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A few years ago, judicial councils composed primarily of judges were viewed as a panacea for virtually all problems of court administration in Europe. The burgeoning literature on judicial councils has shown that this is not necessarily the case. This article builds on this literature, but it argues that judicial self-governance is much broader phenomenon than judicial councils and may also take different forms. Therefore, it is high time to look beyond judicial councils and to view judicial self-governance as a much more complex network of actors and bodies with different levels of participation of judges. To that end this article conceptualizes judicial self-governance and identifies crucial actors within the judiciary who may engage in judicial governance (such as judicial councils, judicial appointment commissions, promotion committees, court presidents and disciplinary panels). Subsequently, it shows that both the forms, rationales, and effects of judicial self-governance have varied across Europe. Finally, this article argues that it is necessary to take into account the liquid nature of judicial self-governance and its responsiveness to political, social, and cultural changes. Moreover, the rise of judicial self-governance is not necessarily a panacea, as it may lead to political contestation and the creation of new channels of politicization of the judiciary.
This paper discusses the role that EU competition law can play in regulating the “new self-employed”—precarious workers formally considered to be micro-enterprises. Specific attention is paid to the newest type of “new self-employed,” namely those engaged via matchmaking platforms arranging for work to be contracted on demand. Despite their unequal bargaining position, self-employed individuals are barred from collective bargaining due to the EU competition rules. This Article argues that the problem will not be solved by modifying the respective tests for “worker” and “undertaking” in EU law, or by introducing exceptions under Article 101 TFEU. This Article then adopts a regulatory approach to canvass the different legal instruments available to address exploitation concerns in the context of the Uber economy, and discusses the role that EU competition law can play in such a regime.
The interaction between international and domestic legal systems underwent a deep structural change. By means of a literature review concerned with a critical approach of International Law, this Article presents three perspectives: Modern, Imperial Post-Modern, and Deconstructive Post-Modern. Traditional international law scholarship emphasizes the first and the second trends, while this Article presents the third. While the first frames these interactions on the monism-dualism debate, the second establishes an international law prevailing unconditionally over domestic law, international human rights. The third criticizes whether it is still proper to search for an a priori solution for this interaction. By rejecting global governance and the truly common law as alternatives to imperial post-modern international law, this Article emphasizes that legal analysis should identify, stimulate and reinforce the a posteriori customary normative spontaneity of multitude. This Article argues that a serious post-modern international law should be guided by a radical political drive of law, foster a deconstructive interaction of different—spatial, temporal or thematic—representations of law and reject traditional hierarchical solutions and any kind of previous, single and exclusive—national or international—authority between any legal order.
Directive 2014/40—the new Tobacco Products Directive—was unsuccessfully challenged in three cases, Philip Morris, Poland v. European Parliament and Council, and Pillbox 38. This Article examines provisions of the Directive relating to some alternative tobacco and related products, both in terms of exercise of EU competence and substantive regulation of these products. The main flavored tobacco products can no longer be placed on the market. Electronic cigarettes are regulated by the Directive, as the initial provisions of the Commission proposal were substantially amended. The new Tobacco Products Directive reproduced the prohibition of tobacco for oral use, already at issue in the Swedish Match and Arnold André cases, and again subject of another preliminary ruling reference by Swedish Match, the Advocate General's Opinion having concluded in its validity. The Directive also provides the possibility for Member States to prohibit categories of tobacco or related products. Parallel to its analysis of their substance in terms of health regulation, this Article considers European Union competence issues relating to these provisions and examines the adequacy of the Article 114 TFEU internal market legal basis as well as compliance with the principles of proportionality and subsidiarity.
This introduction lays out the rationale behind the special issue examining Böckenförde's concepts and arguments in light of contemporary crises of democracy. Considering the enormous challenges facing democracies today, how should one judge Böckenförde's optimistic view of the regulatory capabilities of the state? Is it irrelevant, given the de facto power of both supra- and non-state actors? Or does Böckenförde's view still possess explanatory value, as the state remains the most important political unit? The article consists of two parts. First, Böckenförde will be introduced as a thinker whose work centred on questions of statism, liberalism and secularism. He paid special attention to the relation between politics and religion in contexts of democratic statehood. In addition to his interest in these themes, his understanding of the constitution and constitutional interpretation will be sketched. Second, we will introduce the three topoi on which the articles of this special issue focus: Böckenförde's insistence that the state of exception ought to be constitutionalised by exploring the relevance of this proposition in four different jurisdictions; whether his model of democratic secularism as open encompassing neutrality can serve as a useful starting point to manage religious and social diversity; the future of Europe. Against this backdrop, the conclusion then aims to connect Böckenförde's ideas on relative homogeneity with the contemporary crises of democracy.
