{"title":"GLJ volume 24 issue 3 Cover and Front matter","authors":"","doi":"10.1017/glj.2023.36","DOIUrl":"https://doi.org/10.1017/glj.2023.36","url":null,"abstract":"","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":" ","pages":"f1 - f3"},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46093063","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}
Abstract The European Green Deal and the European Climate Law highlight the EU’s commitment to strive for carbon neutrality. Considering the magnitude of the global challenge, it is evident that a green transition will not succeed without the efforts of every sector, including financial institutions. Concerns have been raised that central banks may, in fact, contribute to the increase of greenhouse gas emissions and, in consequence, aggravate global warming. This all has currently resulted in a rapid expansion of the debate on the potential role of central banks, and in particular the ECB, to consider climate objectives. In the European context, however, it is often argued that environmental sustainability lies outside the ECB’s traditional core mandate to focus on price stability. This article aims to introduce the environmental integration principle, laid down in Article 11 TFEU, in the ECB’s legal framework, and provide an analysis of the possibilities for and limitations to the greening of the ECB's monetary policy based on this provision. Although Article 11 TFEU has great potential with regards to the greening of sectoral policies, in legal literature, the provision has not gained enough academic attention in terms of the financial sector.
{"title":"The Role of Article 11 TFEU in the Greening of the ECB’s Monetary Policy","authors":"Christian Calliess, Ebru Tuncel","doi":"10.1017/glj.2023.17","DOIUrl":"https://doi.org/10.1017/glj.2023.17","url":null,"abstract":"Abstract The European Green Deal and the European Climate Law highlight the EU’s commitment to strive for carbon neutrality. Considering the magnitude of the global challenge, it is evident that a green transition will not succeed without the efforts of every sector, including financial institutions. Concerns have been raised that central banks may, in fact, contribute to the increase of greenhouse gas emissions and, in consequence, aggravate global warming. This all has currently resulted in a rapid expansion of the debate on the potential role of central banks, and in particular the ECB, to consider climate objectives. In the European context, however, it is often argued that environmental sustainability lies outside the ECB’s traditional core mandate to focus on price stability. This article aims to introduce the environmental integration principle, laid down in Article 11 TFEU, in the ECB’s legal framework, and provide an analysis of the possibilities for and limitations to the greening of the ECB's monetary policy based on this provision. Although Article 11 TFEU has great potential with regards to the greening of sectoral policies, in legal literature, the provision has not gained enough academic attention in terms of the financial sector.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"24 1","pages":"796 - 824"},"PeriodicalIF":1.3,"publicationDate":"2023-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45540664","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}
{"title":"Doctrinal Methodology in EU Administrative Law: Confronting the “Touch of Stateness” – CORRIGENDUM","authors":"Filipe Brito Bastos","doi":"10.1017/glj.2023.22","DOIUrl":"https://doi.org/10.1017/glj.2023.22","url":null,"abstract":"","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"24 1","pages":"939 - 939"},"PeriodicalIF":1.3,"publicationDate":"2023-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46290130","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}
Abstract This article argues that the European Central Bank (ECB), supported by the Court of Justice of the European Union (CJEU), can be perceived to have functionally softened the no sovereign lender of last resort (LOLR) rule originally implied by Articles 123 and 125 of the Treaty on the Functioning of the European Union (TFEU) towards a rule-with-exceptions and, increasingly, towards a presumption: The ECB will act as sovereign LOLR to a constituent Member unless and until that Member is insolvent or unwilling to cooperate with measures designed to restore market confidence. This functional moderation of a rule, from an ex ante specification of an outcome towards the exercise of greater choice at the point of application, carries with it contentious normative questions. To motivate discussion thereof beyond a largely ahistorical, non-indexical, rules versus discretion debate, the rules of the currency union are located within the genealogy of international exchange rate regimes. The “convertibility” rule of the gold standard and the “parity” rule of the Bretton Woods system are contrasted with their Eurozone equivalent. A consequentialist standpoint is sketched out from which the interventions of the ECB, in light of their available alternatives, appear broadly consistent with welfarist cost-benefit analysis and less normatively worrisome than by reference to evaluative criteria that emphasize a narrowly rule-bound conception of the rule of law.
