In recent years, Europe has experienced a move towards religious diversity and pluralism, which is especially caused by the lasting wave of migrants fleeing conflicts in primarily Muslim countries. While in 2010 Muslims formed 3.8% of Europe’s population, the Muslim population would be expected to rise to 14% by 2050. Even if this scenario does not materialise the European Union and its member states, they will be confronted more and more frequently with new challenges to the law regulating the relations between the state and religious organisations and currently unknown religious conflicts: disputes over religious symbols like the Christian crucifix, the Jewish mezuzah or the Muslim hilal in the public sphere, the debate on the Muslim head scarf, burka and niqab worn by teachers, police women or judges and controversies concerning religious practices in schools and universities – the list is almost endless – are only a few examples impressively demonstrating this. Although many of these problems have been the subject of debate within German higher court, federal administrative, and constitutional court cases, particular decisions as the headscarf ban for teachers (BVerfGE 108, 282, BVerfGE 138, 296) or the crucifix ruling (BVerfGE 93, 1) show that the judicial recognized idea of neutrality between state and religion is characterised by inconsistent results and rules: This leads to the paradox situation that in one and the same country Christian crucifixes in classes and court rooms are (predominantly) allowed and desired whereas on the other hand its strictly prohibited for Muslim teachers or legal clerks to wear a head scarf. Lastly, the current legal situation leaves affected people and legal practitioners helpless. This might be linked to the German model of rules regulating the relation between state and religion. The German Grundgesetz follows the so called hybrid or cooperation model – incorporated from the German constitution of 1918 – which is characterised by a basic separation of state and religion, simultaneously the state is responsible for maintaining religious freedom, diversity and plurality. This middle of the road approach be-tween an established church system and secularity is the most prevalent model in Europe. Particularly also our immediate European neighbours Austria and Italy follow this long-lasting co-operation-based tradition. Key objective of our contribution is to examine whether our neigh-bours are facing similar problems to those we have in Germany. In particular, we will focus our attention on the missing legal certainty and clarity with regard to the – positive and negative – freedom of religion. To ensure a comprehensive picture of the ambiguous legal situation our study will analyse and compare the relevant constitutional provisions, particular laws and jurisdiction in Austria, Italy and Germany and evaluate whether or not European countries still give privileges to their Judeo-Christian roots, (will) develop a
{"title":"The Idea of Religious Neutrality and the Cooperation Model Compared in Germany, Austria and Italy","authors":"J. Moir, J. Wagner","doi":"10.2139/ssrn.3301174","DOIUrl":"https://doi.org/10.2139/ssrn.3301174","url":null,"abstract":"In recent years, Europe has experienced a move towards religious diversity and pluralism, which is especially caused by the lasting wave of migrants fleeing conflicts in primarily Muslim countries. While in 2010 Muslims formed 3.8% of Europe’s population, the Muslim population would be expected to rise to 14% by 2050. Even if this scenario does not materialise the European Union and its member states, they will be confronted more and more frequently with new challenges to the law regulating the relations between the state and religious organisations and currently unknown religious conflicts: disputes over religious symbols like the Christian crucifix, the Jewish mezuzah or the Muslim hilal in the public sphere, the debate on the Muslim head scarf, burka and niqab worn by teachers, police women or judges and controversies concerning religious practices in schools and universities – the list is almost endless – are only a few examples impressively demonstrating this. Although many of these problems have been the subject of debate within German higher court, federal administrative, and constitutional court cases, particular decisions as the headscarf ban for teachers (BVerfGE 108, 282, BVerfGE 138, 296) or the crucifix ruling (BVerfGE 93, 1) show that the judicial recognized idea of neutrality between state and religion is characterised by inconsistent results and rules: This leads to the paradox situation that in one and the same country Christian crucifixes in classes and court rooms are (predominantly) allowed and desired whereas on the other hand its strictly prohibited for Muslim teachers or legal clerks to wear a head scarf. Lastly, the current legal situation leaves affected people and legal practitioners helpless. This might be linked to the German model of rules regulating the relation between state and religion. The German Grundgesetz follows the so called hybrid or cooperation model – incorporated from the German constitution of 1918 – which is characterised by a basic separation of state and religion, simultaneously the state is responsible for maintaining religious freedom, diversity and plurality. This middle of the road approach be-tween an established church system and secularity is the most prevalent model in Europe. Particularly also our immediate European neighbours Austria and Italy follow this long-lasting co-operation-based tradition. Key objective of our contribution is to examine whether our neigh-bours are facing similar problems to those we have in Germany. In particular, we will focus our attention on the missing legal certainty and clarity with regard to the – positive and negative – freedom of religion. To ensure a comprehensive picture of the ambiguous legal situation our study will analyse and compare the relevant constitutional provisions, particular laws and jurisdiction in Austria, Italy and Germany and evaluate whether or not European countries still give privileges to their Judeo-Christian roots, (will) develop a ","PeriodicalId":121229,"journal":{"name":"European Public Law: National eJournal","volume":"144 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116398418","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
