Hasil untuk "Law of Europe"

Martin Bermeiser

This article is based on a presentation given by the author at the University of Regensburg in 2009, exploring the topic of "Czechoslovakia between 1945 and 1989." The author acknowledges the subjective nature of historical events and the limitations of retrospective analysis. The article focuses on significant political phenomena during the country's socialist phase, condensed due to the impracticality of representing a heterogeneous history in a few pages. The author emphasizes the need for a relativistic approach and draws from reputable sources to provide a retrospective overview from a German perspective.

Javier Solana, Marco Goldoni

European Central Bank (ECB) staff have repeatedly justified the carbon bias of the Asset Purchase Programme (APP) in terms of “market neutrality”. Yet this term is not included in the Treaties so its meaning and legal nature are unclear. To clarify the meaning of market neutrality in the euro area’s monetary policy we develop a summative content analysis of the textual data contained in relevant legal and policy documents that are publicly available. We conclude that, in the context of monetary policy, the ECB and its staff have used the term market neutrality with two meanings: (i) the minimisation of any impact on the operation of markets and, in particular, on the operation of the price discovery mechanism; and (ii) the mirroring of the composition of a particular market to guide asset purchases. We then examine the legal nature of market neutrality in each of these two meanings. In its first meaning, we argue that market neutrality is the ECB’s definition of the so-called ‘principle of an open market economy’ (‘OME principle’) and it is therefore primary law. In its second meaning, we argue that market neutrality operationalises the OME principle and is therefore secondary law. Our conclusions differ from those reached by the first academic enquiries into the legal nature of market neutrality and open an academic debate on the matter. A clear understanding of the legal nature of market neutrality is also essential to assess the validity of the ECB’s climate change action plan.

Bartkowiak Anna, Marciniuk Agnieszka

The COVID-19 epidemic undoubtedly affected methods and results of teaching, posed many challenges, and changed approaches to education. With the aim of verifying these changes in the context of distance learning in selected social, health, psychological and economic aspects, a survey was conducted among economics students in Poland.

M. Schouler-Ocak

Nora Seddiki

A reflection is carried out on the origin of responsibility in the business world, in Europe and in the United States, to lead to a model of corporate responsibility in its context. The degree of importance of a country's regulation is not, in itself, a sufficient indicator of appreciation of the level of consideration of responsibility and more specifically of corporate social responsibility (CSR). The reflexive, deductive approach, with a modeling and interdisciplinary approach (particularly law and business law, management), demonstrates that there are different visions of responsibility according to national contexts.

Chubarov I.G.

Significant interregional disparities in socio-economic development are one of the most prominent features of modern China. By initiating market reforms and integration into the global economy in the late 1970s, the Chinese leadership gave a way to the inevitable rise of the gap between best-positioned coastal areas and the rest of the country. In line with the economic theories of growth-poles and the Kuznets Williamson regional development curve, successful development of those regions market would naturally lift the rest of the country as well. As famous Deng Xiaoping quote goes, “let some areas become reach first, then lead and help other regions”. However, 3 passed decades showed that market forces took it too long for spillover effect to develop, if any. Chinese researches provided couple of explanations to that. After coming to power, Xi Jinping set an ideological goal to eliminate poverty by the 100th anniversary of the CPC's founding (2021). Without abandoning of market mechanisms, state strengthened its role in the resources redistribution and spatial development management. Existing 4 national programs for the development of the Western, Central, Eastern and Northeastern macro-regions continued, and a number of new ones were adopted for the Capital region (including Xiong’an New Area), the Yangtze Delta, the Zhujiang Delta (Greater Bay Area), the Yangtze economic belt and the Hainan province. The global-reaching Belt and Road Initiative has its regional inter-China dimension as well.

