Maastricht Journal of European and Comparative Law最新文献

Non-contractual liability of the EU: Need for a ‘diligent’ administrator test 欧盟的非合同责任：勤勉 "管理人测试的必要性

Maastricht Journal of European and Comparative Law Pub Date : 2024-08-09 DOI: 10.1177/1023263x241273948

P. Nicolaides

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The European Arrest Warrant and the protection of the best interests of the child: The Court's last word on the limits of mutual recognition and the evolving obligations of national judicial authorities 欧洲逮捕令与保护儿童的最大利益：法院关于相互承认的限度和国家司法当局不断演变的义务的最后意见

Maastricht Journal of European and Comparative Law Pub Date : 2024-06-13 DOI: 10.1177/1023263x241259311

Stefano Montaldo

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OP v. Commune d’Ans: When equality, intersectionality and state neutrality collide OP 诉公社：当平等、交叉性和国家中立发生冲突时

Maastricht Journal of European and Comparative Law Pub Date : 2024-06-13 DOI: 10.1177/1023263x241260739

Nozizwe Dube

{"title":"OP v. Commune d’Ans: When equality, intersectionality and state neutrality collide","authors":"Nozizwe Dube","doi":"10.1177/1023263x241260739","DOIUrl":"https://doi.org/10.1177/1023263x241260739","url":null,"abstract":"In OP v. Commune d’Ans, the Court of Justice of the European Union (CJEU) held that exclusive neutrality policies in public administrations do not constitute indirect religious discrimination provided that the policies are appropriate, necessary and proportionate in light of the context and interests at stake. This is the first headscarf case concerning a public administration. Consequently, the state neutrality principle was of importance in this judgment. Additionally, OP v. Commune d’Ans reawakened the urgent question of intersectional discrimination as the CJEU was asked whether exclusive neutrality policies constitute indirect gender discrimination, seeing as they disproportionately affect women. In Parris, the CJEU rejected the possibility of acknowledging intersectional discrimination. Though headscarf cases raise the intersectionality question, the CJEU has not revisited it. This case note discusses how while the CJEU managed to accommodate different iterations of the state neutrality principle by introducing a margin of discretion for diverse neutrality policies in OP v. Commune d’Ans, it fell short in safeguarding the general framework for equal treatment by disregarding how the conceptualization of state neutrality also impacts gender equality. A different reading of Directive 2000/78 that foregrounds this instrument's connection to the EU's gender equality directives would have enabled such an intersectional approach.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"56 10","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141347778","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}

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DPA independence and ‘indirect’ access – illusory in Belgium, France and Germany? DPA 的独立性和 "间接 "访问--在比利时、法国和德国是虚幻的吗？

Maastricht Journal of European and Comparative Law Pub Date : 2024-04-25 DOI: 10.1177/1023263x241237688

Diana Dimitrova, P. De Hert

{"title":"DPA independence and ‘indirect’ access – illusory in Belgium, France and Germany?","authors":"Diana Dimitrova, P. De Hert","doi":"10.1177/1023263x241237688","DOIUrl":"https://doi.org/10.1177/1023263x241237688","url":null,"abstract":"Directive 2016/680 provides for two procedures for the exercise of the rights of access to one's data: a direct one (that is, directly against the law enforcement authority) and an ‘indirect’ one, in which the responsible Data Protection Authority (DPA) exercises the right of access of the data subject against the law enforcement authority which refused the direct access, including by carrying out a legality check on the data processing of the personal data of the individual requesting access. The recent judgment in Ligue des droits humains ASBL treated the question of the powers of DPAs in the framework of this procedure, amongst others, as a matter of DPA independence. Existing literature has observed that the implementing laws of three Member States – Belgium, France and Germany – severely restrict the powers of the DPAs when these perform the ‘indirect’ right of access, for example to carry out the legality check and inform the individuals of the results of the check. In the this article we will argue that these national restrictions constitute an unjustified interference with the requirement on DPA independence in EU data protection law, including in Article 8(3) of the EU Charter of Fundamental Rights.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"71 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140655233","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}

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Chilling effect: Turning the poison into an antidote for fundamental rights in Europe 寒蝉效应：将毒药变成欧洲基本权利的解药

Maastricht Journal of European and Comparative Law Pub Date : 2024-04-25 DOI: 10.1177/1023263x241239019

Mohor Fajdiga

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Why the algorithmic recruiter discriminates: The causal challenges of data-driven discrimination 算法招聘者为何歧视？数据驱动歧视的因果挑战

Maastricht Journal of European and Comparative Law Pub Date : 2024-04-22 DOI: 10.1177/1023263x241248474

