Pub Date : 2023-02-01DOI: 10.1177/1023263X231161017
G. Bellenghi
The ruling of the Grand Chamber of the Court of Justice in Case C-118/20 JY v. Wiener Landesregierung EU:C:2022:34 follows the judgments in Rottmann and Tjebbes. These cases concern the relationship between EU law and national citizenship. In particular, they deal with the compatibility of national authorities’ decisions on loss of nationality with the proportionality principle. The JY v. Wiener Landesregierung case highlights the contradictory nature of nationality law, which cannot be fully understood from a purely domestic perspective and yet remains within the sphere of Member States’ competences. Overall, the decision of the CJEU in JY v. Wiener Landesregierung leaves a bittersweet taste in EU lawyers’ mouths. On the one hand, the Court appears to implicitly make clear its aversion for certain national practices. In doing so, it ensures, in the case in question, a higher degree of protection of EU law-derived rights. On the other hand, the ruling does not adequately ensure sufficient safeguards for similar future cases. Finally, the Court seems to have missed a significant opportunity provided by the principle of mutual trust.
{"title":"The Court of Justice in JY v. Wiener Landesregierung: Could we expect more?","authors":"G. Bellenghi","doi":"10.1177/1023263X231161017","DOIUrl":"https://doi.org/10.1177/1023263X231161017","url":null,"abstract":"The ruling of the Grand Chamber of the Court of Justice in Case C-118/20 JY v. Wiener Landesregierung EU:C:2022:34 follows the judgments in Rottmann and Tjebbes. These cases concern the relationship between EU law and national citizenship. In particular, they deal with the compatibility of national authorities’ decisions on loss of nationality with the proportionality principle. The JY v. Wiener Landesregierung case highlights the contradictory nature of nationality law, which cannot be fully understood from a purely domestic perspective and yet remains within the sphere of Member States’ competences. Overall, the decision of the CJEU in JY v. Wiener Landesregierung leaves a bittersweet taste in EU lawyers’ mouths. On the one hand, the Court appears to implicitly make clear its aversion for certain national practices. In doing so, it ensures, in the case in question, a higher degree of protection of EU law-derived rights. On the other hand, the ruling does not adequately ensure sufficient safeguards for similar future cases. Finally, the Court seems to have missed a significant opportunity provided by the principle of mutual trust.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"30 1","pages":"83 - 94"},"PeriodicalIF":0.0,"publicationDate":"2023-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43850006","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 : 2023-02-01DOI: 10.1177/1023263X231162771
Paul Gragl
The CJEU is perceived to be a rather faceless court due to the principle of collegiality that is supposed to suppress individuality in its inner workings. This paper argues that this is not necessarily true in all cases and discusses instances wherein individual faces of the CJEU's members become discernible, in particular in their roles as President and Vice-President, respectively, the judge-rapporteur, Advocates General, single judges at the General Court, during public oral hearings, as litigants themselves, and of course in their academic publications. It also shows that judicial visibility can, in itself, certainly be construed to support the legitimacy of a court, but that it can, at the same time, also undermine its functioning, especially when judges are, as appointees, dependent on the will of their home Member State and others in the Council. Overall, it will be demonstrated that there are various situations in which individual CJEU members may emerge from an otherwise anonymous bench and play important judicial roles as individuals, thus rebutting the long-standing presumption that the CJEU is a faceless court.
