This article accompanies a Roadmap on the judicial use of comparative law, which was developed by judges from different European supreme courts. This document is published in this issue of Utrecht Law Review. Brief reflections on relevant scholarly aspects help the reader to appreciate the meaning and value of this Roadmap for contemporary judicial functioning in Member States of the European Union. Addressed aspects concern the legitimacy of judicial comparativism and the methodological quality of the Roadmap. This analysis leads to a conclusion about the Roadmap’s potential to enhance the quality of judicial decision-making and support dialogues of courts with their foreign counterparts as well as with other legal and societal audiences.
{"title":"Travelling with Judges: Brief Reflections on the Roadmap on Comparative Law Developed by the Network of Presidents of the Supreme Judicial Courts of the European Union","authors":"E. Mak","doi":"10.36633/ULR.690","DOIUrl":"https://doi.org/10.36633/ULR.690","url":null,"abstract":"This article accompanies a Roadmap on the judicial use of comparative law, which was developed by judges from different European supreme courts. This document is published in this issue of Utrecht Law Review. Brief reflections on relevant scholarly aspects help the reader to appreciate the meaning and value of this Roadmap for contemporary judicial functioning in Member States of the European Union. Addressed aspects concern the legitimacy of judicial comparativism and the methodological quality of the Roadmap. This analysis leads to a conclusion about the Roadmap’s potential to enhance the quality of judicial decision-making and support dialogues of courts with their foreign counterparts as well as with other legal and societal audiences.","PeriodicalId":44535,"journal":{"name":"Utrecht Law Review","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44197466","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 COVID-19-crisis has exposed the shortcomings of formal requirements for legal acts which involve the physical presence of others. This is in particular true with regard to last wills which require the physical presence of a notary and/or witnesses, who have to authenticate and/or attest to the last will of the testator. In such cases, the physical presence requirement imposes an outright obstruction to passing a last will in times of COVID-19. Western countries have responded differently to COVID-19. In the civil-law jurisdictions where only notarial wills are offered, such as the Netherlands, the government has introduced interim measures allowing the testator (and witnesses, if required) to appear before the notary by audio-video technology, leading to authorized remote notarization and remote witnessing. The same has been done in common law jurisdictions where only witnessed wills are offered, including Australia, New Zealand and some states in the United States with regard to witnessing. The first part of this paper researches the different types of last wills and seeks to explain why countries have responded differently in this respect to COVID-19. The second part discusses the different solutions available and argues that solutions introducing audio-video technology as an alternative for physical presence are more favourable than other solutions. Remote authentication and remote witnessing leaves intact the existing will-types of the particular jurisdiction as they are, modernizing the presence requirement of the notary and/or the witnesses, while at the same time preserving legal certainty by anchoring these possibilities in legislation. Introducing audio-video technology in making last wills seems a logical step forward in the 21st century. Building on the two previous parts, the third part investigates a more fundamental issue relating to the physical presence requirement for notarial wills from a European Union free movement of services perspective. Discussing ECJ case law and two applicable directives, it shows that Member States are allowed to restrict the freedom of establishment of notaries and freedom to provide notarial services. These restrictions often lead to a domestic monopoly of notaries, where notaries appointed in the Member State offer exclusively notarial services under the legislation of that Member State, with the requirement that these notaries can only be established in and only offer their services that Member State. Combined with the physical presence requirement, these restrictions to the freedom of establishment and the freedom of services effectively force a testator desiring to make its last will before a notary to travel to the Member State of that notary. Even without COVID-19, it is the question whether this physical presence requirement unnecessarily restricts the freedom of services under art. 56 TFEU, as it deprives the notary and the testator of a rapid and direct technique of passing notarial wills.
