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Issue Information European Law Journal (IF 1.4) Pub Date : 2024-08-24
No abstract is available for this article.
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Rule of law backsliding within the EU: The case of informal readmissions of third‐country nationals at internal borders European Law Journal (IF 1.4) Pub Date : 2024-08-24 Emanuela Pistoia
The essay deals with the enhancement of the legal framework for informal readmissions at internal borders enshrined in the former Schengen Border Code (now Union Code on the rules governing the movement of persons across borders), which in turn requires enhancement of bilateral police cooperation. It focuses on the impact of the new rules on the prohibition on police controls equivalent to border checks
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The regulation of AI‐based migration technologies under the EU AI Act: (Still) operating in the shadows? European Law Journal (IF 1.4) Pub Date : 2024-08-24 Ludivine Sarah Stewart
While Artificial Intelligence (AI) is becoming a key element in supporting the migration and border management policies of the European Union and its Member States, so far, AI‐based migration technologies have been tested and implemented with limited public scrutiny. In this context, the EU AI Act holds the promise of a regulation in line with the protection of fundamental rights and the rule of law
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Limits to discretion and automated risk assessments in EU border control: Recognising the political in the technical European Law Journal (IF 1.4) Pub Date : 2024-08-24 Amanda Musco Eklund
This article analyses how the automation of border control challenges the rule of law requirement on sufficient limits to discretion by using the idea expressed by the Court of Justice of the European Union (CJEU) non‐delegation doctrine that it is possible to make a clear distinction between technically complex assessments and political discretion. To illustrate these challenges, the article uses
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Decoding Frontex's fragmented accountability mosaic and introducing systemic accountability ‐ System Reset European Law Journal (IF 1.4) Pub Date : 2024-08-24 Mariana Gkliati
In response to widespread human rights violations involving the European Border and Coast Guard Agency (Frontex), multiple accountability mechanisms were activated, leading to the resignation of the agency's executive director. Does this mean the current framework can ensure Frontex's overall accountability? Playing with IT metaphors, this article scrutinises Frontex's accountability framework as a
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Datafication of the hotspots in the blind spot of supervisory authorities European Law Journal (IF 1.4) Pub Date : 2024-08-24 Sarah Tas
The hotspot approach used to contain asylum seekers at the borders of Europe has been heavily criticized for deplorable conditions and multiple fundamental rights violations. This article dives into an underexplored issue in the hotspots, namely its datafication. It explores the question of the protection of personal data, and analyses whether the supervisory arrangements in place are sufficient to
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Guest editorial: The external borders of the European Union: Between a rule of law crisis and accountability gaps European Law Journal (IF 1.4) Pub Date : 2024-08-24 Luisa Marin, Mariana Gkliati, Salvatore F. Nicolosi
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The European Border and Coast Guard Agency (Frontex) and the limits to effective judicial protection in European Union law European Law Journal (IF 1.4) Pub Date : 2024-08-01 Salvatore Fabio Nicolosi
The principle of effective judicial protection is a cornerstone of EU law which is predicated on the existence of a complete system of judicial remedies. However, with the expansion of the operational powers of the European Border and Coast Guard Agency (Frontex) and the consequent fundamental rights concerns, this article challenges the assumption that the EU is based on such a complete system of
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Why an EU country under the surveillance procedure (Article 7.1 TEU) should not chair the Council Presidency European Law Journal (IF 1.4) Pub Date : 2024-07-31 Emilio De Capitani, Virgilio Dastoli
Mutual trust that is the bedrock of intra‐EU cooperation should not be equated to ‘blind trust’ when a Member State is under the ‘surveillance’ procedure foreseen by Article 7(1) of the Treaty on European Union. In this perspective it would be risky for the European Council to recognise a key coordinating role, as is the case when holding the Council Presidency, to a Member State under Article 7.1
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The potential of budgetary discharge for political accountability: Which lessons from the case of Frontex? European Law Journal (IF 1.4) Pub Date : 2024-07-03 Michele Gigli
With the discharge procedure of the 2020 budget of Frontex, the European Parliament played a primary role in addressing the policy drift of the most important decentralised agency operating in the area of freedom, security and justice (AFSJ). This case demonstrates the potential of the discharge tool in steering the performance of decentralised agencies at a time when the mandate of these agencies
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Frontex at the epicentre of a rule of law crisis at the external borders of the EU European Law Journal (IF 1.4) Pub Date : 2024-05-28 Luisa Marin
