bluuebunny/crossref_metadata_2025_split huggingface dataset:
Functional Approach and Economic Activity in EU Competition Law, Today: The Case of Social Security and Healthcare
Authors: Gallo Daniele 
Published: April 2022

In EU competition law, the concept of economic activity is governed by a functional approach whereby for an entity to be considered an undertaking it must provide services for remuneration in a market context, albeit only potentially. With regard to social security and healthcare, the article argues that there is uncertainty as to whether the aforesaid approach has been endorsed by the EU institutions. Today, exacerbating this uncertainty are conflicting trends in the case law of the CJEU and the practice of the European Commission on the relevance of the principle of solidarity in assessing Member States’ laws and regulations. This uncertainty should be remedied by the two institutions taking a clear stance on the issue. In this respect, better advantage could be taken of Article 106(2) TFEU as a balancing tool.
economic activity, competition law, social security, healthcare, CJEU
Administrative Constitutional Review in Sweden: Between Subordination and Independence
Authors: Wenander Henrik 
Published: April 2022

The article examines the power of administrative bodies to assess the constitutionality of legislation (‘administrative constitutional review’), taking examples from Swedish public law. The Swedish constitution explicitly requires all public bodies to engage in administrative constitutional review when necessary. In this way, Swedish administrative authorities have the right and duty to act as guardians of the rule of law. This competence relates to the historical development of Swedish public law, which deviates from most other European constitutional systems by organizing all state administrative authorities as separate public organs detached from the Government and the ministries. The Swedish constitutional obligation is parallel to EU law requirements on national administrative organs to set aside national legislation in conflict with directly applicable EU law (‘the Costanzo obligation’). Against the background of practical examples in Swedish law, the article identifies theoretical and practical challenges for administrative bodies to engage in constitutional review. These include the risk of disturbing constitutional structures by putting lower administrative authorities on par with the parliament. The possible problems of lack of legal expertise and the problem of independence in practice are also discussed. At the same time, the concept of administrative constitutional review has a potential to protect the constitutional system, including the fundamental rights of individuals.
administrative constitutional review, separation of powers, rule of law, administrative independence, Swedish administrative model, Costanzo
Public Administration Algorithm Decision- Making and the Rule of Law
Authors: Matteucci Stefano Civitarese 
Published: April 2022

This article revolves around the search for statutory recognition of the use of algorithmics (including rule-based systems) to make decisions. Thus, the focus is on whether a powerconferring rule is necessary before an administrative authority may issue a valid automated decision. By claiming that such a power-conferring rule is not only desirable but also a legal requirement, one contends that the shifting to automated decision making in the public sector is simply a by-product of reengineering bureaucratic practice through Information and Communication Technology. The issue is essential because there are several cases throughout Europe and beyond in which the latter is precisely the case. Moreover, values such as efficiency and flexibility to adapt to fast technological change could be considered sound justificatory arguments to purport that automated decision-making in the public sector should not be governed through the traditional arsenal of the rule of law. The primary purpose of the article is to offer a first conceptual skeleton to sow the seeds for further research on a normative claim that automated public administration decision-making should, nonetheless, be implemented in light of the rule of law. Secondly, it offers some recommendations for a legal framework to govern such a practice. The background idea is that focusing on the legal power to make an automated decision constitutes a necessary step to guarantee that the ethical and political principles that should undergird the adoption, development and implementation of any form of algorithmic decisionmaking in the public sector are appropriately and adequately taken into account.
public sector, automated decisions, rule of law, algorithms
The Role of Dynamic Employment Policies in the European Labour Market
Authors: Dragicevic Mirjana , Obadic Alka 
Published: April 2022

In the last 15 years, impressive developments have take place in the labour market both in the EU and Central and Eastern European (CEE) countries. The shrinking of the labour force and declining rates of participation are common both to the old and new EU Member States, due to the sharp decline in labour demand and to specific demographic trends. Although situations vary in each CEE transition economy, there are some common characteristics. The remarkable fall in GDP at the beginning of the transition period, caused by privatization and restructuring, was accompanied by a sudden decline in employment. After an analysis of labour market developments and trends in the old and new EU Member States, this paper concentrates on the development of employment policies. The aim of new dynamic and innovative employment policies is rapid job-creation and solving the unemployment problem in flexible and challenging economic and labour market conditions.
As the effects of institutions and policies on labour market performance are country- and time-specific in CEE countries and Western Europe, a comparative cross-country analysis is presented. Dealing with dynamic employment policies in EU Member States, some positive examples are examined as the lessons and policy recommendations for future development in CEE countries. The conclusion of analysis is that only an integrated policy approach can solve the problem of structural unemployment caused by a mismatch between labour supply and demand.
Occupational Pensions and Unemployment Benefits in Sweden
Authors: Johansson Caroline 
Published: April 2022

