Issue 9(2)

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Catalogue no.: QM-AZ-19-018-EN-N

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The Borders of European Integration on Trial in the Member States: Dansk Industri, Miller, and Taricco

By: Oliver Garner

Amid the political turmoil following the United Kingdom’s popular vote on ‘Brexit’, the United Kingdom Supreme Court has recently handed down its highly-anticipated ruling in Miller. This judgment conveys remarkable insights about the United Kingdom Supreme Court’s perception of the relationship between the national and European legal orders. We invited Oliver Garner, a Ph.D. researcher at the Law Department of the European University Institute working on the legal ramifications of ‘Brexit’ and an editor of our journal, to write an editorial on the implications of this ruling. Oliver puts the ruling in a broader perspective, comparing it to two other recent national court decisions: Dansk Industri from the Danish Supreme Court and Taricco from the Italian Constitutional Court.

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New Voices

Jurisdictional Immunities of the State: Why the ICJ Got It Wrong

By: Anogika Souresh

This article explores the decision in Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) regarding the relationship between State immunities and jus cogens norms. It focuses on three assertions in the case, regarding the criminal/civil distinction, the procedural/substantive distinction and the pronouncement that the gravity of the crime is irrelevant when assessing the claim for State immunity. The article picks apart the three assertions in turn, which leads to the conclusion that the analysis by the International Court of Justice (ICJ) was flawed. Ultimately, it is argued that Germany ought not to have been afforded State immunity for violations of jus cogens norms.

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Ought Implies Can: Counter-Examples and Intentions

By: Guglielmo Feis

The paper tackles Ought Implies Can (OIC) from a slightly different angle compared to the one that is often adopted in the contemporary OIC sub-debates. I am mainly concerned with the thought according to which, even if the action we ought to do is impossible, it is still possible to intend to do it. This possibility of intending is used as a strategy to rescue OIC from possible counter-examples. I explore two different ways to rescue the principle: (i) OIC rescue by implicating intending in action and (ii) OIC rescue by separation, and show they both face problems.

Download pdf Self-Regulation and Contract Governance in the Platform Economy: A Research Agenda

By: Marta Cantero Gamito

This essay looks at the role of online platforms as rule-makers. The disruption of the Platform Economy has come hand in hand with a broader transformation: the emergence of a post-regulatory society, which feels more and more comfortable with transacting outside conventional legal and regulatory frameworks. This has raised the question as to how to regulate these platforms, if at all. This short piece focuses on how platform businesses are developing their own governance frameworks based on self-regulation, trust, and reputation, which create incentives for online traders to comply with the platforms’ terms and conditions.Due to reputational enforcement and network effects, platforms act as powerful gatekeepers of online markets, displaying features of governance through contract. By recommending the use of contract governance as an analytical framework, this essay proposes a research agenda to examine the extent to which these emerging governance frameworks act as a competing alternative to existing forms of State-provided market regulation.

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General Articles

The Ratification of the Council of Europe Istanbul Convention by the EU: A Step Forward in the Protection of Women from Violence in the European Legal System

By: Sara De Vido

The article explores the reasons why the EU should ratify the Council of Europe Istanbul Convention on Preventing and Combating Violence against Women and Domestic Violence, adopted in 2011, and the consequences the ratification may entail. In the first part, I will make a few remarks on the main provisions of the Convention, which must be considered as the most advanced system of protection of women from violence at the international level in force for the time being, and I will comment on the current status of EU gender equality policies. In the second part, starting from the European Commission roadmap regarding the EU accession to the Convention (October 2015), and the proposal for a Council decision on the signing of the Convention (March 2016), then I will analyse the legal bases for the ratification of the Convention by the EU, and the possible impact this treaty may have on EU policies. I argue first that the legal basis of the decision of the Council concluding the agreement cannot be limited to Articles 82 to 84 of the Treaty of the Functioning of the EU (TFEU), but should be extended to – at least – Articles 19 and 168 TFEU. I will then explore the impact of the Convention on future policies of the EU, also providing a comparison with the Convention on the Rights of Persons with Disabilities, which constitutes the first international treaty on human rights ratified by the European Union. Secondly, I will contend that one of the provisions of the Convention, namely Article 30(2), which requires States to compensate victims of violence who have sustained ‘serious injury or impairment of health’, has direct effect.