H. Schweitzer, Justus Haucap, Wolfgang Kerber, Robert Welker
Digitization has transformed – and continues to transform – the economy. Among the characteristic features of digitization are the increasing importance of (a) data as a critical input resource in production and distribution processes and of (b) digital platforms as new players in the markets. The changes in the structure of markets – some of which have become highly concentrated – and in business strategies raise the question whether EU competition law and German competition law are able to deal with the new challenges of the digital economy. Our report for the German Economic Ministry looks at whether a modernization of the (European and German) rules on the abuse of market power is needed. For this purpose, we look at Article 102 TFEU and their (rough) equivalents in German competition law, namely in §§ 18, 19 GWB. In addition, we pay particular attention to the question of whether § 20 GWB – a specificity of German competition law which prohibits exclusionary abuses of relative market power (§ 20 para. 1 – “economic dependence”) and superior market power vis-a-vis small and medium sized competitors (§ 20 para. 3) – can become an effective instrument for closing persisting gaps in controlling abusive behaviour in view of the special challenges facing the digital economy.
{"title":"Modernising the Law on Abuse of Market Power: Report for the Federal Ministry for Economic Affairs and Energy (Germany)","authors":"H. Schweitzer, Justus Haucap, Wolfgang Kerber, Robert Welker","doi":"10.2139/ssrn.3250742","DOIUrl":"https://doi.org/10.2139/ssrn.3250742","url":null,"abstract":"Digitization has transformed – and continues to transform – the economy. Among the characteristic features of digitization are the increasing importance of (a) data as a critical input resource in production and distribution processes and of (b) digital platforms as new players in the markets. The changes in the structure of markets – some of which have become highly concentrated – and in business strategies raise the question whether EU competition law and German competition law are able to deal with the new challenges of the digital economy. Our report for the German Economic Ministry looks at whether a modernization of the (European and German) rules on the abuse of market power is needed. For this purpose, we look at Article 102 TFEU and their (rough) equivalents in German competition law, namely in §§ 18, 19 GWB. In addition, we pay particular attention to the question of whether § 20 GWB – a specificity of German competition law which prohibits exclusionary abuses of relative market power (§ 20 para. 1 – “economic dependence”) and superior market power vis-a-vis small and medium sized competitors (§ 20 para. 3) – can become an effective instrument for closing persisting gaps in controlling abusive behaviour in view of the special challenges facing the digital economy.","PeriodicalId":121229,"journal":{"name":"European Public Law: National eJournal","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116997152","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper explores fundamental changes to the UK’s competition law private actions landscape. It examines how the Consumer Rights Act 2015 (‘CRA’) has paved the way for private enforcement to become an effective deterrent against anti-competitive behavior. These changes have been made possible primarily through amendments to the Competition Act 1998 (‘CA98’) and the Enterprise Act 2002 (‘EA02’). This has led to a metamorphosis of the Competition Appeal Tribunal (‘CAT’) from a court of limited jurisdiction to one of full jurisdiction in competition matters. To that end, this paper will compare private enforcement actions before, and after, these changes. Still, this begs the salient question: what relevance do these changes have on the legal professional practice? The UK’s leading competition authority — the Competition and Markets Authority (‘CMA’) — lends an answer to this significant question. CMA’s prioritization principles demonstrate that private litigants are, under certain circumstances, better served through private enforcement of competition laws. Accordingly, it is this focus that this paper intends to explore. It will conclude that the role of, and need for, alternative litigation forums and schemes operating alongside traditional court systems has never been greater. This is particularly critical for individuals and Small and Medium Enterprises (‘SMEs’) who traditionally relied on public enforcement of competition laws. However, given the increasing challenges, including limited resources, plaguing those tasked with publicly enforcing competition laws coupled with the need to ensure fair access and use of the market by all players, these alternative forums and schemes are gaining traction. This paper concludes that the overall effect of having these private enforcement mediums will likely lead to a reduction in anti-competitive behavior.
