bluuebunny/crossref_metadata_2025_split huggingface dataset:
Ewaen Fred Ogieriakhi v. Minister for Justice and Equality, Ireland
Authors: Berneri Chiara 
Published: April 2022

One of the key innovations of Directive 2004/38 EC is the introduction of Article 16 on the right of permanent residence in the host EU Member States of EU citizens and their third-country national family members. For the first time EU citizens and their third-country national family members, regardless of whether they are engaged in employment, are eligible to the right of permanent residence after having resided in the host Member State for a continuous period of five years. The acquisition of the right of permanent residence grants EU citizens and their family members’ enhanced protection against expulsion. In addition, those who have such a right shall enjoy equal treatment with the nationals of that Member State also in terms of social benefits and tax credits. The advantages deriving from this provision led many EU citizens and third-country nationals to try rely on it in different circumstances. For this reason, often, national courts have found it necessary to stay proceedings and refer to the Court of Justice of the European Union in order to seek clarifications regarding its application. This occurred also in Case C-244/13, Ogieriakhi v. Minister for Justice and Equality.
Judicial Independence and Separation of Powers: A Case Study in Modern Court Management
Authors: Bovend’Eert Paul P.T. 
Published: April 2022

The construction of a court management organization in the judiciary touches the heart of judicial independence and separation of powers. It is vitally important to have sufficient safeguards against outside pressures from executive branch authorities, to maintain the independence of the judiciary and respect separation of powers. In the Netherlands, a modern court management organization has been established to improve judicial efficiency and enhance the quality of the administration of justice. Executive branch authorities, such as the Minister of Security and Justice, obtained broad supervisory powers concerning the operational management of the courts of the judiciary. In supervising the operations of the courts, these non-judicial authorities turn out in practice to be intensively involved in the way in which the judges handle cases. This organizational structure does not satisfy standards of judicial independence and separation of powers. Fundamental changes in this management structure have to be considered.
Limited Authorisations Between EU and Domestic Law: Comparative Remarks from Dutch Law
Authors: Wolswinkel Johan 
Published: April 2022

Where the number of authorizations available for grant is limited in advance to a maximum number, public authorities have to make a choice between qualified applicants through a selection procedure. EU law has played a major role in developing legal rules on the issuing of these limited authorizations, through, amongst other methods, the development of the obligation of transparency. However, the allocation regime under EU law, in particular as it arises from the internal market freedoms, has some inherent restrictions, only applying to economic activities and sometimes requiring cross-border interest in addition. Thus, in order to develop a general legal regime that applies to any process for the issuing of limited authorizations, the development of an allocation regime rooted in domestic law is necessary. This article discusses recent developments in Dutch case law, where a domestic allocation regime has been derived from the (national) principle of equal treatment. It endorses the adoption of this principle as the central basis for an allocation regime, rooted either in domestic or in EU law, since this principle does not only include the key issues inherent to an allocation context, but also allows for the development of allocation rules at the level of both individual decision-making and general rule-making.
administrative law, authorisations, allocation of scarce resources, equal treatment, competition, transparency, general principles of administrative law, legal comparison, EU law, internal market.
Interoperable Data Exchanges Within Different Data Protection Regimes: The Case of Europol and the European Border and Coast Guard Agency
Authors: Quintel Teresa 
Published: April 2022

In recent years, the discourse surrounding migration, asylum and related security concerns have, in most EU Member States, become deeply contentious. Following the 2015 migration crisis, the shortcomings of the EU asylum system became strikingly evident. The subsequent terrorist attacks inaugurated the beginning of a series of revisions to databases used for border control, the registration of asylum seekers and visa applicants, or for alerts regarding criminals.
As a final step, the Commission issued two proposals to render all EU databases interoperable in order to provide authorities with better information to tackle identity fraud, prevent irregular migration and mitigate security risks. In May 2019, the Interoperability Regulations were adopted by the co-legislators.
Europol and Frontex, two EU Agencies that have been actively engaged in a wide range of operational activities at the external Schengen borders, will be authorized to consult and may subsequently request full access to the interoperable system.
This contribution will address some of the concerns that emerge with the connection of originally disconnected databases and seeks to analyse the discrepancies that may arise in the context of interoperability where systematic data exchanges take place between actors that apply different data protection regimes.
Interoperability, Europol, EBCGA, Eurosur, Data Protection, AFSJ, EU Databases, Border Control, Data Quality, Supervision
‘Rectification’ and ‘Irrelevance’ in EU Direct Administrative Procedures: A Systematic and Comparative Analysis
Authors: Hering Laura 
Published: April 2022