Next to the rule of law ‘crises’ within Member States, a new facet of this rule of law crisis is emerging at the external borders of the EU, and sees the EU border agency Frontex as its epicentre. This article illustrates the multiple facets of this crisis which concerns Frontex's functioning and activities, discussing a form of ‘agency capture’ that occurred under the mandate of the former Executive
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Frontex's expanding mandate: Has democratic control caught up? European Law Journal (IF 1.4) Pub Date : 2024-05-21 Tineke Strik
This article analyses to what extend the rapid growth of Frontex has been accompanied by adequate democratic accountability, whereby the author draws on her experiences as a Member of Parliament. She elaborates on the safeguards in legislation but also on their application in practice, with a focus on the lessons the Parliament learned from its own inquiry on the role of Frontex in pushbacks. The contribution
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Watching the guards: Ensuring compliance with fundamental rights at the external borders European Law Journal (IF 1.4) Pub Date : 2024-05-20 Jorrit J. Rijpma
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Frontex and access to justice: The need for effective monitoring mechanisms European Law Journal (IF 1.4) Pub Date : 2024-05-15 Elspeth Guild
Access to justice depends on the ability of the person who is alleging a breach of human rights to establish to a credible extent the facts of the case. Where the individual is unable to provide supporting documentation about the facts, the claims are likely to be found inadmissible, or at least the defendant's lawyers are likely to seek to have the case dismissed on the basis of no case to answer
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‘Foot in the Door’ or ‘Door in the Face’? The development of legal strategies in European climate litigation between structure and agency European Law Journal (IF 1.4) Pub Date : 2024-04-22 Carlotta Garofalo
Following the landmark Urgenda case, European social movements and legal networks have increasingly turned to courts to compel governments to more ambitious mitigation policies. The rapid proliferation of Urgenda‐like cases in the most diverse European jurisdictions, makes a compelling case to investigate the motivations and goals animating European climate litigators, especially when facing high legal
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Guest editorial: Courts as an arena for societal change: An appraisal in the age of “environmental democracy”; In this issue European Law Journal (IF 1.4) Pub Date : 2024-04-22 Asmaa Khadim, Margaretha Wewerinke‐Singh, Jannemieke Ouwerkerk, Miranda Boone
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The necessity defence in (the Swiss) climate protest cases: Democratic contestation in the age of climate activism European Law Journal (IF 1.4) Pub Date : 2024-04-22 Paolo Mazzotti
The transnational movement of climate activists is resorting increasingly often to acts of civil disobedience. Upon being prosecuted for those acts, climate activists across various jurisdictions are starting to plead the general criminal law defence of necessity. The present article takes the cases in which that defence was pleaded before Swiss courts as a case study to analyse the legal questions
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Issue Information European Law Journal (IF 1.4) Pub Date : 2024-04-22
No abstract is available for this article.
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What climate litigation reveals about judicial competence European Law Journal (IF 1.4) Pub Date : 2024-04-01 Douwe de Lange
In recent years, the US and the Netherlands have been on opposing sides of the spectrum regarding climate litigation. Dutch courts, in several revolutionary climate cases, have been an arena of societal change, whilst climate claims in the US have been largely unsuccessful. In a way this difference seems strange, because the US judiciary has the power of constitutional review, whilst the Dutch judiciary
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Courts as an arena of societal change? The Italian Constitutional Court's self-restraint facing the legislator's uncertain discretion in seabed mining: A concrete counter-example European Law Journal (IF 1.4) Pub Date : 2024-03-21 Giorgio Cataldo
The article explores the difficult balance of interests in the Italian field of seabed mining. In recent years, the regions, bearers of the local communities' social demands, claimed greater attention to sustainability, while the State almost always privileged productivity. The Constitutional Court always took an attitude of self-restraint, basically adhering to State reasons. Given this starting point
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Beyond OPOSA: Courts reinforcing intergenerational equity as customary international law European Law Journal (IF 1.4) Pub Date : 2024-03-18 Josiah David F. Quising
In recent years, children across the globe, such as Greta Thunberg and Kelsey Juliana, are seen at the front line of efforts to hold governments accountable for environmental damage. In the Philippines, the case of Oposa v. Factoran gave legal standing to minors and unborn generations invoking their constitutional right to a balanced and healthful ecology. The Philippine Supreme Court based its decision
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Recognising the rights of nature: How have the courts fared? European Law Journal (IF 1.4) Pub Date : 2024-03-14 Tolulope N. Ogboru
