Maastricht Journal of European and Comparative Law最新文献

{"title":"Extremely urgent public procurement under Directive 2014/24/EU and the COVID-19 pandemic.","authors":"Pedro Telles","doi":"10.1177/1023263X221077006","DOIUrl":"10.1177/1023263X221077006","url":null,"abstract":"<p><p>The COVID-19 pandemic swept throughout the European Union swiftly and led to significant changes in how we live and operate. Some of those changes occurred in public procurement as well, with Member States struggling to react to the dissemination of the virus. The purpose of this paper is to assess what scope the EU's public procurement legal framework provides to deal with a crisis, and how the rules should be interpreted. This paper will show how the EU public procurement legal framework deals with extreme urgency situations and how it has been intentionally designed to allow Member States flexibility within very clearly defined boundaries. This means that the path to award contracts without competition on the grounds of extreme urgency is narrow due to Article 32(2)(c) of Directive 2014/24/EU and the case law from the CJEU. The narrowness of this path is due to the exceptional nature of procedure and the obligation for the contracting authority to discharge the tight grounds for use in full for every contract. Therefore, this paper concludes that the view exposed by the European Commission on its guidance from April 2020 that the pandemic is a single unforeseeable event amounts to an incorrect reading on how the grounds for the use of Article 32(2)(c) operate. If such interpretation was already too broad in April 2020, it certainly is no longer in line with the transition from an unfolding crisis into a new and more permanent equilibrium. In the context of COVID-19, particularly the need for the crisis to be unforeseeable and the extreme urgency not being attributable to the contracting authority raise significant difficulties for some contracting authorities to discharge the grounds for use of the negotiated procedure without prior notice. This is particularly the case in those situations where governments centralized pandemic-related procurement. As such, the paper concludes that existing substantive rules for extremely urgent procurement are adequate and, albeit sufficient to respond to crisis situations, that does not entail that the wholesale use of the negotiated procedure without prior notice is necessarily legal.</p>","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"215-228"},"PeriodicalIF":0.0,"publicationDate":"2022-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9001059/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45679737","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Why passive? Exploring national judges’ motives for not requesting preliminary rulings","authors":"K. Leijon, Monika Glavina","doi":"10.1177/1023263X221091768","DOIUrl":"https://doi.org/10.1177/1023263X221091768","url":null,"abstract":"This article explores why national judges remain passive on EU legal integration by examining judges’ reasons for not requesting preliminary rulings from the European Court of Justice (ECJ). The article combines insights from social psychology and literature on the role of national courts in European integration to formulate expectations regarding what type of motives guide national judges’ behaviours. Drawing on interviews held with Croatian, Slovenian and Swedish judges, our results reveal three shared reasons judges remain passive: referrals are not required by the formal rules (procedural normative motivation), referrals are not made to protect the parties to the case (substantive normative motivation) and referrals are not made to protect judges’ reputations (instrumental motivation). In addition, we unveil motives that are shared by only judges from one or two Member States, such as not referring cases to uphold the capacity of the preliminary ruling procedure (Swedish judges) and not referring cases due to a fear of sanctions and a lack of knowledge and resources (Croatian and Slovenian judges). We discuss these similarities and divergences in light of the theoretical discussion on the role of courts as active or passive actors in EU legal integration.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"263 - 285"},"PeriodicalIF":0.0,"publicationDate":"2022-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47058230","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":"Jurisdiction and choice of law rules over electronic consumer contracts: The nexus between the concluded contract and the targeting activity","authors":"Zhen Chen","doi":"10.1177/1023263X221090352","DOIUrl":"https://doi.org/10.1177/1023263X221090352","url":null,"abstract":"A foreign business is subject to the jurisdiction of a consumer’s domiciled country and the law of the consumer’s habitual residence, provided that the business has targeted at the consumer’s home country and the consumer contract falls within the scope of such targeting activities under Brussels Ibis and Rome I Regulations. However, it is unclear whether the contract must be concluded from a distance and has a causal link with the targeting activity. The CJEU concludes that the contract does not have to be concluded at a distance or have a causal connection with the targeting activity. This is also the case in China in which consumer choice of law rules, while not requiring a causal link, adopt a lower threshold by examining the dis-targeting test. By contrast, American jurisdiction rules over consumer contracts adopt a higher threshold, which requires a casual connection between the consumer’s claim and the business’s contact with the consumer’s state. Although the EU, USA and China have different private international law rules over consumer contracts, commonalities do exist in certain aspects. Based on a comparative study, this article argues that the fact that a contract is concluded at a distance or has a nexus with the targeting activity is a relevant factor, among other factors, to determine the targeting test. In this regard, Brussels Ibis and Rome I need a minor amendment.