The field of EU direct administrative law is steadily growing in importance, and issues relating to the consequences of procedural irregularities on the outcome of the procedure are becoming increasingly relevant. The question of when such a violation remains inconsequential – i.e. does not lead to the act being quashed during judicial proceedings, either because the error was rectified or can be considered irrelevant – is particularly important, as it can have a significant impact on the legitimacy and acceptance of EU institutions as well as their efficiency and effectiveness and EU case law has developed a complex jurisprudence in this regard. The aim of this contribution is to systematize this case law with regard to the instruments of rectification and irrelevance of procedural irregularities. Moreover, it compares these legal instruments to their counterparts in Member States’ administrative systems. The focus is on the observation that the EU case law has developed a complex network of layers and components to decide what consequences violations of provisions relating to form and procedure entail. The comparison with the Member State administrative systems shows – despite differences in detail – that EU courts have not coopted a particular system currently in use in a Member State, but that they often use roughly similar criteria to decide whether an error leads to the annulment of the final decision. This analysis can be fruitful with regard to the recent interinstitutional as well as academic debate about the codification of administrative procedure of the EU direct administration, neither of which have yet discussed the possibility of rectification and irrelevance of procedural errors in a systematic and comprehensive way, even though the jurisprudence of the EU courts has reached a stage that makes this possible.
European direct administrative law, procedural errors, consequences of procedural and formal errors, rectification, irrelevance, codification of administrative procedure
Dignity, Exceptionality, Trust. EU, Me, Us
Authors: Petric Davor 
Published: April 2022

The German Federal Constitutional Court (GFCC) in late 2015 delivered a decision on the European Arrest Warrant (EAW). With it, the GFCC further elaborated its trademark doctrine on the constitutional-identity review of EU law’s application in Germany, introducing human dignity as another yardstick. In this article, I critically reassess the merits and implications of this doctrinal development, in particular for the relationship between the GFCC and the Court of Justice of the European Union (CJEU) and for the EU law-national law dynamic in general.
Human dignity; German Federal Constitutional Court; European Arrest Warrant; constitutional-identity review; Court of Justice
East Nordic Model of Pre-Enactment Constitutional Review: Comparative Evidence from Finland and Sweden
Authors: Yolcu Serkan 
Published: April 2022

For the last three decades, legal scholarship on the judicial review of legislation has dominated comparative constitutional studies. Moreover, one of the emerging interests in comparative constitutional law is pre-enactment (ex ante) control of constitutionality. Historically, legal thinking in the US has advanced judicial review, while British tradition has prioritized parliamentary sovereignty, in which parliament, not courts, is the ultimate decision maker related to constitutional disputes. The current scholarship, nevertheless, argues that a particular constitutional model has emerged in a number of Commonwealth countries in which courts and legislatures are not considered alternative to each other, contrary to the traditional paradigms that prioritize either courts or legislatures. One of the defining features of this model is the pre-enactment constitutional review of proposed legislation. In some of those countries, pre-enactment review of legislation is available only in the form of executive responsibility, while the legislature has a key role in the remaining countries, in addition to the commitment of the executive. This article investigates whether similar pre-enactment constitutional review mechanisms exist elsewhere. For this purpose, it will examine East Nordic constitutional practice and ask whether there is a particular type of pre-enactment constitutional review in Finland and Sweden. The function to review constitutionality of proposed legislation belongs to non-judicial mechanisms in both Finland and Sweden. However, pre-enactment constitutional review mechanisms in these two polities are hardly considered in comparative constitutional law. This article aims to fill this gap by drawing comparative scholars’ attention to the East Nordic constitutionalism.
judicial review, comparative constitutional law, pre-enactment constitutional review, Nordic constitutionalism, Finland & Sweden
‘Optional’ Exclusion from Public Tenders Grounded on Conflicts of Interests and Principle of Proportionality: Whose Choice?
Authors: Mirando Díaz Javier 
Published: April 2022

