bluuebunny/crossref_metadata_2025_split huggingface dataset:
The European Union Proposal for a Regulation on Cross-Border Crowdfunding Services: A Solemn or Pie-Crust Promise?
Authors: Staikouras Panagiotis 
Published: April 2022

In March 2018, the European Commission presented a Proposal for a Regulation on (financial return) crowdfunding service providers (CSPs) with a dual objective: to set up a single, EU-wide authorization regime for CSPs; and to ensure that duly authorized CSPs operate in a safe and sound manner. Over two years later, in July 2020, the Council of the European Union adopted its First Reading Position which reflects the compromise reached in negotiations with the European Parliament and brings about significant changes to the Commission Proposal. This study critically analyzes the objectives, economic rationales, and fundamental principles of the proposed EU Regulation on crowdfunding; highlights its weaknesses and inconsistencies; and offers proposals for refinement and improvement.
Crowdfunding, fintech, authorization, supervision, suitability, KIIS, crowdfunding service providers
Brexit, MiFIR and MiFID II: Third-country Firms Providing Cross-Border Investment Services – An Overview of the Relevant Organisational and Business Conduct Requirements
Authors: Nemeczek Heinrich , Pitz Sebastian 
Published: April 2022

Due to Brexit, large international banking groups have been restructuring their businesses with European clients since regulated institutions based in the UK will no longer be able to use the European Passport. While many firms have established new hubs in the EU 27, there are others which are considering providing services on a cross-border basis to European clients directly from the USA, Switzerland and other third countries, including the UK. This article addresses the question as to whether third-country firms are allowed to provide investment services in Germany without a license and whether German organisational and business conduct rules would apply.
BaFin, Brexit, business conduct requirements, ESMA, equivalence, MiFID, MiFIR, organisational requirements, reverse solicitation, waiver
Single-Limb Collective Action Clauses and the European Stability Mechanism Reform
Authors: Megliani Mauro 
Published: April 2022

In December 2019, the Euro Summit did not approve the amendments to the ESM Treaty because of a disagreement among Member States on debt restructuring as a requirement for stability support in the case of unsustainable debt and questionable capacity of repayment. In this context, a key role is played by single-limb CACs which permit restructuring across all the bond series. On the one hand, this facilitates the restructuring process and neutralize the blocking action of vulture funds under single series. On the other hand, this poses some problems in relation to the protection of minor bondholders. The solution to these problems may come from inserting a sort of exemption clause in the model CACs that the EU Economic and Financial Committee is mandated to draft. This scenario is now exacerbated by the social and economic effects of the Covid-19 pandemic crisis that have caused a generalised increase in sovereign indebtedness and may imply debt restructuring.
ESM treaty reform, debt restructuring, single-limb CACs, protection of minor bondholders, Covid-19 crisis
The ‘Rebirth’ of the EU as an Audit Legislator
Authors: Seehausen Jesper 
Published: April 2022

In April 2014, important new audit legislation was adopted by the European Parliament and the Council, i.e. the 2014 Auditing Directive and the PIE Regulation. In the author’s opinion, the role of the EU as an audit legislator has significantly changed over time. More specifically, the new audit legislation indicates the ‘rebirth’ of the EU as an audit legislator. The article focuses on the role of the EU as an audit legislator, even though the EU also has an important role to play as an accounting legislator. The most important legislative acts when it comes to EU audit legislation are discussed. A number of important trends in EU audit legislation are also identified and discussed. These include an increased legislative focus on Public-Interest Entities (PIEs), a change from a ‘directive only’ to a ‘directive and regulation’ legislative paradigm, a legislative change from the ‘periphery’ to the ’core’ of auditing, ‘codification’ of provisions from the International Standards on Auditing (ISAs) in EU legislation as well as a discussion on a possible EU adoption of the ISAs.
Auditing, audit legislation, 8th directive, green paper, financial crisis, auditing directive, pie regulation, public-interest entities (pies), international standards on auditing (ISAs)
Insolvency, Competition, and the Theory of the Firm
Authors: Minervini Vitorio 
Published: April 2022

The paper examines the recent developments in the field of business crisis management, with a focus on the European and US legal cultures. The main argument is the need for a consistent framework between insolvency and competition law in the theory of the firm. The present analysis reveals the need for a proper balance between the principle of competition on the merits and the philosophy of business-rescue in order to avoid dysfunctions in the application of insolvency and antitrust statutes. After an overview of the main contact cases between the two disciplines, the article addresses the main lawmakers’ responses to this problem. In this context, the regulation on banking crises management represents a first attempt to strike a proper balance between the (apparently compelling) goals underlying insolvency and competition law. This article aims at providing some guidance for a systematic reading of the two disciplines. Moving from a holistic understanding of the theory of the firm, it suggests assigning competition law a pivotal role in order to pursue efficiency in the market and consistency in legal theory.
Investment funds, reserved AIFs, share classes, fair treatment, seniority privilege, minimum interest privilege, non-contagion principle, preferential treatment, shift of wealth
The Sufficiently Serious Breach Test in Action. Damages in Procurement Law and a Tale of Three Courts: the CJEU, the UK Supreme Court and the EFTA Court
Authors: Vornicu Roxana 
Published: April 2022