{"title":"The faceless court? The role of individual CJEU members","authors":"Paul Gragl","doi":"10.1177/1023263X231162771","DOIUrl":"https://doi.org/10.1177/1023263X231162771","url":null,"abstract":"The CJEU is perceived to be a rather faceless court due to the principle of collegiality that is supposed to suppress individuality in its inner workings. This paper argues that this is not necessarily true in all cases and discusses instances wherein individual faces of the CJEU's members become discernible, in particular in their roles as President and Vice-President, respectively, the judge-rapporteur, Advocates General, single judges at the General Court, during public oral hearings, as litigants themselves, and of course in their academic publications. It also shows that judicial visibility can, in itself, certainly be construed to support the legitimacy of a court, but that it can, at the same time, also undermine its functioning, especially when judges are, as appointees, dependent on the will of their home Member State and others in the Council. Overall, it will be demonstrated that there are various situations in which individual CJEU members may emerge from an otherwise anonymous bench and play important judicial roles as individuals, thus rebutting the long-standing presumption that the CJEU is a faceless court.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"30 1","pages":"15 - 44"},"PeriodicalIF":0.0,"publicationDate":"2023-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44375090","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 : 2023-02-01DOI: 10.1177/1023263X231186288
M. Bonelli, M. Claes
The publication on the Official Journal of the European Union of the text of an infringement procedure pending before the Court of Justice is rarely – if ever a moment that triggers the attention of the EU law scholars’ community. Case C-769/22 Commission v Hungary is however the exception to the rule. The published text of the action reveals that, for the first time, the Commission has directly relied on Article 2 TEU, the provision proclaiming democracy, the rule of law and human rights as the ‘founding values’ of the European Union, in an infringement procedure before the Court. To be more precise, the claim of the Commission is that the Court should declare that ‘by adopting the legislation cited in the first paragraph, Hungary has infringed Article 2 TEU’. The piece of legislation in question is the 2021 Hungarian law ‘adopting stricter measures against persons convicted of pedophilia and amending certain law for the protection of children’. The Commission’s framing of the infringement procedure has already captured the attention of many commentators, and rightly so. This could indeed be a landmark case: the question of the
{"title":"Crossing the Rubicon? The Commission’s use of Article 2 TEU in the infringement action on LGBTIQ+ rights in Hungary","authors":"M. Bonelli, M. Claes","doi":"10.1177/1023263X231186288","DOIUrl":"https://doi.org/10.1177/1023263X231186288","url":null,"abstract":"The publication on the Official Journal of the European Union of the text of an infringement procedure pending before the Court of Justice is rarely – if ever a moment that triggers the attention of the EU law scholars’ community. Case C-769/22 Commission v Hungary is however the exception to the rule. The published text of the action reveals that, for the first time, the Commission has directly relied on Article 2 TEU, the provision proclaiming democracy, the rule of law and human rights as the ‘founding values’ of the European Union, in an infringement procedure before the Court. To be more precise, the claim of the Commission is that the Court should declare that ‘by adopting the legislation cited in the first paragraph, Hungary has infringed Article 2 TEU’. The piece of legislation in question is the 2021 Hungarian law ‘adopting stricter measures against persons convicted of pedophilia and amending certain law for the protection of children’. The Commission’s framing of the infringement procedure has already captured the attention of many commentators, and rightly so. This could indeed be a landmark case: the question of the","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"30 1","pages":"3 - 14"},"PeriodicalIF":0.0,"publicationDate":"2023-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42427352","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 : 2023-02-01DOI: 10.1177/1023263X231176908
E. Loibl, Suzan van der Aa, M. Hendriks-Lundh, Roel Niemark
There is currently no empirical evidence on whether or not the use of childlike sex dolls would prevent or encourage sexual abuse of children. Yet, more and more countries prohibit or contemplate prohibiting these objects, and the EU Commission also announced it would consider this issue in the context of the fight against child sexual abuse. This article describes and compares the laws and policies of five countries in which childlike sex dolls are currently banned: Australia, Germany, Denmark, Norway and the UK. These countries have adopted different approaches to dealing with the newly emerging phenomenon of childlike sex dolls: While in Australia, Germany and Denmark dedicated laws prohibiting these dolls are introduced, in Norway and the UK existing laws are applied to these objects. By juxtaposing and critically assessing the different approaches to prohibiting childlike sex dolls, the article aims to inspire and guide other countries that also contemplate legislative action in this context.
{"title":"Exploring different national approaches to prohibiting childlike sex dolls","authors":"E. Loibl, Suzan van der Aa, M. Hendriks-Lundh, Roel Niemark","doi":"10.1177/1023263X231176908","DOIUrl":"https://doi.org/10.1177/1023263X231176908","url":null,"abstract":"There is currently no empirical evidence on whether or not the use of childlike sex dolls would prevent or encourage sexual abuse of children. Yet, more and more countries prohibit or contemplate prohibiting these objects, and the EU Commission also announced it would consider this issue in the context of the fight against child sexual abuse. This article describes and compares the laws and policies of five countries in which childlike sex dolls are currently banned: Australia, Germany, Denmark, Norway and the UK. These countries have adopted different approaches to dealing with the newly emerging phenomenon of childlike sex dolls: While in Australia, Germany and Denmark dedicated laws prohibiting these dolls are introduced, in Norway and the UK existing laws are applied to these objects. By juxtaposing and critically assessing the different approaches to prohibiting childlike sex dolls, the article aims to inspire and guide other countries that also contemplate legislative action in this context.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"30 1","pages":"63 - 82"},"PeriodicalIF":0.0,"publicationDate":"2023-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44958964","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 : 2022-12-01DOI: 10.1177/1023263X221146465
Serhii Lashyn
This case note reports on the judgment of the Court of Justice in case C-673/20 EP. The decision clarified that British nationals lost their EU citizenship status following the UK's withdrawal from the Union. After giving an overview of the facts of the case and summarizing the opinion of AG Collins and the Court's reasoning, this contribution critically engages with the judgment and reflects on its place in the Court's jurisprudence on Union citizenship.