This article focuses on two Swedish benefits: occupational pensions and unemployment benefits. Both have undergone interesting developments recently, partly relating to changes in the public social security system, partly to changes in the labour market. These changes have led the social partners at sectoral level to decide on different priorities when negotiating collective agreements or offering unilateral benefits to their members. The overarching aim of the article is to illustrate and explain the increasing activity at sectoral level regarding occupational pensions and unemployment benefits. However, there are changes in the labour market that the social partners have not managed to address, or that it might not even be their role to address. When a significant proportion of welfare benefits derive from collective agreements and membership of private organizations, this has implications for atypical and self-employed workers, that are further elaborated in the article.
Occupational Benefits, Pension, Unemployment, Collective Agreements, Swedish Model, the Social Partners, Atypical Work, Self-Employed, Collective Bargaining, Transition Agreements, Occupational Welfare
'Festina Lente’: The ILO and EU Agendas on the Digital Transformation of Work
Authors: Potocka-Sionek Nastazja , Aloisi Antonio 
Published: April 2022

This article compares the International Labour Organization (ILO) and European Union (EU) agendas concerning the digital transformation of work, and addresses possible policy gaps and their implications for international and EU labour law. It critically reviews the current social acquis of both institutions and concentrates on the key analogies between the ILO’s Centenary Declaration for the Future of Work and some of the various regulatory initiatives taken by EU institutions in the context of the Pillar of Social Rights. The article finds that, despite the often articulated calls for urgent and original measures, both institutions’ programmes present largely a prudent continuation of traditional narratives, failing to strengthen the adequacy of existing labour regulation regimes. Besides their predominantly non-binding nature, the efficacy of the most future-oriented instruments is profoundly undermined by the unreasonable exclusion of those workers who bear most of the brunt of social disparities accelerated by digitalization and casualization of work. In addition, the implementation of these initiatives may be jeopardized by complex governance methods and unresolved tensions between conflicting approaches and objectives. The study concludes that, although positive signs are emerging in the supranational legal order, much remains to be done to address the multifarious challenges arising from the digital transformation.
International Labour Organization, European Union, European Social Law, Digital Transformation, Platform Work, Social Policy, Future of Work, Labour Regulation
Digging Into Deterrence: An Examination of Deterrence-Based Theories and Evidence in Employment Standards Enforcement
Authors: Hardy Tess 
Published: April 2022

In a bid to curb employer non-compliance with wage and hour regulation, policy-makers across many different jurisdictions are seeking to deliver greater doses of deterrence. This trend stems from a series of common assumptions. In particular, it is often assumed that introducing stiffer sanctions, such as criminal penalties for wage theft, will automatically amplify the relevant deterrence effects. This article seeks to unpack these assumptions to better understand: a) how deterrence is conceptualized and understood in the context of wage underpayment; and b) which tools or approaches are likely to be most powerful in enhancing deterrence and promoting compliance. Drawing on recent developments in Australia, the article argues that alternatives to enforcement litigation – such as voluntary agreements or undertakings – may hold critical, albeit under-appreciated, deterrence value. This analysis also reveals that the perceived risk of detection, the speediness of the relevant sanction and the publicity it ultimately generates may all serve to heighten deterrence in ways that encourage and entrench employer compliance with wage and hour laws.
Deterrence, Enforcement, Compliance, Employment, Labour, Regulation
Charting a New Course in a Fissured Economy? Employer Concepts and Collective Bargaining in the US and Canada
Authors: Bartkiw Timothy J. 
Published: April 2022