This Article, which takes into account developments up until summer 2017, evaluates the early days of regulatory engagement with blockchain technology. My analysis unfolds in three parts. First, I provide a cursory overview of the technology itself to highlight considerable uncertainties concerning its future. Regulators asked to engage with distributed ledgers are thus compelled to regulate the unknown. Second, I will introduce a typology of regulatory strategies adopted to date and highlight their respective advantages and shortcomings. Third, I will outline a number of guiding principles regulators should follow in respect of blockchain technology. I will make the argument that despite the technology's uncertain future, early regulatory engagement is warranted as a young technology is a malleable technology. As technology develops, law has to adapt. As a consequence, I put forward a number of regulatory techniques, including a process of polycentric co-regulation that relies on the regulatory potential of (blockchain) software and the adoption of a so-called “28th regime” at the EU level which may help navigate the uncertainties of blockchain development and regulation.
This special issue aims to investigate the regulatory challenges facing the
EU with regard to security governance in the broad area of the fight against
financial crimes and by adopting a wider outlook on how to map and
understand these phenomena in their salient contexts. In recent years,
security as a key word can be witnessed as increasingly penetrating policies
on a national, international, and supranational level. This development is
also visible in EU policies, inter alia in the EU's policy concerning the
area of freedom, security, and justice (AFSJ). Coupling the word security to
the concept of governance in the somewhat thought-provoking phrase “security
governance” prominently cements its position in the entirety of processes
and mechanisms that steer people as well as corporations or markets.
Security in the EU internal context concerns to a great extent the fight
against terrorism and its financing as well as the policing of EU borders.
Security in this regard concerns the structure of EU law and how it can be
justified at the macro-level.
This Article explores Ernst-Wolfgang Böckenförde's views about constitutional judging in a democracy. It offers three ideal types of constitutional judging, each drawn from the extra-judicial writings of prominent constitutional judges who represent it. The three types are: (1) the prophet, who views the constitution as visionary and value-laden, and who entertains an expansive view of the judge's role in giving voice and validity to that vision and those values; (2) the essayist, who shares the prophet's sense of the vast scope and myriad resources of constitutional judging, but who, lacking the prophet's confidence in getting such bewilderingly difficult questions right, approaches constitutional judging cautiously, skeptically, and deferentially; and (3) the executor, who views constitutional judging as the effort to discern the constitution's concrete, limited content, and to enforce that content unflinchingly. Böckenförde, the Article argues, was an executor—one who shared many interpretive commitments with the two most prominent executors in the American constitutional tradition: Hugo Black and, especially, the late Antonin Scalia.
With increasing globalization, transnational crime in general, and human
trafficking in particular, a design of new legal framework is required in
order to effectively operationalize interstate law enforcement operations
and prosecutions. The development of a transnational criminal legal
framework—or frameworks—can build on pre-existing transnational economic
frameworks. There is also the need to extend the application of domestic law
beyond national borders to influence transnational corporate behavior.
Regulations based on reflexive law are one possible approach. Teubner's idea
of reflexive law has been informing developments in this area. This approach
uses traditional national law to inform corporate governance strategies in
order to achieve effects on the market. A few jurisdictions have already
adopted measures modeled on this approach to tackle human trafficking and
slavery-like conditions in global supply chains. Weaknesses in the
approaches adopted by the UK and the State of California have already been
identified. If strengthened, this approach could be adopted in more
jurisdictions—including the EU—and also to combat more areas of
transnational crime—such as money laundering. This paper will examine the
resulting challenges using human trafficking as a case study.
This Article uses social systems theory to examine the increased reliance on a distinction between substantive and procedural international law to resolve cases involving a conflict between jus cogens and state immunity. This presents the problem of an evolutionary relationship between international law and the complex differentiation of world society. International law is shown to be structurally related to the segmentary differentiation of states that underwrites modern society's functional differentiation. At the same time, it is shown to be structurally related to the increasing formulation of global norms that result from advanced functional differentiation. The Article then turns to examining the substantive/procedural law distinction as a solution to this dual functional reference problem. The distinction is shown to not only maintain the autopoiesis of law under these difficult conditions, but to also secure law's continued functional relevance in globalized society. This functionalist perspective is used to expose differences in the self-description and operation of international law, to point out how law has been blind to its own coding, and to highlight opportunities for programming law to respond in a more constructive manner to the challenges of globalization.
