The article analyses the process of legal mobilization for migrants’ rights and investigates how and with what effects, measured in terms of obtaining general policy response and ensuring implementation, legal actors and in particular civil society organizations have mobilized EU, international and domestic legislation on discrimination to promote migrants’ rights in Italy. It focuses in particular on two issues: access to employment in the public sector and access to welfare. Both issues have generated significant levels of litigation in domestic courts, with increasing involvement of civil society organizations. In relation to both, national legislation has been amended, in accordance with EU law, allowing access to employment in the public sector and extending the area of those that have the right to access to social welfare under equal conditions to categories of migrants protected under EU law. The article outlines the EU, International and domestic legislation on non-discrimination and equality for migrants, provides an overview of how litigation has been used to challenge in court the exclusion of migrants from employment in the public sector and welfare, tracks the process that brought to the reform and litigation in the aftermath highlighting the effects of litigation as a means for policy response and implementation. Discrimination, multilevel protection, migrants, welfare, employment, legal mobilization, policy response, implementation, civil society, courts.
{"title":"From Legal Mobilization to Effective Migrants’ Rights: The Italian Case","authors":"V. Protopapa","doi":"10.54648/euro2020052","DOIUrl":"https://doi.org/10.54648/euro2020052","url":null,"abstract":"The article analyses the process of legal mobilization for migrants’ rights and investigates how and with what effects, measured in terms of obtaining general policy response and ensuring implementation, legal actors and in particular civil society organizations have mobilized EU, international and domestic legislation on discrimination to promote migrants’ rights in Italy. It focuses in particular on two issues: access to employment in the public sector and access to welfare. Both issues have generated significant levels of litigation in domestic courts, with increasing involvement of civil society organizations. In relation to both, national legislation has been amended, in accordance with EU law, allowing access to employment in the public sector and extending the area of those that have the right to access to social welfare under equal conditions to categories of migrants protected under EU law. The article outlines the EU, International and domestic legislation on non-discrimination and equality for migrants, provides an overview of how litigation has been used to challenge in court the exclusion of migrants from employment in the public sector and welfare, tracks the process that brought to the reform and litigation in the aftermath highlighting the effects of litigation as a means for policy response and implementation.\u0000Discrimination, multilevel protection, migrants, welfare, employment, legal mobilization, policy response, implementation, civil society, courts.","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42270249","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 German Federal Constitutional Court (GFCC) in late 2015 delivered a decision on the European Arrest Warrant (EAW). With it, the GFCC further elaborated its trademark doctrine on the constitutional-identity review of EU law’s application in Germany, introducing human dignity as another yardstick. In this article, I critically reassess the merits and implications of this doctrinal development, in particular for the relationship between the GFCC and the Court of Justice of the European Union (CJEU) and for the EU law-national law dynamic in general. Human dignity; German Federal Constitutional Court; European Arrest Warrant; constitutional-identity review; Court of Justice
{"title":"Dignity, Exceptionality, Trust. EU, Me, Us","authors":"Davor Petrić","doi":"10.54648/euro2020051","DOIUrl":"https://doi.org/10.54648/euro2020051","url":null,"abstract":"The German Federal Constitutional Court (GFCC) in late 2015 delivered a decision on the European Arrest Warrant (EAW). With it, the GFCC further elaborated its trademark doctrine on the constitutional-identity review of EU law’s application in Germany, introducing human dignity as another yardstick. In this article, I critically reassess the merits and implications of this doctrinal development, in particular for the relationship between the GFCC and the Court of Justice of the European Union (CJEU) and for the EU law-national law dynamic in general.\u0000Human dignity; German Federal Constitutional Court; European Arrest Warrant; constitutional-identity review; Court of Justice","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49003886","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}