Veronika Fikfak

Regardless of the efforts undertaken through the many reforms of the European Convention on Human Rights system, non-compliance with the judgments of the European Court of Human Rights (ECtHR) remains a major problem for the Council of Europe. This article asks how we can change state behaviour and what role, if any, could damages play in this context. First, the article focuses on how the choice of remedy affects compliance and why aggravated or punitive damages look like an ideal option to nudge states into compliance. I explore recent arguments by scholars and judges who argue that the ECtHR should actively shift its approach (or perhaps already has) to nudge state behaviour towards compliance and prevention of future violations. Based on my empirical research, I show that the current case law presents several obstacles to the introduction of such damages. Building on the economic analysis of the law and insights from behavioural sciences, I reveal how the Court’s approach fails to comply with any of the elements needed to incentivize states to change their behaviour. I finally question to what extent aggravated or punitive damages can be efficient within a system that relies on voluntary compliance. 1 Changing State Behaviour In March 2018, the Council of Europe published the news that, out of all judgments rendered by the European Court of Human Rights (ECtHR) since its inception * Senior Lecturer in Law, Homerton College, Cambridge University, United Kingdom. Email: vf243@cam. ac.uk. This article is part of a larger project on damages for human rights violations, which is funded by the Economic and Social Research Council Future Research Leaders Grant (Grant no. ES/N000927/1), the Isaac Newton Trust, and the Cambridge Humanities Research Grant. I am grateful for research assistance to Sabrina Boudra and Jaka Kukavica, who coded the cases, and Mandeep Dhami, who helped with statistical analysis. The research also builds on interviews with former and current European Court of Human Rights (ECtHR) judges, members of the Registry and the Committee of Ministers. In this article, their anonymity is preserved through numbering; numbers were assigned to judges randomly. 1092 EJIL 29 (2018), 1091–1125 60 years ago, more than half – nearly 7,500 judgments – still remained unenforced.1 Regardless of the efforts undertaken through the many reforms of the European Convention on Human Rights (ECHR) system and through the expansion of the ECHR to 47 European jurisdictions, non-compliance with the Court’s judgments remains a major problem for the Council of Europe. For years, states’ failure to implement the Court’s judgments has threatened to undermine the Strasbourg system and simultaneously erode the credibility of the Court. When states fail to implement the Court’s judgments, this generates new, repetitive claims before the Court. Specifically, the ‘failure to implement effective general measures results in the recurrence of similar infringements, producing repetitive applications and distracting the Court from its essential function’.2 These repetitive cases represent a considerable part of the Court’s backlog. In fact, year on year, the number of judgments pending examination before the Committee of Ministers, the body responsible for supervising the implementation of ECtHR judgments, has been steadily increasing.3 In parallel, the deficit between the number of applications introduced and applications disposed of by the Court continues to grow, to the extent that victims must wait for years before their claims are heard and decisions are rendered.4 Although several attempts have sought to reform the institutional structures and introduce procedures to manage the growing backlog of cases more efficiently, the situation is still such as to raise concerns as to the viability of the current system and its long-term effectiveness.5 In seeking to address the problem, the emphasis has been on thinking creatively about the choice of remedies that the ECtHR could impose on states that would motivate states to address their human rights violations at home. Social scientists and economists have observed that human behaviour can be changed through three mechanisms of social influence: material inducement, persuasion and acculturation.6 Material inducement seeks to influence the behaviour of actors by imposing material costs or benefits. The imposition of a fine will motivate the state to conduct a costbenefit analysis as to whether a certain behaviour is economically sound. If the costs of continuous behaviour outweigh the benefits, then the expectation is that the state 1 Council of Europe, Supervision of the Execution of Judgments and Decisions of the European Court of Human Rights 2017: 11th Annual Report of the Committee of Ministers, March 2018, at 7. 2 Drzemcczewski and Gaughan, ‘Implementing Strasbourg Court Judgments: The Parliamentary Dimension’, in W. Benedek, W. Karl and A. Mihr (eds), European Yearbook on Human Rights (2010), vol. 2, at 234. 