The present Article aims to shed light on the question whether crowdinvesting regulation should favor a specific legal form or contract type for crowdinvesting. To this end, it analyzes the conditions which legal forms and contract types must fulfill to be used in crowdinvesting. As crowdinvesting in Germany benefits from a high degree of contractual freedom, the Article gives an overview not only of the types but also of the contents of crowdinvesting contracts that are in use in Germany and traces how they have evolved. Based on a sample of 81% of all crowd financing in the German market, it evaluates 255 crowdinvesting campaigns held on 18 different platforms in the period from August 1, 2011 to December 31, 2015.
The case of Carles Puigdemont underlines that European criminal law is in a crisis of confidence. The Higher Regional Court of Schleswig-Holstein has rejected a Spanish European arrest warrant for the criminal offence of rebellion because it lacks double criminality. It applied German law de lege artis without, however, questioning the European legal framework. The case would have provided an opportunity to refer the matter to the European Court of Justice for a preliminary ruling in order to further specify the European law criteria of double criminality. This would have been the adequate legal response to a politically explosive case. In the end, the Spanish judiciary sees itself disavowed and the system of the European arrest warrant called into question.
Following a three-year investigation, on August 30, 2016, the European Commission (EC) released its decision in the Ireland-Apple State aid case. The EC found that Ireland had breached the Treaty on the Functioning of the European Union because the manner in which Ireland had determined the tax payable by two Apple subsidiaries was not consistent with the arm's length principle and/or it was not based on objective criteria. This meant that Ireland had selectively favored Apple and provided the firm with State aid. The EC decision provides an example of how aggressive multinational enterprise (MNE) tax minimization is anti-competitive. The Ireland-Apple case also provides an illustration of how a lack of transparency and incoherency in MNE definition contribute to aggressive MNE tax minimization. States' reactions to the EC decision are further telling because they show how MNE tax minimization engages the self-interest of States. This suggests that efforts to combat aggressive MNE tax minimization, such as the OECD's Base Erosion and Profit-Shifting Action Plan, face complex State motivations in effecting change on the international level. Profit haven States have the most to lose if MNE tax minimization is effectively addressed. In addition, MNE home States may be at times loath to support changes to the system which favors “their” MNEs at the expense of other States' tax revenues. It is as if some home States view MNEs as their privateers, with such MNEs operating internationally under the tacit approval of their home States to aggressively avoid paying taxes to other countries. Home State leadership may be mistaken in thinking that MNE tax minimization is in their favor because MNEs are largely free agents and aggressive MNE tax minimization is dearly costing nearly all states.
The article explores the “strange non-death” of the French statist tradition in matters regarding the judiciary. It traces the formation of the specific French model of government of the judiciary describing the stronghold established by the duopole of the Cour de cassation and the ministry of justice's bureaucracy (the so-called Chancellerie) over time (1810-1993) and the failed attempt of the IVth Republic (1946-1958) to unsettle this power balance. It then considers the new context that emerged in the 1990s and analyzes successive reforms that have tried to undermine this deep-seated tradition. In the last part, the article provides an overall assessment of the impact of these reforms on the independence, accountability, and legitimacy of the French judiciary.
Given the fast development of the field of AML Regulation, this Article aims
to answer the following questions: First, how is money laundering dealt with
and regulated on the EU level? Second, to which legal concerns do the chosen
regulatory strategy give rise? Accordingly, this Article provides an
overview of the various regulatory strategies in the global and EU regional
AML Regime while at the same time points out some of the most pressing legal
concerns in AML Regulation. These include the blurred line between
administrative and criminal law measures and the protection of individual
rights and fundamental freedoms including data protection and privacy issues
in administrative and criminal law contexts respectively. Although briefly
mentioning the global and international context, the focus of this Article
is the EU regulatory action, its outcome and critique, and possible
Emergency Laws and Constitutionalizing the “State of Emergency”
The Constitution of India envisages three types of emergencies: A national emergency; a state emergency (in the federal setup, regions are called states in India, and the central government has the power to impose an emergency if there is a breakdown of law and order in that state); and a financial emergency. The problem the State faces is how it can respond effectively to exceptional situations without casting its adherence to the rule of law into question.“ Ernst-Wolfgang Böckenförde offers a set of solutions within a model structure anchored in constitutional laws. The model structure, which applies at the federal level, advocates a separation between the authorizing agency—the political wing—and the implementation agency, as well as creating a distinction between a ”law“ and a ”measure,“ and between a most extreme and a merely difficult situation. By focusing on the actions of the higher judiciary in India, this Article tests whether the safeguards in Böckenförde's model structure function at the sub-national state level in a very different geography and context. The results highlight the concern that the dynamics of democracy and the reality of how political power is garnered in a federal Westminster style framework effectively stymie the procedural innovations introduced by Böckenförde's model by creating conditions, not for fair play, but for subverting the spirit of the law. Even the procedures outlined by Böckenförde—such as an emphasis on making the agent who holds the emergency powers a political, and not merely an administrative organization—accentuates, rather than mitigates, this problem.
