Pub Date : 2021-11-29DOI: 10.1017/S1574019621000377
Hubert Smekal, N. Tsereteli
States’ growing dissatisfaction with the performance of the European Court of Human Rights – Governments’ commitment to reform process – Threats of exit that failed to materialise – Adaptation of Hirschman’s exit–voice–loyalty framework to explain states’ non-exit from the European Court of Human Rights – Sufficiently effective voice, manifestations of loyalty, and high costs of exit as possible reasons behind non-exit – Governments’ inability to achieve change in the Court’s practice unilaterally – Divergent perceptions and expectations of governments – Court’s responsiveness to governments’ concerns – Showing the importance of cautious, incremental changes to accommodate diverse governmental expectations on the role of the European Court of Human Rights
{"title":"Reforming to Please: A Comprehensive Explanation for Non-Exit from the European Court of Human Rights","authors":"Hubert Smekal, N. Tsereteli","doi":"10.1017/S1574019621000377","DOIUrl":"https://doi.org/10.1017/S1574019621000377","url":null,"abstract":"States’ growing dissatisfaction with the performance of the European Court of Human Rights – Governments’ commitment to reform process – Threats of exit that failed to materialise – Adaptation of Hirschman’s exit–voice–loyalty framework to explain states’ non-exit from the European Court of Human Rights – Sufficiently effective voice, manifestations of loyalty, and high costs of exit as possible reasons behind non-exit – Governments’ inability to achieve change in the Court’s practice unilaterally – Divergent perceptions and expectations of governments – Court’s responsiveness to governments’ concerns – Showing the importance of cautious, incremental changes to accommodate diverse governmental expectations on the role of the European Court of Human Rights","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":"17 1","pages":"664 - 687"},"PeriodicalIF":2.1,"publicationDate":"2021-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46586988","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-23DOI: 10.1017/S1574019621000365
L. Lonardo
DB v Consob1 is the first case in which the Court of Justice of the European Union had to decide whether the right to silence is applicable to natural persons in the context of administrative proceedings which may lead to the imposition of a criminal penalty (in casu, on market abuse). Previously, the Court had had the occasion to adjudicate on the right to silence of legal persons in the area of market abuse or breach of competition law.2 The case also provided the Court with an opportunity to clarify an alleged discrepancy between its case law and that of the European Court of Human Rights. The latter appeared to recognise a broad content of the right to silence, including the right to remain silent on purely factual questions, whereas, in the field of competition law, the European Court of
{"title":"The Veiled Irreverence of the Italian Constitutional Court and the Contours of the Right to Silence for Natural Persons in Administrative Proceedings","authors":"L. Lonardo","doi":"10.1017/S1574019621000365","DOIUrl":"https://doi.org/10.1017/S1574019621000365","url":null,"abstract":"DB v Consob1 is the first case in which the Court of Justice of the European Union had to decide whether the right to silence is applicable to natural persons in the context of administrative proceedings which may lead to the imposition of a criminal penalty (in casu, on market abuse). Previously, the Court had had the occasion to adjudicate on the right to silence of legal persons in the area of market abuse or breach of competition law.2 The case also provided the Court with an opportunity to clarify an alleged discrepancy between its case law and that of the European Court of Human Rights. The latter appeared to recognise a broad content of the right to silence, including the right to remain silent on purely factual questions, whereas, in the field of competition law, the European Court of","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":"17 1","pages":"707 - 723"},"PeriodicalIF":2.1,"publicationDate":"2021-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47513743","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-15DOI: 10.1017/S1574019621000353
Marcin Rojszczak
