European Law Journal最新文献

This article analyses to what extend the rapid growth of Frontex has been accompanied by adequate democratic accountability, whereby the author draws on her experiences as a Member of Parliament. She elaborates on the safeguards in legislation but also on their application in practice, with a focus on the lessons the Parliament learned from its own inquiry on the role of Frontex in pushbacks. The contribution subsequently puts democratic control to a test on two relatively recent tasks of Frontex: return and external cooperation. Regarding the latter, the Parliament's role is highlighted in the negotiations on the Frontex status agreements between the EU and Mauritania/Senegal. The article answers the question of what obstacles must be overcome, through legislative amendments or changes in practice and culture, for the Parliament to exercise its role effectively. Two of these factors are dealt with more prominently: transparency and cooperation with national parliaments.

The essay deals with the enhancement of the legal framework for informal readmissions at internal borders enshrined in the proposal on an amended Schengen Border Code, which in turn requires enhancement of bilateral police cooperation. It focuses on the impact of the new rules on the prohibition on police controls equivalent to border checks to highlight that the case-law of the Court of Justice on the matter creates a huge grey area which is critical for the ideal of a border-check-free Union. Increased use of video surveillance and other technologies also faces the legal bottleneck of prohibition on police controls having equivalent effects to border checks, as well as raising serious concerns on fundamental rights. It is argued that the situation resulting from these amendments to the Schengen Border Code should be considered in terms of an impending rule of law crisis at internal borders. [Correction added on 19 July 2024 after first online publication: The Abstract section was previously omitted and has been included in this version.]

Access to justice depends on the ability of the person who is alleging a breach of human rights to establish to a credible extent the facts of the case. Where the individual is unable to provide supporting documentation about the facts, the claims are likely to be found inadmissible, or at least the defendant's lawyers are likely to seek to have the case dismissed on the basis of no case to answer. The transnational nature of state authorities' violence in external border controls (border violence) complicates the ability of victims to establish what has actually happened. Indeed, victims are often on one side of the border and those seeking to assist them on the other, while border police themselves are most reluctant to assist in establishing facts which may result in liability for themselves. This article examines how the EU can establish effective monitoring mechanisms with the competence to investigate allegations of state agencies' border violence building on existing structures.

Following the landmark Urgenda case, European social movements and legal networks have increasingly turned to courts to compel governments to more ambitious mitigation policies. The rapid proliferation of Urgenda-like cases in the most diverse European jurisdictions, makes a compelling case to investigate the motivations and goals animating European climate litigators, especially when facing high legal barriers. While timely legal analyses of high-profile climate litigation abound in the literature, an emerging body of research has focused on the genesis of climate cases , their strategies, and societal impacts. To contribute to this latter thread, the article investigates how legal barriers and considerations, and social movements' motivations and goals, have shaped a diverse range of legal strategies in high-profile climate lawsuits inspired by Urgenda in Europe. The article shows that courts might turn into very different arenas to pursue social change, in which actors elect cautious or daring strategies, depending on the legal system and tradition they refer to, but also their vision and objectives.

The impacts of environmental challenges, including climate change, are increasingly felt by individuals across the globe. Amidst the critical and, some argue, urgent nature of these challenges, and the perceived sluggishness of the executive and legislative branches of government in addressing them, citizens and civil society movements are increasingly seeking redress through judicial avenues. This trend shines a new light on fundamental questions about the role of law in society and the interplay between the political and the legal. It particularly challenges traditional notions of the judiciary's role, begging important questions: What motivates citizens to bring socially charged issues before the courts, and how do institutional frameworks influence the adjudication of such issues? What roles do governments, parliaments, courts and civil society play in these processes? What leads courts to render substantive decisions on these issues, or why do they refrain from doing so? What complexities arise when judges make decisions in such politically charged contexts? How can concerns about judicial independence and impartiality be balanced with evolving public expectations around the role of the courts? And what consequences does this shifting role have for the judiciary's self-image and its perceived legitimacy?