Focusing on the current regulation of conflicts of interest in public procurement by Directive 2014/24/EU we try to answer two main questions: (1) what is the core content of its regulation and which implications does it have in daily public procurement activity; and (2) whether this core content and the way it is materialized in Directive 2014/24/EU leaves any leeway to Member States law to modify or create new conflict of interests provisions. The first part of the article is devoted to the analysis of the ‘conflict of interest’ concept under the procurement Directive, concluding that it rests on three fundamental pillars: (a) a broad and functional subjective application based on the objective nature of the phenomenon; (b) a transfer of power (and responsibility) to the contracting entities; and (c) the strong relevance of the principle of proportionality. This new concept of conflict of interest at EU level and the recent CJEU case law in the field suggest a reduction of Member States’ deference in the transposition of optional exclusion grounds. In the present article, the case of Spain is used as an example to illustrate how the interpretative implications of the current EU framework do not leave virtually any margin to Member States to adapt the conflict of interests provisions to national legal traditions.
public procurement law, administrative law, EU law, public law, conflicts of interests, causes of exclusion, integrity, anti-corruption
‘Loose’ Proportionality Review in the European Monetary Union’s ‘Law of the Crisis’: A Sign of Decline of the ‘Culture of Justification’?
Authors: Vosa Giuliano 
Published: April 2022

In reviewing legal acts adopted in the context of the economic-financial crisis, proportionality finds frequent application. However, case-law at both national and Union’s level displays elements of a loose proportionality review, as Courts hardly dare to challenge the substance of the decisions negotiated by law-makers.
The article argues that loose proportionality is tied to a departure from the juridical roots of the referring concept, which lie in a ‘culture of justification’ as alternative to a ‘culture of authority’ in the exercise of public power. In this light, it provides analysis of the case-law concerned to show that the decisions taken at the political level do not seek their legitimacy in dialogical justification, but find it in the alleged assumption that they represent the optimal ‘reasonable solution’ for all Member States, despite the painful inequalities they entail. As they prove somehow alien to the cultural-juridical roots of the concept, they cannot undergo a fully-fledged proportionality scrutiny. Yet, this may signpost the gradual comeback of a ‘culture of authority’ requiring careful reflection, as it would touch upon the very conception of the human person as capable of self-determination – arguably, the cornerstone of contemporary constitutional arrangements.
Proportionality, Economic-Monetary Union, Judicial Review, Sovereignty, Crisis, Reasonableness, Fundamental Rights, Self-Determination.
Redefining the Concept of Penalty in the Case-law of the European Court of Human Rights
Authors: Bahceci Baris 
Published: April 2022

Since the European Court of Human Rights (Court/ECtHR) began to define an autonomous concept of penalty, its case law has been developing on the basis of the Engel criteria. This study aims to reveal the implementation of these criteria by the ECtHR and its consequences under the case law. Although the definition of penalty depends on the application of these criteria, the existence of a problem of consistency among them draws attention. As a matter of fact, one of the criteria, the nature of the sanction has undertaken a function to expand the Court’s ratione materiae through an objective assessment. However, the other Engel criteria, nature of the offence and degree of severity of the sanction are open to criticism in terms of objectivity, as well as narrowing the limits of the concept of penalty and consequently restricting the Court’s ratione materiae.
concept of penalty, criminal offence, European Court of Human Rights, Engel criteria, nature of sanction, nature of offence
Between Mimetism and Parasitism: Italian Populism in a Comparative Perspective
Authors: Martinico Giuseppe 
Published: April 2022

This article explores the relationship between constitutionalism and populism with particular attention paid to the Italian case. This piece is divided into two parts. In Part I it will be argued that the relationship between populism and constitutionalism should not be seen in terms of mutual exclusion and perfect opposition. Indeed, it is possible to say that populism frequently relies on concepts and categories belonging to the language of constitutionalism (majority, democracy, people), trying to reshape them and offering in this way a sort of constitutional counter-narrative. In this sense, the populist approach to constitutional categories can be described in light of two concepts: mimetism and parasitism. In Part II, I shall focus on the referendum, which is an instrument frequently used by populists and currently object of a problematic constitutional reform proposal advanced by the MoVimento 5 Stelle. As we will see this reform risks affecting the constitutional balance between powers in Italy.
Populism, mimetism, parasitism, post – WWII constitutionalism, referendum
Judicial Review of the NCA’s Decisions: Some Problematic Aspects of the EU Damages Directive in the Context of Italian Law
Authors: Vese Donato 
Published: April 2022