{"title":"The Sovereign Lender of Last Resort Role of the ECB: Rules, Choice, and Time","authors":"David Quinn","doi":"10.1017/glj.2023.21","DOIUrl":"https://doi.org/10.1017/glj.2023.21","url":null,"abstract":"Abstract This article argues that the European Central Bank (ECB), supported by the Court of Justice of the European Union (CJEU), can be perceived to have functionally softened the no sovereign lender of last resort (LOLR) rule originally implied by Articles 123 and 125 of the Treaty on the Functioning of the European Union (TFEU) towards a rule-with-exceptions and, increasingly, towards a presumption: The ECB will act as sovereign LOLR to a constituent Member unless and until that Member is insolvent or unwilling to cooperate with measures designed to restore market confidence. This functional moderation of a rule, from an ex ante specification of an outcome towards the exercise of greater choice at the point of application, carries with it contentious normative questions. To motivate discussion thereof beyond a largely ahistorical, non-indexical, rules versus discretion debate, the rules of the currency union are located within the genealogy of international exchange rate regimes. The “convertibility” rule of the gold standard and the “parity” rule of the Bretton Woods system are contrasted with their Eurozone equivalent. A consequentialist standpoint is sketched out from which the interventions of the ECB, in light of their available alternatives, appear broadly consistent with welfarist cost-benefit analysis and less normatively worrisome than by reference to evaluative criteria that emphasize a narrowly rule-bound conception of the rule of law.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"24 1","pages":"759 - 795"},"PeriodicalIF":1.3,"publicationDate":"2023-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45366965","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}
Abstract The recent years saw the rise in discourse to undo the liberal-democratic amendments introduced between 1999 and 2002 and restore the Indonesian 1945 Constitution to its original 1945 version. Some Indonesian public figures believe that these amendments are not legitimate, because they are deemed to have eliminated the basic values of the original 1945 Constitution which was built on the “integralist” concept as propounded by its main architect Soepomo. According to the integralist conception, the state should be seen as a family in which the government played a role as a wise father who can bring its people to the right choice. This article seeks to prove that these amendments are legitimate although they constitute a “dismemberment” of the original 1945 Constitution. This is because the original 1945 Constitution was formed only by a handful of elites in an institution established by the Japanese occupying power in early 1945. By contrast, the Majelis Permusyawaratan Rakyat (People’s Consultative Assembly) who was in charge of the four amendments to the 1945 Constitution had a greater democratic legitimacy compared to the drafters of the original Constitution given that they were elected through the 1999 elections. Furthermore, the original 1945 Constitution was never intended to operate beyond the Indonesian revolutionary period, which ended in 1949. It was expected that the document be significantly changed or even replaced by the People’s Consultative Assembly through the amendment process.
{"title":"Restoring Indonesia’s (Un)Constitutional Constitution: Soepomo’s Authoritarian Constitution","authors":"Abdurrachman Satrio","doi":"10.1017/glj.2023.16","DOIUrl":"https://doi.org/10.1017/glj.2023.16","url":null,"abstract":"Abstract The recent years saw the rise in discourse to undo the liberal-democratic amendments introduced between 1999 and 2002 and restore the Indonesian 1945 Constitution to its original 1945 version. Some Indonesian public figures believe that these amendments are not legitimate, because they are deemed to have eliminated the basic values of the original 1945 Constitution which was built on the “integralist” concept as propounded by its main architect Soepomo. According to the integralist conception, the state should be seen as a family in which the government played a role as a wise father who can bring its people to the right choice. This article seeks to prove that these amendments are legitimate although they constitute a “dismemberment” of the original 1945 Constitution. This is because the original 1945 Constitution was formed only by a handful of elites in an institution established by the Japanese occupying power in early 1945. By contrast, the Majelis Permusyawaratan Rakyat (People’s Consultative Assembly) who was in charge of the four amendments to the 1945 Constitution had a greater democratic legitimacy compared to the drafters of the original Constitution given that they were elected through the 1999 elections. Furthermore, the original 1945 Constitution was never intended to operate beyond the Indonesian revolutionary period, which ended in 1949. It was expected that the document be significantly changed or even replaced by the People’s Consultative Assembly through the amendment process.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"24 1","pages":"402 - 416"},"PeriodicalIF":1.3,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46208411","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}
Abstract This study analyzes empirically how 236 German court decisions assess the credibility of asylum seekers’ accounts of their persecution. In their reasoning, the courts rely on generally accepted content-based credibility criteria, including consistency, level of detail, and timeliness of the claim. But they also rely on conduct-based criteria, which have been resoundingly discredited in the relevant scientific literature. Too rarely, the courts considered confounding factors such as cultural distance or interpreter mistakes. They need to be more aware of their duty to confront applicants with negative credibility criteria. Article 4 (5) Qualification Directive played no role whatsoever in the sample analyzed in this study, which can be explained by specifics of German asylum law. The human judgment that is required in the balancing of credibility criteria and confounding factors is problematic for its subjectivity but unavoidable. Attempts at replacing this human credibility assessment with seemingly objective technical means have led to arbitrary decisions and encroached gravely on applicants’ human rights. While the credibility assessment procedure employed in German courts is far from flawless, it can produce convincing decisions. It should be further refined and provided with safeguards to arrive at decisions that are as rational and objective as possible.