Environmental and climate change law presents a particularly fertile terrain to explore these questions. The concept of “environmental democracy”, as discussed by Angelika Krężel in this issue in relation to strategic climate litigation in the European Union,1 brings to the fore interesting questions pertaining to the justification for the role of courts and their legitimacy in addressing pressing societal issues. A countermajoritarian logic has traditionally supported the role of courts from a balance of power perspective, where court action is deemed necessary to amplify the voices of minorities or the vulnerable. This perspective also views judicial intervention as a way to enforce the rule of law by preventing asymmetries of power in society - be they economic or political - from having a detrimental impact on the way legal rules are interpreted and applied, as Giorgio Cataldo's essay examining key Italian constitutional court decisions in light of the European Court of Justice's case law illustrates. Courts in that sense constitute a democratic forum where the voice of the (silenced) majority is heard.2 But courts can also have a direct impact on the definition of democracy itself as a space for contestation. This is exemplified by Paolo Mazzotti's call for a liberal interpretation of the climate defence of necessity in criminal courts, amidst a growing transnational movement of climate activists embracing civil disobedience.3

Through the open texture of law, courts have played a key role in its interpretation and adaptation to evolving societal needs. Henri de Waele has painted a picture of

The transnational movement of climate activists is resorting increasingly often to acts of civil disobedience. Upon being prosecuted for those acts, climate activists across various jurisdictions are starting to plead the general criminal law defence of necessity. The present article takes the cases in which that defence was pleaded before Swiss courts as a case study to analyse the legal questions raised by the ‘climate necessity defence’, conceptualised as an instance of climate litigation. The article hence situates the Swiss cases within a broader framework, trying to draw interpretive insights from international environmental law and climate science, as well as the transnational case-law on the climate necessity defence. The article's overarching submission is that a broad interpretation of the defence, tending towards accepting its applicability, is more in line with the current legal thinking on environmental matters than a restrictive interpretation rejecting a priori climate necessity claims.

In recent years, the US and the Netherlands have been on opposing sides of the spectrum regarding climate litigation. Dutch courts, in several revolutionary climate cases, have been an arena of societal change, whilst climate claims in the US have been largely unsuccessful. In a way this difference seems strange, because the US judiciary has the power of constitutional review, whilst the Dutch judiciary does not. Against that background, this paper extensively compares the doctrines of judicial competence regarding political questions in both jurisdictions. As a comparative framework, this paper uses three judicial phases, namely: the institutional phase, the substantial phase, and the remedial phase. Climate litigation reveals that the Dutch doctrine of judicial competence is focused on the substantial and remedial phases, which has allowed it more freedom in reviewing climate litigation. On the other hand, climate litigation reveals that the US doctrine of judicial competence is focused on a strict institutional phase, dominated by the Political Question Doctrine (PQD). The main contribution of this paper to the constitutional debate is that climate litigation reveals fundamental differences in doctrines of judicial competence. This is not only an important takeaway for future climate litigation, but also, in terms of the Radbruch formula, for other potential gaps between the executive and justice.

The article explores the difficult balance of interests in the Italian field of seabed mining. In recent years, the regions, bearers of the local communities' social demands, claimed greater attention to sustainability, while the State almost always privileged productivity. The Constitutional Court always took an attitude of self-restraint, basically adhering to State reasons. Given this starting point, it is not entirely certain that the European Court of Justice's 2022 ruling, which included the environmental interest alongside economic concerns, will bring concrete developments. Indeed, although environmental protection falls under constitutional principles from 2022, there is a complex framework of interests involved in the sector, from which political power suffers above all. Consequently, the reception of social demands makes the effort of only the Court insufficient. The Italian case thus illustrates some of the constraints that can weigh on courts, especially constitutional courts, in their ability to constitute an arena of societal change.

In recent years, children across the globe, such as Greta Thunberg and Kelsey Juliana, are seen at the front line of efforts to hold governments accountable for environmental damage. In the Philippines, the case of Oposa v. Factoran gave legal standing to minors and unborn generations invoking their constitutional right to a balanced and healthful ecology. The Philippine Supreme Court based its decision on intergenerational equity—a principle stating that every generation has an obligation to protect the environment for the next.

Representation of future generations in courts is not a new concept, nor is it unique to the Philippines. By examining national laws, treaties and conventions and court decisions by both domestic and international courts, this article aims to show how intergenerational equity has been widely recognised by almost all countries globally as evidence of state practice and opinio juris.

This article argues that the principle of intergenerational equity is ripe for consideration as customary international law and discusses how domestic and international courts and tribunals have been instrumental in establishing such and recommends that children and unborn generations be given legal standing as a necessary consequence.