Pub Date : 2022-12-01DOI: 10.1177/1023263x231160067
U. Šadl
The European Society for Empirical Legal Studies (ESELS) was established on 1 September 2022, in Amsterdam. Its goal is to promote a constructive conversation among legal scholars involved in empirical legal research (in the broadest sense), primarily relevant to Europe and European jurisdictions, and organize an annual conference. The first conference was held on the same date. The call for papers invited scholars to submit their work using qualitative and/or quantitative methods about the assumptions, the functioning, and the impact of the law. The aim of the conference was to create a unique place for empirical legal scholars to engage, present, and discuss their results. For full disclosure, I delivered one of the plenary addresses and I am one of the founding members. In this short editorial, I reflect on ESELS’s commitment to foster a methodologically pluralist, intellectually open, and disciplinary inclusive academic culture, and, in connection with that, wonder about the character of European empirical legal research. The former gives legal scholars a unique opportunity to reinvigorate their discipline under one label. The latter intrigues me, particularly on the question of whether ESELS can develop a healthy relationship with its mother discipline – the doctrinal legal research, and whether it will promote or frustrate the fledgling and ongoing conversations between law and economics, law and political science, and so on. These relationships, I sense, might be the key determinants of ESELS’s institutional and scientific success. The topic(s) (re-)occur to me at the time when ESELS’s contemporary, the extremely successful Society for Empirical Legal Studies (SELS), is holding its 16 Annual Conference at the
{"title":"Who needs the European Society for Empirical Legal Studies?","authors":"U. Šadl","doi":"10.1177/1023263x231160067","DOIUrl":"https://doi.org/10.1177/1023263x231160067","url":null,"abstract":"The European Society for Empirical Legal Studies (ESELS) was established on 1 September 2022, in Amsterdam. Its goal is to promote a constructive conversation among legal scholars involved in empirical legal research (in the broadest sense), primarily relevant to Europe and European jurisdictions, and organize an annual conference. The first conference was held on the same date. The call for papers invited scholars to submit their work using qualitative and/or quantitative methods about the assumptions, the functioning, and the impact of the law. The aim of the conference was to create a unique place for empirical legal scholars to engage, present, and discuss their results. For full disclosure, I delivered one of the plenary addresses and I am one of the founding members. In this short editorial, I reflect on ESELS’s commitment to foster a methodologically pluralist, intellectually open, and disciplinary inclusive academic culture, and, in connection with that, wonder about the character of European empirical legal research. The former gives legal scholars a unique opportunity to reinvigorate their discipline under one label. The latter intrigues me, particularly on the question of whether ESELS can develop a healthy relationship with its mother discipline – the doctrinal legal research, and whether it will promote or frustrate the fledgling and ongoing conversations between law and economics, law and political science, and so on. These relationships, I sense, might be the key determinants of ESELS’s institutional and scientific success. The topic(s) (re-)occur to me at the time when ESELS’s contemporary, the extremely successful Society for Empirical Legal Studies (SELS), is holding its 16 Annual Conference at the","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"643 - 647"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48781657","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: 10.1177/1023263X231158489
Giulia Gentile
The EU general principle of effective judicial protection is the epitome of the EU liberal-constitutionalism. The creative force of this principle has emerged, among others, in connection with the protection of the rule of law and the introduction of procedural guarantees both at the national and EU level. It is well established that effective judicial protection stems from the ECHR and the constitutional traditions common to the Member States. While existing scholarship has explored the influence of the ECHR over the development of this principle, less attention was paid to the impact of constitutional traditions from the Member States. Yet, exploring the role of constitutional traditions in shaping effective judicial protection, the primus inter pares among the general principles of EU law, goes at the heart of the conundrum of the EU: the latter is an autonomous legal system, which is inevitably shaped by the legal concepts and traditions existing in the Member States. This exploration is particularly timely. Some Member States affected by the rule-of-law backsliding have recently invoked constitutional traditions on judicial protection to delimit the application of EU standards of effective judicial protection, thus questioning the relationship between the EU principle and national conceptions of judicial protection.
