European Public Law最新文献_第3页

Judgment of the German Federal Constitutional Court (2 BvR 859/15) on the Public Sector Purchase Programme of the ECB: An Interdisciplinary Analysis 德国联邦宪法法院对欧洲央行公共部门购买计划的判决(2 BvR 859/15):跨学科分析

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European Public Law Pub Date : 2021-12-01 DOI: 10.54648/euro2021032

Bodo Herzog

引用次数: 0

Article Index 文章索引

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European Public Law Pub Date : 2021-12-01 DOI: 10.54648/euro2021040

引用次数: 0

Prevalence of an Economic Right/Freedom Over a Social Right in a Horizontal Litigation Once Again 在横向诉讼中，经济权利/自由再次凌驾于社会权利之上

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European Public Law Pub Date : 2021-12-01 DOI: 10.54648/euro2021036

M. T. Karayiğit

{"title":"Prevalence of an Economic Right/Freedom Over a Social Right in a Horizontal Litigation Once Again","authors":"M. T. Karayiğit","doi":"10.54648/euro2021036","DOIUrl":"https://doi.org/10.54648/euro2021036","url":null,"abstract":"The article primarily examines the Achbita judgment within the context of the struck balance of competing rights/freedoms, i.e., the right to manifest religion and the freedom to conduct a business. It argues that with its lenient and one-sided application of proportionality and by affording the freedom to conduct a business of an employer almost an unfettered prerogative against the right to religious manifestation of an employee, the Achbita judgment could be included into the line of case law, such as Viking, Laval, Alemo-Herron and AGET-Iraklis, which provides for preference and prevalence of economic rights/freedoms over conflicting social rights. The judgment even extends that preference and prevalence to the fields having no crossborder element. If not having confirmed horizontal direct effect of Article 16 of the Charter and so recognized it in nature as a right rather than a principle in the sense of Article 52(5) of the Charter, the CJEU paves the way for consolidating this judicial trend. As a consequence in respect of the principle of non-discrimination on certain grounds, the judgment establishes different levels of protection for different grounds of discrimination and consolidates it by downplaying the right to manifest religion towards the bottom.\u0000Headscarf, the Principle of Non-Discrimination on the Grounds of Religion, Freedom to Conduct a Business, Corporate Neutrality Policy, the Margin of Appreciation of the Member States, the Hierarchy between the Grounds of Discrimination, Intersectional Discrimination","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44201719","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

Early Lessons From The EU/UK Brexit Negotiations: Implications For Ireland 欧盟/英国脱欧谈判的早期教训:对爱尔兰的影响

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European Public Law Pub Date : 2021-12-01 DOI: 10.54648/euro2021031

C. Macmaoláin

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Administrative Independence Under EU Law: Stuck Between a Rock and Costanzo? 欧盟法律下的行政独立：进退两难？

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European Public Law Pub Date : 2021-12-01 DOI: 10.54648/euro2021035

Lena Enqvist, Markus Naarttijärvi

{"title":"Administrative Independence Under EU Law: Stuck Between a Rock and Costanzo?","authors":"Lena Enqvist, Markus Naarttijärvi","doi":"10.54648/euro2021035","DOIUrl":"https://doi.org/10.54648/euro2021035","url":null,"abstract":"EU law places a number of requirements on administrative authorities that puts them in potentially invidious positions; while EU law today does not require institutionally independent administrative authorities or provide protection for the independence of authorities beyond the field of data protection, it does require administrative authorities to act independently through the loyal and effective enforcement of EU law. This requirement of acting independently without institutional independence raises certain implications for the role of administrative authorities acting within the hierarchical administrative orders of Member States. Using the case of Sweden – a Member State where administrative authorities enjoy significant constitutionally protected independence in the application of law and decision of cases – this article argues that the effect of EU law obligations of effectiveness and loyalty is a weakening of the hierarchical influence of the government over its own authorities, with a resulting shift of influence towards the legal arena through the provision of politically expedient interpretations of EU law. The invidious position of administrative authorities within the scope of EU law is likely to make them vulnerable to such influence, which may ultimately interfere with the effective administration of EU law.\u0000Administrative independence, EU-law, principle of effectiveness, national institutional and procedural autonomy, distributed administration, national administrative authorities, constitutional law, Costanzo, Tele2/Watson","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46894613","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

National Identity and the Protection of Fundamental Rights 民族认同与基本权利保护

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European Public Law Pub Date : 2021-08-01 DOI: 10.54648/euro2021024