The Court of Justice is once again clarifying the limits of the application of data retention laws – General obligation to retain data exceeds the limits of what is strictly necessary within a democratic society – The national security exception does not preclude a judicial assessment of the legitimacy of its application – The existence of a genuine and specific threat as a premise for the use of untargeted data retention measures – The possibility of searching for the gold standard of data retention based on algorithmic processing – Different perceptions of the Court of Justice position by the referring courts – The Conseil d'État’s position distorts the idea of the protection of fundamental rights that is enshrined in the EU legal order
{"title":"National Security and Retention of Telecommunications Data in Light of Recent Case Law of the European Courts","authors":"Marcin Rojszczak","doi":"10.1017/S1574019621000353","DOIUrl":"https://doi.org/10.1017/S1574019621000353","url":null,"abstract":"The Court of Justice is once again clarifying the limits of the application of data retention laws – General obligation to retain data exceeds the limits of what is strictly necessary within a democratic society – The national security exception does not preclude a judicial assessment of the legitimacy of its application – The existence of a genuine and specific threat as a premise for the use of untargeted data retention measures – The possibility of searching for the gold standard of data retention based on algorithmic processing – Different perceptions of the Court of Justice position by the referring courts – The Conseil d'État’s position distorts the idea of the protection of fundamental rights that is enshrined in the EU legal order","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":"17 1","pages":"607 - 635"},"PeriodicalIF":2.1,"publicationDate":"2021-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42176591","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-01DOI: 10.1017/S1574019621000298
Thomas Horsley
In Great Judgments of the European Court of Justice, William Phelan invites readers to rethink a selection of the Court of Justice’s formative cases addressing the foundations of the (then) Community legal order. Most of these decisions, such as Van Gend en Loos1 and Costa v ENEL2 are well-known to European legal scholars; others, notably Pork Products,3 Dairy Products4 and Sheep Meat,5 perhaps less so.Great Judgments set its sights on challenging the received account of these decisions as the basis of a ‘new legal order’ in which, atypically among international treaty organisations, private litigants and national courts have acquired direct and powerful roles.6 Asserting that leading scholars have ‘missed the bigger picture’
在《欧洲法院的伟大判决》一书中，William Phelan邀请读者重新思考法院针对（当时）共同体法律秩序基础的形成性案例。这些判决中的大多数，如Van Gend en Loos1和Costa v ENEL2，都为欧洲法律学者所熟知；其他一些，尤其是猪肉制品、3乳制品4和羊肉，5可能就不那么重要了。Great Judges着眼于挑战人们对这些决定的普遍看法，将其作为“新法律秩序”的基础，私人诉讼当事人和国家法院已经获得了直接而有力的作用。6断言顶尖学者“错过了大局”
{"title":"Rethinking Judicial Narratives: The Court of Justice and the Treaty of Rome","authors":"Thomas Horsley","doi":"10.1017/S1574019621000298","DOIUrl":"https://doi.org/10.1017/S1574019621000298","url":null,"abstract":"In Great Judgments of the European Court of Justice, William Phelan invites readers to rethink a selection of the Court of Justice’s formative cases addressing the foundations of the (then) Community legal order. Most of these decisions, such as Van Gend en Loos1 and Costa v ENEL2 are well-known to European legal scholars; others, notably Pork Products,3 Dairy Products4 and Sheep Meat,5 perhaps less so.Great Judgments set its sights on challenging the received account of these decisions as the basis of a ‘new legal order’ in which, atypically among international treaty organisations, private litigants and national courts have acquired direct and powerful roles.6 Asserting that leading scholars have ‘missed the bigger picture’","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":"17 1","pages":"553 - 565"},"PeriodicalIF":2.1,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46264175","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-01DOI: 10.1017/S1574019621000341
Marta Maroni