This article reflects on the conditions to trigger liability of contracting authorities for breach of public procurement rules and examines whether public procurement damages should be categorized as a particularization of the principle ofMember State liability or as a special remedy for breach of procurement rules. The article focuses on two controversial decisions, one rendered by the UK Supreme Court and the other by the EFTA Court which reached opposite conclusions as regards the nature of this remedy and the conditions to trigger liability, the controversy being whether the Francovich condition of a ‘sufficiently serious breach’ should be satisfied when triggering liability for illegal award decisions or not. The article reflects on the reasons that led to this opposing interpretation of the remedy of damages, describe theCourt of Justice of the European Union’s case law on damages and discuss why, in the procurement law arena, the ‘sufficiently serious breach’ was seen as incompatible with strict liability. After demonstrating that there is no such incompatibility, I argue that the lack of clarity regarding the conditions for making good procurement damages are not related to the subjective factor, but rather to the effectiveness benchmark for the remedy and its position within the architecture of the Remedies Directive.
EU law, public procurement law, damages, Member States Liability comparative law, comparative public liability, sufficiently serious breach.
Statutory Interpretation and the Role of the Courts after Brexit
Authors: Brenncke Martin 
Published: April 2022

This article evaluates the impact of the European Union (Withdrawal) Act 2018 on statutory interpretation and on the role of the courts in the United Kingdom. The Act’s new interpretative obligations create a myriad of issues that will occupy litigants and courts in the future. I explain how the complexities of the Act should be disentangled and how courts should exercise their policy choices under the terms of the Act. I show that the assumption that Brexit is a clear break from EU law is in several respects contradicted by the detail of the legislative scheme. The European Union (Withdrawal) Act 2018 (EUWA)’s strong theme of legal continuity has the consequence that domestic law will remain considerably intertwined and aligned with EU law after exit day. I also demonstrate that the 2018 Act adjusts the relationship between the courts and Parliament in a way that is not foreseen. EU membership has shaped this relationship and Brexit does not mean that it is profoundly restructured. The Act has the potential to strengthen rather than weaken the institutional and constitutional position of the courts.
European Union (Withdrawal) Act 2018, Brexit, Supreme Court, retained EU law, judicial law-making, statutory interpretation, parliamentary sovereignty.
Europol’s International Exchanges of Data and Interoperability of AFSJ Databases
Authors: Coman-Kund Florin 
Published: April 2022

Data sharing and interoperability aspects of Europol’s information systems outside the EU are particularly problematic because of the difficulty of ensuring that adequate legal safeguards are complied with in partner third countries and international organizations. At the same time, the way in which the ongoing interoperability initiatives regarding the Area of Freedom, Security and Justice (AFSJ) databases may influence Europol’s international cooperation raises arguably a set of new legal and practical questions that require urgent consideration. This article examines these issues by connecting the Europol-specific legal framework and international practice to the recently adopted AFSJ interoperability regulations as well as to the EU broader data protection framework. It looks more specifically at the balance between data protection/fundamental rights and operational effectiveness throughout Europol’s legal framework and practice of international cooperation and examines the implications of interoperability of AFSJ databases on this. On the one hand, interoperability of AFSJ databases is likely to boost Europol as an information hub through extended personal data collection and data processing possibilities, thereby making the Agency more attractive to international partners. On the other hand, the possibility to transfer such data outside the EU requires strong and effective safeguards from a data protection perspective. The article tentatively concludes that Europol’s current legal and practical framework for international cooperation seems to tilt the balance on the side of operational effectiveness to the detriment of data protection and fundamental rights, and that the new possibilities offered by the interoperability of AFSJ databases will further enhance this trend.
Europol, international cooperation, interoperability, AFSJ databases, data protection, fundamental rights, effective police cooperation
Putting the Fox in Charge? Political Parties and the GDPR: An Irish Perspective
Authors: McDonagh Maeve 
Published: April 2022