{"title":"An Empirical Analysis of Credibility Assessment in German Asylum Cases","authors":"Björnstjern Baade, Leah Gölz","doi":"10.1017/glj.2023.15","DOIUrl":"https://doi.org/10.1017/glj.2023.15","url":null,"abstract":"Abstract This study analyzes empirically how 236 German court decisions assess the credibility of asylum seekers’ accounts of their persecution. In their reasoning, the courts rely on generally accepted content-based credibility criteria, including consistency, level of detail, and timeliness of the claim. But they also rely on conduct-based criteria, which have been resoundingly discredited in the relevant scientific literature. Too rarely, the courts considered confounding factors such as cultural distance or interpreter mistakes. They need to be more aware of their duty to confront applicants with negative credibility criteria. Article 4 (5) Qualification Directive played no role whatsoever in the sample analyzed in this study, which can be explained by specifics of German asylum law. The human judgment that is required in the balancing of credibility criteria and confounding factors is problematic for its subjectivity but unavoidable. Attempts at replacing this human credibility assessment with seemingly objective technical means have led to arbitrary decisions and encroached gravely on applicants’ human rights. While the credibility assessment procedure employed in German courts is far from flawless, it can produce convincing decisions. It should be further refined and provided with safeguards to arrive at decisions that are as rational and objective as possible.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"24 1","pages":"310 - 341"},"PeriodicalIF":1.3,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47354935","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}
Abstract As homo socius, the man lives in a community. Because the law deals with relationships between people, it is necessary to know the fundamental characteristics of these relationships, which are established in a community between people. Because all major social changes involve crowds, legislation and regulation must know how to address collectives, how they are influenced, how collective emotions are formed, and how they can effectively deal with external behavior in and between groups. This Article presents basic elements of crowds that should be included in legal decisions, especially in general ones. The Article shows potential applications of crowd elements in the law presented as a systemic arrangement of complex adaptive systems that can be reflected in the determination of public opinion through crowds. When a legal system in the right meaning of the word “system” determines public opinion and implements actions through crowds, it could be more effective and efficient and thus also more legitimate.
{"title":"Missing Links Between Crowds and Law","authors":"Mirko Pečarič","doi":"10.1017/glj.2023.14","DOIUrl":"https://doi.org/10.1017/glj.2023.14","url":null,"abstract":"Abstract As homo socius, the man lives in a community. Because the law deals with relationships between people, it is necessary to know the fundamental characteristics of these relationships, which are established in a community between people. Because all major social changes involve crowds, legislation and regulation must know how to address collectives, how they are influenced, how collective emotions are formed, and how they can effectively deal with external behavior in and between groups. This Article presents basic elements of crowds that should be included in legal decisions, especially in general ones. The Article shows potential applications of crowd elements in the law presented as a systemic arrangement of complex adaptive systems that can be reflected in the determination of public opinion through crowds. When a legal system in the right meaning of the word “system” determines public opinion and implements actions through crowds, it could be more effective and efficient and thus also more legitimate.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"24 1","pages":"417 - 434"},"PeriodicalIF":1.3,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48855428","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}
{"title":"GLJ volume 24 issue 2 Cover and Front matter","authors":"","doi":"10.1017/glj.2023.23","DOIUrl":"https://doi.org/10.1017/glj.2023.23","url":null,"abstract":"","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"24 1","pages":"f1 - f2"},"PeriodicalIF":1.3,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43598842","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 article considers the structural barriers that exist for individuals to hold the EU responsible for violations of human rights abuses in its CSDP missions, despite the theoretical availability of a framework for remedies. This is a result of jurisdictional complications with CFSP/CDSP measures, attribution difficulties, and ambiguity in what constitutes unlawful human rights conduct. While alternative measures exist to compensate individuals for violation of their rights, these do not align with the often-stated right to an effective remedy within the EU. As such, this Article argues that the field requires serious reform in order to ensure that legal relief for individuals against unlawful conduct by the EU is an effective and enforceable right.