The legal concept of the employer plays an increasingly important and contested role in the modern economic context of broad-sweeping organizational fissuring. This article focuses on the role of employer concepts specifically in the collective bargaining domain, where they hold the unique potential to substantially affect access to regulated collective bargaining, its efficacy, and the extent of worker bargaining power. Building on a critical engagement with previous normative literature on fissuring and on the concept of the employer, the paper examines the interaction of fissuring and employer concepts in the context of the US and Canadian ‘Wagnerist’ collective bargaining regimes, and compares the trajectory of employer concept doctrine in each of these two countries in recent decades. The comparative analysis suggests that while employer concept reform within collective bargaining regimes remains constrained in important respects in both the US and Canada, these concepts have also recently diverged in important formal respects shaping their effects in fissured contexts. This divergence is comprised of a formal expansion of their scope in Canada; a narrowing of their scope in the US; and an effective inversion of the US joint employer concept consequentially into less of a remedial, and a more restrictive device. As a heuristic, comparison of US developments with those in its neighbour’s regime that has much else in common, help to highlight the extraordinarily restrictive nature of most recent US doctrine, including the 2020 National Labor Relations Board (NLRB) final rule on joint employer status, its facilitation of fissuring, and the formidable task confronting US labour of somehow bringing lead firms into the regulated collective bargaining process.
Employer Concept, Fissuring and Collective Bargaining, Joint Employer, Scope of Collective Bargaining Regime
The Biofuels Landscape: Is There a Role for the WTO?
Authors: Abdel Motaal Doaa 
Published: April 2022

The International Food and Agricultural Trade Policy Council (IPC) has recently called on the WTO to clarify its rules on biofuels. It called for a resolution of the customs classifications problems surrounding these fuels so that trade could flourish in an organized manner. More specifically it argued that uncertainty over the biofuels customs classification, and the range of governmental measures to protect domestic biofuel production, including tariffs and subsidies, risked stunting growth in trade even as the global demand for biofuels was rising. For the IPC–as well as for numerous actors on the biofuels landscape–an examination of how WTO rules apply to these fuels has clearly become timely.
This article seeks to draw attention to the multiple policy objectives that are driving governments to promote biofuels, and to how “trade policy” is largely being put to the service of the specific goals to which governments are attaching priority. It argues that a coherent vision at the international level of the role that biofuels should play in energy, economic and environmental policy has yet to emerge, but that despite this situation it is key that this sector develops on a “level trade policy playing field” for its long-term efficiency. Such a levelling would, in particular, unleash the full comparative advantage of tropical developing country producers of ethanol. The article highlights that–even in the absence of a concerted decision by governments on how to handle these fuels at the WTO–certain restrictions to biofuels trade would in any event be reduced through the current Doha Round of trade negotiations. But for the Doha Round to bear full fruit, it would be important for governments not to fully shelter either biofuels, or their production feedstock, through existing “flexibilities” in the negotiations.
What Scope for an EU—ASEAN Free Trade Agreement?
Authors: Andreosso-O’Callaghan Bernadette 
Published: April 2022

The starting point of this article is that a free trade agreement will, sooner or later, be negotiated between ASEAN and the EU. As a result, the objective of the article is not to examine the rationale for such an agreement but to outline its possible scope.
Because the content of a potential agreement depends very much on the nature of the relationship between the two partners, the first section of the article examines briefly their characteristics. It highlights substantial disparities between the two partners (primarily in terms of economic size and internal homogeneity) and a strong asymmetry in their trade and investment relations. The section also shows that the greatest divergence in trade restrictiveness between the two regions arises in the service sector and through non-tariff barriers. Finally, past trade tensions further substantiate the hypothesis of large disparities in the two regions’ competition policies and IPR protection.
After taking stock of existing free trade agreements (FTAs) negotiated on both sides, the second section concludes that a potential EU–ASEAN FTA can be expected to be quite broad, encompassing both goods and service liberalization as well as trade-related issues such as competition policy or IPR protection. Despite this relatively high level of ambition, realism must also prevail and the depth of the commitments can be expected to remain modest in a number of areas. Moreover, because of the differentiated levels of development and of regulatory capacity among the countries of the partnership, realism calls for some differentiation in the level of commitments, as well as in the timelines imposed on the various partners (within the limits provided by the World Trade Organization (WTO)). Finally provisions on technical assistance and trade-related capacity building should be an integral part of the future ASEAN–EU partnership agreement.
Sense and Sensibilities of China and WTO Dispute Settlement
Authors: Harpaz Marcia Don 
Published: April 2022

This article aims at making a preliminary assessment of China in the World Trade Organization (WTO) dispute settlement system from an international socialization perspective. When China joined the WTO in November 2001, it was not clear how China would behave in the WTO dispute settlement. At first, China proved to be a conciliatory defendant and reluctant complainant. Recently, however, China’s profile in dispute settlement has shifted to a more proactive one, leading some observers to label its behaviour ‘aggressive’.
I argue that China’s behaviour should be viewed in a different light. From totally rejecting international third party adjudication in the past, China – by permitting WTO panels to determine its fate in trade disputes – has started to exhibit new willingness to accept binding international adjudication. In this context, China is demonstrating respect for international rules as well as its faith in western legal norms and institutions. Through more intense participation in WTO dispute settlement, China is also becoming increasingly vested in the maintenance of WTO norms and rules, and consequently, the WTO dispute settlement system is playing an important role in socializing China.
Chinas WTO Compliance-Plus Anti-dumping Policy
Authors: Harpaz Marcia Don 
Published: April 2022