{"title":"Does Private Enforcement of UK Competition Law Provide an Effective Deterrent to Anti-Competitive Behaviour?","authors":"Eric M Som","doi":"10.2139/ssrn.3708937","DOIUrl":"https://doi.org/10.2139/ssrn.3708937","url":null,"abstract":"This paper explores fundamental changes to the UK’s competition law private actions landscape. It examines how the Consumer Rights Act 2015 (‘CRA’) has paved the way for private enforcement to become an effective deterrent against anti-competitive behavior. These changes have been made possible primarily through amendments to the Competition Act 1998 (‘CA98’) and the Enterprise Act 2002 (‘EA02’). This has led to a metamorphosis of the Competition Appeal Tribunal (‘CAT’) from a court of limited jurisdiction to one of full jurisdiction in competition matters. To that end, this paper will compare private enforcement actions before, and after, these changes. Still, this begs the salient question: what relevance do these changes have on the legal professional practice? The UK’s leading competition authority — the Competition and Markets Authority (‘CMA’) — lends an answer to this significant question. CMA’s prioritization principles demonstrate that private litigants are, under certain circumstances, better served through private enforcement of competition laws. Accordingly, it is this focus that this paper intends to explore. It will conclude that the role of, and need for, alternative litigation forums and schemes operating alongside traditional court systems has never been greater. This is particularly critical for individuals and Small and Medium Enterprises (‘SMEs’) who traditionally relied on public enforcement of competition laws. However, given the increasing challenges, including limited resources, plaguing those tasked with publicly enforcing competition laws coupled with the need to ensure fair access and use of the market by all players, these alternative forums and schemes are gaining traction. This paper concludes that the overall effect of having these private enforcement mediums will likely lead to a reduction in anti-competitive behavior.","PeriodicalId":121229,"journal":{"name":"European Public Law: National eJournal","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123998185","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the present work, we focus on the test on the quantification of damages in cases of private actions for infringements of competition law and on the adaptation of the Spanish regulations to the Damage Directive of 2014. In the first part, we analyze the quantification of damages and the burden of proof distinguishing the cases of evidentiary burden with respect to the infringement and evidentiary burden with respect to the quantification. From there, the ordinary assumptions of those that establish some type of exceptions are discriminated. In the second part, we focus on the test on quantification and the different aspects that the latter can offer us in terms of the existence of leniency programs, resolutions of other courts, direct purchases, indirect or third-party damages, etc. The objective is to determine the existence of differences in each of the sections that we point out and the judicial criteria that should preponderate in each of them.
{"title":"The Proof on the Quantification of the Damage in Assumptions of Defense of Competition. (Spanish Law)","authors":"E. Sanjuan","doi":"10.2139/ssrn.3201779","DOIUrl":"https://doi.org/10.2139/ssrn.3201779","url":null,"abstract":"In the present work, we focus on the test on the quantification of damages in cases of private actions for infringements of competition law and on the adaptation of the Spanish regulations to the Damage Directive of 2014. In the first part, we analyze the quantification of damages and the burden of proof distinguishing the cases of evidentiary burden with respect to the infringement and evidentiary burden with respect to the quantification. From there, the ordinary assumptions of those that establish some type of exceptions are discriminated. In the second part, we focus on the test on quantification and the different aspects that the latter can offer us in terms of the existence of leniency programs, resolutions of other courts, direct purchases, indirect or third-party damages, etc. The objective is to determine the existence of differences in each of the sections that we point out and the judicial criteria that should preponderate in each of them.","PeriodicalId":121229,"journal":{"name":"European Public Law: National eJournal","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125676739","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-05-30DOI: 10.17573/CEPAR.V16I1.361
Tjaša Vozel
The purpose of this paper is to examine the development of the Slovenian Tax Procedure Act and amendments thereto until 2017, in order to broaden the field knowledge on tax procedures within the administrative system as a whole. The Tax Procedure Act provides the general framework of the procedural tax system in Slovenia. The first version of the Tax Procedure Act (ZDavP) was adopted in 1996 and followed by five amending acts until the adoption of the second version (ZDavP-1) in 2004. The third and currently applicable version of the Tax Procedure Act (ZDavP-2) has been subject to over ten amendments so far. Furthermore, the study aims to compare the development of tax procedure in Slovenia and Sweden. Based on the normative and comparative analyses, review of domestic and foreign literature, and case law analysis, the advantages and disadvantages of the development of tax procedure in Slovenia were identified. The amendments analysed contributed mainly to simplifying the tax procedure, reducing red tape, decreasing costs, improving the efficiency of the tax authorities, and providing greater legal certainty for the taxpayers. Most changes to the Tax Procedure Act involved the personal income tax. An empirical study of the case law of the Administrative, Supreme and Constitutional Courts in selected period further showed that errors were mainly detected in relation to substantial violation of procedural requirements rather than incorrect application of substantive law. The study contributes to administrative and legal science and the tax profession as such. The results can be useful when drafting new tax procedural legislation to improve its effectiveness.
