Summer 2016 – Volume 9 – Issue 1
Catalogue no.: QM-AZ-19-018-EN-N
By: Elias Deutscher
Recognition in Italy of Same-Sex Marriages Celebrated Abroad: The Importance of a Bottom-Up Approach
By: Simone Marinai
This paper aims to challenge the traditional concept of marriage, as union between persons of opposite-sex, which until now has underlain the Italian policy of registration of same-sex marriages celebrated abroad and that the recent Italian law introducing civil unions for same-sex couples has not set aside completely. To this end, this paper explores the interplay of rules on EU free movement of persons and human rights and the recognition of a legal status created abroad. In a situation where the (national and supranational) legal framework fails to address all the problems, a bottom-up approach fuelled by societal change and its reflection in increasing litigation could be decisive. In fact, this kind of approach could lead to solutions which do not always fall into step with the normative context, but which is equally important in order to raise awareness of the need to eradicate any discrimination against same-sex couples.
Price Parity Clauses: Has the Commission Let Slip the Watchdogs of War?
By: Pablo Solano Diaz
While the proliferation of online markets has presented competition authorities with a string of challenges of diverse nature, the price parity phenomenon depicts particularly well the Commission’s ‘fight-chaos-with-chaos’ approach to digital economy. Indeed, the EU watchdog’s passive attitude towards the multiple enquiries into most-favoured-nation clausesby different national trustbusters across the Old Continent risks going down in universal history of antitrust infamy. With the awareness that rivers of ink have already been poured over the subject, this paper adopts a brand new stance by looking on its opportunity side. In the light of the timid open-mindedness recently shown by the European Court of Justice as regards the object-effect dichotomy in Groupement des Cartes Bancairesand Maxima Latvijajudgements (which seem to steer away from Pierre Fabre’s sternness), I will discuss different national solutions with a view to vindicating not only a more consistent but also an unprejudiced effects-based approach that should transport analogue EU law enforcement to the digital era.
How Do Types of Procedure Affect the Degree of Politicization of European Constitutional Courts? A Comparative Study of Germany, Bulgaria, and Portugal
By: Michael Hein, Stefan Ewert
Do different types of procedure affect the degree of politicization of constitutional courts in European democracies? We argue that they do and we find evidence that supports this assumption in our analysis of the German, Bulgarian and Portuguese courts. We show that two features of the types of procedure lead to a higher politicization of court decisions: lower legal requirements on the part of the applicants and broader opportunities for them to weaken political opponents. This kind of moderating effect appears equally for all groups of applicants.
The EU Courts Stand Their Ground: Why Are the Standing Rules for Direct Actions Still So Restrictive?
By: Michael Rhimes
The restrictive nature of EU standing rules has long been controversial. They were reformed in Art 263(4) of the Treaty on the Functioning of the European Union, which added another head of standing to the existing two heads. Despite this addition, standing continues to be a considerable hurdle to direct challenges. This article seeks to explain why. It does so on two levels. First, it explains how the courts’ interpretation of the third head makes it very difficult for most claimants to satisfy. In so doing, it highlights both the flaws in this interpretation, as well as the possibility of adopting more liberal interpretations fully consistent with the text of Art 263(4). Second, it examines, more fundamentally, why the courts support narrow admissibility criteria, even after the opportunity they were given in the Lisbon Treaty to potentially relax those criteria. These justifications in favour of the present approach are exposed as unsatisfactory, and falling short of the court’s own promises of effective judicial protection.
Structural Reforms in the EU Member States: Exploring Sanction-based and Reward-based Mechanisms
By: Armin Steinbach
An insufficient level of structural reforms remains a perennial phenomenon in the EU. Despite the gradual expansion of macroeconomic governance, legal instruments fostering the implementation of structural reforms have been underexploited. This article examines the leeway provided by EU Treaties and legislation to use existing and new instruments to incentivize structural reforms more forcefully. First, in light of the recent change in the EU Commission’s enforcement practice, we highlight how the sanctions-based regime under the Stability and Growth Pact (SGP) can be extended to incorporate structural reforms. There is significant room for manoeuvre to account for the implementation of structural reforms both in the preventive and the corrective arm of the SGP. Second, contractual agreements on structural reforms offer an alternative to the sanction-based system. Unlike existing instruments, contractual agreements allow for more egalitarian and reward-based incentives and thus deviate from the classic ‘surveillance model’ of economic governance in the EU. We can conceptualize such agreements in two ways: First, as agreements concluded between the EU and individual Member States, underpinned by financial support as an incentive. Second, as mutual agreements concluded between Member States, which agree on the implementation of structural reforms as a kind of barter trading ensuring reciprocity. We highlight the legal boundaries on scope and design of such agreements and how they relate to the institutional governance setting in the EU.
Mutual Trust as a Term of Art in EU Criminal Law: Revealing its Hybrid Character
By: Auke Willems
The term mutual trust has become a household term in the EU criminal justice vocabulary and is regarded to be a prerequisite for a successful application of the principle of mutual recognition. Regardless of its widespread use, it is often used in the vernacular, as if clear in itself. But as mutual trust has become one of the core objectives of the EU’s criminal justice policy, and legislation is adopted to build trust, more specificity is required. This article attempts to unpick the notion of trust into its various elements. The argument is put forward that next to the principle’s legal and political components, it also consists of more ‘social’ elements, as trust is a social construct after all. An assessment of the concept of trust developed in the social sciences reveals these additional elements and puts forward the idea of trust as a hybrid notion.
From Transcultural Rights to Transcultural Virtues: Between Western and Islamic Ethics
By: Michele Mangini
Some kind of transcultural consent is strongly needed between Western and Islamic societies. Human rights can provide such consent but their traditional Western foundation remains alien to a large part of Muslim sensibilities. In address of this we must first turn our attention to the Islamic concept of ‘maqasid’. By drawing upon Martha Nussbaum’s list of basic capabilities and Tariq Ramadan’s extensive reading of maqasid, we can prepare a sounder grounding for human rights within Islamic societies. Maqasid and capabilities call attention to the tradition of Islamic virtues. These so greatly overlap the Western ethics of virtues that they raise hope of transcultural cohesion.
Book Reviews: Francesco de Cecco, State Aid and the European Economic Constitution (Hart Publishing 2012) and Juan Jorge Piernas López, The Concept of State Aid Under EU Law – From Internal Market to Competition and Beyond (Oxford University Press, 2015)
By: Jotte Mulder
Book Review: Marise Cremona and Anne Thies (eds), The European Court of Justice and External Relations Law: Constitutional Challenges (Oxford, Hart Publishing, 2014).
By: Graham Butler
The Decameron First Day – Third Story
By: Giovanni Boccaccio