Is China complying with its World Trade Organization (WTO) anti-dumping (AD) commitments? The strong import competition created by the rapid opening of China's domestic market and the continued state involvement in its industry could conceivably generate domestic pressure on the Chinese government to use AD measures intensively and possibly illegally. Moreover, since its exports are a primary global target of AD actions, China might be expected to retaliate by levying questionable AD measures on imports. Despite factors conducive to a more protectionist bias and possible non-compliance, I argue that China is not only complying with AD rules but also demonstrating domestic restraint, and to a certain extent, a pro-liberalization interpretation of the rules. This policy along with China's Doha Round negotiating proposals on AD suggests what is characterized in this article as a compliance-plus policy. The fact that China has chosen to pursue such a policy is not trivial, taking into account the more protectionist paths taken by other key WTO members. On a broader level, this case study aims at contributing to the contemporary debate regarding China's changing role in the global arena. By complying with WTO rules, China is demonstrating that it is accepting, following, and becoming increasingly vested in their maintenance.
Rethinking the Right to Initiate WTO Dispute Settlement Proceedings
Authors: Zimmermann Claus D. 
Published: April 2022

This article analyses the economic merits of the factual right of governments to interpose themselves as political filters ex ante of potential World Trade Organization (WTO) disputes. As analysed in this article, the current state of WTO law regarding the initiation of dispute settlement proceedings undermines the longterm objectives in pursuance of which states join trade agreements like the WTO Agreement in the first place. This article proposes the creation of an independent prosecution department within the WTO Secretariat, with an exclusive right to initiate dispute settlement proceedings. Without the existing discretionary filtering power, WTO membership would constitute a more credible commitment by governments that they wish to tie their hands in order to better resist domestic lobbying from powerful, importcompeting, industries, giving in to which might maximize the government's short-term political welfare but would be contrary to society's long-term interest in free trade. [T]he true purpose of international [trade] negotiations is arguably not to protect us from unfair foreign competition, but to protect us from ourselves. Paul Krugman
Regulating E-commerce through International Policy: Understanding the International Trade Law Issues of E-commerce
Authors: Ahmed Usman , Bieron Brian 
Published: April 2022

The Internet has facilitated a new wave of economic growth and development. Businesses across the world - both big and small - have taken advantage of the scale, scope, and access that the Internet provides to reach new markets and consumers. A small business in rural America can now reach an individual consumer in the European Union (EU) without any physical footprint in the EU. This type of transaction was not possible before the advent of electronic commerce (e-commerce). Moreover, this type of transaction requires a revaluation of a trade regime that was created with only the largest multinational corporations able to truly engage in international trade. The US has created trade policy governing cross-border e-commerce transactions largely through recent free trade agreements (FTAs). Since 2000, every FTA the US has signed has contained a chapter on e-commerce. These chapters have included important protections for the digital economy (e.g., no tax on digital goods, transparency in regulation, and free flow of information).Yet, these chapters have often taken a very narrow view of the issues that they have sought to tackle. It is worthwhile, a decade after these provisions were first written, to revisit and update them to better reflect the nature of modern e-commerce. There are a number of additional issues that are imperative to e-commerce that have not been addressed in past trade regulation. E-commerce often results in the cross-border transfer of digital services. These digital services must be protected against trade-distortive and domestic discriminatory preferences. Moreover, nation-states often rely on narrow interpretations of intellectual property law to restrict the cross-border transfer of e-commerce products and services. These non-traditional barriers to trade must be broken down. Internet intermediaries provide essential services that drive e-commerce. Strong limitations on liability must be guaranteed for these intermediaries. Finally, small businesses are only starting to engage in e-commerce. Future trade regulation should facilitate the growth of small businesses engaged in e-commerce. This article begins by describing the rapid growth of the e-commerce economy. It then reviews the history of past US free-trade agreement e-commerce provisions and suggests how to improve and update these provisions. The document then describes a host of additional e-commerce related issues that should be addressed in trade policy moving forward.