{"title":"Effective Remedies for Human Rights Violations in EU CSDP Military Missions: Smoke and Mirrors in Human Rights Adjudication?","authors":"Joyce De Coninck","doi":"10.1017/glj.2023.19","DOIUrl":"https://doi.org/10.1017/glj.2023.19","url":null,"abstract":"\u0000 This article considers the structural barriers that exist for individuals to hold the EU responsible for violations of human rights abuses in its CSDP missions, despite the theoretical availability of a framework for remedies. This is a result of jurisdictional complications with CFSP/CDSP measures, attribution difficulties, and ambiguity in what constitutes unlawful human rights conduct. While alternative measures exist to compensate individuals for violation of their rights, these do not align with the often-stated right to an effective remedy within the EU. As such, this Article argues that the field requires serious reform in order to ensure that legal relief for individuals against unlawful conduct by the EU is an effective and enforceable right.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"24 1","pages":"342 - 363"},"PeriodicalIF":1.3,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42639102","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}
Abstract The two widely used dichotomies of floor/ceiling and centralization/decentralization often fail to capture the full interactions of rights in multilevel constitutional systems such as the EU or the US. This article offers a comprehensive yet straightforward classification linking rights to the division of power between the center and component states. The typology comprises three overarching categories: plurality, partial and full centrality. These categories are broken down into further subcategories and illustrated through comparative examples from the EU and the US. The typology reveals mezzanine structural levels which go unnoticed when analysis is confined to existing dichotomies. The purpose of the typology is, first, to facilitate more accurate comparisons of the EU and the US’s composite systems and make commonalities and divergences easier to identify. Second, through the ensuing clarity, it aids the normative inquiry into what level of government—the center or the state—is better suited to regulate different types of rights and to what extent. Thirdly, it reconnects the EU-US comparison with comparative constitutionalism’s Aristotelian pedigree of utilizing robust categorization as a necessary cognitive tool for maintaining rationally ordered analyses.
{"title":"Beyond Incomplete Dichotomies: A Structural Typology of Dual Rights in the EU and the US","authors":"Mohamed Moussa","doi":"10.1017/glj.2023.18","DOIUrl":"https://doi.org/10.1017/glj.2023.18","url":null,"abstract":"Abstract The two widely used dichotomies of floor/ceiling and centralization/decentralization often fail to capture the full interactions of rights in multilevel constitutional systems such as the EU or the US. This article offers a comprehensive yet straightforward classification linking rights to the division of power between the center and component states. The typology comprises three overarching categories: plurality, partial and full centrality. These categories are broken down into further subcategories and illustrated through comparative examples from the EU and the US. The typology reveals mezzanine structural levels which go unnoticed when analysis is confined to existing dichotomies. The purpose of the typology is, first, to facilitate more accurate comparisons of the EU and the US’s composite systems and make commonalities and divergences easier to identify. Second, through the ensuing clarity, it aids the normative inquiry into what level of government—the center or the state—is better suited to regulate different types of rights and to what extent. Thirdly, it reconnects the EU-US comparison with comparative constitutionalism’s Aristotelian pedigree of utilizing robust categorization as a necessary cognitive tool for maintaining rationally ordered analyses.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"24 1","pages":"364 - 384"},"PeriodicalIF":1.3,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49514449","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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