{"title":"Will Requirements for Last Wills Remain as They Are? The ‘Physical Presence Requirement’ of Witnesses and Notaries in the Light of the COVID-19 Interim Measures and the EU Freedom of (Notarial) Services","authors":"J. Biemans","doi":"10.36633/ulr.650","DOIUrl":"https://doi.org/10.36633/ulr.650","url":null,"abstract":"The COVID-19-crisis has exposed the shortcomings of formal requirements for legal acts which involve the physical presence of others. This is in particular true with regard to last wills which require the physical presence of a notary and/or witnesses, who have to authenticate and/or attest to the last will of the testator. In such cases, the physical presence requirement imposes an outright obstruction to passing a last will in times of COVID-19. Western countries have responded differently to COVID-19. In the civil-law jurisdictions where only notarial wills are offered, such as the Netherlands, the government has introduced interim measures allowing the testator (and witnesses, if required) to appear before the notary by audio-video technology, leading to authorized remote notarization and remote witnessing. The same has been done in common law jurisdictions where only witnessed wills are offered, including Australia, New Zealand and some states in the United States with regard to witnessing. The first part of this paper researches the different types of last wills and seeks to explain why countries have responded differently in this respect to COVID-19. The second part discusses the different solutions available and argues that solutions introducing audio-video technology as an alternative for physical presence are more favourable than other solutions. Remote authentication and remote witnessing leaves intact the existing will-types of the particular jurisdiction as they are, modernizing the presence requirement of the notary and/or the witnesses, while at the same time preserving legal certainty by anchoring these possibilities in legislation. Introducing audio-video technology in making last wills seems a logical step forward in the 21st century. Building on the two previous parts, the third part investigates a more fundamental issue relating to the physical presence requirement for notarial wills from a European Union free movement of services perspective. Discussing ECJ case law and two applicable directives, it shows that Member States are allowed to restrict the freedom of establishment of notaries and freedom to provide notarial services. These restrictions often lead to a domestic monopoly of notaries, where notaries appointed in the Member State offer exclusively notarial services under the legislation of that Member State, with the requirement that these notaries can only be established in and only offer their services that Member State. Combined with the physical presence requirement, these restrictions to the freedom of establishment and the freedom of services effectively force a testator desiring to make its last will before a notary to travel to the Member State of that notary. Even without COVID-19, it is the question whether this physical presence requirement unnecessarily restricts the freedom of services under art. 56 TFEU, as it deprives the notary and the testator of a rapid and direct technique of passing notarial wills.","PeriodicalId":44535,"journal":{"name":"Utrecht Law Review","volume":"105 5 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69666157","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}
Looking at how the rule of law is protected, defended, or even advanced by non-state actors operating below the state level is vitally important in understanding how rule of law principles get recognized, operationalized, and implemented. This article aims to contribute to a growing strand of scholarship looking at how the rule of law is protected and bolstered ‘from below.’ It does this by exploring the role of a specific type of civil society actor in the documentation and investigation of serious international crimes and efforts at accountability, namely the university. Over the last decade, there has been a transformation of human rights fact-finding and how it impacts the rule of law and accountability for serious international crimes. Universities, often through their legal clinics, are making significant contributions to the rule of law and accountability efforts. It explores what implications the role of independent documenter or investigator has for academic institutions in protecting and advancing the rule of law. It calls for greater recognition of societal engagement with universities and for more research on the impacts of universities and students on advancing the rule of law and accountability for serious international crimes. there are some key aspects to help the quality of the work and learning environments: institutional support; connection with societal partners; reflection and vicarious trauma support; and specialized knowledge.
{"title":"The Role of Universities and Law Schools in Documenting Serious International Crimes and Advancing the Rule of Law","authors":"B. M. Leyh","doi":"10.36633/ulr.666","DOIUrl":"https://doi.org/10.36633/ulr.666","url":null,"abstract":"Looking at how the rule of law is protected, defended, or even advanced by non-state actors operating below the state level is vitally important in understanding how rule of law principles get recognized, operationalized, and implemented. This article aims to contribute to a growing strand of scholarship looking at how the rule of law is protected and bolstered ‘from below.’ It does this by exploring the role of a specific type of civil society actor in the documentation and investigation of serious international crimes and efforts at accountability, namely the university. Over the last decade, there has been a transformation of human rights fact-finding and how it impacts the rule of law and accountability for serious international crimes. Universities, often through their legal clinics, are making significant contributions to the rule of law and accountability efforts. It explores what implications the role of independent documenter or investigator has for academic institutions in protecting and advancing the rule of law. It calls for greater recognition of societal engagement with universities and for more research on the impacts of universities and students on advancing the rule of law and accountability for serious international crimes. there are some key aspects to help the quality of the work and learning environments: institutional support; connection with societal partners; reflection and vicarious trauma support; and specialized knowledge.","PeriodicalId":44535,"journal":{"name":"Utrecht Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69666465","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 decrease in journalist safety and media freedom has a negative impact on the rule of law because journalists cannot act as public watchdogs. Its deterioration in Europe during the last decade is a worrying trend for society as a whole. The Council of Europe has tried to fight against it through the creation of a public Internet-based Platform for the protection of journalism and the safety of journalists. The Platform receives alerts from non-governmental organisations such as journalist associations and this serves as an early warning mechanism for the Council of Europe. Non-governmental organisations act as partners of this International Organisation and in that way they protect the rule of law from below. A simple search of the Platform permits to see the many threats journalists face in Europe every day. This paper assesses how the Platform works. It is a positive initiative to co-operate with civil society that still has to improve its results mainly through a more effective engagement of the Member States of the Council of Europe.