In the Italian legal system, the transposition of Directive 2014/104/EU into Legislative Decree No. 3 of 2017, with a view to improving the efficacy of both ‘follow-on’ and ‘stand-alone’ legal actions in private and public antitrust enforcement, has highlighted the problem of the judicial review of National Competition Authority (NCA) decisions. The Directive established its own ‘binding effect’ designed by the European Union order to increase the effectiveness and procedural efficiency of actions for damages in the Member States. According to the logic of the European Union, the binding effect seeks to ensure that an infringement of competition law, established by a final decision of the NCA or a court of judicial review, is deemed to be irrefutably acknowledged for the purpose of bringing an action for damages before the national courts under Article 101 or 102 Treaty on the Functioning of the European Union (TFEU) or under national competition law. However, in terms of accomplishing this objective, the prevision introduced into Italian law by Article 9(1) of the Directive becomes problematic when set against the current system of judicial review of NCA decisions in Italy, potentially undermining the effectiveness of the legal protection of the individual. The focus of the article is that the Italian system does not – in its current form – allow adequate judicial review of NCA decisions. Taking the interpretation of Articles 6(1) European Convention on Human Rights (ECHR) and 24 of the Italian Constitution as fundamental norms establishing the ‘right to a fair trial’ and the ‘right to a defence’ as its starting point, the article seeks to offer a solution to the problem arising in relation to full judicial review of NCA decisions within the Italian legal context based on the thesis that if there is no full revision of the facts and no full revision of the discretionary powers there can be no full judicial review.
EU Damages Directive, Private and public antitrust enforcement systems, The binding effect of the NCA’s decisions, Administrative and technical discretion, Judicial review of the NCA’s fact findings and technical assessments; European Court of Human Rights (ECtHR) case law, Articles 6(1) ECHR and 24 of the Italian Constitution, Intensity of review in Italy, Full jurisdiction of the Italian administrative courts
National Constitutional Identity and Its Regional Dimension Post-Lisbon as Part of aGeneral Trend Towards Multilevel Governance Within the EU
Authors: Fromage Diane 
Published: April 2022

The Lisbon Treaty brought about a reform of the ‘identity clause’ now contained in Article 4(2) Treaty on European Union (TEU). Among other things, it introduced a specific reference to the local and regional dimension of Member States’ national identities. This article assesses what this new provision implies and how it was used by courts during the first decade following the entry into force of the Lisbon Treaty. This allows conducting a general reflection on the role and standing of regions within the EU under that Treaty. This article claims that, on the one hand, the specific mention of the local and regional dimension was already inherent to Member States’ national identity and that, therefore, it has not resulted in any dramatic change in the standing of sub-national entities, as is also visible in the case law to date. On the other hand, it underlines the EU’s ambivalent attitude towards sub-national entities, and national institutional structures generally, and calls for the implementation of pragmatic solutions to improve the functioning of the EU’s multilevel governance structure.
Constitutional identity, European Union, sub-national entities, regions, regional blindness
National Identity and European Integration Beyond ‘Limited Fields’
Authors: Bonelli Matteo 
Published: April 2022

One of the concerns that led to the introduction of Article 4(2) TEU was the growing interference of EU law into areas traditionally reserved to the Member States. In particular, Article 4(2) TEU was seen as a way to better shield matters of ‘retained competences’, where EU institutions have not been conferred legislative competences, and to possibly create no-go areas for EU law. Yet, this article argues that in practice, the national identity clause has not worked as a limit to EU competences and the scope of EU law. The case law of the Court of Justice in the decade after the entry into force of the Lisbon Treaty, and in particular a set of recent decisions in sensitive areas such as religion, family and nationality analysed in this article, allow to conclude that reliance on Article 4(2) TEU does not limit the scope of application of EU law, though it may contribute to reach results that show deference to national preferences and leave room for national diversity. The article thus suggests a weaker reading of the national identity clause: not as a fully blown limit to EU competence, but as one of the many clauses that stand for, and guarantee, national diversity.
National identity, constitutional identity, Lisbon Treaty, EU competences, European integration
The Persistence of a Contested Concept: Reflections on Ten Years Constitutiona Identity in EU Law
Authors: Besselink Leonard F.M. 
Published: April 2022

In this contribution I attempt to explain why so many fundamental controversies surrounding the provision on national identity have not been nearly resolved ten years after the entry into force of the Lisbon Treaty. Also, I indicate why these problems and controversies can be expected to linger on for at least the next ten years.
Constitutional identity, EU law, constitutional law, EU member states
Editorial
Authors: Schmidt Marlene , Rymkevich Olga 
Published: April 2022

This issue opens with a contribution by Maximilian Fuchs, who provides us with an interesting critical overview of the dynamics of European Labour Law developments, stressing the crucial role in this process of the European Court of Justice and of the social partners. The difficulties which UK courts may face in their day-to-day practice are explored by Lucy Vickers, who analyses the highly topical problem of religious discrimination in the workplace, starting with a discussion on how these issues have been dealt with by the courts in Canada. Simon Deakin then deals with the judicial interpretation and control of employment relations, with a particular focus on atypical contracts.