Spring 2019 – Volume 11 – Issue 2

Catalogue no.: QM-AZ-19-025-EN-N

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Editorial


From Inclusivity to Diversity: Lessons Learned from the EJLS’ Peer Review Process

By: Olga Ceran and Anna Krisztián

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New Voices


Freedom of Panorama: The EU Experience

By: Anna Shtefan

Freedom of panorama allows creating and using images of works which are permanently located in public places without the consent of the author. There is no common approach to freedom of panorama, a copyright exception, among the member states of the European Union (EU). Different states have very different forms of freedom of panorama, including the types of works covered and the ways in which images of such works may be used. This causes complexity for users since for the legitimate use of the images of works it is necessary to study the laws of each state separately. In this article, I examine how freedom of panorama is regulated in EU member states, with a particular focus on how the existing approaches relate to the Berne Convention and to the interests of society. I then propose a model regulation of freedom of panorama based on a three-step test which takes into account the interests of both the authors and of wider society.

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General Articles


A Safe Habour or a Sinking Ship? On the Protection of Fundamental Rights of Asylum Seekers in Recent CJEU Judgments

By: Piotr Sadowski

For over a decade, the Common European Asylum System has been continuously tested in practice. However, it has been under particular pressure in recent years due to the unprecedented scale of the latest migration crisis. The Treaty of Lisbon extended the competencies of the Court of Justice of the European Union in asylum issues. A critical evaluation of the decisions of the Court in this article confirms the existence of a constant tension between ensuring the efficiency of EU law and respecting the rights enshrined in the Charter of Fundamental Rights of the European Union. These research findings are used to determine whether the Court of Justice has strengthened the protection of these rights (especially in the Dublin procedures and in the cases of detention of asylum seekers) and whether it has contributed to the ongoing European judicial dialogue on the rights of asylum seekers.

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From Constitutional Freedoms to the Power of the Platforms: Protecting Fundamental Rights Online in the Algorithmic Society

By: Giovanni De Gregorio

The rise of the algorithmic society has led to a paradigmatic shift where constitutional liberties granted to online platforms have turned into newfound powers. This situation is not only the result of new technological developments but also of the recognition of the online platforms’ exclusive role in implementing an online public regulatory framework, as the cases of content management and the right to be forgotten online illustrate. Behind such delegated competences, online intermediaries can exercise sovereign powers over their online spaces through instruments based on private law and technology. In this scenario, the liberal constitutional approach adopted in relation to online platforms has played a crucial role in increasing the possibilities for these actors to affect individuals’ fundamental rights. This work will address two potential solutions to limit the extent of such private powers from a (digital) constitutional law perspective. The first will focus on the introduction of new user rights whose aim is to regulate online platforms’ decision-making processes and provide new legal remedies against such decisions. The insertion of new procedural rights in the online environment, including, for example, the obligation to explain the reasons behind platforms’ decisions, would be appropriate in order to reduce the opacity of automated decision-making processes and foster human awareness in the algorithmic society. The second solution will question the doctrine of horizontal effect in order to establish a mechanism to enforce constitutional rights vis-à-vis online platforms that operate in a global framework.

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Making Sense of Solidarity in International Law: Input From the Integration of the European Gas Market

By: Ielyzaveta Badanova

Solidarity is cited in the international law doctrine but often denied a self-standing legal meaning and normative force in international relations. Its mainstream understanding in the international law doctrine is often limited to a socio-political notion, which in our view neglects the evidence that one can gather from the practice of international law regimes. This happens to be particularly true for the international law of Ukraine-EU gas market integration, which operates the term quite widely. The present article seeks to repair the said omission by explaining how solidarity is pinpointed in this international law framework. This analysis allows picturing solidarity in three different legally relevant dimensions (constitutional principle, general legal maxim and the duty of cross-border assistance). The latter two dimensions present solidarity in terms of specific rights and obligations, which can be helpful in cementing solidarity as a legal notion in international law.

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Book Reviews


Book Review: Anna Södersten, Euratom at the Crossroads (Edward Elgar 2018)

By: Jakub Handrlica

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Book Review: Ole-Andreas Rognstad, Property Aspects of Intellectual Property (Cambridge University Press 2018)

By: Léon E. Dijkman

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Book Review: Manfred Nowak and Anne Charbord (eds), Using Human Rights to Counter Terrorism (Edward Elgar 2018)

By: Tarik Gherbaoui

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