{"title":"Autonomous but interdependent: Constitutional traditions on judicial protection and the general principle of effective judicial protection","authors":"Giulia Gentile","doi":"10.1177/1023263X231158489","DOIUrl":"https://doi.org/10.1177/1023263X231158489","url":null,"abstract":"The EU general principle of effective judicial protection is the epitome of the EU liberal-constitutionalism. The creative force of this principle has emerged, among others, in connection with the protection of the rule of law and the introduction of procedural guarantees both at the national and EU level. It is well established that effective judicial protection stems from the ECHR and the constitutional traditions common to the Member States. While existing scholarship has explored the influence of the ECHR over the development of this principle, less attention was paid to the impact of constitutional traditions from the Member States. Yet, exploring the role of constitutional traditions in shaping effective judicial protection, the primus inter pares among the general principles of EU law, goes at the heart of the conundrum of the EU: the latter is an autonomous legal system, which is inevitably shaped by the legal concepts and traditions existing in the Member States. This exploration is particularly timely. Some Member States affected by the rule-of-law backsliding have recently invoked constitutional traditions on judicial protection to delimit the application of EU standards of effective judicial protection, thus questioning the relationship between the EU principle and national conceptions of judicial protection.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"685 - 707"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45297146","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 : 2022-10-01DOI: 10.1177/1023263X221135473
B. van der Sloot
The European Court of Human Rights (ECtHR) is composed of one judge per country that has ratified the European Convention on Human Rights (ECHR). When a case is brought against a country, that country has the privilege to have ‘its’ judge take seat ex officio. When the elected judge is unable to sit ex officio, the country may propose an ad hoc judge. Ad hoc judges do not need to pass the normal test of scrutiny as to their competence and impartiality, allowing governments to propose pro-government candidates in politically sensitive cases. Consequently, academic literature, legal practice and even judges of the Court have voiced concerns over the neutrality and quality of ad hoc judges. Changes have been made to the Convention mechanism and further changes are called for to ensure the neutrality of ad hoc judges. By doing statistical analysis, this article suggests that the actual voting behaviour of ad hoc judges may not be so problematic as sometimes suggested. This may be relevant for a decision to introduce further changes to the Convention mechanism and the extent of those potential revisions.
{"title":"The ad hoc judge: A rehabilitation","authors":"B. van der Sloot","doi":"10.1177/1023263X221135473","DOIUrl":"https://doi.org/10.1177/1023263X221135473","url":null,"abstract":"The European Court of Human Rights (ECtHR) is composed of one judge per country that has ratified the European Convention on Human Rights (ECHR). When a case is brought against a country, that country has the privilege to have ‘its’ judge take seat ex officio. When the elected judge is unable to sit ex officio, the country may propose an ad hoc judge. Ad hoc judges do not need to pass the normal test of scrutiny as to their competence and impartiality, allowing governments to propose pro-government candidates in politically sensitive cases. Consequently, academic literature, legal practice and even judges of the Court have voiced concerns over the neutrality and quality of ad hoc judges. Changes have been made to the Convention mechanism and further changes are called for to ensure the neutrality of ad hoc judges. By doing statistical analysis, this article suggests that the actual voting behaviour of ad hoc judges may not be so problematic as sometimes suggested. This may be relevant for a decision to introduce further changes to the Convention mechanism and the extent of those potential revisions.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"572 - 595"},"PeriodicalIF":0.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45874832","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 : 2022-10-01DOI: 10.1177/1023263X221138957
V. Stoyanova
Temporariness of refugee protection has started to emerge as a new standard in the policies of European countries. Given this development, the article focuses on one specific issue related to this temporariness: how refugee status intertwines with the conditions for the granting, revocation and prolongation of national residence permits. What are the interconnections between refugee status, including its cessation and revocation, on the one hand, and national residence permits and their revocation and prolongation, on the other? How are these interconnections regulated by international law, EU law and national law (with Sweden as an example)? Inaddition to the detailed analysis of the relevant legal norms, the article situates the questions within a more general discussion about residence in the national community. In this way, it is shown how temporariness creates tensions at national level where the refugee qua resident in the national community, benefits from safeguards in favour of individual certainty. This explains why residence permits, as opposed to refugee status, have central organizing role at national level.