In the wake of Cambridge Analytica, the use of personal data by political parties has been subject to increased scrutiny. Given the specific policy challenges which such use poses, this article examines the conditions for the lawful processing of personal data under the General Data Protection Regulation (GDPR), as it applies to political parties. It identifies the extensive flexibilities afforded by the GDPR to Member States and argues that granular Member State analysis is required if the GDPR regime is to be meaningfully evaluated in this context. Using Ireland as a detailed case study and referencing the equivalent provisions of the UK Data Protection Act 2018 (DPA UK) for comparison, the article examines the different ways in which these Member States responded to the flexibility afforded by the GDPR. Based on this, the article argues that closer engagement with the issue of political parties by the European Data Protection Board is needed in order to provide a more fine-grained response which bridges the space between the ‘one size fits all’ approach in the GDPR and the wide-ranging discretion of the flexibilities afforded to Member States.
GDPR, political parties, lawful processing, freedom of expression, public interest, European Data Protection Board
From Legal Mobilization to Effective Migrants’ Rights: The Italian Case
Authors: Protopapa Venera 
Published: April 2022

The article analyses the process of legal mobilization for migrants’ rights and investigates how and with what effects, measured in terms of obtaining general policy response and ensuring implementation, legal actors and in particular civil society organizations have mobilized EU, international and domestic legislation on discrimination to promote migrants’ rights in Italy. It focuses in particular on two issues: access to employment in the public sector and access to welfare. Both issues have generated significant levels of litigation in domestic courts, with increasing involvement of civil society organizations. In relation to both, national legislation has been amended, in accordance with EU law, allowing access to employment in the public sector and extending the area of those that have the right to access to social welfare under equal conditions to categories of migrants protected under EU law. The article outlines the EU, International and domestic legislation on non-discrimination and equality for migrants, provides an overview of how litigation has been used to challenge in court the exclusion of migrants from employment in the public sector and welfare, tracks the process that brought to the reform and litigation in the aftermath highlighting the effects of litigation as a means for policy response and implementation.
Discrimination, multilevel protection, migrants, welfare, employment, legal mobilization, policy response, implementation, civil society, courts.
The Principle of Proportionality and the European Central Bank
Authors: Chiti Mario P. , Macchia Marco , Magliari Andrea 
Published: April 2022

The principle of proportionality is a general principle of EU law which applies to the European Central Bank (ECB) in the fields both of monetary policy and banking supervision. In recent years, the issue of the proportionality of the ECB’s action has been at the centre of extensive debate in European legal doctrine and jurisprudence. This article aims to contribute to this debate by providing a comprehensive analysis of the meaning and implications of the principle of proportionality in the field of banking supervision and monetary policy.
The article is divided into four parts. Parts I gives a general overview of the origin of the principle and its subsequent developments in light of the case-law of the European Court of Justice. It also reflects on the different meanings of proportionality as a flexible and multi-faceted principle. Part II investigates the principle of proportionality according to an ex ante perspective, i.e. as a principle capable of governing and orienting legislative and administrative action. Under this perspective, the article analyses the way proportionality impacts banking regulation, banking supervision and monetary policy.
Part III deals with the ex post perspective, i.e. the way proportionality is assessed and scrutinized by EU courts. Part IV concludes. Part III and IV will be published in the next issue.
National courts, Court of Justice of the European Union, Preliminary reference procedure, national procedural autonomy, Appeals, Appellate courts
The Principle of Proportionality and the European Central Bank
Authors: Chiti Mario P. , Macchia Marco , Magliari Andrea 
Published: April 2022

The article is divided into four parts. Parts I gives a general overview of the origin of the principle and its subsequent developments in light of the case-law of the European Court of Justice. It also reflects on the different meanings of proportionality as a flexible and multi-faceted principle. Part II investigates the principle of proportionality according to an ex ante perspective, i.e. as a principle capable of governing and orienting legislative and administrative action. Under this perspective, the article analyses the way proportionality impacts banking regulation, banking supervision and monetary policy.
Part III deals with the ex post perspective, i.e. the way proportionality is assessed and scrutinized by EU courts. Part IV concludes. Parts I and II were published in the previous issue.
Proportionality, EU General Principles, ECB, Banking supervision, Monetary policy, Judicial review
The Role of the Constitutional Courts in the European Judicial Network
Authors: Huber Peter M. , Grabenwarter Christoph , Knez Rajko , Ziemele Ineta 
Published: April 2022

