Croatian Yearbook of European Law and Policy最新文献

{"title":"Brexit: Is It Really Breaking Free? The Implications of the UK’s Withdrawal from the European Union in the Field of Competition","authors":"Delphine Defossez","doi":"10.3935/CYELP.14.2018.306","DOIUrl":"https://doi.org/10.3935/CYELP.14.2018.306","url":null,"abstract":"Globalisation has not only increased international competition but also led to an increasingly more integrated and evolving legal system. On 23 June 2016, 52 percent of British voters opted to leave the European Union in the hope of ‘regaining their freedom’. The United Kingdom’s decision to leave the European Union has triggered an important political crisis at the same time as raising various questions as to the implications of such a withdrawal. This referendum leaves much uncertainty about the future in many areas, such as competition. Brexit raises particular problems for competition policy and law because of the influence of the European Commission in this field. Indeed, the Commission is the major direct actor, while the national authorities mainly operate within the European framework. Many authors have argued that the implications of the UK’s withdrawal from the European Union depend on the type of agreement that is secured by the UK. However, this article argues that whatever the type of agreement the UK strikes with the EU, EU competition law will still play a predominant role.","PeriodicalId":137938,"journal":{"name":"Croatian Yearbook of European Law and Policy","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128889971","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Somewhere Over the Rainbow: On the Use of Psychological Tests to Determine Asylum Seekers’ Sexual Orientation and the Impact on the Right to Private Life (Case C-473/16, 25 January 2018)","authors":"Valérie De Bruyckere","doi":"10.3935/CYELP.14.2018.311","DOIUrl":"https://doi.org/10.3935/CYELP.14.2018.311","url":null,"abstract":"This paper covers the problems and dynamics that LGBTQI (Lesbian, Gay, Bisexual, Queer and Intersex) asylum seekers face when they leave their country of origin and enter countries within the European Union. Only a small percentage of people that claim asylum on the basis of reasonable fear of persecution because of sexual orientation are granted asylum within these EU Member States, or some other form of international protection. The paper scans the relevant legislation that is supposed to protect asylum seekers in general and covers the three most important cases of the Court of Justice of the European Union (CJEU) on the treatment and assessment of asylum applications on the basis of fear of persecution because of sexual orientation. The case at hand needs to be seen within this general framework as we know it so far. F v Hungary concerns the case of a Nigerian national claiming asylum on the basis of fear of persecution in his country of origin because of his homosexuality. To determine his general credibility, the Hungarian determining authorities subjected F to three different psychological tests. However, the psychological experts could not confirm or deny F’s sexual orientation based on these tests. Consequently, the determining authorities decided that his general credibility could not be established and his claim for asylum was denied. The Hungarian Appeal Court requested a preliminary ruling before the CJEU. The Court ruled that in these cases it is not always necessary to determine the sexual orientation of an applicant. The CJEU stressed that, when assessing an asylum application, it does not matter whether or not an applicant actually identifies with the particular social group that attracts persecution. Scientific reports from medical, psychological or social experts can certainly be of value throughout the asylum application assessment, but determining authorities cannot be bound by such expert reports. Every case should undergo an in concreto assessment, taking into account the individual circumstances and with respect for human dignity, the right to respect for private and family life, and the right to an effective remedy as guaranteed by Articles 1, 7 and 47 of the EU Charter. Every interference with these rights should be in line with the proportionality principle. Finally, some suggestions are made to shape a future strategy and the development of asylum application assessment.","PeriodicalId":137938,"journal":{"name":"Croatian Yearbook of European Law and Policy","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134383685","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Ryneš Case and Liability for Invasion of Privacy in the 21st Century","authors":"Z. Kuhn","doi":"10.3935/CYELP.14.2018.302","DOIUrl":"https://doi.org/10.3935/CYELP.14.2018.302","url":null,"abstract":"New technologies combined with the internet have fundamentally altered our ability to have control over the diffusion of information and its impact on human behaviour. This paper explains this change as well as the transformation of the concept of privacy itself. The main part of the paper analyses the case law relating to local activities such as CCTV cameras in private buildings which serve to protect the property of the camera system operators. The author defends the regulation of privacy against the intrusions of providers of telecommunications and data services and corporations such as Google and Facebook. This should be exercised by the law of the EU because autonomous domestic regulation would endanger the free movement of services across the EU. Moreover, it would be difficult for separate national regulation to be successful in fighting global corporations like Google. On the other hand, there is not much sense in the European regulation of activities that are local by their very nature, such as the use of CCTV cameras in private buildings to protect the camera system operators’ property.","PeriodicalId":137938,"journal":{"name":"Croatian Yearbook of European Law and Policy","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125992729","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Splendid Durability of the Provisional: A Tribute to