Winter 2015 – Volume 8 – Issue 2

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Catalogue no.: QM-AZ-19-017-EN-N

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Meet the Time as It Seeks Us

By: Elias Deutscher

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New Voices

Challenging the Notion of Coherence in EU Foreign Investment Policy

By: Hannes Lenk

There have long been demands for more coherence in EU external action. The Lisbon Treaty has introduced important institutional changes in this respect. However, coherence – in the broad sense of a positive process that is focused on establishing synergies between various policy fields and actors – is still largely lacking for an EU foreign investment policy. An institutional bifurcation of different Directorates-General puts fuel to the fire of a conceptual confusion of intra-EU and extra-EU investment agreements. As a consequence, overarching concerns such as compatibility with the principle of autonomy or effects of investor-state arbitration on the internal market are missing a coherent approach.

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General Articles

Fragmentation and Inter-Judicial Dialogue: The CJEU and the ICJ at the Interface

By: Eva Kassoti

This contribution explores the question whether the CJEU has promoted or, conversely, weakened the coherence of the international legal system through its practice within the broader context of the fragmentation debate. In order to do so, the article begins by inquiring into the notions of ‘fragmentation’ and ‘coherence’ and argues that the two terms are used to connote a wide array of meanings. Focusing on the judicial aspect, the article continues by examining the extent to which the CJEU is willing to engage with external sources by directly citing the jurisprudence of the ICJ in cases involving questions of public international law. It is demonstrated, that, in its practice, the Court shows a high degree of deference to the authority of the ICJ by routinely having recourse to the latter’s case-law. In this light, the article puts into question the manner in which the EU courts are often portrayed in the literature: by refusing to make their own bold pronouncements on international law, the EU courts are actually conducive to the coherence of the international legal system. The article concludes by highlighting that, in order to remain informed and relevant, the fragmentation/coherence debate must also include the ‘trans-judicial communication’ perspective.

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The Dublin Regulation between Strasbourg and Luxembourg: Reshaping Non-Refoulement in the Name of Mutual Trust?

By: Giulia Vicini

This article addresses one of the most challenging inconsistencies in the case law of the ECtHR and the CJEU. It critically analyses the judgments delivered by these two courts on the compatibility of the Dublin Regulation with the fundamental rights enshrined in the ECHR and in the EUCFR, respectively. On the one hand, the article proposes an interpretation of the judgments which is able to reconcile the two different approaches concerning EU Member States’ obligations under the Dublin Regulation. On the other, it argues that an irreconcilable interpretation of the principle on non-refoulement underlies the different thresholds established by the two courts in order to rebut the mutual trust presumption. This divergent interpretation is deemed to trigger a violation of Articles 52 and 53 of the EUCFR.

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Bringing Critical Race Theory to Europe: the Case of Immigrant Women

By: Fulvia Staiano

This article moves from the consideration that American critical race feminism (CRF) criticism of laws’ pretence of universality as well as of its gender and racial essentialism may be fruitfully applied to the situation of immigrant women in contemporary Europe. Drawing from these criticisms, expressed in relation to minority women, it aims to unveil the role of immigration law in creating and reinforcing immigrant women’s experiences of exclusion. The article thus analyses selected provisions of supranational and national immigration law, with a special focus on two main aspects: the normative and judicial imposition to immigrant women of unviable requirements modelled on the experiences of citizen women, and the failure of laws to take into account their specific needs. In addition to performing a critical review of the gendered effects of immigration law in contemporary Europe, it will offer evidence of the relevance of critical race feminism beyond the time and geopolitical context in which it was developed.

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The Framework for The Social Accountability of Central Banks: The Growing Relevance of The Soft Law in Central Banking

By: Camila Villard Duran

Central banks are not traditionally thought of as being socially accountable. In fact, the main innovation of central banks in the 20th century was to make them largely independent from political influence. Thus, the prevailing (economic) analyses of central bank accountability have examined the formal relationships of accountability to political bodies such as the legislature and the executive. However, this article argues that trends in monetary policy-making beginning in the 1990s inadvertently led to the potential for greater social accountability of central banks. Driven by a shifting economic consensus, central banks moved from an approach of secretive currency management to transparent communication with the market. This transformation was prompted by new beliefs about the efficiency of monetary policy. This article argues that the current ‘hard law’ framework for central bank accountability does not reveal all of the social mechanisms in place. In fact, ‘soft law’ instruments are causing more and faster institutional changes in the legal framework for the central bank accountability. The role of law is changing accordingly: central banks have their actions controlled in an ex-post model of supervision rather than an ex-ante form. This study explores the institutional development of accountability mechanisms in two central banks in advanced economies (the US Federal Reserve and the European Central Bank) and in a monetary authority in an emerging economic power(the Brazilian Central Bank). All the three central banks had the same institutional development, despite the significant differences in terms of political, social and economic contexts in which they operate.

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Rolling Pennies on the Road? EU Law Conformity of Road Charges for Light Vehicles

By: Thomas Jaeger

The EU law conformity of road charges has received some recent attention following the German government’s plans for implementation of an infrastructure charge for vehicles below 3,5 tons on motorways and through-roads. The peculiarity of those plans lies in their double nature, combining the introduction of a charge for Univ.-Profall users with a rebate on the level of motor vehicles taxes for German-registered vehicles. This contribution uses the occasion of the German case to look at the provisions and principles of EU law applicable to road charges for light vehicles and undertake an assessment of the current developments.

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