Spring 2018 – Volume 10 – Issue 2

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Editorial


Talking About My Generation

By: Rebecca Mignot-Mahdavi

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General Articles


Two Types of Legal Uncertainty

By: Orlin Yalnazov

Law-and-economics scholars analyse legal uncertainty as a choice between rules and standards. In doing this, they focus on individual laws that regulate and sanction conduct, or what Hart would call ‘primary rules’. Hart also spoke of ‘secondary rules’, that is, rules that determine the validity and precedence of other rules. Here, I introduce secondary rules into the law-and-economics framework. Two types of uncertainty emerge. I call the one covered in the literature ‘applicative uncertainty’ and the ‘new’ one ‘hierarchic uncertainty’. I show that the two always co-exist and, further, that there is a trade-off between them. I sketch out the economics of that trade-off and I discuss its implications for legal certainty in general.

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Translating the Convention’s Fairness Standards to the European Court of Human Rights: An Exploration with a Case Study on Legal Aid and the Right to a Reasoned Judgment

By: Lize R. Glas

The European Court of Human Rights (ECtHR) has clarified when domestic procedures are fair, but it remains unclear when the ECtHR’s own procedures are fair. Yet, clarifying the requirements of procedural fairness applicable to the ECtHR is important, especially in a context where doubts have been expressed about the fairness of some of the Strasbourg procedures. This article proposes that the fairness standards from the ECtHR’s case law, which apply to domestic authorities, can be applied to the Strasbourg Court. These standards must, however, be adapted to or ‘translated’ into the ECtHR’s context, because its context is so different from that of domestic authorities. This article, therefore, develops eleven principles of translation. The usefulness of the principles is tested by employing those principles to translate two fairness standards: the right to legal aid and the right to a reasoned judgment. Subsequently, the usefulness of the translated standards is evaluated by applying those translated standards to two aspects of the ECtHR’s practice: the granting of legal aid and single-judge decisions.

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Populism, Exceptionality, and the Right to Family Life of Migrants under the European Convention on Human Rights

By: Vladislava Stoyanova

The recent populist turn in national and international politics poses a threat to the rights of migrants. In this context, the key question that this article addresses is whether and how the European Convention on Human Rights (ECHR), as interpreted by the European Court of Human Rights (ECtHR), can be a point of resistance against populism. More specifically, how might the ECtHR respond to the anti-migration dimension of the populist politics when adjudicating cases implicating the rights of migrants (with a focus on the right to family life)? In this article, I acknowledge that the Court, through its adjudicative function, has created a space where the state has to advance reasoned arguments to justify disruptions of family life in pursuit of immigration control objectives. At the same time, however, I also demonstrate that this space does not reflect the usual rigor of scrutiny conducted by the Court in cases that do not concern immigration policies (i.e. the proportionality reasoning with its distinctive subtests is applied with serious aberrations). The Court acts with restraint when called upon to uphold the rights of migrants; it sides with the sovereign states and, therefore, any populist attacks against the Court are unsubstantiated. I would like to also inject a note of caution for the Court itself about how it reasons. More specifically, in its restraint to exercise resistance against the sovereign states’ entitlements in the area of migration, the Court is getting dangerously close to utilizing populist tools. Finally, I explain the ‘procedural turn’ taken by the Court when adjudicating the right to family life of migrants. While I acknowledge that this is a useful tool for the Court to maintain its standing in the sensitive area of migration, I also indicate the dangers that might emerge from its application. In particular, controversial decisions are left to be taken at the national level and the Court will be reluctant to examine them unless the quality of the national decision-making process is suspect.

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The Right to Preimplantation Genetic Diagnosis: Biological Citizenship and the Challenge to the Italian Law on Medically Assisted Reproduction

By: Volha Parfenchyk

In 2004, the Italian Parliament passed a restrictive law on medically assisted reproduction 40/2004 outlawing the use of preimplantation genetic diagnosis (PGD) in Italian fertility clinics. The adoption of the Law triggered a massive wave of lawsuits filed by Italian citizens and medical associations against the Law, leading to the invalidation by the Constitutional Court of the impugned provisions as violating constitutional rights and to the legitimization of PGD. Drawing on the concept of biological citizenship and the critical approach to legal rights, this article explores the extent to which rights litigation can ensure the recognition of biological citizens’ values and interests in using new biomedical technologies. It argues that countries’ dominant institutionalized ways of constitutional interpretation and reasoning play a key role in how courts resolve rights disputes. This limits the scope of rights, and the values that underpin the claimed rights, based upon which citizens can claim access to new biomedical technologies. In Italy, due to these dominant institutionalized ways of constitutional interpretation and reasoning, the Italian Constitutional Court recognized that only the right to health of the woman, and not the rights to reproductive self-determination and to respect for private and family life, legitimized access to PGD. As a result, it failed to recognize citizens’ relational values of parental responsibility and care that underpinned these rights. As such, biological citizenship in the form of rights claiming, therefore, provides limited potential for biological citizens to have their values and interests in using new biomedical technologies recognized by the state.

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The Global Effects of EU Energy Regulation

By: Davor Petrić

The European Union’s internal energy market is founded on a mix of measures employed at various levels of competence, and aimed to safeguard the EU’s key objectives, such as energy security, energy efficiency, and environmental protection. It is generally recognised that institutional features of the internal market provide the EU with considerable capacity to externalise its regulatory measures at different levels of governance. This article assesses the validity of this proposition in the case of EU energy regulation. Analysing instances of the external effects of EU energy law and policy in two dimensions – global and regional – it is shown that even without a consolidated EU internal and external approach, there are considerable effects – both positive and negative from the perspective of EU energy interests – in each of the instances observed. Confirming the contemporary literature on the EU external governance in a wider context, a conclusion is drawn that the internal checks and divisions present the greatest impediment for the more efficient externalisation of EU energy regulation.

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New Voices


Of Apples, Cars, and Coffee – Against the Commission’s Remedy to Unlawful Tax Rulings

By: Riccardo Fadiga

Advance pricing agreements (APAs) are the most effective tool for undertakings to reduce the uncertainty regarding the fiscal liability arising out of transactions regulated by transfer pricing. Multinationals rely on APAs to gain confidence in complicated operations and attain better efficiency. In several recent decisions, the European Commission established that APAs can give rise to unlawful granting of State aid, if they provide for transfer pricing methodologies that do not accurately reflect market conditions. However, the Commission does not describe any method to establish the lawfulness of the adopted pricing methodology objectively. Therefore, this article argues that recovery of such alleged unduly granted aid violates the principle of protection of legitimate expectations, which is a fundamental principle of EU law. As such, recovery should be deemed unlawful.

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Book Reviews


Book Review: Iyiola Solanke, Discrimination as Stigma: A Theory of Anti-Discrimination Law (Hart Publishing 2017)

By: Raphaële Xenidis

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