The constitutional courts play a paramount role within the European judicial area and form a specific branch of the judicial network, including the Court of Justice of the European Union (CJEU) and the European Court of Human Rights. Within the European Union (EU) with its specific compound structure, in which national legal orders and Union law reciprocally influence, complement, determine and affect each other, national constitutional courts and the CJEU are not only assigned with the common task to enforce EU law, but also to preserve its limits, first and foremost the principle of conferral and the constitutional identities of the Member States. The respect for these limits is an essential prerequisite for the Member State’s participation in the EU and repeatedly enshrined in the Treaties. In order to be able to fulfil this common tasks all sides need to engage in sincere cooperation and a dialectic process, the potential of which must not be curtailed by hierarchical perceptions.Whereas the national (constitutional) courts are obliged to respect the CJEU’s authority to ultimately decide on the interpretation of EU law in principle, it is the CJEU’s obligation to take their referrals seriously and thoroughly adress concerns brought forward. The constitutional courts of the Member States are assigned with the constitutional responsibility to accompany the process of European integration in order to ensure that sovereign rights are only transferred in line with the respective provisions as well as that the excercise of competences respects the limits laid down in the Treaties and does not interfere with the constitutional identities of theMember States. It is of course again for the CJEU to review whether EU institutions, bodies, offices, and agencies act within their mandate in the first place including a quite large tolerance for different interpretations. To the extend the CJEU, however, fails to assume this responsibility, it is for the constitutional courts of the Member States to step in. The desirable success of the European integration largely depends on an orderly, sustainable and generally accepted process in the long run to which the network of constitutional courts can make a decisive contribution, provided it is designed and lived as a true cooperation among equals. In this regard it is not only necessary to intensify the joint efforts, but also to evaluate possibilities to enhance the involvement of the national courts, in particular the establishment of a reverse preliminary ruling procedure.
duty to give reasons, administrative measure, participation, administrative procedure
Ambivalence of Obviousness: Remarks on the Decision of the Federal Constitutional Court of Germany of 5 May 2021
Authors: M. Bender Philip 
Published: April 2022

Inspired by the recent activation of the ultra vires review of the Federal Constitutional Court of Germany, the article analyses one of its restrictive elements: the concept of obviousness and its concretization through objective arbitrariness. These concepts are used with good intentions insofar as the ultra vires review requires some conceptualization of deference. But they are incapable of fulfilling this purpose: they disregard the expressive function of law, grant either too much or no deference, and are incompatible with each other. Instead, the substantive standards of structural significance and openness, combined with the procedural rule of unanimity, could serve the purpose of deference in a better and less conflictual way.
Deference, Ultra Vires Review, Unanimity, Expressive Function of Law, Arbitrariness, Obviousness, Structural Significance, Openness, Control of Integration, Decision of the Federal Constitutional Court of Germany of 5 May 2020
The Fog of Identity and Judicial Contestation: Preventive and Defensive Constitutional Identity Review in Germany
Authors: Wendel Mattias 
Published: April 2022

This article deals with constitutional identity review by the German Federal Constitutional Court (FCC). While identity review is often discussed merely as an instrument of judicial contestation by which the FCC challenges the European Court of Justice and its stance on the primacy of EU law, this article shows that both the aim and the effect of identity review go far beyond judicial conflict. In fact, identity review produces significant preventive and deterrent effects on (national) EU policies, which come into play well before any judicial conflict. By means of preventive identity review, the FCC has created a fog of identity, a dark field of potential unconstitutionality, which considerably limits the scope of policy choices in advance and even irrespective of whether or not these policies would ultimately be judged to be unconstitutional. As for the defensive dimension of identity review, the article addresses the complexity of the (too often simplified) conceptual relationship of identity review to other modes of review such as ultra vires review and the Solange case law. It shows that identity review has gradually become the conceptual heart of the FCC’s defensive triad.
Identity review, constitutional identity, fog of identity, German Federal Constitutional Court, preventive and defensive identity review, eternity clause, principle of democracy, NGEU, European Arrest Warrant III, PSPP, Unified Patent Court, Right to be forgotten I and II, Banking Union, Egenberger
Editorial
Authors: Schmidt Marlene , Rymkevich Olga 
Published: April 2022

European labour law is becoming increasingly complex, though there has been little harmonisation of collective labour law so far, and legal systems continue to differ significantly from each other. The terms ‘collective agreement’, ‘industrial action’, ‘workers’ representation’ and ‘workers’ participation’ refer to different legal concepts in the various EU Member States. In his comprehensive analysis, Robert Rebhahn explains and compares these concepts, their differences and similarities, and contrasts them with the respective concepts in the US. The only field of European collective labour law where harmonisation has taken place so far is information and consultation of workers. Besides a number of specific information and consultation rights laid down in several directives, Directive 2002/14/EC establishes a general framework for informing and consulting employees. It may be assumed that its implementation will bring about fundamental changes in employment relations of those Member States that do not as yet provide a general system of information and consultation, i.e. the United Kingdom and Ireland. In her article Pascale Lorber discusses this assumption in relation to the UK.