{"title":"Temporariness of refugee protection: For what and in whose interest Cessation of status as related to revocation of residence permits","authors":"V. Stoyanova","doi":"10.1177/1023263X221138957","DOIUrl":"https://doi.org/10.1177/1023263X221138957","url":null,"abstract":"Temporariness of refugee protection has started to emerge as a new standard in the policies of European countries. Given this development, the article focuses on one specific issue related to this temporariness: how refugee status intertwines with the conditions for the granting, revocation and prolongation of national residence permits. What are the interconnections between refugee status, including its cessation and revocation, on the one hand, and national residence permits and their revocation and prolongation, on the other? How are these interconnections regulated by international law, EU law and national law (with Sweden as an example)? Inaddition to the detailed analysis of the relevant legal norms, the article situates the questions within a more general discussion about residence in the national community. In this way, it is shown how temporariness creates tensions at national level where the refugee qua resident in the national community, benefits from safeguards in favour of individual certainty. This explains why residence permits, as opposed to refugee status, have central organizing role at national level.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"527 - 549"},"PeriodicalIF":0.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41712530","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 : 2022-10-01DOI: 10.1177/1023263X221130468
Á. Mohay, István M. Szijártó
In Case C-564/19 IS, the Court of Justice of the European Union delivered a judgement on two significant issues of EU law. First, it clarified the obligations of Member States under Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings regarding the provision of linguistic assistance during the criminal procedure and the consequences of failure to adhere to them. Second, it ruled on the EU-law conformity of national judicial decisions taken by higher courts which can indirectly constrict the right of lower courts of a Member State to initiate preliminary ruling procedures before the CJEU. Thirdly, it held national measures where the referring judge is submitted to a disciplinary procedure for referring a question to the CJEU contrary to EU law. The judgment builds on and further develops the Court's jurisprudence on preliminary rulings and judicial independence.
{"title":"Criminal procedures, preliminary references and judicial independence: A balancing act? Case C-564/19 IS","authors":"Á. Mohay, István M. Szijártó","doi":"10.1177/1023263X221130468","DOIUrl":"https://doi.org/10.1177/1023263X221130468","url":null,"abstract":"In Case C-564/19 IS, the Court of Justice of the European Union delivered a judgement on two significant issues of EU law. First, it clarified the obligations of Member States under Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings regarding the provision of linguistic assistance during the criminal procedure and the consequences of failure to adhere to them. Second, it ruled on the EU-law conformity of national judicial decisions taken by higher courts which can indirectly constrict the right of lower courts of a Member State to initiate preliminary ruling procedures before the CJEU. Thirdly, it held national measures where the referring judge is submitted to a disciplinary procedure for referring a question to the CJEU contrary to EU law. The judgment builds on and further develops the Court's jurisprudence on preliminary rulings and judicial independence.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"629 - 640"},"PeriodicalIF":0.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44700639","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 : 2022-10-01DOI: 10.1177/1023263X221139605
A. Looijestijn-Clearie, C. Rusu, Marc J.M. Veenbrink
Recently in certain sectors of the economy, in particular in the digital, pharmaceutical and biotech sectors, an increase in the number of concentrations has been detected involving emerging and innovative undertakings with competitive potential but which generate little or no turnover at the time of the transaction. Many such transactions do not fall under the EU merger control system or the domestic merger control systems of the Member States but may, nevertheless, have a detrimental impact on competition in the internal market. The European Commission reacted to this situation by adopting, on 26 March 2021, Guidance on the application of Article 22 (Article 22 Guidance). In this Article 22 Guidance, the Commission announced that it will abandon its previous practice of not accepting Article 22 referral requests from National Competition Authorities (NCAs) which are not competent to review the concentration at stake under their domestic rules. Instead, the Commission will now encourage and accept Article 22 referral requests, particularly from NCAs which do not have jurisdiction over the transaction at stake under their national merger regimes. The Article 22 Guidance gives rise to a number of questions and problems which we discuss in this article.