3 For statistics, see Committee of Ministers, Supervision of the Execution of Judgments of the European Court of Human Rights: Annual Reports (2008), at 33, Table 1.b, Appendix 1: Statistical Data, April 2009. 4 Council of Europe, High Level Conference on the Future of the European Court of Human Rights: Brighton Declaration, April 2012, para. 16; see also Council of Europe, High-Level Conference on the Implementation of the European Convention on Human Rights, Our Shared Responsibility, 27 March 2015; Council of Europe, Copenhagen Declaration, April 2018, para. 44. 5 Council of Europe, Draft Copenhagen Declaration, 5 February 2018, para. 43. Council of Europe, High Level Conference on the Future of the European Court of Human Rights: Interlaken Declaration, 19 February 2010, para. 8; Brighton Declaration, supra note 4, para. 5. 6 R. Goodman and D. Jinks, Socializing States: Promoting Human Rights through International Law (2013). Changing State Behaviour 1093 would cease the costly actions. While material inducement focuses on the ‘price’ of a specific behaviour, the second mechanism – persuasion – relies on persuading states of the validity or the appropriateness of a specific norm, belief or practice. Persuasion occurs when actors – in our case, states – assess the content of a particular rule or practice and ‘change their mind’. In the language of Harold Koh, states obey international rules because they have ‘internalized’ these norms into their domestic law and practice.7 In this regard, the aim of persuasion is not merely to generate compliance but, rather, to ‘internalize the new interpretation of the international norm into the other party’s internal normative system’.8 Finally, acculturation is the process by which actors adopt the beliefs and behavioural patterns of the surrounding culture. Instead of assessing the content or the costs and benefits of international norms, acculturation relies on the cognitive and social pressures that create a compliance pull. Behavioural economists argue that such cognitive and social pressures ‘induce change because actors are motivated to minimize cognitive discomfort or social costs and to achieve cognitive comfort’.9 In practice, this means that states may be compelled to act in a manner compliant with international norms because such behaviour is part of membership of a specific group to which the state wishes to belong. As a consequence, the state wishes to mirror the behaviour of other states and thus remain part of an ‘in-group’ with a shared identity. Like other international institutions, the current remedy framework used by the ECtHR and the Committee of Ministers appears to rely on the use of all three tools to motivate the state to redress its actions and deter similar future violations. The ECtHR places a clear emphasis on just satisfaction, whereby states have to compensate the victim’s loss and suffering. This is sometimes complemented with non-monetary remedies. When the Court is seeking to achieve restitution in integrum and return the applicant to the position before the violation, it may order the release of a victim being held in arbitrary detention or it may go as far as requiring a state to change its legislation to prevent future actions. These remedies are imposed by the Court so infrequently that, in general, the Court remains rather silent and relies on the persuasive power of its ruling.10 The expectation is that the judgment identifies the underlying problem so clearly that states are able to undertake the necessary actions to prevent future breaches at home. As a final step, the Committee of Ministers may attempt to adjust state behaviour through acculturation by publicly condemning and shaming states.11 The Committee of Ministers, for example, may call on states to abide by the Court’s judgments, to condemn their failure to do so and may issue interim resolutions requiring their action. Together, both the Court and the Committee of Ministers are 7 Koh specifically focuses on courts and other domestic organs as transnational legal actors giving effect to international law at home. Koh, ‘Why Do Nations Obey International Law?’, 106 Yale Law Journal (1997) 2599; Koh, ‘Transnational Legal Process’, 75 Nebraska Law Review (1996) 181. 8 Koh, ‘Why Do Nations Obey’, supra note 7, at 2646 (emphasis added). 9 Goodman and Jinks, supra note 6, at 22. 10 Ibid., at 24. 11 Ibid., at 27–28. 1094 EJIL 29 (2018), 1091–1125 supposed to provide an efficient and persuasive remedial framework, providing for different incentives for states to comply with European human rights judgments. Given the poor compliance record of some states and the general 50 per cent failure to execute ECtHR judgments, it is evident that the current structure and functioning of remedies is not working. The exercise of shaming states into compliance is a function for the Committee of Ministers rather than the Court and has been only varyingly suc