M. Claes

{"title":"National Identity and the Protection of Fundamental Rights","authors":"M. Claes","doi":"10.54648/euro2021024","DOIUrl":"https://doi.org/10.54648/euro2021024","url":null,"abstract":"The article asks whether the European Union (EU)’s duty to protect national identities is a useful way to address diverging conceptions of fundamental rights, and it argues that it is not. On the basis of an examination of the text of Article 4(2) TEU, its history and the practice of the Court of Justice, it is argued that the concept of ‘national identities’ under Article 4(2) TEU does not cover particular national conceptions of fundamental rights, but admits that it may be difficult to make a clear separation between the more organizational or structural elements of national identity and their impact on the fundamental rights of individuals. The article then proceeds to look at national approaches, where fundamental rights tend to be included in the concept of constitutional identities to be protected by national courts. It is argued, however, that arguments based on constitutional identity under national law are not conducive for deciding cases on EU fundamental rights. Such identity claims operate as trump cards. Yet, there are other ways to accommodate diversity among the Member States in the area of fundamental rights. If these are used and respected also by the Court of Justice, unilateral recourse to constitutional identity is not needed.\u0000Constitutional identity – national diversity – protection of fundamental rights – identity review – divergence – harmonization of fundamental rights protection – national choices","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44711820","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: 1

Book Review: Christian Calliess & Gerhard van der Schyff (Eds), Constitutional Identity in a Europe of Multilevel Constitutionalism (Cambridge: Cambridge University Press. 2020) 书评：Christian Calless&Gerhard van der Schyff（编辑），《欧洲多层次宪政的宪法认同》（剑桥：剑桥大学出版社，2020）

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European Public Law Pub Date : 2021-08-01 DOI: 10.54648/euro2021029

David C. Paris

引用次数: 0

On the Identity Clause and Its Abuses: ‘Back to the Treaty’ 身份条款及其滥用:“回到条约”

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European Public Law Pub Date : 2021-08-01 DOI: 10.54648/euro2021020

Pietro Faraguna

{"title":"On the Identity Clause and Its Abuses: ‘Back to the Treaty’","authors":"Pietro Faraguna","doi":"10.54648/euro2021020","DOIUrl":"https://doi.org/10.54648/euro2021020","url":null,"abstract":"Identity is a key, but vague, ambiguous and polysemic concept of public law. In EU law, the concept underwent a process of legalization: it emerged as a political clause in the Treaty of Maastricht and gained constitutional meaning after the Treaty of Lisbon. The article traces this process of legalization, arguing that even though the constitutionalization of the identity clause in EU law was primarily addressed to the Court of Justice of the EU, a major role in this process has been played by national courts. The article, however, claims that the process of transformation of the identity clause is not over, and that currently the concept is being subject to abusive and dangerous manipulations. The article supports a comprehensive reading of the identity clause in EU law within the broader context of EU fundamental principles. In particular, the article claims that a tight connection of the identity clause should be kept with the democratic mandate of the EU. This connection emerged very clearly in the Maastricht formulation of the Treaty on the European Union but is still now a viable remedy to reject Member States’ appeals to protect unconstitutional constitutional identities.\u0000constitutional identity, primacy, ultra vires, identity clause, abuse","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42406654","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: 3

National Identity and European Integration Beyond ‘Limited Fields’ 超越“有限领域”的国家认同与欧洲一体化

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European Public Law Pub Date : 2021-08-01 DOI: 10.54648/euro2021025

M. Bonelli

{"title":"National Identity and European Integration Beyond ‘Limited Fields’","authors":"M. Bonelli","doi":"10.54648/euro2021025","DOIUrl":"https://doi.org/10.54648/euro2021025","url":null,"abstract":"One of the concerns that led to the introduction of Article 4(2) TEU was the growing interference of EU law into areas traditionally reserved to the Member States. In particular, Article 4(2) TEU was seen as a way to better shield matters of ‘retained competences’, where EU institutions have not been conferred legislative competences, and to possibly create no-go areas for EU law. Yet, this article argues that in practice, the national identity clause has not worked as a limit to EU competences and the scope of EU law. The case law of the Court of Justice in the decade after the entry into force of the Lisbon Treaty, and in particular a set of recent decisions in sensitive areas such as religion, family and nationality analysed in this article, allow to conclude that reliance on Article 4(2) TEU does not limit the scope of application of EU law, though it may contribute to reach results that show deference to national preferences and leave room for national diversity. The article thus suggests a weaker reading of the national identity clause: not as a fully blown limit to EU competence, but as one of the many clauses that stand for, and guarantee, national diversity.\u0000National identity, constitutional identity, Lisbon Treaty, EU competences, European integration","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41582302","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

The Persistence of a Contested Concept: Reflections on Ten Years Constitutiona Identity in EU Law 一个有争议的概念的坚持——对欧盟法律十年宪法认同的思考

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European Public Law Pub Date : 2021-08-01 DOI: 10.54648/euro2021028

L. Besselink

引用次数: 0