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7719 results in Intersentia

Page 263 of 386

  • Quality and Speed in Administrative Decision-Making: A German Case Study

    • By Gerhard Roller, Professor of Environmental Law, University of Applied Sciences Bingen
  • Edited by Chris Backes, Mariolina Eliantonio, Sander Jansen
  • Book:
    Quality and Speed in Administrative Decision-making: Tension or Balance?
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 October 2016, pp 3-20

  • Summary

    Introduction

    Measures have been taken to speed up administrative decision-making procedures in Germany since the early 1990s. The drive for the efforts to do so came from the need to (1) rapidly improve the infrastructure of the new German federal states (Länder) after reunification, and (2) to remove what the government and industrial lobby groups considered to be obstructions to economic investment. In the same time period a vague notion of minimizing ‘bureaucracy’ flooded the political debate in the EU and within a number of Member States. This has led to ongoing activities such as the passing of deregulation rules which aim to abolish laws regarded as an unnecessary burden for the economy. There is some criticism of this overloaded ‘anti-bureaucracy’ movement.

    At the beginning the application of some of these deregulation laws was restricted regionally to the new Länder and temporally. But eventually there was an expansion in scope to include all of Germany and they were made permanent.

    The peak of the deregulation movement had been reached in 2011. After that an opposite current commenced, aimed at improving the legal instruments that enable participation of citizens, especially in planning procedures for infrastructure. Intensive local protest movements like ‘Stuttgart 21’ against railway and urban development and local opposition against measures in the context of the sustainable energy transition (Energiewende) triggered legislative action and debates.

    This contribution deals with the ambiguous relationship between the speed of administrative procedures and the quality of administrative decision-making (section 2) and analyses the measures that are taken to speed up procedures (sections 3 and 4). Two categories of measures can be distinguished here.

    The first category includes measures of a general scope: these are not specific to a certain sector (such as environmental law) but concern administrative procedures as such (section 3). In this category two types of rules need to be differentiated and placed in subcategories: the rules governing the administrative procedure before an administrative act is adopted by the competent authority are laid down in the German Administrative Procedure Act (Verwaltungsverfahrensgesetz) and the rules governing the judicial review of these decisions before the courts are laid down in the German Administrative Court Procedure Act (Verwaltungsgerichtsordnung).

Quality and Speed in Administrative Decision-making: Tension or Balance?
  • Edited by Chris Backes, Mariolina Eliantonio, Sander Jansen
  • Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 October 2016
  • In various European countries such as France, Italy, and the Netherlands, lawmakers have adopted legislation in order to deal with the consequences of the economic crisis. These laws contain provisions aimed at speeding up administrative decision making and judicial proceedings which have an impact on various provisions of general administrative law. Alongside the aim of facing the economic crisis, these measures aim to make administrative law more up-to-date and ensure it meets the needs of contemporary society.However, acceleration measures concerning decision-making and judicial proceedings may clash with the need to preserve the quality of these proceedings. On the one hand, swift procedures can be considered to be one aspect of high-quality decision making. On the other hand, other aspects of quality such as public participation and the thorough consideration of all relevant aspects and interests, may be at risk when the speed of decision-making is the only focus of reforms.Quality and Speed in Administrative Decision-Making: Tension or Balance? presents six national perspectives on these issues, together with a comparative overview comparing and contrasting national approaches with regards to finding a balance between the pace of proceedings and the quality of administrative and judicial decisions.The book will be of interest to academics of European and comparative administrative law, as well as policy-makers at the national and European level.

  • Chapter 4 - The Interpretation of Article 17 Echr in Legal Doctrine

  • Paulien de Morree
  • Book:
    Rights and Wrongs under the ECHR
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 October 2016, pp 67-98

  • Summary

    INTRODUCTION

    In the previous chapter we have seen how the EComHR and the ECtHR have interpreted Article 17 ECHR. We have seen that their approach is inconsistent and raises many questions regarding the functioning of the abuse clause in the context of the ECHR. Because of a lack of clear criteria for the interpretation of Article 17 ECHR, the provision has increasingly been applied to a wide range of allegedly abusive activities. In addition, case law revealed ambiguity about how Article 17 ECHR should be applied. Over the course of time a wide range of different applications have evolved that seem to be applied unsystematically.