R. Edworthy, S. Sampson, B. Völlm

Laws governing the detention and treatment of mentally disordered offenders (MDOs) vary widely across Europe, yet little information is available about the features of these laws and their comparative advantages and disadvantages. The purpose of this article is to compare the legal framework governing detention in forensic psychiatric care in three European countries with long-established services for MDOs, England, Germany and the Netherlands. A literature review was conducted alongside consultation with experts from each country. We found that the three countries differ in several areas, including criteria for admission, review of detention, discharge process, the concept of criminal responsibility, service provision and treatment philosophy. Our findings suggest a profound difference in how each country relates to MDOs, with each approach contributing to different pathways and potentially different outcomes for the individual. Hopefully making these comparisons will stimulate debate and knowledge exchange on an international level to aid future research and the development of best practice in managing this population.

J. Ruggie

Stefano Quirico

In the 1940s, the German economist Wilhelm Röpke devoted a series of writings to the crisis of Europe. He foreshadowed a dark scenario characterized by the fall of the Western civilization and its moral and social references. Röpke denounced a process of degeneration associated to different forms of collectivism, able to replace the market economy and produce an authoritarian turn of the political system. That drift was ascribed to the transformations occurring between XIX and XX centuries: massification, proletarianization, bureaucratization, limitless faith in the scientific and technological knowledge. This process, however, was not conceived as unavoidable. Against any fatalistic temptation, Röpke aimed to instil in the Europeans the awareness of the danger, in order to stimulate their reaction. The fear caused by the prospect of self-destruction is the means thanks by which the “constructive pessimism” claimed by the German economist – and echoing the Hobbesian tradition of the “creative fear” – paves the way to the establishment of a political community respecting the human values and connoted by a liberalism deeply renovated. Röpke’s general argument may also be referred to the process of European integration, where fear plays a dual role. On the one hand, it contributes to discredit the functionalist method, destined to create a European Superstate and eliminate the innate pluralism of the European identity. Furthermore, the customs union born in 1957 risks disintegrating and isolating Europe in the international relations. On the other hand, fear recovers its creative function becoming the propellant for uniting Europe. The citizens are forced to appeal to the European patriotism generated by the common opposition against the external dangers – such as the Soviet Union – and build a political union representing a relevant actor in the world dominated by two superpowers, but showing also some clear contradictions. Keywords: Wilhelm Röpke; Crisis; European Integration; Collectivism; Ordoliberalism Negli anni Quaranta del XX secolo, l’economista tedesco Wilhelm Röpke dedica alcuni scritti alla crisi dell’Europa. Egli preconizza un fosco scenario, caratterizzato dal crollo della civiltà occidentale e dei suoi punti di riferimento morali e sociali. Röpke denuncia un processo di degenerazione associato a varie forme di collettivismo, in grado di soppiantare l’economia di mercato e produrre una torsione autoritaria del sistema politico. Tale deriva è imputata alle trasformazioni dell’Otto-Novecento: la massificazione, la proletarizzazione, la burocratizzazione, la fiducia illimitata nel sapere tecnico-scientifico. Questo processo, tuttavia, non è considerato inarrestabile. Contro ogni fatalismo, Röpke si propone di infondere negli europei la consapevolezza del pericolo allo scopo di favorire la loro reazione. La paura suscitata dalla prospettiva dell’autodistruzione è lo strumento con cui il “pessimismo costruttivo” rivendicato dall’economista tedesco – e riecheggiante la tradizione hobbesiana della “paura creatrice” – prepara la strada alla fondazione di una comunità politica rispettosa dei valori umani e ispirata a un liberalismo profondamente rinnovato. L’argomentazione generale di Röpke può essere applicata anche al processo di integrazione europea, dove la paura gioca un duplice ruolo. Da un lato, essa contribuisce a confutare il metodo funzionalista, destinato a creare un Superstato europeo e a cancellare il pluralismo connaturato all’identità europea. Inoltre, l’unione doganale concepita nel 1957 rischia di disintegrare l’Europa e isolarla sul piano internazionale. Dall’altro lato, la paura recupera la sua funzione creatrice divenendo il propellente dell’unità europea. I cittadini devono appellarsi al patriottismo generato dalla comune opposizione contro i nemici esterni – come l’Unione Sovietica – ed edificare un’unione politica che rappresenti un attore rilevante nel mondo dominato da due superpotenze, ma che mostra anche alcune evidenti contraddizioni. Parole chiave: Wilhelm Röpke; crisi; integrazione europea; collettivismo; ordoliberalismo

Ida Ferrero

Tancred Canonico was a professor of criminal law at the University of Turin during the second half of the eighteenth century. He had the chance to travel across Europe and to get in touch with many important jurists like Karl J. Mittermaier. During his journey, he met the polish Andrea Towianski whose religious beliefs determined a wide-ranging change in the attitude of Tancredi Canonico towards his personal life and his academic career. This contribution aims to analyze the development of his thought in the field of criminal law during his long academic career.