Recent interest in the harmonizing potential of European administrative law stems in part from the view that administrative states are facing a ‘legitimacy crisis’ and that administrative law must evolve to survive. Emergent ‘new administrative law’ no longer recognizes the state as a centralized leviathan, but rather as promoter, facilitator, regulator, and helmsman of domestic social and economic progress. In this article I argue that articulating shared ‘European’ principles of good administration and administrative law only goes part of the way to understanding this re-positioned administrative state, and that a better approach also focuses on the architecture of administrative justice. I outline various UK conceptions administrative justice and European conceptions of good administration and examine, for the first time, the impact that European principles of good administration have had on UK administrative justice. I argue that UK approaches to administrative justice help to meet the challenges of new administrative law by focusing on incorporating principles of good administration and human rights into the design architecture of institutions, as well as into administrative law itself. I conclude that there is potential to develop, through further comparative analysis, European conceptions of administrative justice, overlapping with and complementary to, European principles of good administration. Good administration, administrative justice, Council of Europe, European administrative law, right to good administration
{"title":"European Principles of Good Administration and UK Administrative Justice","authors":"S. Nason","doi":"10.54648/euro2020049","DOIUrl":"https://doi.org/10.54648/euro2020049","url":null,"abstract":"Recent interest in the harmonizing potential of European administrative law stems in part from the view that administrative states are facing a ‘legitimacy crisis’ and that administrative law must evolve to survive. Emergent ‘new administrative law’ no longer recognizes the state as a centralized leviathan, but rather as promoter, facilitator, regulator, and helmsman of domestic social and economic progress.\u0000In this article I argue that articulating shared ‘European’ principles of good administration and administrative law only goes part of the way to understanding this re-positioned administrative state, and that a better approach also focuses on the architecture of administrative justice. I outline various UK conceptions administrative justice and European conceptions of good administration and examine, for the first time, the impact that European principles of good administration have had on UK administrative justice.\u0000I argue that UK approaches to administrative justice help to meet the challenges of new administrative law by focusing on incorporating principles of good administration and human rights into the design architecture of institutions, as well as into administrative law itself. I conclude that there is potential to develop, through further comparative analysis, European conceptions of administrative justice, overlapping with and complementary to, European principles of good administration.\u0000Good administration, administrative justice, Council of Europe, European administrative law, right to good administration","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42703222","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}
I. D. M. Beriain, Theodora Chortara, Aliuska Duardo Sánchez, Oliver Feeney, H. Felzmann, E. F. Uzquiano, Elisa Lievevrouw, L. Marelli, Titti Mattsson, J. Herrmann, T. Minssen, Elisabetta Pulice, V. Raposo, Jürgen Robienski, S. Penasa, I. Hoyweghen
The new EU regulation on clinical trials is intended to promote a greater level of harmonization of European Union rules in this area. However, it does not elaborate a common normative framework regarding the functioning of research ethics committees, leaving this responsibility to the Member States. This article offers a comparative analysis of the resulting regulatory situation. It demonstrates that this scenario is defined by considerable variability in the regulation of ethics monitoring between the EU Member States. We argue that this disparity should not necessarily be a negative factor for theoptimization of the trial supervision regime in the EU.Moreover, we consider that it may be a stimulus for the achievement of excellence in the performance of this monitoring task. On the other hand, we also highlight risks for the rights of participants if an adequate monitoring framework is not ensured. Under these circumstances, we observe how the EU faces a dilemma. On the one hand, it may promote a rigid uniformity between the regulation of ethics committees between Member States, but this might diminish the quality of their performance.On the other hand, it may opt for maintaining the current situation, but this might increase differences in the performance of the ethics committees between Member States, including the number trials performed by country. A third option would be to allow the competitive framework to remain for a set period of time, in order to learn from the best practices reached in individual Member States before finally harmonizing national legislative provisions on this basis. ethics committees, clinical trials, Regulation on clinical trials, regulatory competition