The Rights of Nature (RoN) concept is an evolving theory in environmental law. It advocates that natural objects be respected and allowed to exist, thrive and flourish for themselves and not for utilitarian purposes. However, attempts to apply the rights often result in litigation. The outcomes of these cases have grave implications for the impact of the RoN concept on the development of jurisprudence
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Judicial approaches to science and the procedural legitimacy of climate rulings: Comparative insights from the Netherlands and Germany European Law Journal (IF 1.4) Pub Date : 2024-03-14 Juliana de Augustinis
This article explores how judicial approaches to science relate to the procedural legitimacy of rulings in cases where the plaintiffs seek a change in a government's overall climate policy. It reviews challenges in court interaction with climate science and compares two prominent cases: Urgenda v. The State of the Netherlands and Neubauer et al. v. Germany. The selected lawsuits yield comparative interest
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A rights‐based approach to the choice of forum in climate displacement litigation: Lessons from the Americas European Law Journal (IF 1.4) Pub Date : 2024-03-14 Armelle Gouritin
Few studies address climate litigation and climate forced mobility together, and the link between climate litigation and internal forced climate displacement remains poorly addressed. This article aims to participate in filling this void. We focus on climate displacement litigation argued before regional human rights courts (the Inter‐American Court) and national human rights protection bodies (the
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Access to justice and strategic climate litigation in the EU: Curing the incurable? European Law Journal (IF 1.4) Pub Date : 2024-03-11 Angelika Krężel
Access to justice in the EU is to be assured via both the CJEU and national courts through direct and indirect action procedures. Following this, the main argument developed throughout this analysis is that the CJEU differentiates the revision standard when interpreting the obligations of EU institutions and those of Member States. It is concluded that this kind of interpretation maintains the limitations
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Does the European Court of Justice induce societal change? The record so far—with a green future in mind European Law Journal (IF 1.4) Pub Date : 2024-03-03 Henri de Waele
Over the seven decades of its existence, the European Court of Justice (ECJ) has performed well as a conflict-solving institution. From the existing literature, it becomes less clear however to what extent it served as an effective agent for societal change. Obtaining clarity on this issue seems imperative in the current day and age, considering the gargantuan challenges of accelerating climate change
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Courts as an arena for socioenvironmental change: Lessons from the Argentine courts European Law Journal (IF 1.4) Pub Date : 2024-02-28 Asmaa Khadim
Trends in the Argentine courts indicate a judicial preference towards flexibility in light of possibly serious environmental consequences, particularly in relation to mining. Through a liberal interpretation of constitutional provisions where collective environmental rights are threatened, the courts have expanded access to justice, leading some to view the Argentine judiciary as “interventionist”
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Issue Information European Law Journal (IF 1.4) Pub Date : 2024-01-02
No abstract is available for this article.
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The collective welfare dimension of dark patterns regulation European Law Journal (IF 1.4) Pub Date : 2024-01-02 Fabiana Di Porto, Alexander Egberts
Dark Patterns are interface design elements that can influence users' behaviour in digital environments. They can cause harm, not only on an individual but also a collective level, by creating behavioral market failures, reducing trust in markets and promoting unfair competition and data dominance. We contend that these collective effects of Dark Patterns cannot be tackled by existent laws, and thus
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Passenger name record (PNR) data: How the EU is promoting (virtual) security by actually limiting Passengers' fundamental rights European Law Journal (IF 1.4) Pub Date : 2024-01-02 Emilio De Capitani
The use for security purposes of airline passenger data (PNR) has gradually come to the fore especially in EU-US relations because of the tension between those who considered the use of PNR an effective tool in the fight against terrorism and those who considered the interference in citizens' privacy disproportionate. The Court of Justice intervened decisively on the issue in June 2022 with the “Ligue
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Did the PNR judgment address the core issues raised by mass surveillance? European Law Journal (IF 1.4) Pub Date : 2024-01-02 Douwe Korff
This article looks at three main issues raised by the PNR scheme: (i) the base-rate fallacy and its effect on false positives; (ii) built-in biases; and (iii) opacity and unchallengeability of the decisions generated, and at whether the Court has properly addressed them. It concludes that the AG and the Court failed to address the evidentiary issues including the base-rate fallacy—a lethal defect.