{"title":"Development of Tax Procedural Law and Sectoral Case Law in Selected Countries","authors":"Tjaša Vozel","doi":"10.17573/CEPAR.V16I1.361","DOIUrl":"https://doi.org/10.17573/CEPAR.V16I1.361","url":null,"abstract":"The purpose of this paper is to examine the development of the Slovenian Tax Procedure Act and amendments thereto until 2017, in order to broaden the field knowledge on tax procedures within the administrative system as a whole. The Tax Procedure Act provides the general framework of the procedural tax system in Slovenia. The first version of the Tax Procedure Act (ZDavP) was adopted in 1996 and followed by five amending acts until the adoption of the second version (ZDavP-1) in 2004. The third and currently applicable version of the Tax Procedure Act (ZDavP-2) has been subject to over ten amendments so far. Furthermore, the study aims to compare the development of tax procedure in Slovenia and Sweden. Based on the normative and comparative analyses, review of domestic and foreign literature, and case law analysis, the advantages and disadvantages of the development of tax procedure in Slovenia were identified. The amendments analysed contributed mainly to simplifying the tax procedure, reducing red tape, decreasing costs, improving the efficiency of the tax authorities, and providing greater legal certainty for the taxpayers. Most changes to the Tax Procedure Act involved the personal income tax. An empirical study of the case law of the Administrative, Supreme and Constitutional Courts in selected period further showed that errors were mainly detected in relation to substantial violation of procedural requirements rather than incorrect application of substantive law. The study contributes to administrative and legal science and the tax profession as such. The results can be useful when drafting new tax procedural legislation to improve its effectiveness.","PeriodicalId":121229,"journal":{"name":"European Public Law: National eJournal","volume":"124 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-05-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133048691","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
National administrative law traditions are changing under the influence of socio-economic factors and the Europeanisation of legal norms. To illustrate this evolution this paper discusses the roles of judges in three European major transport infrastructure projects in England, France and Belgium where long-term public-private co-operation was developed and strong public opposition voiced. Public-private co-operation to develop infrastructure projects is not new. EU financial requirements and EU procurement directives, though, constrain more than ever how these public-private co-operations can be contractually designed, while EU sectoral legislation may offer new opportunities for public-private co-operation. In parallel, citizens are entitled to be involved in large projects affecting the environment and no longer mainly seek protection for their individual property rights. These changes illustrate the changing role of private parties (economic actors and citizens) in major infrastructure projects. They also result in public bodies endorsing an increasingly supervisory and monitoring role while not having the suitable skills, resources or information in-house to do so. These adaptations under the pressure of socio-economic and political concerns call for administrative law to revisit the role that judges play in adjudicating issues arising from these complex public-private contracts, where public bodies and private parties are locked together for a long term and where changing the relationship is extremely expensive for the public purse.
{"title":"Public-Private Co-Operation and Judicial Review - A Case Study Drawn from European Infrastructure Projects","authors":"Yseult Marique, S. Van Garsse","doi":"10.2139/ssrn.3138548","DOIUrl":"https://doi.org/10.2139/ssrn.3138548","url":null,"abstract":"National administrative law traditions are changing under the influence of socio-economic factors and the Europeanisation of legal norms. To illustrate this evolution this paper discusses the roles of judges in three European major transport infrastructure projects in England, France and Belgium where long-term public-private co-operation was developed and strong public opposition voiced. Public-private co-operation to develop infrastructure projects is not new. EU financial requirements and EU procurement directives, though, constrain more than ever how these public-private co-operations can be contractually designed, while EU sectoral legislation may offer new opportunities for public-private co-operation. In parallel, citizens are entitled to be involved in large projects affecting the environment and no longer mainly seek protection for their individual property rights. These changes illustrate the changing role of private parties (economic actors and citizens) in major infrastructure projects. They also result in public bodies endorsing an increasingly supervisory and monitoring role while not having the suitable skills, resources or information in-house to do so. These adaptations under the pressure of socio-economic and political concerns call for administrative law to revisit the role that judges play in adjudicating issues arising from these complex public-private contracts, where public bodies and private parties are locked together for a long term and where changing the relationship is extremely expensive for the public purse.","PeriodicalId":121229,"journal":{"name":"European Public Law: National eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-03-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130191108","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In spite of the abundant information regarding Albania’s struggle from transition towards the integration into the European Union, envisioning common international justice affairs still remains insufficient and it seems that any close connection to the international criminal courts and tribunals has been largely ignored. This paper gives a picture of the alleged ‘internationalisation’ of the witness protection legislation and touches two aspects: firstly, the issues of the current legal framework in relation to procedural and non-procedural witness protective measures and challenges to ensure their effectiveness and secondly, the incorporation of new provisions in the domestic laws related to the best practices on support and assistance for witnesses at international and regional levels. In order to comprehend Albania’s compliance with the Rome Statute of the International Criminal Court and other European legal instruments, an analysis of official documents was carried out, and a range of interviews were performed with staff of the International Criminal Court, the Courts of Serious Crimes and a District Court in Albania. This study draws conclusions and develops a set of recommendations on the steps that Albania has to take in relation to providing adequate protection and assistance in support of witnesses testifying in serious crimes cases.