    This chapter turns to the academic debate on Article 17 ECHR. Notwithstanding its limited practical relevance in the decisions and judgments of the Commission and the Court, Article 17 ECHR has been the subject of academic debate since the Convention entered into force. The provision's ambiguous nature has repeatedly drawn the attention of legal scholars. And with the increase of references to Article 17 ECHR in the case law of the Court, the interest in the provision by legal scholars has also experienced an upsurge. This chapter will examine the contemporary interpretation of Article 17 ECHR in legal doctrine. It will discuss how they read the scope and legal consequences of the provision and the methods of its application. Subsequently, it will discuss the academic debate that has unfolded on the current interpretation and application of Article 17 ECHR by the Strasbourg organs. Every now and then references will be made to relevant case law on Article 17 ECHR when legal scholars have explicitly cited these cases to substantiate their claims. To a great extent, these cases will overlap with the cases discussed in the previous chapter, but occasionally they may not.

    DIFFERENT ADDRESSEES OF ARTICLE 17 ECHR

    Article 17 ECHR is unique in the sense that it is the only provision that addresses both the States Parties that have to guarantee the fundamental rights in the Convention and individuals and groups who enjoy these rights. Several legal scholars have argued that the different addressees in Article 17 ECHR – states, groups and persons – are subject to different norms that stem from the provision.

  • Quality and Speed in Administrative Decision-Making: A French Case Study

    • By Olivier Dubos, Professor of Public Law, Jean Monnet Chair, CRDEI, University of Bordeaux
  • Edited by Chris Backes, Mariolina Eliantonio, Sander Jansen
  • Book:
    Quality and Speed in Administrative Decision-making: Tension or Balance?
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 October 2016, pp 57-82

  • Summary

    ‘A very extensive machinery was requisite before the government could know everything and manage everything at Paris. The amount of documents filed was enormous, and the slowness with which public business was transacted such that I have been unable to discover any case in which a village obtained permission to raise its church steeple or repair its presbytery in less than a year. Generally speaking, two or three years elapsed before such petitions were granted’.

    This excerpt from French historian de Tocqueville reflects that administrative processes are naturally slow. How fast time passes is subjective, especially for those who rely on the administration's proper functioning. It is certainly not easy to determine what exactly constitutes an efficient and diligent administration from a theoretical perspective. Legitimate expectations of the citizens who are subject to an administrative act should obviously be taken into consideration but so should the essential requirements of the administrative action: one must not forget that it is in everybody's interest that the governance of a country runs well.

    It is immediately apparent, as Cluzel has shown, that there is an inherent and ambiguous relationship between the need for quality in administrative decision making and speed in the procedure. Speed is obviously an actual component in the quality of a decision (in terms of receiving a quick decision), but it may also have the opposite effect. While speed can be measured, the quality of an act cannot as it is highly subjective or at the very least rather ambiguous. The term may be used as a superlative – and so we may speak in terms of a ‘quality’ procedure, which implies ‘high quality’, just as we may describe a product. It is also possible to speak of ‘the qualities’ of the procedure, meaning its characteristics. These two aspects are interrelated: if the procedure is of (good) quality, it is because it has certain qualities (characteristics). Furthermore, through requirements such as the right of defence and consultation procedures, it is possible to note guarantees of the good quality of the act itself.

  • Chapter 1 - Introduction

  • Paulien de Morree
  • Book:
    Rights and Wrongs under the ECHR
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 October 2016, pp 1-14

  • Summary

    RIGHTS AND WRONGS UNDER THE ECHR

    In 1956 the German Federal Constitutional Court held that the German Communist Party posed a threat to the ‘free democratic basic order’ and declared it unconstitutional. The party subsequently challenged its prohibition before the European Commission of Human Rights, arguing that it constituted a violation of its rights to freedom of expression and freedom of association. The Commission, however, found that advocating the establishment of a social communist society through a proletarian revolution was incompatible with the free operation of democratic institutions.

    In a hallmark case from the 1990s, the French philosopher, former politician and author of the book ‘The Founding Myths of Modern Israel’, Roger Garaudy, was convicted of disputing the existence of crimes against humanity, public defamation of a group of persons – in this case, the Jewish community – and incitement to racial hatred. In his book, Garaudy openly disputed the Holocaust and referred to the use of gas chambers by the Nazis as a myth. He argued that the criminal conviction amounted to an unjustified interference with his right to freedom of expression. The Court found that with the revisionist tenor of the book, the applicant attempted to deflect the right to freedom of expression from its real purpose by using it for ends which are contrary to the text and spirit of the Convention.