Internet Service Providers (ISPs) provide access to the Internet. Their role is central to the future development of the Internet, fundamental rights, and the information society as a whole. ISPs could block, slow down or favour applications or services. These practices are harmful because they can be deployed to alter the way in which content is transmitted on the Internet, which has repercussions on competition, diversity and pluralism. The EU has laid down measures concerning
{"title":"An Open Internet? The Court of Justice of the European Union between Network Neutrality and Zero Rating","authors":"Marta Maroni","doi":"10.1017/S1574019621000341","DOIUrl":"https://doi.org/10.1017/S1574019621000341","url":null,"abstract":"Internet Service Providers (ISPs) provide access to the Internet. Their role is central to the future development of the Internet, fundamental rights, and the information society as a whole. ISPs could block, slow down or favour applications or services. These practices are harmful because they can be deployed to alter the way in which content is transmitted on the Internet, which has repercussions on competition, diversity and pluralism. The EU has laid down measures concerning","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":"17 1","pages":"517 - 537"},"PeriodicalIF":2.1,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41646742","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-01DOI: 10.1017/S157401962100033X
J. Komárek
=3317406〉 visited 4 October 2021. 87See ECJ (Fourth Chamber) Order of 6 October 2005 in Case C-328/04 Vajnai [2005] ECR I-8577. 88G. de Búrca, J. Morijn andM. Steinbeis, ‘Stand withWojciech Sadurski: his freedom of expression is (y)ours’ Verfassungsblog, 18 November 2019, 〈https://verfassungsblog.de/stand-withwojciech-sadurski-his-freedom-of-expression-is-yours/〉, visited 4 October 2021. 89ECHR (First Section), Application No. 39394/98, judgment of 13 November 2003, ECHR 2003-XI. 90Scharsach and News Verlagsgesellschaft mbH v Austria, § 27. 440 Jan Komárek EuConst 17 (2021)
=33317406〉于2021年10月4日访问。87见2005年10月6日欧洲法院（第四分庭）关于案件C-328/04 Vajnai[2005]ECR I-8577的命令。88克。de Búrca、J.Morijn和M。Steinbeis，“与Wojciech Sadurski站在一起：他的言论自由是我们的”Verfassungsblog，2019年11月18日，〈https://verfassungsblog.de/stand-withwojciech-sadurski-his-freedom-of-expression-is-yours/〉，于2021年10月4日访问。89欧洲人权法院（第一节），第39394/98号申请，2003年11月13日判决，欧洲人权法院2003-XI。90 Scharsach and News Verlagsgesellschaft mbH诉奥地利案，第27节。440 Jan Komárek EuConst 17（2021）
{"title":"Freedom and Power of European Constitutional Scholarship","authors":"J. Komárek","doi":"10.1017/S157401962100033X","DOIUrl":"https://doi.org/10.1017/S157401962100033X","url":null,"abstract":"=3317406〉 visited 4 October 2021. 87See ECJ (Fourth Chamber) Order of 6 October 2005 in Case C-328/04 Vajnai [2005] ECR I-8577. 88G. de Búrca, J. Morijn andM. Steinbeis, ‘Stand withWojciech Sadurski: his freedom of expression is (y)ours’ Verfassungsblog, 18 November 2019, 〈https://verfassungsblog.de/stand-withwojciech-sadurski-his-freedom-of-expression-is-yours/〉, visited 4 October 2021. 89ECHR (First Section), Application No. 39394/98, judgment of 13 November 2003, ECHR 2003-XI. 90Scharsach and News Verlagsgesellschaft mbH v Austria, § 27. 440 Jan Komárek EuConst 17 (2021)","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":"17 1","pages":"422 - 441"},"PeriodicalIF":2.1,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43524687","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-01DOI: 10.1017/S1574019621000286
Mathieu Leloup
Time for the European Court of Human Rights to interpret Article 6 ECHR to encompasses a subjective right for domestic judges to their own independence – Overview of the existing case law on the principle of judicial independence – Such a right currently not present in case law – Judges are obliged to frame their complaints, while at their heart independence-related, in terms of other substantive Convention rights – Court cannot properly address one of the fundamental aspects of these cases – Lower protection for the domestic judges – Other international legal orders do include such a subjective right to a judge’s independence – Several arguments for the European Court of Human Rights to similarly acknowledge such a right under the Convention – Few difficulties in integrating such a right into the existing case law