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"328 - 350"},"PeriodicalIF":0.0,"publicationDate":"2022-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"65632911","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":"Setting out the boundaries of jobseekers’ residence status and beyond: Case C-710/19 G.M.A. v État belge","authors":"Rufat Babayev","doi":"10.1177/1023263X221078127","DOIUrl":"https://doi.org/10.1177/1023263X221078127","url":null,"abstract":"This contribution examines the judgment of the Court of Justice of the European Union delivered in Case C-710/19 G.M.A. v État belge. It is argued that this ruling brings some degree of certainty and transparency to the nature and extent of residence rights guaranteed to jobseekers, considering the fragmented and dispersed outline of their status within the framework of Directive 2004/38. G.M.A. v État belge can also be viewed as a possible catalyst for recasting Directive 2004/38 to provide a clear and systematic layout of jobseekers’ residence status in host Member States. However, it is questionable whether this would, in fact, provide an enhanced protection of jobseekers, since this ruling to suggests that the Court's methodology to ascertain the residence rights of Union citizens varies based on the explicit wording of Union secondary law.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"286 - 297"},"PeriodicalIF":0.0,"publicationDate":"2022-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45877320","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":"Headscarves and the CJEU: Protecting fundamental rights and pandering to prejudice, the CJEU does both","authors":"Erica Howard","doi":"10.1177/1023263X221080557","DOIUrl":"https://doi.org/10.1177/1023263X221080557","url":null,"abstract":"The CJEU judgment in the two latest Islamic headscarf cases was handed down in July 2021. The judgment allows employers to ban the wearing of religious and other symbols by employees, but it does specify under what conditions this can be done. This article builds on a previous article on the opinion of AG Rantos and the Shadow Opinion of former AG Sharpston and analyses the judgment in detail. It argues that the judgment is an improvement on the previous CJEU headscarf judgments in that it provides more protection for fundamental human rights. However, the CJEU also appears to allow employers to a certain extent to pander to the prejudicial wishes of their customers. The article concludes that the judgment presents a small glimmer of hope that the CJEU might be moving – albeit very slowly - towards more protection of Muslim women who want to wear headscarves at work for religious reasons.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"245 - 262"},"PeriodicalIF":0.0,"publicationDate":"2022-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47426686","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":"Give art market regulation a chance","authors":"Anna Mosna","doi":"10.1177/1023263X221082509","DOIUrl":"https://doi.org/10.1177/1023263X221082509","url":null,"abstract":"The article discusses the extension by Directive (EU) 2018/834 of new compliance obligations to art market participants against the background of a criminological examination of different types of laundering operations occurring in the art market. It highlights how this sector is a potential hub for ‘traditional’ money laundering operations as well as the target of antiquities trafficking which potentially finances other illicit activities such as terrorism. The relevance of an often-overlooked laundering phenomenon – cleansing operations of illegally sourced art that can be defined as art laundering – is stressed. In assessing whether introducing an anti-money laundering and counterterrorism financing regime into the art market can be considered a proportionate intervention, the burden on stakeholders due to compliance obligations, on the one hand, and the need to protect values endangered by laundering and trafficking involving art, on the other is evaluated. In light of the incidence of art crimes, in particular of art laundering, and of the potential for the new rules to effectively prevent these activities due to a relatively low risk of displacement, the conclusion reached is that the interests of supra-individual values, including that of cultural heritage, outweigh the economic concerns of art market actors.