    In 2002 Mark Anthony Norwood, an active member of the extreme right-wing British National Party, was convicted of aggravated hostility towards a religious group for displaying in the window of his flat a large poster with a photograph of the Twin Towers in flames, the words ‘Islam out of Britain – Protect the British People’ and a symbol of a crescent and a star in a prohibition sign. He complained before the European Court of Human Rights that the conviction violated his right to freedom of expression. The Court, however, found that ‘such a general, vehement attack against a religious group, linking the group as a whole with a grave act of terrorism, is incompatible with the values proclaimed and guaranteed by the Convention, notably tolerance, social peace and non-discrimination’.

    And in 2003 the German Federal Ministry of the Interior prohibited the activities of the international Islamic organisation Hizb Ut-Tahrir on German territory.

  • Chapter 8 - The German ‘Wehrhafte Demokratie’

  • Paulien de Morree
  • Book:
    Rights and Wrongs under the ECHR
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 October 2016, pp 185-224

  • Summary

    INTRODUCTION

    This is the second chapter out of three chapters that deal with the concept of abuse of rights. The previous chapter discussed the concept of militant democracy from a general, theoretical perspective. It showed that practically all democracies have adopted certain measures to defend themselves against being overthrown by antidemocratic actors. Yet, the extent to which democracies have adopted and apply militant measures in order to defend themselves varies strongly from state to state. This chapter aims to provide a concrete example of the interpretation and implementation of the concept of militant democracy: Germany. In the next chapter we will subsequently explore how the concept of militant democracy takes shape in the context of the ECHR.

    The German legal order is generally regarded as an archetypal militant democracy. It was the first European legal order to openly recognise the necessity of designing a democracy capable of defending itself against anti-democratic actors who use the democratic process in order to subvert it. The fact that the Nazis could rely on lawful means in their quest for political power made post-war Germany particularly conscious of the need to protect its re-established democracy against anti-democratic forces. The German Basic Law (BL), which entered into force some years after the end of the Second World War, is clearly modelled upon the idea of a self-defensive democracy, in German referred to as the wehrhafte Demokratie or streitbare Demokratie. In fact, Germany is generally considered to have developed ‘the most explicit – and the most far-reaching – theory of militant democracy’. The abuse clause in Article 18 BL, the German equivalent of Article 17 ECHR, is part of the militant scheme of the BL. This provision reads:

    ‘Whoever abuses the freedom of expression, in particular the freedom of the press (paragraph (1) of Article 5), the freedom of teaching (paragraph (3) of Article 5), the freedom of assembly (Article 8), the freedom of association (Article 9), the privacy of correspondence, posts and telecommunications (Article 10), the rights of property (Article 14), or the right of asylum (Article 16a) in order to combat the free democratic basic order shall forfeit these basic rights. This forfeiture and its extent shall be declared by the Federal Constitutional Court’.

  • Valorisation Addendum

  • Catalina Goanta
  • Book:
    Convergence in European Consumer Sales Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    12 October 2016, pp 321-324

  • Summary

    What is the societal relevance?

    The question of whether and how the European Union should contribute to the approximation of laws at Member State level is pivotal for 2016. This year will be remembered by history as the year when the United Kingdom held a referendum on the question of staying in the European Union, and its people answered in the negative. A lot can be said about the reasons leading to this monumental decision, and the extent to which private law harmonisation played a role is rather speculative at this point. However, what private law harmonisation and Brexit – as the unfortunate fall-out was named – have in common is the discussion of sovereignty. Where can one draw a line between EU interference and national legitimacy in decision-making? As it has been seen in this study, the European Commission has been pushing consumer protection trends that are purely normative, such as the maximum harmonisation standard. The data that European institutions use to justify these measures are scarce at best, and they fail to show any form of policy assessment. What has been achieved with minimum and maximum harmonisation? The Commission might have held consultations with a limited number of stakeholders, but do the preferences explained therein, which do not fully support maximum harmonisation, reflect better standards when applied to the internal market?

    To a certain extent, these questions can and have been answered by means of doctrinary research. Nevertheless, the picture illustrated by doctrinary research is incomplete without an empirical assessment of minimum and maximum harmonisation. This is exactly what the present research results aimed to contribute to. The goal of creating the Convergence Index has been to open the floor to a wider debate on this matter. As indicated in the manuscript, the Index, as compiled here, is only a beta version, as it can and will be improved through subsequent research, to better reflect the factors it wishes to measure.