{"title":"The Immediate Demand for an Efficient Protection of Witnesses of Justice in Albania","authors":"Romina Beqiri","doi":"10.2139/ssrn.3152106","DOIUrl":"https://doi.org/10.2139/ssrn.3152106","url":null,"abstract":"In spite of the abundant information regarding Albania’s struggle from transition towards the integration into the European Union, envisioning common international justice affairs still remains insufficient and it seems that any close connection to the international criminal courts and tribunals has been largely ignored. This paper gives a picture of the alleged ‘internationalisation’ of the witness protection legislation and touches two aspects: firstly, the issues of the current legal framework in relation to procedural and non-procedural witness protective measures and challenges to ensure their effectiveness and secondly, the incorporation of new provisions in the domestic laws related to the best practices on support and assistance for witnesses at international and regional levels. In order to comprehend Albania’s compliance with the Rome Statute of the International Criminal Court and other European legal instruments, an analysis of official documents was carried out, and a range of interviews were performed with staff of the International Criminal Court, the Courts of Serious Crimes and a District Court in Albania. This study draws conclusions and develops a set of recommendations on the steps that Albania has to take in relation to providing adequate protection and assistance in support of witnesses testifying in serious crimes cases.","PeriodicalId":121229,"journal":{"name":"European Public Law: National eJournal","volume":"415 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115984055","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Europeanization of legal scholarship and legal education facilitates the emergence of comparative legal science as a promising new tool to discover similarities and differences between two or more jurisdictions and their past development. Yet, the specific methodology of such studies is still not clear. Some legal historians hold that comparative legal history does not or should not have its own methodology other than that of comparative law. Others warn against imposing a contemporary agenda and toolbox on legal history. The author of this article aims to clarify this debate by examining the prospect of applying one of the most popular methods of comparative law – the functional method – to the domain of legal history. On the basis of several examples from the European legal past he claims that examining the functions (the social purpose) of legal norms can help legal historians in three ways: first, to determine the objects of comparison and the sources of analysis, despite the variety of verbal shortcuts (the initial stage of research); second, to analyse legal norms from the perspective of solving social problems in the past – to study the 'law in action'; and third, to arrange the results of the research according to meaningful criteria at the final stage
{"title":"The Functional Method as the Staple of Comparative Studies of European Legal History in the Early 21st Century?","authors":"D. Poldnikov","doi":"10.2139/ssrn.3127475","DOIUrl":"https://doi.org/10.2139/ssrn.3127475","url":null,"abstract":"The Europeanization of legal scholarship and legal education facilitates the emergence of comparative legal science as a promising new tool to discover similarities and differences between two or more jurisdictions and their past development. Yet, the specific methodology of such studies is still not clear. Some legal historians hold that comparative legal history does not or should not have its own methodology other than that of comparative law. Others warn against imposing a contemporary agenda and toolbox on legal history. The author of this article aims to clarify this debate by examining the prospect of applying one of the most popular methods of comparative law – the functional method – to the domain of legal history. On the basis of several examples from the European legal past he claims that examining the functions (the social purpose) of legal norms can help legal historians in three ways: first, to determine the objects of comparison and the sources of analysis, despite the variety of verbal shortcuts (the initial stage of research); second, to analyse legal norms from the perspective of solving social problems in the past – to study the 'law in action'; and third, to arrange the results of the research according to meaningful criteria at the final stage","PeriodicalId":121229,"journal":{"name":"European Public Law: National eJournal","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125553386","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The use of franchises to deliver rail services has raised major problems. Franchises restrict competition in the market, whilst competitive bidding for franchises has met with difficulties, notably in relation to risk transfer and the recent use of short‐term contracts that have not been awarded competitively. Further, franchise agreements are detailed and highly stipulative and do not achieve the flexibility and opportunities for innovation originally intended. This reflects an underlying lack of trust resulting from the arrangements adopted on privatisation. By contrast, in Sweden regional services have been procured through contracts with limited risk transfer, and in Italy provision of services has been entrusted to a dominant operator with comparatively limited detailed service specifications; both seem to have been more successful. For the future in the UK, possibilities include greater use of competition, a return to public ownership, regionalisation, and the use of concessions with limited risk transfer to secure stability.
