European Law Journal最新文献

This comment on Ermioni Xanthopoulou's insightful article starts by revisiting the nature and role of trust in the European Arrest Warrant (EAW) procedure, considering the recent developments in the case law of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) (from Aranyosi/Căldăraru to Bivolaru/Moldovan). It is argued that trust is distinct from the presumption of respect for fundamental rights that underlies mutual recognition. The exercise of trust is now monitored by those Courts, as a means of protecting individual rights. This rehabilitates the proper meaning of trust, which can be reinforced by assurances. Prison conditions and legal changes affecting the rule of law are analysed in this light, as ‘drivers of distrust’. In sum, distrust can legitimately provide immediate protection for the individual, and the spectre of distrust causes the appreciation of trust, which in turn is beneficial for fundamental rights.

Mutual trust in the Dublin III Regulation is justified by the assumption that all Member States respect the fundamental rights of asylum seekers and that it is therefore immaterial which Member State processes any given claim. This justification has been questioned in light of the treatment of asylum seekers in some Member States. Nonetheless, in order to circumvent a Dublin transfer on fundamental rights grounds, the Court of Justice of the EU has held that the risked violation must meet the threshold for inhuman or degrading treatment in Article 4 of the Charter. Recently, the Court rejected the proposition that another Charter right—the principle of the best interests of the child—could block Dublin transfers of families with children. Through a child-rights analysis of the jurisprudence, this article explores the idea of exceptionality for children, concluding that there is potential for the best interests principle to trump mutual trust.

China's approach to ISDS reform is widely perceived as undecided and ambiguous. This paper provides the first detailed analysis of China's submission to the UNITRAL Working Group III and situates China's approach in the context of global dialogue of ISDS reform and competing reform proposals. The paper shows that China's open, flexible, and evolving approach to ISDS reform could be better understood by a contextual evaluation of the pertinent factors which have contributed to its formation. Moreover, this paper explains why China did not sign up to the EU's investment court system (ICS) proposal in the EU-China Comprehensive Agreement on Investment (CAI). Lastly, the paper argues that China should reconsider its attitude towards the ICS in the CAI context and that the EU's recent suggestion that the envisaged multilateral investment court may adopt an ‘open architecture’ is likely to enhance its appeal to China.

During a time of distrust towards some Member States, the position of fundamental rights when executing a European Arrest Warrant (EAW) has been strengthened. The article considers whether the European Court of Justice (ECJ) is now ‘taking rights seriously’ as regards the EAW. To this end, it employs a theoretical and contextual approach that supports a comprehensive analysis of case-law. First, the article borrows from a theory of rights as trumps and observes that rights are no longer treated as norms with no special force that are in the way of cooperation interests. Second, the article offers a contextual exegesis of this trajectory, by mapping drivers of distrust and evaluating their impact on the position of rights. Through contextualisation, it is argued that distrust, although limited by its circumstances, has offered a compelling opportunity for the ECJ to take rights seriously, paving the way forward for future case-law.

The concept of ‘Regulation by Information’ is changing. Past such approaches consisted mainly of signalling regulatory intent and indirectly guiding how and when regulatory discretion should be exercised. We suggest that this conceptual understanding must be reviewed in view of developing regulatory technologies (RegTech) allowing for a far more proactive integration of data flows into regulatory processes. RegTech is thereby changing conditions of Regulation by Information.

This article uses financial regulation as an information-intensive and highly regulated policy field to illustrate and analyse RegTech-induced changes to conditions of Regulation by Information. It finds that the rise of near real-time information flows between market participants and regulatory bodies and, consequently, the need for near real-time regulatory responses on the European Union level have led to an ever higher degree of integration of regulatory software into market data flows.

Regulatory software now increasingly shapes the definitions of reporting standards and formats, which in turn shape regulatory choices by influencing information flows. The article shows how this development will likely be used in other data- and information-dense policy areas outside of financial markets.