{"title":"In search of the Holy Grail? The EU Commission's new approach to Article 22 of the EU Merger Regulation","authors":"A. Looijestijn-Clearie, C. Rusu, Marc J.M. Veenbrink","doi":"10.1177/1023263X221139605","DOIUrl":"https://doi.org/10.1177/1023263X221139605","url":null,"abstract":"Recently in certain sectors of the economy, in particular in the digital, pharmaceutical and biotech sectors, an increase in the number of concentrations has been detected involving emerging and innovative undertakings with competitive potential but which generate little or no turnover at the time of the transaction. Many such transactions do not fall under the EU merger control system or the domestic merger control systems of the Member States but may, nevertheless, have a detrimental impact on competition in the internal market. The European Commission reacted to this situation by adopting, on 26 March 2021, Guidance on the application of Article 22 (Article 22 Guidance). In this Article 22 Guidance, the Commission announced that it will abandon its previous practice of not accepting Article 22 referral requests from National Competition Authorities (NCAs) which are not competent to review the concentration at stake under their domestic rules. Instead, the Commission will now encourage and accept Article 22 referral requests, particularly from NCAs which do not have jurisdiction over the transaction at stake under their national merger regimes. The Article 22 Guidance gives rise to a number of questions and problems which we discuss in this article.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"550 - 571"},"PeriodicalIF":0.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46335716","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 : 2022-10-01DOI: 10.1177/1023263x221134906
P. Nicolaides
On 13 September 2022, the Court of Justice, in its Grand Chamber formation, ruled in Banka Slovenije that Slovenian legislation that required the Central Bank of Slovenia to compensate certain holders of financial instruments was incompatible with EU law and in particular Article 123 TFEU. Although the judgment was about preventing a central bank from monetizing government debt, it indirectly strengthened the defences of central banks’ independence from political interference. Commentary and analysis on the extent of independence and the nature of accountability of the European Central Bank have filled hundreds, perhaps thousands, of pages of scholarly journals and books. Article 130 TFEU stipulates that ‘neither the European Central Bank, nor a national central bank, nor any member of their decision-making bodies shall seek or take instructions’, while Article 282(3) provides that the ECB ‘shall be independent in the exercise of its powers and in the management of its finances’. These are powerful statements that have raised important questions about the purpose and scope of the ECB’s independence in democratic political systems such as those of the EU and its Member States. Such questions have spawned a voluminous literature. The Court of Justice has also given us some rather surprising answers.
{"title":"Central bank independence: It is protected, but is it clearly delineated?","authors":"P. Nicolaides","doi":"10.1177/1023263x221134906","DOIUrl":"https://doi.org/10.1177/1023263x221134906","url":null,"abstract":"On 13 September 2022, the Court of Justice, in its Grand Chamber formation, ruled in Banka Slovenije that Slovenian legislation that required the Central Bank of Slovenia to compensate certain holders of financial instruments was incompatible with EU law and in particular Article 123 TFEU. Although the judgment was about preventing a central bank from monetizing government debt, it indirectly strengthened the defences of central banks’ independence from political interference. Commentary and analysis on the extent of independence and the nature of accountability of the European Central Bank have filled hundreds, perhaps thousands, of pages of scholarly journals and books. Article 130 TFEU stipulates that ‘neither the European Central Bank, nor a national central bank, nor any member of their decision-making bodies shall seek or take instructions’, while Article 282(3) provides that the ECB ‘shall be independent in the exercise of its powers and in the management of its finances’. These are powerful statements that have raised important questions about the purpose and scope of the ECB’s independence in democratic political systems such as those of the EU and its Member States. Such questions have spawned a voluminous literature. The Court of Justice has also given us some rather surprising answers.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"523 - 526"},"PeriodicalIF":0.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43689780","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 : 2022-10-01DOI: 10.1177/1023263X221130465
A. Aranguiz
In May 2022, the CJEU delivered the judgment FN v. Universiteit Antwerpen, dealing with the interpretation of the Framework Agreements on fixed-term and part-time work in higher education. This contribution studies the Court's position on the four referred questions and provides a critical analysis of its reasoning. It finds, first and foremost, that a poor legal phrasing by the referring court and the lack of substance provided by the claimant weakened the position of the applicant and the possibility of receiving better protection from the directives. Nevertheless, the analysils also finds that the Court failed to see this case in light of important and well-established principles of EU law, particularly regarding the principle of pro rata temporis and effectiveness of EU law. It shows that this (lack of) interpretation by the Court undermines an already flawed protection of the directives and fails to shield a growing group of atypical workers from increasingly precarious labour patterns.