{"title":"Rail Franchises, Competition and Public Service","authors":"Luke R. A. Butler, T. Prosser","doi":"10.1111/1468-2230.12315","DOIUrl":"https://doi.org/10.1111/1468-2230.12315","url":null,"abstract":"The use of franchises to deliver rail services has raised major problems. Franchises restrict competition in the market, whilst competitive bidding for franchises has met with difficulties, notably in relation to risk transfer and the recent use of short‐term contracts that have not been awarded competitively. Further, franchise agreements are detailed and highly stipulative and do not achieve the flexibility and opportunities for innovation originally intended. This reflects an underlying lack of trust resulting from the arrangements adopted on privatisation. By contrast, in Sweden regional services have been procured through contracts with limited risk transfer, and in Italy provision of services has been entrusted to a dominant operator with comparatively limited detailed service specifications; both seem to have been more successful. For the future in the UK, possibilities include greater use of competition, a return to public ownership, regionalisation, and the use of concessions with limited risk transfer to secure stability.","PeriodicalId":121229,"journal":{"name":"European Public Law: National eJournal","volume":"427 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115258043","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-12-29DOI: 10.14505//JARLE.V8.7(29).06
B. Derevyanko, E. Zozulya
The manuscript deals with the issues of reasonability of involuntary loss of citizenship of Ukraine and presentation of conclusions to the public, including politicians and legislators. Research was conducted using normative, sociological approaches, methods of induction and deduction, analysis and synthesis, comparison and contrast to compare the penalty of deprivation of citizenship (allegiance) in modern world with the exile from tribe at the time of primitive society and from the state in ancient times; the manuscript provides a list of benefits and privileges (with focus on civil, political, social, economic, humanitarian rights and freedoms) of the citizens of Ukraine, which, accordingly, may be lost in the event of involuntary loss of citizenship of terrorism and separatism suspects. Such measure would have a serious effect of punishment if the state guaranteed fundamental rights and freedoms of citizens of Ukraine to the extent defined by internationally recognized standards, significant economic benefits for the citizens of Ukraine, or inability to obtain citizenship of another state. Conclusion was made about the inexpediency of introduction of such penalties at the current stage of development of the economy and civil society in Ukraine.
{"title":"Controversy in Deprivation of Citizenship on Charges of Terrorism and Separatism","authors":"B. Derevyanko, E. Zozulya","doi":"10.14505//JARLE.V8.7(29).06","DOIUrl":"https://doi.org/10.14505//JARLE.V8.7(29).06","url":null,"abstract":"The manuscript deals with the issues of reasonability of involuntary loss of citizenship of Ukraine and presentation of conclusions to the public, including politicians and legislators. Research was conducted using normative, sociological approaches, methods of induction and deduction, analysis and synthesis, comparison and contrast to compare the penalty of deprivation of citizenship (allegiance) in modern world with the exile from tribe at the time of primitive society and from the state in ancient times; the manuscript provides a list of benefits and privileges (with focus on civil, political, social, economic, humanitarian rights and freedoms) of the citizens of Ukraine, which, accordingly, may be lost in the event of involuntary loss of citizenship of terrorism and separatism suspects. Such measure would have a serious effect of punishment if the state guaranteed fundamental rights and freedoms of citizens of Ukraine to the extent defined by internationally recognized standards, significant economic benefits for the citizens of Ukraine, or inability to obtain citizenship of another state. Conclusion was made about the inexpediency of introduction of such penalties at the current stage of development of the economy and civil society in Ukraine.","PeriodicalId":121229,"journal":{"name":"European Public Law: National eJournal","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127868349","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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