{"title":"Sacrificing EU citizenship on the altar of Brexit","authors":"Serhii Lashyn","doi":"10.1177/1023263X221146465","DOIUrl":"https://doi.org/10.1177/1023263X221146465","url":null,"abstract":"This case note reports on the judgment of the Court of Justice in case C-673/20 EP. The decision clarified that British nationals lost their EU citizenship status following the UK's withdrawal from the Union. After giving an overview of the facts of the case and summarizing the opinion of AG Collins and the Court's reasoning, this contribution critically engages with the judgment and reflects on its place in the Court's jurisprudence on Union citizenship.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"736 - 744"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44524469","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 : 2022-12-01DOI: 10.1177/1023263X231154151
Witold Borysiak
The article looks at the problem of tort liability for a failure to render assistance and compares the legal approaches to this issue. There are no European legal systems that regulate such a duty to render assistance directly in the provisions of private law. This is generally because most of them (with the exception of common law countries) have criminal law provisions that penalize a failure to rescue another person in need of assistance. This raises the question of the impact of criminal law on liability in private law. The paper discusses this issue in detail, accepting the opinion that, in those legal systems where a failure to render assistance is punishable as a criminal offence, the provisions of criminal law should determine the conditions and prerequisites for rendering assistance in private law and establish the boundaries of liability in tort law. In addition, the article aims to present universal guidelines that might be useful for courts in order to establish tort liability in other cases of a failure to render assistance.
{"title":"Tort liability for a failure to render assistance in a comparative perspective","authors":"Witold Borysiak","doi":"10.1177/1023263X231154151","DOIUrl":"https://doi.org/10.1177/1023263X231154151","url":null,"abstract":"The article looks at the problem of tort liability for a failure to render assistance and compares the legal approaches to this issue. There are no European legal systems that regulate such a duty to render assistance directly in the provisions of private law. This is generally because most of them (with the exception of common law countries) have criminal law provisions that penalize a failure to rescue another person in need of assistance. This raises the question of the impact of criminal law on liability in private law. The paper discusses this issue in detail, accepting the opinion that, in those legal systems where a failure to render assistance is punishable as a criminal offence, the provisions of criminal law should determine the conditions and prerequisites for rendering assistance in private law and establish the boundaries of liability in tort law. In addition, the article aims to present universal guidelines that might be useful for courts in order to establish tort liability in other cases of a failure to render assistance.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"648 - 666"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48947074","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 : 2022-12-01DOI: 10.1177/1023263X231158219
Pieterjan Heynen
The European Central Bank (ECB) has recently launched several initiatives in order to integrate climate-related actions under its monetary policy and banking supervision tasks. The ECB ‘going green’ has sparked debate among legal scholars and central bankers. What has been left untouched, however, is how climate-related action relates to the current organizational structure within which the ECB executes its two main tasks. The SSM Regulation has installed a Chinese Wall between these matters, which have to be conducted in ‘complete separation’ from one another. This article questions this structure in the light of the ECB's climate-related efforts. What are the implications of climate change and the ECB's climate-related actions for the interrelationship between monetary policy and banking supervision? The consequences of climate change are likely to be omnipresent, and will produce effects reaching far beyond specific policy areas. In such a context, the ECB could benefit from more coordination and monitoring of what is decided under each task instead of carrying them out in isolation from each other. It will be argued that climate-related action has triggered an coordinative evolution within the ECB, leading to and more awareness on how monetary policy and banking supervision are inherently intertwined.
{"title":"The ECB going green: Impact on the interrelationship between monetary policy and banking supervision?","authors":"Pieterjan Heynen","doi":"10.1177/1023263X231158219","DOIUrl":"https://doi.org/10.1177/1023263X231158219","url":null,"abstract":"The European Central Bank (ECB) has recently launched several initiatives in order to integrate climate-related actions under its monetary policy and banking supervision tasks. The ECB ‘going green’ has sparked debate among legal scholars and central bankers. What has been left untouched, however, is how climate-related action relates to the current organizational structure within which the ECB executes its two main tasks. The SSM Regulation has installed a Chinese Wall between these matters, which have to be conducted in ‘complete separation’ from one another. This article questions this structure in the light of the ECB's climate-related efforts. What are the implications of climate change and the ECB's climate-related actions for the interrelationship between monetary policy and banking supervision? The consequences of climate change are likely to be omnipresent, and will produce effects reaching far beyond specific policy areas. In such a context, the ECB could benefit from more coordination and monitoring of what is decided under each task instead of carrying them out in isolation from each other. It will be argued that climate-related action has triggered an coordinative evolution within the ECB, leading to and more awareness on how monetary policy and banking supervision are inherently intertwined.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"667 - 684"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41602709","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 : 2022-12-01DOI: 10.1177/1023263X231158488
V. Breda, Matteo Frau
In Lee v. United Kingdom, the European Court of Human Rights left gay people partially unprotected against discrimination in commercial transactions in the United Kingdom and, by analogy, in other legal systems, such as the Italian system, where such protection is absent. In this article, it will be argued that the lack of substantive engagement by the European Court of Human Rights should be considered a missed opportunity for the development of European legal systems that do not grant full anti-discrimination protection to gay people.