{"title":"FN v. Universiteit Antwerpen: The cold shoulder on the principles of effet utile and pro rata temporis","authors":"A. Aranguiz","doi":"10.1177/1023263X221130465","DOIUrl":"https://doi.org/10.1177/1023263X221130465","url":null,"abstract":"In May 2022, the CJEU delivered the judgment FN v. Universiteit Antwerpen, dealing with the interpretation of the Framework Agreements on fixed-term and part-time work in higher education. This contribution studies the Court's position on the four referred questions and provides a critical analysis of its reasoning. It finds, first and foremost, that a poor legal phrasing by the referring court and the lack of substance provided by the claimant weakened the position of the applicant and the possibility of receiving better protection from the directives. Nevertheless, the analysils also finds that the Court failed to see this case in light of important and well-established principles of EU law, particularly regarding the principle of pro rata temporis and effectiveness of EU law. It shows that this (lack of) interpretation by the Court undermines an already flawed protection of the directives and fails to shield a growing group of atypical workers from increasingly precarious labour patterns.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"615 - 628"},"PeriodicalIF":0.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47940854","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 : 2022-10-01DOI: 10.1177/1023263X221144829
L. Lonardo
The principle that ‘in all actions relating to children (…) the child's best interests must be a primary consideration’ (Article 24(2) EU Charter of Fundamental Rights) is widely applied by the Court of Justice of the European Union (CJEU). This article considers preliminary rulings in which the CJEU had recourse to the best interests of the child as the criterion for settling the dispute in the main proceeding. For analytical purposes, these cases may be grouped in two clusters: cases resembling child custody disputes, and other cases. It is argued that, in the light of the varied factual circumstances of the judicial disputes, the application of the criterion of best interests of the child as primary consideration warrants further scrutiny. To this end, this article identifies and assesses a practical and a conceptual challenge to the widespread application of the criterion. The former posits that the criterion is indeterminate, and this article considers whether drawing from Article 3 of the Convention on the Right of the Child may help in solving the uncertainty; the latter maintains that the test is unjust and self-defying, a critique that this article finds only partially founded, for cases resembling child custody disputes.
{"title":"The best interests of the child in the case law of the Court of Justice of the European Union","authors":"L. Lonardo","doi":"10.1177/1023263X221144829","DOIUrl":"https://doi.org/10.1177/1023263X221144829","url":null,"abstract":"The principle that ‘in all actions relating to children (…) the child's best interests must be a primary consideration’ (Article 24(2) EU Charter of Fundamental Rights) is widely applied by the Court of Justice of the European Union (CJEU). This article considers preliminary rulings in which the CJEU had recourse to the best interests of the child as the criterion for settling the dispute in the main proceeding. For analytical purposes, these cases may be grouped in two clusters: cases resembling child custody disputes, and other cases. It is argued that, in the light of the varied factual circumstances of the judicial disputes, the application of the criterion of best interests of the child as primary consideration warrants further scrutiny. To this end, this article identifies and assesses a practical and a conceptual challenge to the widespread application of the criterion. The former posits that the criterion is indeterminate, and this article considers whether drawing from Article 3 of the Convention on the Right of the Child may help in solving the uncertainty; the latter maintains that the test is unjust and self-defying, a critique that this article finds only partially founded, for cases resembling child custody disputes.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"596 - 614"},"PeriodicalIF":0.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48011263","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 : 2022-08-01DOI: 10.1177/1023263X221126581
T. Nowak
In June 2020, the Netherlands Institute for Human Rights delivered an opinion on a positive action program run by the Eindhoven University of Technology. In this legally non-binding opinion the Institute declared the measures incompatible with the Dutch Equal Treatment Act and several EU provisions and CJEU judgments. The program reserved all vacant positions exclusively for women for a number of years. Consequently the Eindhoven University of Technology revised the program and the Netherlands Institute for Human Rights approved this revised program in March 2021 in another opinion. These opinions raise a number of interesting questions concerning EU non-discrimination law that are worth investigating further. Foremost is the question of how to interpret EU law on positive discrimination after years of silence on this issues from the CJEU.
{"title":"Dutch positive action measures in higher education in the light of EU law","authors":"T. Nowak","doi":"10.1177/1023263X221126581","DOIUrl":"https://doi.org/10.1177/1023263X221126581","url":null,"abstract":"In June 2020, the Netherlands Institute for Human Rights delivered an opinion on a positive action program run by the Eindhoven University of Technology. In this legally non-binding opinion the Institute declared the measures incompatible with the Dutch Equal Treatment Act and several EU provisions and CJEU judgments. The program reserved all vacant positions exclusively for women for a number of years. Consequently the Eindhoven University of Technology revised the program and the Netherlands Institute for Human Rights approved this revised program in March 2021 in another opinion. These opinions raise a number of interesting questions concerning EU non-discrimination law that are worth investigating further. Foremost is the question of how to interpret EU law on positive discrimination after years of silence on this issues from the CJEU.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"468 - 482"},"PeriodicalIF":0.0,"publicationDate":"2022-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45474966","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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