    To whom are your research results of interest?

    The findings in this manuscript are addressed to a wide array of stakeholders, from academics to policy-makers. One the one hand, as mentioned just above, the debate as to how to better measure the converging effects of harmonisation can be continued in the academic community, in an attempt to fine-tune a tool such as the Convergence Index, or create spin-offs.

  • Summary

  • Catalina Goanta
  • Book:
    Convergence in European Consumer Sales Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    12 October 2016, pp 313-320

  • Summary

    This is an empirical study about the converging effects of harmonisation policies used by the European lawmaker in consumer sales law. It aims to fill a gap in existing literature, by looking into what European consumer sales law harmonisation has achieved, and trying to develop a methodology to measure the convergence it has led to. The study encompasses both a substantive comparison as well as a numerical approach. While in the former, five directives and their subsequent transposition in the national laws of Member States are analysed, the latter focuses on the creation of the Convergence Index as a measurement tool for the effects of the harmonisation process. This research is dedicated to both academics as well as policy makers, as it aims to trigger more debate regarding benchmarking in European consumer law. Such a debate can play a role in further academic research aimed at determining whether harmonisation does indeed strengthen the internal market.

    The study consists of four chapters.

    Chapter 1 addresses the background to globalisation and legal convergence. Legal convergence, as a result of globalisation, is firstly defined, and subsequently explained by making an inventory of the driving forces behind it. This is essential for the clarification of a concept (‘convergence’) that has until now been used in many different ways and contexts. The chapter then places further emphasis on one specific policy behind convergence: the harmonisation of laws as practiced by the European Union. This opens the way for defining the aims and methodology of this study. Moreover, the Chapter also includes a discussion on the novelty of the study as well as its limitations. In laying the background for the rest of the study, Chapter 1 includes a brief historical scrutiny of European harmonisation as a policy tool that is supposed to achieve convergence. Harmonisation is then examined from a chronological point of view, and its types, as well as the competence of the European legislator to pursue this policy are addressed.

  • Chapter 1 - Introduction

  • Catalina Goanta
  • Book:
    Convergence in European Consumer Sales Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    12 October 2016, pp 1-40

  • Summary

    Globalisation and Legal Convergence: The Background

    Introduction

    This is a study about legal convergence in European consumer sales law. It aims to offer a comparative and numerical analysis on the extent to which European directives in this field contribute to convergence. It does so by developing a comparative and numerical framework to evaluate the ambit of such convergence, as well as the factors on which it is dependent. This analysis aims to fill a clear gap in the existing literature on European harmonisation that, until now, has avoided assessing the actual converging effect of European Union (EU) legislation.

    This Chapter is structured as follows. The remainder of this Section provides the background to globalisation and legal convergence. Legal convergence, as a result of globalisation, is firstly defined (Section 1.2), and subsequently explained by making an inventory of the driving forces behind it (Section 1.3). This is essential for the clarification of a concept (‘convergence’) that has until now been used in many different ways and contexts. Section 2 is then devoted to one specific policy behind convergence: the harmonisation of laws as practiced by the European Union. This opens the way for defining the aims and methodology of this study (Section 3). The remaining Sections of this Chapter focus on the novelty of the study (Section 4), its limitations (Section 5) and overall structure (Section 6).

    Although globalisation might be nothing new, the beginning of the 1990s brought another understanding of how interconnected individual economies are and how they contribute to the emergence of one new world economy. This renewed understanding of globalisation coincided with the further opening of markets, technological advances, and the democratisation of finance and information. Corporations openly became key players in governance, as did citizens. Diversity seemed to be a common feature of the multiple facets of globalisation, as it not only affected the actors involved, but the essence of the internationalisation process itself. In Stiglitz’ words, globalisation ‘encompasses many things: the international flow of ideas and knowledge, the sharing of cultures, global civil society and the global environmental movement’.

  • Chapter 2 - The Substantive Comparison

  • Catalina Goanta
  • Book:
    Convergence in European Consumer Sales Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    12 October 2016, pp 41-160

  • Summary

    Introduction and Aim of the Chapter

    As mentioned above in the methodological discussion, harmonisation in European consumer sales law is firstly addressed using a substantive comparison. In doing so, the five selected directives are discussed in the light of four questions. To remind the reader, these questions touched upon:

  • (i) the rationale and scope of the directive;

  • (ii) the standard of harmonisation set by the European legislator;

  • (iii) the reception of the standard of harmonisation; and

  • (iv) comparative notes on the transposition.