{"title":"The gay cake controversy in the United Kingdom and Italian inertia","authors":"V. Breda, Matteo Frau","doi":"10.1177/1023263X231158488","DOIUrl":"https://doi.org/10.1177/1023263X231158488","url":null,"abstract":"In Lee v. United Kingdom, the European Court of Human Rights left gay people partially unprotected against discrimination in commercial transactions in the United Kingdom and, by analogy, in other legal systems, such as the Italian system, where such protection is absent. In this article, it will be argued that the lack of substantive engagement by the European Court of Human Rights should be considered a missed opportunity for the development of European legal systems that do not grant full anti-discrimination protection to gay people.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"708 - 725"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43150770","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 : 2022-12-01DOI: 10.1177/1023263X231154157
A. Koukoulis
This contribution analyses the recent judgment of the European Court of Human Rights in Paparrigopoulos v. Greece and examines its implications for cross-border surrogacy in Europe. This judgment is significant because it sets new standards in terms of the concept of discrimination between parents under Article 14 of the European Convention on Human Rights read in conjunction with Article 8 (right to respect for private and family life). The Court held that there was no reasonable relationship of proportionality between the preclusion of the applicant's exercise of parental responsibility and the aim pursued, which had been to protect the best interests of children born out of wedlock. Finally, this case note critiques the Court's findings and examines its likely impact on the parental care of the child, who was born and remains unmarried by his parents.
{"title":"The exercise of parental care of children born out of wedlock and the ECtHR: Reflections on Paparrigopoulos v. Greece","authors":"A. Koukoulis","doi":"10.1177/1023263X231154157","DOIUrl":"https://doi.org/10.1177/1023263X231154157","url":null,"abstract":"This contribution analyses the recent judgment of the European Court of Human Rights in Paparrigopoulos v. Greece and examines its implications for cross-border surrogacy in Europe. This judgment is significant because it sets new standards in terms of the concept of discrimination between parents under Article 14 of the European Convention on Human Rights read in conjunction with Article 8 (right to respect for private and family life). The Court held that there was no reasonable relationship of proportionality between the preclusion of the applicant's exercise of parental responsibility and the aim pursued, which had been to protect the best interests of children born out of wedlock. Finally, this case note critiques the Court's findings and examines its likely impact on the parental care of the child, who was born and remains unmarried by his parents.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"745 - 751"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47232737","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 : 2022-12-01DOI: 10.1177/1023263X221148419
Tomáš Buchta
The process of the selection of the seats of an EU agency has been an intergovernmental decision-making between the EU Member States, in most cases separated from the EU legislative process related to the establishment and functioning of the agency. The Court of Justice had a possibility to assess the legality of this hybrid process and decided that the power to determine the seat of EU agency belongs solely to the EU co-legislators. The three judgments in five cases contain several contentious points regarding the interpretation of Article 341 TFEU, which will be analyzed in this case note. In addition, its purpose will be also to assess the implications of the judgments to future decision-making process related to the selection of seats of EU agencies.
{"title":"Judgments on the selection of the seats of EU agencies: Challenges and what will change","authors":"Tomáš Buchta","doi":"10.1177/1023263X221148419","DOIUrl":"https://doi.org/10.1177/1023263X221148419","url":null,"abstract":"The process of the selection of the seats of an EU agency has been an intergovernmental decision-making between the EU Member States, in most cases separated from the EU legislative process related to the establishment and functioning of the agency. The Court of Justice had a possibility to assess the legality of this hybrid process and decided that the power to determine the seat of EU agency belongs solely to the EU co-legislators. The three judgments in five cases contain several contentious points regarding the interpretation of Article 341 TFEU, which will be analyzed in this case note. In addition, its purpose will be also to assess the implications of the judgments to future decision-making process related to the selection of seats of EU agencies.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"726 - 735"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43043654","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：