Critics of Regulation by Information argue that it can lead to a lack of accountability and transparency, increasing the democratic deficit within the European Union. This article scrutinises both continuities and changes in the role and significance of legal principles and procedures used in regulatory oversight, following the evolution of this new form of Regulation by Information within the EU.

The ethical-political model of the EU needs normative rethinking after the pandemic. Using Dworkin's ‘thesis of continuity’ between ethics and politics, I argue that a strong model of the citizen, called on to exercise duties and civic virtues, is badly needed by the EU. The legitimacy of EU political institutions is not enough, if we want to promote the participation of citizens to their functioning. The basic point is that of arguing in favour of the model of ‘the reasonable citizen’, aimed to overcome the dominant liberal model of ‘citizenship as rights’. This is shown by the ‘European Social Model’, but its weaknesses need to be supplemented by a republican conception. In order for the reasonable citizen not to be just an abstract ideal, some measure of operationalisation is proposed through ‘progressively increasing constellations of common identities’; these rely on and respect the multiple demoi of the EU.

Imagine walking down the street, stopping a random person and asking them what they think about Europe. In the early 1950s, a TV crew did exactly that and an elderly farm woman replied: ‘Well, if it's for Peace, it's fine’. Sixty years later, an elderly Ukrainian woman was asked the same question. We are in the weeks of the ‘Revolution of Dignity’ happening in Kyiv in 2014. She proudly shows a huge expanse of wheat, saying that, thanks to it, the whole of Europe would be fed. Yet, the gentleness with which the word “Europe” was pronounced does not seem so common in the EU anymore.

In the public debate, “Europe” is often mentioned in relation to bad news, contradictions or, at best, major global problems to be tackled. Yet, in recent years, this “Europe” has meant so much when we needed solidarity during the pandemic and coordinated action to face war and climate crisis. This is why, during the 2024 European elections, Europe will be in a drastically different situation than it was five years before. Shaken by those crises and challenges, European society stands at a historical crossroads. We face an increasing number of forces that amplify division, fear and interference acting more and more powerfully against European unity and solidarity. Can we let them proceed without countering those developments? For now, our destiny lies in our hands, but will it tomorrow?

The top three values that Europe should defend, according to a Eurobarometer survey, are democracy, human rights and freedom of speech. However, with the free exchange of ideas comes the danger of disinformation. In a Council of Europe survey, 82% of respondents cited ‘fake news’ as a major concern and a threat to democracy. This is not a new phenomenon, as we have seen foreign interference have an impact on electoral campaigns in Europe and the United States, specifically in 2016 but also more recently.

Since the Second World War, democracy, freedom of movement and speech, economic growth and cultural exchanges, but also friendship and love, are springing up where armies once passed. Yet, there is a possibility that many Europeans find it hard to see all this, to notice that the European Union is an aspirational point of reference for many people in the region. We are the continent with the biggest economic market, with the most comprehensive welfare system; the safest, from every point of view, and all this thanks to this unique political project.

Europe was born on the frontier between states used to fighting wars against each other, which have decided to tear down barriers, face their past and look towards the future with confidence. In fact, paraphrasing the sociologist Abdelmalek Sayad, what happens at the frontiers of a community is a mirror of ‘the deepest contradictions of a society, its political organisation and its relations with other societies’. Those frontiers that once passed through Verdun and the Somme today lie elsewhere, from Cutro to Kyiv.

In some Member States, doctrine and case law of national courts have highlighted that, under currently applicable European electoral law, elections to the EP are of a second-order, whereby European issues give way to purely domestic ones. In any event, this does not hinder the position of the EP as a genuine legislative chamber, which, above all, demands effects from electoral law that it cannot provide, since the intensity with which an election is experienced depends on circumstances external to the system itself. What electoral law can guarantee instead is the periodic holding of free elections. And that requires ensuring that the EP is appointed by the free expression of the opinion of all (and only) European citizens; that the weight of the vote is determined by rational criteria; that the electoral formula allows access to significant political currents; and that the “rule of law” is respected in the electoral process.