Euratom","authors":"J. Handrlica","doi":"10.3935/CYELP.14.2018.301","DOIUrl":"https://doi.org/10.3935/CYELP.14.2018.301","url":null,"abstract":"Sixty years ago, on 1 January 1958, the Treaty establishing the European Atomic Energy Community of 1957 entered into force. In contrast to the Treaty establishing the European Coal and Steel Community of 1951, the Treaty establishing the European Atomic Energy Community of 1957 did not provide for any explicit limitation of the Community’s existence in its provisions. As a consequence, the key provisions of the Treaty, establishing the Community’s powers and competences, have remained virtually untouched until today. This article analyses this Community from three different perspectives. Firstly, attention is paid to the clauses enabling prospective amendments, adjustments, and further specifi cation of the scope of application. Consequently, it is argued that to some extent the Community was originally designed as a ‘provisional’ one.  Secondly, the article deals with those provisions of the Euratom Treaty which originally provided for certain competences of the Community in nuclear research, the supply of ores, source materials and special fi ssile materials and the insurance of nuclear liability. Due to the fact that these competences have never been used, it is argued that from this perspective the Euratom Community can be viewed as a ‘static’ Community. Thirdly, the extensive interpretation of the Euratom competences in the area of health and safety by the Court of Justice will be addressed. Based on this extensive interpretation, the Euratom Community launched its legislative activity in the area of nuclear safety in order to address this key issue of peaceful use of nuclear energy. From this perspective, the Community is to be regarded a ‘flexible’ one. The 60th anniversary of the Euratom Treaty represents a good opportunity to revisit in detail the characteristic features of the Euratom Community from these different perspectives.","PeriodicalId":137938,"journal":{"name":"Croatian Yearbook of European Law and Policy","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130465019","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Twofold Approach to Children’s Freedom of Movement Rights Under European Law: Can ‘Children’s Equilibrium’ Guide the Interpretation of the Post-Brexit Rights of UK Children Residing in the EU?","authors":"T. Petrova","doi":"10.3935/CYELP.14.2018.308","DOIUrl":"https://doi.org/10.3935/CYELP.14.2018.308","url":null,"abstract":"The United Kingdom’s decision to leave the EU is causing a strong political, legal and, last but not least, social turmoil. Arguably, the impact is even greater for children who are growing up as part of the Union, and belong to families of mixed nationalities, and/or have cross-border relations to different states and educational systems. The interpretation of the post-Brexit EU law rights of children with British nationality should first examine the pre-Brexit children’s rights under the European freedom of movement law to assess the exact scope of the change that the removal of European citizenship will entail. An overview of the case law of the European Court of Justice (“ECJ”) on the freedom of movement rights demonstrates an evolution in the understanding of the rights of children under EU law, a development which observes more and more children’s specific needs, as embodied in children’s fundamental rights provisions. This development came about in a sporadic fashion, shifting between treating children’s rights as ancillary add-ons to their parents’ EU law market rights and acknowledging children’s individual rights. Eventually, the ECJ attempted to reinforce the latter approach by examining children’s Union citizenship and rights under EU law by referencing children’s fundamental rights, enshrined in Article 24 of the Charter of Fundamental Rights of the European Union, for the sake of maintaining “children’s equilibrium”. The referring to the so-called ‘“children’s equilibrium”’ would suggest that a respective child-related approach was adopted in the interpretation of European law via which the stated equilibrium could be achieved. Yet, apart from the inclusion of Article 24 in the legal discussion, the development of a comprehensive child-related approach with a view to the securing of children’s equilibrium requires further judicial engagement in two main directions. Namely, the need for more guidance remains, especially along the lines of elaborating the EU’s uniform children’s rights obligations and making sure that children are seen as individual rights holders. On the basis of these existing criteria, for the purpose of this paper a child-related approach is to indicate the consideration and integration of children’s rights in the legal reasoning, by regarding children as independent rights-bearing individuals. The paper will argue that the upcoming legal uncertainties could be levelled down if the goal of maintaining children’s equilibrium through the child-related approach was applied in the interpretation of the EU law-related rights of children with British nationality. Further, since the proposed approach could also be based on the Convention on the Rights of the Child, it could also serve as a bridge for the application of the “children’s equilibrium” approach in the UK with a view to a time when the Charter is not to be applicable any longer.","PeriodicalId":137938,"journal":{"name":"Croatian Yearbook of European Law and Policy","volume":"17 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130906587","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Sky Is Not the Limit: Mutual Trust and Mutual Recognition après Aranyosi and Caldararu","authors":"A. Lazowski","doi":"10.3935/cyelp.14.2018.313","DOIUrl":"https://doi.org/10.3935/cyelp.14.2018.313","url":null,"abstract":"In the present article, judgments of the European Court of Justice, together with the case of Aranyosi and Căldăraru, are put under the academic microscope. The analysis is conducted through the lenses of domestic judges. It starts by drawing a broader picture of the challenges that the domestic judiciary faces when it comes to EU criminal law, in particular the