A. Elbasani

The book investigates the scope and limitations of the transformative power of EU enlargement in the Western Balkans. The extension of EU enlargement policy to the region has generated high expectations that enlargement will regulate democratic institution-building and foster reform, much as it did in Central and Eastern Europe. However, there is very little research on whether and how unfavourable domestic conditions might mitigate the transformative power of the EU. This volume investigates the role of domestic factors, identifying 'stateness' as the missing link between the assumed transformative power of the EU and the actual capacity to adopt EU rules across the region. Including chapters on Croatia, Serbia, Macedonia, Albania, Kosovo, and Bosnia-Herzegovina, leading scholars in the field offer up-to-date comparative analysis of key areas of institutional and policy reform; including state bureaucracy, rule of law, electoral management, environmental governance, cooperation with the International Court of Justice, economic liberalization and foreign policy. Looking to the future and the implications for policy change, European Integration and Transformation in the Western Balkans provides a new theoretical and empirical focus on this little understood area. The book will be of interest to scholars and students of EU politics, comparative democratisation, post-communist transitions and Balkan area studies.

A. S. Sweet, Jud Mathews

J. Kokott, Christoph Sobotta

Stuart Hogarth, G. Javitt, D. Melzer

Thomas Verellen

(Series Information) European Papers - A Journal on Law and Integration, 2016 1(3), 1041-1053 | European Forum Insight of 9 December 2016 | (Table of Contents) I. Introduction. - II. A complete system of judicial protection, also in the sphere of the CFSP? - III. In search of the limits of the jurisdictional carve-out: in defence of the ECJ's incremental approach. - IV. Looking forward: towards a comprehensive approach. - IV.1. A reading of Art. 275 TFEU focused on the nature of the plea rather than the nature of the contested act. - IV.2. A narrow interpretation of the phrase "certain decisions as provided for by the second paragraph of Article 275 [TFEU]" in Art. 24, para. 1, TEU. - IV.3. A broad interpretation of "restrictive measures" in Art. 275 TFEU. | (Abstract) In its judgment in the case of H v. Council et al., the Grand Chamber recognised the jurisdiction of the Court of Justice of the European Union to assess the validity under EU law of a decision by the Chief of Personnel of the European Union Police Mission in Bosnia-Herzegovina (EUPM) to redeploy an Italian magistrate, seconded to the EUPM in Sarajevo, to the post of Criminal Justice Adviser in another location in that country. The question was salient in light of the jurisdictional carve-out in the sphere of the Common Foreign and Security Policy (CFSP) provided for in Art. 24, para. 1, TEU and Art. 275 TFEU. Before the Court, the parties had advanced diverging interpretations of these provisions aimed at recognising or ruling out the Court's jurisdiction. The Court took an alternative path, relying on Art. 270 TFEU on jurisdiction over staff management disputes to confirm its jurisdiction in the case at bar. This Insight contextualises the Court's ruling by pointing to the deficiencies in the system of judicial protection in the sphere of the CFSP. In addition, it argues in favour of a broad reading of the exceptions to the exclusion of the Court's jurisdiction in the sphere of the CFSP. In support of this argument, the Insight assesses the arguments in this direction advanced by the appellant and the European Commission.