{"title":"An EU Comparative Analysis of the Regulation of Clinical Trials Supervisory Bodies in the Aftermath of Regulation 536/2014","authors":"I. D. M. Beriain, Theodora Chortara, Aliuska Duardo Sánchez, Oliver Feeney, H. Felzmann, E. F. Uzquiano, Elisa Lievevrouw, L. Marelli, Titti Mattsson, J. Herrmann, T. Minssen, Elisabetta Pulice, V. Raposo, Jürgen Robienski, S. Penasa, I. Hoyweghen","doi":"10.54648/euro2020046","DOIUrl":"https://doi.org/10.54648/euro2020046","url":null,"abstract":"The new EU regulation on clinical trials is intended to promote a greater level of harmonization of European Union rules in this area. However, it does not elaborate a common normative framework regarding the functioning of research ethics committees, leaving this responsibility to the Member States. This article offers a comparative analysis of the resulting regulatory situation. It demonstrates that this scenario is defined by considerable variability in the regulation of ethics monitoring between the EU Member States. We argue that this disparity should not necessarily be a negative factor for theoptimization of the trial supervision regime in the EU.Moreover, we consider that it may be a stimulus for the achievement of excellence in the performance of this monitoring task. On the other hand, we also highlight risks for the rights of participants if an adequate monitoring framework is not ensured. Under these circumstances, we observe how the EU faces a dilemma. On the one hand, it may promote a rigid uniformity between the regulation of ethics committees between Member States, but this might diminish the quality of their performance.On the other hand, it may opt for maintaining the current situation, but this might increase differences in the performance of the ethics committees between Member States, including the number trials performed by country. A third option would be to allow the competitive framework to remain for a set period of time, in order to learn from the best practices reached in individual Member States before finally harmonizing national legislative provisions on this basis.\u0000ethics committees, clinical trials, Regulation on clinical trials, regulatory competition","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44306829","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 wake of Cambridge Analytica, the use of personal data by political parties has been subject to increased scrutiny. Given the specific policy challenges which such use poses, this article examines the conditions for the lawful processing of personal data under the General Data Protection Regulation (GDPR), as it applies to political parties. It identifies the extensive flexibilities afforded by the GDPR to Member States and argues that granular Member State analysis is required if the GDPR regime is to be meaningfully evaluated in this context. Using Ireland as a detailed case study and referencing the equivalent provisions of the UK Data Protection Act 2018 (DPA UK) for comparison, the article examines the different ways in which these Member States responded to the flexibility afforded by the GDPR. Based on this, the article argues that closer engagement with the issue of political parties by the European Data Protection Board is needed in order to provide a more fine-grained response which bridges the space between the ‘one size fits all’ approach in the GDPR and the wide-ranging discretion of the flexibilities afforded to Member States. GDPR, political parties, lawful processing, freedom of expression, public interest, European Data Protection Board
{"title":"Putting the Fox in Charge? Political Parties and the GDPR: An Irish Perspective","authors":"Maeve McDonagh","doi":"10.54648/euro2020048","DOIUrl":"https://doi.org/10.54648/euro2020048","url":null,"abstract":"In the wake of Cambridge Analytica, the use of personal data by political parties has been subject to increased scrutiny. Given the specific policy challenges which such use poses, this article examines the conditions for the lawful processing of personal data under the General Data Protection Regulation (GDPR), as it applies to political parties. It identifies the extensive flexibilities afforded by the GDPR to Member States and argues that granular Member State analysis is required if the GDPR regime is to be meaningfully evaluated in this context. Using Ireland as a detailed case study and referencing the equivalent provisions of the UK Data Protection Act 2018 (DPA UK) for comparison, the article examines the different ways in which these Member States responded to the flexibility afforded by the GDPR. Based on this, the article argues that closer engagement with the issue of political parties by the European Data Protection Board is needed in order to provide a more fine-grained response which bridges the space between the ‘one size fits all’ approach in the GDPR and the wide-ranging discretion of the flexibilities afforded to Member States.\u0000GDPR, political parties, lawful processing, freedom of expression, public interest, European Data Protection Board","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43862911","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 examines the ‘full jurisdiction’ requirement under Article 6 European Convention on Human Rights (ECHR) and its implementation within European Court of Human Rights (ECtHR) case law. It first analyses the theoretical foundations for ‘full jurisdiction’ which implies, in principle, a substitutive review of the merits of administrative decisions. It then focuses on the ECtHR case law, highlighting its ambivalence and inconsistencies: while the Court generally requires a substitutive review in criminal cases and in cases involving complex technical assessments, it tends to accept a less exacting standard of review in civil cases, especially when administrative discretionary choices or policy determinations are at issue. This article suggests that the ambivalence and inconsistencies within ECtHR case law can be explained in terms of the principle of separation of powers, which still underpins most legal systems of signatory states to the ECHR. Art. 6 ECHR, fair trial, administrative procedures, full jurisdiction, principle of separation of powers.