{"title":"Who Safeguards the Guardians? A Subjective Right of Judges to their Independence under Article 6(1) ECHR","authors":"Mathieu Leloup","doi":"10.1017/S1574019621000286","DOIUrl":"https://doi.org/10.1017/S1574019621000286","url":null,"abstract":"Time for the European Court of Human Rights to interpret Article 6 ECHR to encompasses a subjective right for domestic judges to their own independence – Overview of the existing case law on the principle of judicial independence – Such a right currently not present in case law – Judges are obliged to frame their complaints, while at their heart independence-related, in terms of other substantive Convention rights – Court cannot properly address one of the fundamental aspects of these cases – Lower protection for the domestic judges – Other international legal orders do include such a subjective right to a judge’s independence – Several arguments for the European Court of Human Rights to similarly acknowledge such a right under the Convention – Few difficulties in integrating such a right into the existing case law","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":"17 1","pages":"394 - 421"},"PeriodicalIF":2.1,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48756413","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-01DOI: 10.1017/s1574019621000316
Louis Michael Seidman
Do written constitutions matter? In his important and provocative book about written constitutions, Brian Christopher Jones seems to say ‘not much’. He takes constitutional idolatry as his target and defines it as ‘drastically and persistently over-selling the importance and effects of written constitutions’ (p. 5). Idolatry of this sort, he warns, ‘turns [constitutions] into false gods of our legal, political and societal communities’ (p. 11). It turns out, though, that Jones is not quite saying what he means. If written constitutions aren’t very important, then they cannot be very evil, and Jones seems to think that their potential for evil is quite large. That potential is central to his opposition to the movement in the United Kingdom favouring the creation of an integrated, written constitution – an opposition that motivates the book. Still, Jones’s initial formulation, misleading as it is, forces us to confront particularistic questions about the circumstances in which constitutions matter, and why and how they matter under those circumstances. After a brief summary of Jones’s argument, the bulk of this review is devoted to suggesting answers to these questions.
成文宪法重要吗?在布赖恩·克里斯多夫·琼斯(Brian Christopher Jones)关于成文宪法的重要且具有煽动性的著作中，他似乎说了“不多”。他把宪法偶像崇拜作为他的目标，并将其定义为“彻底地、持续地过度夸大成文宪法的重要性和效果”(第5页)。他警告说，这种偶像崇拜“把(宪法)变成了我们法律、政治和社会社区的假神”(第11页)。然而，事实证明，琼斯并没有完全表达他的意思。如果成文宪法不是很重要，那么它们就不可能是非常邪恶的，琼斯似乎认为它们潜在的邪恶是相当大的。这种潜力是他反对英国支持制定一部完整的成文宪法的运动的核心——正是这种反对推动了这本书的创作。尽管如此，琼斯最初的表述虽然具有误导性，但却迫使我们面对一些特殊的问题，比如宪法在哪些情况下起作用，以及在这些情况下宪法为什么起作用以及如何起作用。在简要总结了琼斯的论点之后，这篇评论的大部分内容都致力于提出这些问题的答案。
{"title":"Constitutional Scepticism and Local Facts","authors":"Louis Michael Seidman","doi":"10.1017/s1574019621000316","DOIUrl":"https://doi.org/10.1017/s1574019621000316","url":null,"abstract":"Do written constitutions matter? In his important and provocative book about written constitutions, Brian Christopher Jones seems to say ‘not much’. He takes constitutional idolatry as his target and defines it as ‘drastically and persistently over-selling the importance and effects of written constitutions’ (p. 5). Idolatry of this sort, he warns, ‘turns [constitutions] into false gods of our legal, political and societal communities’ (p. 11). It turns out, though, that Jones is not quite saying what he means. If written constitutions aren’t very important, then they cannot be very evil, and Jones seems to think that their potential for evil is quite large. That potential is central to his opposition to the movement in the United Kingdom favouring the creation of an integrated, written constitution – an opposition that motivates the book. Still, Jones’s initial formulation, misleading as it is, forces us to confront particularistic questions about the circumstances in which constitutions matter, and why and how they matter under those circumstances. After a brief summary of Jones’s argument, the bulk of this review is devoted to suggesting answers to these questions.","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":"15 6","pages":"566-579"},"PeriodicalIF":2.1,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138513434","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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