Giovanni Bonato

RESUMO Nos últimos anos, a arbitragem vem prosperando tanto na Europa quanto no Brasil. Esse florescimento é acompanhado de um vasto movimento reformador em prol da efetividade do instituto. Periodicamente são introduzidas alterações às disposições em matéria da arbitragem, em busca de atrair o desenvolvimento dos procedimentos internacionais no próprio território, às vezes retomando as soluções oriundas de legislações estrangeiras. Por essa razão é preciso conduzir uma investigação sobre os sistemas estrangeiros sobre o instituto arbitral. Após ter feito uma sintética retrospectiva histórica, o autor propõe uma investigação do direito francês da arbitragem internacional e da concepção autonomista e universalizadora do instituto, assim como da problemática do reconhecimento e execução na França de uma sentença estrangeira anulada no país em que foi proferida. Por fim, passa-se a analisar alguns traços da arbitragem societária italiana, notadamente as regras acerca da arbitrabilidade subjetiva, sobre a inserção da cláusula compromissória durante a vida da sociedade e da nomeação dos árbitros. Palavras-chave: Arbitragem. França. Itália. Brasil. Direito comparado. Arbitragem interna e internacional. Arbitragem societária. Convenção de arbitragem. Cláusula compromissória. Nomeação dos árbitros. Sentença arbitral.   Abstract In recent years, the arbitration is thriving in both Europe and Brazil. A vast reform movement in favour of the effectiveness of the institution accompanies this flowering. Periodically modifications to the provisions concerning the arbitration are introduced, seeking to attract the development of international procedures in their own territory, sometimes taking up the solutions coming from foreign laws. For this reason, it appears necessary to carry out an analysis of the foreign systems of the arbitration institute. After a historical concise retrospective, the author proposes a study of the French law of the international arbitration and of the autonomist and universal concept of the institution; then, he carries out an analysis of the problem of the recognition and enforcement in France of a foreign arbitral award quashed in its country of origin. Finally, he examines some features of the Italian corporate arbitration, notably the rules on the subjective arbitrability, on the inclusion of the arbitration clause during the life of a company and the appointment of arbitrators. Keywords: Arbitration. France. Italy. Brazil. Comparative Law. Domestic Arbitration. International Arbitration. Corporate Arbitration. Arbitration agreement. Submission agreement. Appointment of Arbitrators. Arbitral Award.

Laura Ibarra García

En el mundo de los antiguos mexicanos, las demandas de justicia surgieron principalmente de los pueblos vencidos en las guerras que los ejércitos aztecas emprendían y se dirigieron contra las coacciones y amenazas que representaba el ejercicio del dominio. Los hombres y mujeres sujetos a la dominación se percataron de que la coacción a la que se veían expuestos tenía su origen en los poderes que constituían el orden mismo. Pero ¿en qué consistieron precisamente esas demandas de justicia? ¿Qué era lo que realmente pretendían? El artículo analiza además por qué los aztecas instaban al rey a emprender la guerra y mantener el orden de dominio, y al mismo tiempo pensaban que encarnaba las virtudes consideradas como “más preciosas”, entre ellas la bondad y la justicia. ¿Cómo fue posible que el rey, quien se encontraba en la cúspide del sistema de opresión y quien ordenaba las empresas bélicas que sometían a los demás pueblos, mediante la impartición de justicia pasara a ser el garante de que el débil no se convirtiera en el botín del fuerte? Entre las medidas estructurales a través de las cuales el rey buscaba contrarrestar la explotación del pueblo se encontraban las liberaciones de esclavos. El rey podía decretar o comprar la libertad de aquellos que viéndose incapaces de encontrar su propio sustento decidían venderse como esclavos, pero ¿por qué era esto así? ¿Cómo explicar estos conceptos de justicia?

Siel Demeyere, Joris Beke, Renate Dietvorst

In this article, the interpretation methods used by the United States Supreme Court are studied. We will discuss the interpretation methods used by the Court in the Obamacare case, in abortion cases and in Alien Torts Statute cases. This analysis concludes by asserting the Court is very eclectic in the interpretation methods it uses, although consequential reasoning is most often relied upon.

Manuel Iturralde

During the last decade, the governments of different countries in Western Europe and America have adopted emergency criminal policies to combat criminal phenomena which they regard as particularly dangerous (such as terrorism and narcotrafficking), for they a threat to the existence of the state and society. With the argument that they are defending the rule of law and democracy, governments' actions and policies have consolidated an emergency penal culture whereupon order and security are invoked not only to limit huma rights, but also to push economic and social justice into the background of the political agenda. This, order and security are regarded as pre-condition for economic development and social welfare. This outlook, which has captured the penal imagination of several western democracies, entails a conservative and neoliberal political economy that promotes the expansion of the repressive functions of the state, as well as the rolling back of its active intervention in the economic and social spheres. This paper discusses the Colombian case where different political, economic, and social phenomena have contributed to the expansion and consolidations of emergency penal culture. During the last decade, the rise to power of conservative governments which defend the neoliberal model, together with a protracted armed conflict and the phenomenon of narcotrafficking, have made crime control a key battlefield for the defense and expansion of such model.