{"title":"‘Full Jurisdiction’ Under Article 6 ECHR: Hans Kelsen v. the Principle of Separation of Powers","authors":"M. Allena, F. Goisis","doi":"10.54648/euro2020045","DOIUrl":"https://doi.org/10.54648/euro2020045","url":null,"abstract":"This article examines the ‘full jurisdiction’ requirement under Article 6 European Convention on Human Rights (ECHR) and its implementation within European Court of Human Rights (ECtHR) case law. It first analyses the theoretical foundations for ‘full jurisdiction’ which implies, in principle, a substitutive review of the merits of administrative decisions. It then focuses on the ECtHR case law, highlighting its ambivalence and inconsistencies: while the Court generally requires a substitutive review in criminal cases and in cases involving complex technical assessments, it tends to accept a less exacting standard of review in civil cases, especially when administrative discretionary choices or policy determinations are at issue. This article suggests that the ambivalence and inconsistencies within ECtHR case law can be explained in terms of the principle of separation of powers, which still underpins most legal systems of signatory states to the ECHR.\u0000Art. 6 ECHR, fair trial, administrative procedures, full jurisdiction, principle of separation of powers.","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44910329","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":"Judicial and Constitutional Review During the Greek Sovereign Debt Crisis: A General Overview","authors":"Grigoris Avdikos","doi":"10.54648/euro2020042","DOIUrl":"https://doi.org/10.54648/euro2020042","url":null,"abstract":"","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42874474","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 field of EU direct administrative law is steadily growing in importance, and issues relating to the consequences of procedural irregularities on the outcome of the procedure are becoming increasingly relevant. The question of when such a violation remains inconsequential – i.e. does not lead to the act being quashed during judicial proceedings, either because the error was rectified or can be considered irrelevant – is particularly important, as it can have a significant impact on the legitimacy and acceptance of EU institutions as well as their efficiency and effectiveness and EU case law has developed a complex jurisprudence in this regard. The aim of this contribution is to systematize this case law with regard to the instruments of rectification and irrelevance of procedural irregularities. Moreover, it compares these legal instruments to their counterparts in Member States’ administrative systems. The focus is on the observation that the EU case law has developed a complex network of layers and components to decide what consequences violations of provisions relating to form and procedure entail. The comparison with the Member State administrative systems shows – despite differences in detail – that EU courts have not coopted a particular system currently in use in a Member State, but that they often use roughly similar criteria to decide whether an error leads to the annulment of the final decision. This analysis can be fruitful with regard to the recent interinstitutional as well as academic debate about the codification of administrative procedure of the EU direct administration, neither of which have yet discussed the possibility of rectification and irrelevance of procedural errors in a systematic and comprehensive way, even though the jurisprudence of the EU courts has reached a stage that makes this possible. European direct administrative law, procedural errors, consequences of procedural and formal errors, rectification, irrelevance, codification of administrative procedure
{"title":"‘Rectification’ and ‘Irrelevance’ in EU Direct Administrative Procedures: A Systematic and Comparative Analysis","authors":"Laura Hering","doi":"10.54648/euro2020047","DOIUrl":"https://doi.org/10.54648/euro2020047","url":null,"abstract":"The field of EU direct administrative law is steadily growing in importance, and issues relating to the consequences of procedural irregularities on the outcome of the procedure are becoming increasingly relevant. The question of when such a violation remains inconsequential – i.e. does not lead to the act being quashed during judicial proceedings, either because the error was rectified or can be considered irrelevant – is particularly important, as it can have a significant impact on the legitimacy and acceptance of EU institutions as well as their efficiency and effectiveness and EU case law has developed a complex jurisprudence in this regard. The aim of this contribution is to systematize this case law with regard to the instruments of rectification and irrelevance of procedural irregularities. Moreover, it compares these legal instruments to their counterparts in Member States’ administrative systems. The focus is on the observation that the EU case law has developed a complex network of layers and components to decide what consequences violations of provisions relating to form and procedure entail. The comparison with the Member State administrative systems shows – despite differences in detail – that EU courts have not coopted a particular system currently in use in a Member State, but that they often use roughly similar criteria to decide whether an error leads to the annulment of the final decision. This analysis can be fruitful with regard to the recent interinstitutional as well as academic debate about the codification of administrative procedure of the EU direct administration, neither of which have yet discussed the possibility of rectification and irrelevance of procedural errors in a systematic and comprehensive way, even though the jurisprudence of the EU courts has reached a stage that makes this possible.\u0000European direct administrative law, procedural errors, consequences of procedural and formal errors, rectification, irrelevance, codification of administrative procedure","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41712749","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":"Book Review: Myths and Realities of Secessionisms: A Constitutional Approach to the Catalonian Crisis. by Miguel Beltrán de Felipe, (London: Palgrave Macmillan, 2019)","authors":"Javier Padilla Moreno-Torres","doi":"10.54648/euro2020054","DOIUrl":"https://doi.org/10.54648/euro2020054","url":null,"abstract":"","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47053768","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":"Detention Before Deportation: Merits Based Review, and the Need for More Oversight of Vulnerable Detainees","authors":"Zia Akhtar","doi":"10.54648/euro2020044","DOIUrl":"https://doi.org/10.54648/euro2020044","url":null,"abstract":"\u0000Immigration Act 2016, Article 5 ECHR, detention: deportation, merits based judicial review, vulnerable persons, Shaw Report I, Shaw Report II.","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46115777","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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