{"title":"The Platform for the Protection of Journalists: A Mechanism for Cooperation between Non-Governmental Organisations and the Council of Europe","authors":"A. G. Marcén","doi":"10.36633/ulr.667","DOIUrl":"https://doi.org/10.36633/ulr.667","url":null,"abstract":"The decrease in journalist safety and media freedom has a negative impact on the rule of law because journalists cannot act as public watchdogs. Its deterioration in Europe during the last decade is a worrying trend for society as a whole. The Council of Europe has tried to fight against it through the creation of a public Internet-based Platform for the protection of journalism and the safety of journalists. The Platform receives alerts from non-governmental organisations such as journalist associations and this serves as an early warning mechanism for the Council of Europe. Non-governmental organisations act as partners of this International Organisation and in that way they protect the rule of law from below. A simple search of the Platform permits to see the many threats journalists face in Europe every day. This paper assesses how the Platform works. It is a positive initiative to co-operate with civil society that still has to improve its results mainly through a more effective engagement of the Member States of the Council of Europe.","PeriodicalId":44535,"journal":{"name":"Utrecht Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69666666","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 article discusses approaches to defending the independence of the judiciary – one of the main institutional requirements of the rule of law – adopted by civil society organisations (CSOs) in Poland since 2015. Beginning by describing the rule of law backsliding in context, this article shows how civil society organisations reacted to the orchestrated threats to judicial independence in Poland. The article highlights the negative consequences of rule of law backsliding for the civic space, proving that the role of CSOs was not only to protect the rule of law (judicial independence, in particular), but also to fight the shrinking civic space. This article surveys the concept of the ‘rule of law from below’ by critically analysing the actions of CSOs in response to attempts to undermine judicial independence, providing a part of a broader ‘rule of law backsliding’ picture. The article concludes with a detailed analysis of two case studies – reactions from CSOs to Poland’s so-called ‘reform of the judiciary’.
{"title":"The Role of Civil Society in Protecting Judicial Independence in Times of Rule of Law Backsliding in Poland","authors":"Barbara Grabowska-Moroz, Olga Śniadach","doi":"10.36633/ulr.673","DOIUrl":"https://doi.org/10.36633/ulr.673","url":null,"abstract":"The article discusses approaches to defending the independence of the judiciary – one of the main institutional requirements of the rule of law – adopted by civil society organisations (CSOs) in Poland since 2015. Beginning by describing the rule of law backsliding in context, this article shows how civil society organisations reacted to the orchestrated threats to judicial independence in Poland. The article highlights the negative consequences of rule of law backsliding for the civic space, proving that the role of CSOs was not only to protect the rule of law (judicial independence, in particular), but also to fight the shrinking civic space. This article surveys the concept of the ‘rule of law from below’ by critically analysing the actions of CSOs in response to attempts to undermine judicial independence, providing a part of a broader ‘rule of law backsliding’ picture. The article concludes with a detailed analysis of two case studies – reactions from CSOs to Poland’s so-called ‘reform of the judiciary’.","PeriodicalId":44535,"journal":{"name":"Utrecht Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69667073","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":"Mobility in a European Post-Crisis Scenario: Law-Making Dynamics and Law-Enforcement Challenges","authors":"V. Nagy, S. Nicolosi","doi":"10.36633/ulr.798","DOIUrl":"https://doi.org/10.36633/ulr.798","url":null,"abstract":"","PeriodicalId":44535,"journal":{"name":"Utrecht Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69669852","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 special issue on the Covid-19 Pandemic in European Union: shortcomings and strengths of the EU legal system in selected policy domains begins with two contributions that deal with the uncertain health risks caused by Covid-19, the first one and the application of precautionary principle in practice, and the second one on the growing problem of 'onslaught of health disinformation'. The next two articles focus on the extent to which Covid-19 has impacted the cross-border mobility of people in the EU and the mobility of people within a Member State, and how this affects EU and national law. The special issue then turns to the socio-economic consequences of Covid-19, which are analysed from the perspective of vulnerable position of creditors in the event of insolvency, the perspective of the Eurozone and the models of solidarity upon which the EMU is based, and the perspective of the position of vulnerable workers and their social rights which are enshrined in the EU Charter of Fundamental Rights. The extent to which private companies are involved in tackling the Covid-19 crisis and how EU competition law (should) respond(s) to this, is discussed in the contribution hereafter. Finally the special issue zooms in to a contribution on the principle of solidarity that - once again - plays a pivotal role in times of crises.
{"title":"Editorial for the Impact of the Covid-19 Pandemic: Shortcomings and Strengths of the EU Legal System in Selected Policy Domains","authors":"Sybe A. de Vries","doi":"10.36633/ulr.767","DOIUrl":"https://doi.org/10.36633/ulr.767","url":null,"abstract":"This special issue on the Covid-19 Pandemic in European Union: shortcomings and strengths of the EU legal system in selected policy domains begins with two contributions that deal with the uncertain health risks caused by Covid-19, the first one and the application of precautionary principle in practice, and the second one on the growing problem of 'onslaught of health disinformation'. The next two articles focus on the extent to which Covid-19 has impacted the cross-border mobility of people in the EU and the mobility of people within a Member State, and how this affects EU and national law. The special issue then turns to the socio-economic consequences of Covid-19, which are analysed from the perspective of vulnerable position of creditors in the event of insolvency, the perspective of the Eurozone and the models of solidarity upon which the EMU is based, and the perspective of the position of vulnerable workers and their social rights which are enshrined in the EU Charter of Fundamental Rights. The extent to which private companies are involved in tackling the Covid-19 crisis and how EU competition law (should) respond(s) to this, is discussed in the contribution hereafter. Finally the special issue zooms in to a contribution on the principle of solidarity that - once again - plays a pivotal role in times of crises.","PeriodicalId":44535,"journal":{"name":"Utrecht Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69668489","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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