Christine Carter

{"title":"Why the algorithmic recruiter discriminates: The causal challenges of data-driven discrimination","authors":"Christine Carter","doi":"10.1177/1023263x241248474","DOIUrl":"https://doi.org/10.1177/1023263x241248474","url":null,"abstract":"Automated decision-making systems are commonly used by human resources to automate recruitment decisions. Most automated decision-making systems utilize machine learning to screen, assess, and give recommendations on candidates. Algorithmic bias and prejudice are common side-effects of these technologies that result in data-driven discrimination. However, proof of this is often unavailable due to the statistical complexities and operational opacities of machine learning, which interferes with the abilities of complainants to meet the requisite causal requirements of the EU equality directives. In direct discrimination, the use of machine learning prevents complainants from demonstrating a prima facie case. In indirect discrimination, the problems mainly manifest once the burden has shifted to the respondent, and causation operates as a quasi-defence by reference to objectively justified factors unrelated to the discrimination. This paper argues that causation must be understood as an informational challenge that can be addressed in three ways. First, through the fundamental rights lens of the EU Charter of Fundamental Rights. Second, through data protection measures such as the General Data Protection Regulation. Third, the article also considers the future liabilities that may arise under incoming legislation such as the Artificial Intelligence Act and the Artificial Intelligence Liability Directive proposal.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140677636","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}

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Withdrawn —Administrative Duplicate Publication— Judicial review of Common Foreign and Security Policy by the ECtHR and the (re)negotiation on the accession of the EU to the ECHR 撤销--行政重复出版--欧洲人权法院对共同外交与安全政策的司法审查以及关于欧盟加入《欧洲人权公约》的（重新）谈判

Maastricht Journal of European and Comparative Law Pub Date : 2024-04-22 DOI: 10.1177/1023263x241226748

引用次数: 0

De Legé v. the Netherlands: The ECtHR adopts a line of reasoning similar to that of the United States Supreme Court on compelled production of real or physical evidence De Legé诉荷兰案：欧洲人权法院采用了与美国最高法院关于强制出示实物或物证的推理相似的思路

Maastricht Journal of European and Comparative Law Pub Date : 2023-12-17 DOI: 10.1177/1023263x231220897

Javier Escobar Veas

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The concept of a fresh start in the discharge of debt procedure in European Union insolvency law 欧洲联盟破产法中债务解除程序的新起点概念

Maastricht Journal of European and Comparative Law Pub Date : 2023-12-15 DOI: 10.1177/1023263x231217107

Remgijus Jokubauskas

{"title":"The concept of a fresh start in the discharge of debt procedure in European Union insolvency law","authors":"Remgijus Jokubauskas","doi":"10.1177/1023263x231217107","DOIUrl":"https://doi.org/10.1177/1023263x231217107","url":null,"abstract":"A fresh start is the essence of personal insolvency proceedings. In the last few decades, policymakers in the United States of America and European countries have focused on establishing effective and efficient insolvency proceedings which would address the particular needs of insolvent natural persons. Previously, personal insolvency proceedings aimed to address the social and economic problems of insolvent debtors (consumers) which were not able to meet their financial obligations in time. However, the latest developments in this area reveal that specific rules should be established in insolvency law to tackle the insolvency problems of individuals who incur most of their debts from economic activities (entrepreneurs’ insolvency). The adoption of the Directive on Restructuring and Insolvency is the first attempt in European Union law to counter the challenges of the insolvency of entrepreneurs. This article analyses the main elements of a fresh start in European Union insolvency law, how this phenomenon has evolved and whether the European Union insolvency law provides an effective fresh start for insolvent entrepreneurs.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"49 14","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138995924","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}

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The EU and non-recognized territorial entities – the CJEU's judgment in Case C-632/20 P Spain v. Commission (Kosovo 欧盟与未获承认的领土实体--欧盟法院对 C-632/20 P 西班牙诉委员会案（科索沃）的判决

Maastricht Journal of European and Comparative Law Pub Date : 2023-12-10 DOI: 10.1177/1023263x231217984

E. Kassoti

{"title":"The EU and non-recognized territorial entities – the CJEU's judgment in Case C-632/20 P Spain v. Commission (Kosovo","authors":"E. Kassoti","doi":"10.1177/1023263x231217984","DOIUrl":"https://doi.org/10.1177/1023263x231217984","url":null,"abstract":"The coming of age of the EU as a global actor and the proliferation of its activities on the international plane entail that its courts are increasingly faced with complex and politically laden questions pertaining to territorial entities whose international legal status is far from clear. The EU's engagement with Kosovo is a salient example. Due to strong opposition by some Member States, the EU has not recognized Kosovo as an independent State, but it has developed a policy of engagement therewith. However, this pragmatic approach does not resolve the underlying political tensions and legal questions arising from the EU's dealings with non-recognized territorial entities, as Case C-632/20 P Spain v. Commission (Kosovo) attests to. The judgment is significant: (a) for the EU's growing engagement with non-recognized territorial entities since it clarifies the meaning of the concept of ‘third country’ and confirms that such entities may participate in EU agencies; (b) for the EU's engagement with Kosovo – particularly in the light of Kosovo's 2022 bid for EU membership; and (c) more broadly, for answering institutional questions pertaining to third-country participation in EU agencies.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"21 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138982117","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}

引用次数: 0