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"304 - 327"},"PeriodicalIF":0.0,"publicationDate":"2022-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45122473","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":"Jurisdiction and personality rights – in which Member State should harmful online content be assessed?","authors":"S. Lindroos-Hovinheimo","doi":"10.1177/1023263X221076392","DOIUrl":"https://doi.org/10.1177/1023263X221076392","url":null,"abstract":"Legal responses to online infringements are complex for many reasons. Law is put into action in courts, most of which are national. The territorial boundaries of their jurisdiction are ill-suited to deal with the borderless nature of the internet. This article concentrates on the difficulties of deciding jurisdiction when harm happens online. Specifically, it deals with infringements of personality rights. When an alleged infringement occurs on a webpage, in an online newspaper or on a social media platform, the question arises as to which Member State has jurisdiction. In this article, I will discuss the case law from the CJEU on jurisdiction concerning the protection of personality rights, such as privacy or personal reputation. The crucial provision is Article 7(2) of the Brussels Ia Regulation (henceforth ‘the Regulation’). Disputes concerning national jurisdiction are generally resolved with reference to the principle of predictability. This article asks, in essence, what it means – and what it should mean – in an online environment.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"201 - 214"},"PeriodicalIF":0.0,"publicationDate":"2022-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47517494","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":"Towards better working conditions for persons performing services through digital labour platforms","authors":"C. Cauffman","doi":"10.1177/1023263x221085234","DOIUrl":"https://doi.org/10.1177/1023263x221085234","url":null,"abstract":"Online platforms created new ways for people to make a living. Not only did they make it easier for small producers and resellers to fi nd potential clients via online marketplaces; they also created online markets for the provision of services. The example that usually comes to mind when thinking of this latter type of online platforms is Uber, but there is an enormous number of such platforms, and they are active in very different fi elds: passenger transport, food delivery, trans-lation, programming, proofreading, web design, etc. About 500 labour platforms appear to be active in the EU. These generally present themselves as mere intermediaries, offering a place where supply and demand for services can meet. They also stress the freedom of the service provider to organize its own work, to work when, where and as many hours as desired. In their view, this implies that the persons providing services via their platform are self-employed and not employees. Several studies indicated that 9 out 10 platforms classify their workers as self-employed. Another study found that most of these workers ‘ are genuinely autonomous in their work and can use platform work as a way to develop their entrepreneurial activities ’","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"3 - 8"},"PeriodicalIF":0.0,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42261550","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 definitive impetus for access to justice: Mandatory consumer arbitration in Spain","authors":"Mariló Gramunt Fombuena, Rosa Barceló Compte","doi":"10.1177/1023263X211073509","DOIUrl":"https://doi.org/10.1177/1023263X211073509","url":null,"abstract":"The purpose of the following paper is to address the relevance of consumer arbitration as an effective procedural justice mechanism within the EU internal market. Thus, the article focuses on the possibility of introducing a mandatory consumer arbitration system in Spain that allows consumers to exercise their rights recognized by the rules in a fast, efficient and free way. For this purpose, the Portuguese consumer arbitration system and its evolution up to the establishment of a mandatory arbitration procedure for consumer disputes below a certain amount is also analysed.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"229 - 244"},"PeriodicalIF":0.0,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47448619","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":"Water Law in Circular Economy: Ultra Vires Actions in Environmental Sector, or when Union Ambition Far Exceed its Abilities","authors":"Antonio Di Marco","doi":"10.1177/1023263X221076394","DOIUrl":"https://doi.org/10.1177/1023263X221076394","url":null,"abstract":"Water management has an important role to play in the circular economy transition, through the water treatment and reuse. Its optimal and coherent regulation is also of vital common interest, since water knows no borders or lines artificially set out by the States and the dramatic overconsumption and pollution of freshwater are threatening irreparable damage to the world's ecosystems. However, States are reluctant to common regulations, which would have important economic impacts. International and regional organizations face with the fundamental principle of permanent sovereignty of States over natural resources. By analysing the European environmental competence, this study examines the role of Union water law in green economic transition. By investigating the interdependent relationships between the several elements of the water management, the essay suggests that territory use and economic town and country planning would be drawn into the scope of Treaties because of the integrated nature of water services. The case of water reuse illustrates limits and perspectives of the European objective to promote rational utilization of natural resources and combat climate change, introducing the idea according to which freshwater is a European res communis on which the sovereign right of European Union Member States over their own natural resources could be lawfully limited.","PeriodicalId":39672,"journal":{"name":"Maastricht Journal of European and Comparative Law","volume":"29 1","pages":"182 - 200"},"PeriodicalIF":0.0,"publicationDate":"2022-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47908791","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}