    • The reason why these criteria were chosen is three-fold. Firstly, discussing what the directives were designed to achieve, and more importantly how (criteria i and ii), is useful in recreating the policy developments envisioned by the European legislator. Secondly, by understanding how Member States have transposed European rules, the success and/or shortcomings of national alignment to these policy developments can be evaluated (criterion iii). Lastly, the comparative notes on the transposition (criterion iv) help determine which policy objectives were achieved and which weaknesses were identified in the process.

    This Chapter aims to familiarise the reader with the rules applicable to distance selling, doorstep selling, unfair contract terms, consumer sales and unfair commercial practices, both on a European level and a national one, in the light of the overall convergence theme. The five directives are discussed in chronological order, and the four criteria above are then applied to each individual directive. The Chapter thus focuses on comparing national laws – and it does so under the comparative notes – but finally the directives are also compared in a discussion relating to an eventual overlap between their provisions. What is more, the substantive comparison is not only a self-standing methodological perspective, as mentioned in Chapter 1, but it also constitutes the basis of the numerical analysis in Chapter 3 as is seen later.

    Two main points need to be taken into account when looking at the structure of this Chapter. Firstly, instead of discussing directives as a whole, the Chapter focuses on selected provisions from each of the five directives. This is because while the rationale and scope of the directives can be easily addressed altogether, not the same can be said about the said directives’ transposition. Works such as the Consumer Law Compendium database have successfully focused on outlining, article-by-article, the performance of national legislation in accommodating consumer contract directives.

  • Relevant Documents

  • Catalina Goanta
  • Book:
    Convergence in European Consumer Sales Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    12 October 2016, pp 325-340

  • Summary

    European Legislation

    Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising, OJ L250 of 10 September 1984.

    Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, OJ L210 of 7 August 1985.

    Directive on the protection of consumers in respect of contracts negotiated away from business premises 85/577/EEC, OJ L372 of 31 December 1985.

    Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents, OJ L382 of 31 December 1986.

    Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours, OJ L158 of 23 June 1990.

    Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, OJ L95 of 21 April 1993.

    Directive 94/47/EC of the European Parliament and the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis, OJ L280 of 29 October 1994.

    Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts, OJ L144 of 4 June 1997.

    Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems, OJ L166 of 11 June 1998.

    Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on injunctions for the protection of consumers’ interests, OJ L166 of 11 June 1998.

    Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, OJ L171 of 07 July 1999.

  • Chapter 3 - The Numerical Analysis

  • Catalina Goanta
  • Book:
    Convergence in European Consumer Sales Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    12 October 2016, pp 161-294

  • Summary

    The previous Chapter focused on discussing specific transposition issues of the consumer acquis in the national laws of seven Member States: Belgium, France, Germany, Ireland, the Netherlands, Romania and the UK. The central purpose of this comparative analysis, in line with the vast majority of writings covering the topic, was to provide a starting point for the exploration of factors that influence convergence. This Chapter focuses on the following points: in Section 1, the aim of the Chapter is presented together with a brief overview of previous work that is of interest for this study. Next, Section 2 explains the methodology leading to the creation of the Convergence Index, the novel tool this study aims to contribute with in measuring the legal convergence resulting out of harmonisation policies. On the basis of this methodology, Section 3 focuses on gathering data from the five directives and their transposition in the laws of the Member States as described in the previous Chapter. Section 4 uses the aforementioned data to ‘code’ values for the Convergence Index, and finally, Section 5 presents some preliminary conclusions.

    Aim of the Chapter and Background in Previous Work

    As comprehensive as descriptive analyses on the harmonisation of consumer law are, one perspective of this discussion remains under-represented in literature – the need to empirically measure the said harmonisation process. Previous works such as the compilation of the Consumer Law Compendium, or directive-oriented implementation studies are of tremendous help in understanding how European law is integrated into national legal systems. Accordingly, these studies look at contract law directives in a targeted manner and address legal issues in detail. However, apart from executive summaries and comparative tables, no other tools are used to highlight the overall findings of these comprehensive studies. The present research aims to fill this gap and contribute to the current framework with a comparative approach that looks at harmonisation in a cross-directive/crosscountry manner and evaluates the process on the basis of pre-determined factors, in order to measure its converging effect.

Page 263 of 386