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Freedom to Conduct Business in EU Law: Freedom from Interference or Freedom from Domination?

By: Eduardo Gill-Pedro

What understanding of freedom does the EU freedom to conduct business protect? This article distinguishes between two understandings of freedom – freedom as non-interference and freedom as non-domination and argues that both the text of Article 16 of the Charter and the pre-Charter case law suggest an understanding of freedom as non-domination. However, in recent case law, the Court appears to have moved towards an understanding of freedom as non-interference. This article highlights the implications of such a move for national democracies.

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Vers un marché unique numérique: Géoblocage et portabilité transfrontière des services de contenu en ligne dans l’Union Européenne

By: Gaetano Lapenta

Le blocage géographique constitue une barrière aux antipodes d’un marché numérique sans frontières. Cet article vise tout d’abord à vérifier si de tels obstacles, motivés principalement par le morcellement du cadre juridique européen actuel, peuvent être justifiés. L’analyse de la directive services montre qu’il n’est pas possible de qualifier le traitement différencié résultant du géoblocage en tant que discrimination interdite. C’est pourquoi, dans sa stratégie pour la création d’un marché unique numérique, le premier pas de la Commission a été la proposition de règlement visant à assurer la portabilité des services de contenu en ligne. Cependant, cet article met en évidence le manque de précision concernant les définitions de ‘présence temporaire’ ainsi que d’État membre de résidence’, ce qui pourrait rendre le futur règlement concrètement inapplicable.

Geo-blocking constitutes a practice which is contrary to the idea of a digital single market without borders. The purpose of this article is to assess whether such barriers may be justified given the fragmentation of the current European legal framework. The analysis of the Services Directive demonstrates it is not possible to qualify the differentiated treatment resulting from geo-blocking as an unlawful discrimination. Therefore, in its Digital Single Market Strategy, the Commission’s first step was to propose a regulation aimed at ensuring the portability of online content services. However, this article highlights the lack of clarity in regards to the definition of ‘temporary presence’ and ‘Member State of residence’, which can result in the concrete inapplicability of said future regulation.

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Judges’ Perspective on the Level of Punishment

By: Moshe Bar Niv, Ran Lachman

Whether or not courts impose an adequate level of punishment, is an important issue in terms of sustaining the social order, maintaining the judicial system’s legitimacy, and designing anti-crime policies. To assess the level of sentencing the study surveyed longitudinally, the perspectives of Israeli judges on the issue over a period of three decades. The results show that, consistently, the judges assessed the level of punishment as quite lenient. The results also suggest that no corrective action was taken over the three decades to adjust for the lenient sentencing either by the court system or by the judges themselves, who have the discretion to impose more severe sentences. A regression analysis revealed that court instance and tenure as a judge were related to the judges’ assessments of punishment. The practical and theoretical implications of all these results are discussed.

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Do We Deliberate? If So, How?

By: Virgílio Afonso da Silva

Academic studies usually present the points of view of their authors. In the specific field of deliberation in constitutional and supreme courts, although the dynamic, quality and results of the deliberations are analysed from various points of view, that perspective almost always comes from outside the court. What judges think of their deliberative performance or what they think of the deliberative model in the court to which they belong is rarely known. This article aims to address this issue by presenting the thoughts of justices on a certain supreme court regarding the deliberations in which they participate. Its goal is thus not to formulate general hypotheses about deliberation in constitutional and supreme courts or even specific hypotheses about a particular court. It presents some of the results of a broad study on the deliberative practices of the Brazilian Supreme Court. This research was based on interviews with the justices of the Court as well as other sources. These interviews sought to understand what the Supreme Court justices think—or at least what they say they think—about the deliberative process in which they participate, especially their views on how the deliberation and judgement sessions are organized, as well as on the value of consensus and collegiality.

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Book Reviews

Book Review: Floris de Witte, Justice in the EU. The Emergence of Transnational Solidarity (OUP 2015)

By: Anastasia Poulou

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Book Review: Päivi Johanna Neuvonen, Equal Citizenship and Its Limits in EU Law: We the Burden? (Hart Publishing 2016)

By: Martijn Van Den Brink

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Book Review: Federico Fabbrini, Ernst Hirsch Ballin and Han Somsen (eds), What Form of Government for the European Union and for the Eurozone? (Hart Publishing 2015)

By: Alessandro Petti

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Categories: Issues