Focused on comparative law and technology, the Article demonstrates the importance of recent advances of comparative law on interdisciplinary research and argues that comparative law becomes essential to broaden this approach, when facing modern techno-scientific issues. Technological convergence has consequences not only for human rights and the way they can be exercised, but also for the fundamental concept of what characterizes a human being. Social perceptions of risks and geopolitical contexts deeply affect the legal approach to uncertainty. Converging technologies thus challenge us to develop a new, wider perspective on the concept of safety. Comparative law research is functional to deal with technological issues characterized by a cross-national and cross border nature. Additionally, it helps to integrate non-legal knowledge into legal culture. It thus becomes an essential pre-condition to answer complex and innovative questions. Even when research questions focus on the sole legal consequences of technology innovation, this cannot be done without a broader vision of the multidisciplinary problem technology offers. In fact, such a problem appears like an elephant: a unique perspective will not faithfully represent the real image. The Article focuses on a case-study: robotics. An emerging techno-scientific arena where neuro-sciences, informatics, and other disciplines, however, will deeply orientate the analysis of all the legal issues.
The right to data portability (RtDP) introduced by Article 20 of the General Data Protection Regulation (GDPR) forms a regulatory innovation within EU law. The RtDP provides data subjects with the possibility to transfer personal data among data controllers, but has an impact beyond data protection. In particular, the RtDP facilitates the reuse of personal data that private companies hold by establishing a general-purpose control mechanism of horizontal application. Article 20 of the GDPR is agnostic about the type of use that follows from the ported data and its further diffusion. We argue that the RtDP does not fit well with the fundamental rights nature of data protection law, and should instead be seen as a new regulatory tool in EU law that aims to stimulate competition and innovation in data-driven markets.
What remains unclear is the extent to which the RtDP will be limited in its aspirations where intellectual property rights of current data holders—such as copyright, trade secrets and sui generis database rights—cause the regimes to clash. In such cases, a reconciliation of the interests might particularly confine the follow-on use of ported data again to specific set of socially justifiable purposes, possibly with schemes of fair remuneration. Despite these uncertainties, the RtDP is already being replicated in other fields, namely consumer protection law and the regulation of non-personal data. Competition law can also facilitate portability of data, but only for purpose-specific goals with the aim of addressing anticompetitive behavior.
We conclude that to the extent that other regimes will try to replicate the RtDP, they should closely consider the nature of the resulting control and its breadth and impact on incentives to innovate. In any case, the creation of data portability regimes should not become an end in itself. With an increasing number of instruments, orchestrating the consistency of legal regimes within the Digital Single Market and their mutual interplay should become an equally important concern.
The rule of law, constitutionalism and the judiciary
Contemporary democracies may confront several instances of exceptions that co-exist with constitutional institutions; they are never free from any risks. This Article relies on recent Brazilian judicial experiences in order to present and highlight how courts and judges, from within the institutional structure, can act as elite actors that endanger the constitutional system, giving it the characteristics of unstable constitutionalism. By presenting the recent political and juridical facts that drove Brazil to constitutional crisis, the work brings not only judicial rulings but also the institutional and corporative structure that served as the main methods of avoiding the judicial reforms that could have led to a true transition from dictatorship to democracy. The conclusion is that the Brazilian courts blocked effective transitional constitutionalism in Brazil, making room for the current unstable constitutionalism.
The Italian model of judicial self-government is often presented as a successful example of institutional reform to be copied in young democracies. This paper provides a deeper and multifaceted image of it and takes stock of its performance in securing the independence and the accountability of the judiciary. It first maps the rationale and the actors of judicial self-government in Italy, stressing, in particular, that the Italian model of judicial self-government not only aims at preventing the influence of the judiciary by external powers, but it is also equally concerned by threats to judicial independence coming from within the judiciary. It then provides a longitudinal analysis of the impact of this model of judicial self-government on the values of the independence and the accountability of the judiciary after the establishment of the High Council of the Judiciary in 1958. While acknowledging the crucial role of this body in securing the independence of the judiciary, this article claims that the values of independence and accountability of the judiciary have been achieved only progressively and partially.