mutual recognition instruments. It argues that judges are faced not only with the legal framework of sometimes questionable quality but also with potential conflicts of loyalty resulting from the multiplicity and occasional inconsistency of applicable legal regimes. In turn, the analysis moves to the exegesis of the Aranyosi and Căldăraru line of jurisprudence, in particular to the already mentioned security vs justice conundrum, which domestic judges sometimes face. The article ends with conclusions looking into the current state of affairs, and suggestions are made regarding the way forward.","PeriodicalId":137938,"journal":{"name":"Croatian Yearbook of European Law and Policy","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116659996","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Equal Pay for Equal Work in the Same Place? Assessing the Revision to the Posted Workers Directive","authors":"Daniel Carter","doi":"10.3935/CYELP.14.2018.312","DOIUrl":"https://doi.org/10.3935/CYELP.14.2018.312","url":null,"abstract":"Following criticism of the current system of posted work in the European Union, the Revised Posted Workers Directive 2018/957 was adopted in June 2018. This paper examines the extent to which the Revised Directive is likely to achieve the stated objective, as put forward by the Member States that criticised the current system and as explained in the Commission’s original proposal, of ensuring ‘equal pay for equal work in the same place’. The article begins by providing a brief overview of posted work within the European Union, including the adoption of the Original Directive and its interpretation by the Court of Justice. By looking at the key decisions of Laval, Ruffert and Commission v Luxembourg, it explains how the Court’s acquis created a system whereby foreign service providers are able to compete unfairly on a national market by circumventing national wage demands in order to gain a competitive advantage, thereby fostering a system of unequal pay for equal work. Following this, the article examines some of the wider implications of the Court’s case law. First, it explains how the current system of posted work underlines the normative tension between the ideas of wage competition and social dumping in Europe. Second, it assesses the extent to which the Original Directive acted to deregulate the labour legislation of various Member States, thereby undermining their ability to pursue social policies, as well as their national autonomy. Then, it explains how the Directive is based solely on Treaty provisions relating to service provision and establishment, and what effect this has on the Court’s approach to posted workers’ cases. Finally, the article assesses the Revised Directive. It explains the concrete changes to the Directive and then evaluates the extent to which the Revised Directive will achieve the ambition of equal pay for equal work. In this respect, the article claims that the Revised Directive will likely mitigate the more damaging consequences arising from the Court’s acquis, although given the more fundamental challenges that exist this may be limited.","PeriodicalId":137938,"journal":{"name":"Croatian Yearbook of European Law and Policy","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134541518","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Visibility of Papers Written by Authors from European Post-Socialist Countries as an Indicator of Integration into the EU Legal System","authors":"Dora Zgrabljić Rotar, Maja Jokić, Stjepan Mateljan","doi":"10.3935/CYELP.14.2018.304","DOIUrl":"https://doi.org/10.3935/CYELP.14.2018.304","url":null,"abstract":"The equality of the European Union (EU) Member States is one of the principles that the European Union is based on. However, in terms of the economy, culture and influence, a hierarchy of EU Members States is evident. The European post-socialist or Central and East European (CEE) countries are often perceived as being at the lower end of the scale or on the ‘periphery’ of the EU. The aim of this paper is to gain insights into the specificities of the CEE countries’ legal scientific communication and the visibility of legal scholars’ work within the EU. Bibliometric analysis results show that scientific productivity has been significantly contributed to by papers published in domestic journals indexed in Scopus, with a share of 70%, and that the largest contributions are from Croatian, Romanian, Slovenian and Hungarian law journals. The Baltic States and EU candidate countries, representing nine out of 15 CEE countries, did not have their law journals indexed by Scopus in the period 1996-2013, which influenced their potential accessibility and visibility. The remaining 30% of papers were scattered over 112 international law journals, predominantly from the EU15 countries. On the other hand, the research shows that the recognition of papers measured in terms of the average number of citations speaks in favour of publication in international journals, with 2.9 citations per paper compared to 1.2 in domestic journals. It also shows that the citation of a paper is influenced by the language of the text and whether the paper has more than one author. Thus, although the vast majority of papers are published in domestic journals, the ones published in international journals are distinctly more visible in the academic community. In order to accomplish the integration of CEE countries into EU academic legal communication, the visibility of CEE countries’ legal scholars’ work is crucial. According to the analysis of this research, to achieve visibility, CEE countries’ legal scholars should publish more in a lingua franca, which nowadays means English. The other possible way is to enhance the visibility and strengthen the position of scientific journals published in CEE countries by accepting professional journal standards. Needless to say, the aspect of the content and issues explored and published is also crucial.","PeriodicalId":137938,"journal":{"name":"Croatian Yearbook of European Law and Policy","volume":"800 ","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133819000","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}