping investigation where the authorities determine that the dumping margin of individual exporters is de minimis. The only way to ‘immediately’ terminate an investigation of such exporters is to exclude them from the scope of the anti-dumping order. In addition to the Panel’s holding in Mexico Rice, the legal doctrine supports the Panel’s logical conclusion that an exporter found not to dump in the original investigation cannot be subject to a ‘changed circumstances’ (or ‘interim’) review. Indeed, reviewing such exporters would actually result in them being subject to the initial anti-dumping order. However, at EU level, the anti-dumping legislation provides that there shall be ‘immediate termination’ where it is determined that the dumping margin is de minimis, provided that it is only the ‘investigation’ that shall be terminated, while exporters found not to dump remain subject to the ‘proceeding’ and may be ‘automatically’ reinvestigated in ‘any subsequent review’ with respect to the country concerned. Consequently, it appears that the EU anti-dumping legislation is contrary to the WTO case law. This conclusion is supported by the Commission’s findings in Welded Tubes (December 2008), in which the Commission seemed to accept the rationale behind Mexico Rice. However, the Commission’s interpretation of the Mexico Rice decision in Ironing Boards (October 2009) generates contradictory results, as it opens the gate to the initiation of new anti-dumping investigations limited to exporters found not to dump, while the initial anti-dumping measures are still in force.
The present article examines the Commission’s approach in Welded Tubes and scrutinizes whether initiating the Ironing Boards case was indeed in accordance with the Panel’s decision in Mexico Rice.
The ‘Specificity’ of Cultural Products versus the ‘Generality’ of Trade Obligations: Reflecting on ‘China – Publications and Audiovisual Products’
Authors: Chen Weidong , Shi Jingxia 
Published: April 2022

Cultural products present themselves dually, as both commercial objects and assets that convey values and identity. The recently decided WTO case of China – Publications and Audiovisual Products provides an opportunity to examine the interface between the ‘specificity’ of cultural products and the ‘generality’ of trade obligations. Based on the DSB reports, this comment centres its analysis on four key issues: the UNESCO Convention as cultural defence, the application of the ‘public morals exception’ to cultural products, the distinction and overlap between cultural goods and services, and the degree to which culture can determine the ‘likeness’ between imported and domestic cultural products. This comment concludes with remarks on the case decisions, lessons China might have learned, and the necessity of reconciling free trade with cultural diversity in the context of economic globalization.
The flame knows no rest, for it lives in perpetual conflict between two opposite tendencies. On the one hand, it cleaves to its wick, drinking thirstily of the oil that fuels its existence. At the same time, it surges upward, seeking to tear free of its material tether.
– Yanki Tauber, Beyond the Letter of the Law
The Role of WTO Rules to Discipline Climate Change-Related Agriculture Policies
Authors: Dantas Adriana 
Published: April 2022

As countries around the globe introduce new strategies to address the effects of climate change on the agriculture sector, greater international coordination and discipline of these policies are increasingly important. Policies to boost renewable energy from agriculture feedstocks, for example, are widespread in the United States and the European Union (EU), despite the uncertainties concerning their impacts on commodity demand, trade flows, water use, and mitigation of greenhouse gas emissions. This article argues that there is a relationship between market-distorting farm policies and the respective level of environmental impact. This is particularly true in the case of policies that are not decoupled from production. Because the problems involving agriculture production and trade are global and systemic in nature, WTO rules play an important role in securing that new forms of agriculture protectionism, justified by legitimate policy objectives, such as climate change mitigation and adaptation, do not jeopardize agriculture trade liberalization.
Analysis of Anti-dumping Use in Free Trade Agreements
Authors: Shin Wonkyu , Ahn Dukgeun 
Published: April 2022

Proliferating free trade agreements (FTAs) in recent years may have conflicting effects on anti-dumping (AD) uses among FTA parties. On the one hand, an FTA may increase a country's AD activities to protect its domestic industries from the increased import flows from other parties. On the other hand, an FTA supposedly helps reduce the use of AD measures to accomplish the purpose of free trade. Which effects prevail can shed important lights on the question of whether an FTA can be a stumbling block or a building block. This article examines the effects of FTAs on AD activities based on comprehensive empirical analysis. Using longitudinal data of major AD user countries from 1995 to 2009, we found that there is clearly an inverse relationship between an FTA and AD activities. This finding represents the user's tendency to trigger less AD filings against FTA membership, regardless of facing more imports from FTA partners. This article also captured dynamic FTA effects based on a series of distribution of time dummies. The estimation results from the dynamic model show that the FTA enactment year clearly has significant effect, suggesting substantial reduction of AD investigations in that year.
Paths to Carbon Stabilization: How Foreign Carbon-Restricting Reforms Will Affect US Industry, Climate Policy and the Prospects of a Binding Emission Reduction Treaty
Authors: Colares Juscelino F. 
Published: April 2022

'If factors of production are thought of as rights, it becomes easier to understand that the right to do something which has a harmful effect . . . is also a factor of production.' This article investigates new paths for achieving a binding treaty on emission stabilization. Because industry support for US participation in such an agreement is essential, an empirical analysis of lobbying expenditures during Congress's last attempt to pass emission-restricting legislation is used to gauge industry support and opposition for such reform. The article qualifies its finding of no major spending asymmetry and explains the role of ideological and structural features of the US political system in impeding the passage of any such bill. Scepticism aside, it argues that a shift in US climate policy is coming due to: (i) the implementation of foreign carbon-restricting regimes; and (ii) the US exporters' response to these reforms .A microeconomic analysis demonstrates that US exporters will increasingly elect carbon-efficient technologies to minimize costs and adjust to a changing regulatory environment. This shift in the carbon intensity of production will cause these industries to form a majority coalition with pro-environment groups in favour of domestic and global emission-restricting reforms. Because these developments lead to the use of border measures designed to curb carbon leakage and address trade concerns, the article makes a few suggestions for reducing potential conflicts between the trade and climate change regimes. (JEL:D 21, K 32, K 33)
Authentication and Recognition Issues in Cross-Border Single Window
Authors: Srivastava Aashish , Shah Hemali 
Published: April 2022

Single Window (SW) is a facility that allows parties involved in trade and transport to lodge standardized information and documents (mostly in electronic form) at a single entry point, and easily comply with all import, export, and transit-related regulatory requirements prescribed by government agencies. Over seventy-one countries and economies have introduced some form of SW that has successfully led to efficient and effective data submission processes for import and export operations, and, in turn, brought substantial benefits to each government and trading community. The success of SW at a national level has led regional and international organizations to evaluate the prospect of a Cross-border SW (CSW). However, overlaps of jurisdiction between different legal systems create issues in establishing a CSW. This article aims to provide an overview of one complex legal issue - electronic signatures that needs to be addressed in order to create conditions for a legally effective CSW. In particular, it examines the existing electronic signature laws and regulations of Australia, the UK, China and Singapore. It evaluates whether the current regulatory framework in the four countries facilitates or impedes the operation of a CSW, and concludes that the diverse electronic signature laws and regulations in the four countries do, in fact, impede the CSW's implementation. The article also makes some useful suggestions as to how to achieve a harmonized and coherent electronic signature regulatory framework for a CSW system.