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Taking fundamental rights seriously in the Digital Services Act's platform liability regime European Law Journal (IF 1.4) Pub Date : 2023-11-21 Giancarlo Frosio, Christophe Geiger
This article highlights how the EU fundamental rights framework should inform the liability regime of platforms foreseen in secondary EU law, in particular with regard to the reform of the E-commerce directive by the Digital Services Act. In order to identify all possible tensions between the liability regime of platforms on the one hand, and fundamental rights on the other hand, and in order to contribute
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The public interest dimension of the single market for data: Public undertakings as a model for regulating private data sharing European Law Journal (IF 1.4) Pub Date : 2023-11-06 Heiko Richter
Data plays a crucial role for society. Accordingly, building a ‘single market for data’ by increasing the availability of public and private data ranks high on the EU policy agenda. But when advancing legal data sharing regimes, there is an inevitable need to balance public and private interests. While the European Commission continues to push for more binding rules on data sharing between private
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A Manifesto on Enforcing Law in the Age of ‘Artificial Intelligence’ European Law Journal (IF 1.4) Pub Date : 2023-10-26
Building upon A Manifesto In Defense of Democracy and the Rule of Law in the Age of ‘Artificial Intelligence’, we, the Transatlantic Reflection Group on Democracy and the Rule of Law in the Age of ‘Artificial Intelligence’, have reconvened to draft a second consensus manifesto that calls for the effective and legitimate enforcement of laws concerning AI systems. In doing so, we recognise the important
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The quadrangular shape of the geometry of digital power(s) and the move towards a procedural digital constitutionalism European Law Journal (IF 1.4) Pub Date : 2023-08-14 Oreste Pollicino
The paper explores the evolution of private powers in the digital landscape, developing a quadrangular systematisation of such a phenomenon based on four main aspects: space, values, (private) actors, and (digital) constitutional remedies. Taking a trans-Atlantic approach, the paper shows how these categories, typical of constitutionalism, apply to the context of the Internet and of new digital technologies
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Issue Information European Law Journal (IF 1.4) Pub Date : 2023-08-03
No abstract is available for this article.
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Should Europe disturb historians? On the importance of methodology and interdisciplinarity European Law Journal (IF 1.4) Pub Date : 2023-08-03 Sylvain Kahn
Does the emergence of the European Union (EU) disrupt the frames of reference of the contemporary history of Europe to such an extent that historians distrust it? It would seem that methodological Euroscepticism exists. European integration arouses scepticism among some in the community of historians of contemporary Europe, since the conceptual underpinnings of that history cannot in themselves account
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The changing nature of ‘Regulation by Information’: Towards real-time regulation? European Law Journal (IF 1.4) Pub Date : 2023-08-03 Herwig C.H. Hofmann, Dirk A. Zetzsche, Felix Pflücke
The concept of ‘Regulation by Information’ is changing. Past such approaches consisted mainly of signalling regulatory intent and indirectly guiding how and when regulatory discretion should be exercised. We suggest that this conceptual understanding must be reviewed in view of developing regulatory technologies (RegTech) allowing for a far more proactive integration of data flows into regulatory processes
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The European Arrest Warrant in a context of distrust: Is the Court taking rights seriously? European Law Journal (IF 1.4) Pub Date : 2023-08-03 Ermioni Xanthopoulou
During a time of distrust towards some Member States, the position of fundamental rights when executing a European Arrest Warrant (EAW) has been strengthened. The article considers whether the European Court of Justice (ECJ) is now ‘taking rights seriously’ as regards the EAW. To this end, it employs a theoretical and contextual approach that supports a comprehensive analysis of case-law. First, the
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The ‘licence to distrust’ and the protection of individual rights in the execution of a European Arrest Warrant: A comment European Law Journal (IF 1.4) Pub Date : 2023-08-03 Pedro Caeiro
This comment on Ermioni Xanthopoulou's insightful article starts by revisiting the nature and role of trust in the European Arrest Warrant (EAW) procedure, considering the recent developments in the case law of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) (from Aranyosi/Căldăraru to Bivolaru/Moldovan). It is argued that trust is distinct from the
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The Dublin Regulation, mutual trust and fundamental rights: No exceptionality for children? European Law Journal (IF 1.4) Pub Date : 2023-08-03 Ciara Smyth
Mutual trust in the Dublin III Regulation is justified by the assumption that all Member States respect the fundamental rights of asylum seekers and that it is therefore immaterial which Member State processes any given claim. This justification has been questioned in light of the treatment of asylum seekers in some Member States. Nonetheless, in order to circumvent a Dublin transfer on fundamental
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Issue Information European Law Journal (IF 1.4) Pub Date : 2023-06-13
No abstract is available for this article.
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The reasonable citizen: A model for bridging ethics and politics in the EU European Law Journal (IF 1.4) Pub Date : 2023-06-13 Michele Mangini
The ethical-political model of the EU needs normative rethinking after the pandemic. Using Dworkin's ‘thesis of continuity’ between ethics and politics, I argue that a strong model of the citizen, called on to exercise duties and civic virtues, is badly needed by the EU. The legitimacy of EU political institutions is not enough, if we want to promote the participation of citizens to their functioning
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European elections 2024: To keep our future in our hands, we need the Revolution of Hope1 European Law Journal (IF 1.4) Pub Date : 2023-06-13
One year before the European elections, which will be crucial for our continent, a coalition of academics, artists, civil society members and public and private sector actors have called for the ‘Revolution of Hope’—to tackle multiple challenges and keep the future of Europe in our hands Imagine walking down the street, stopping a random person and asking them what they think about Europe. In the early
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European Parliament and representation of the Union's citizens: What can be expected from electoral law from a democratic standpoint? European Law Journal (IF 1.4) Pub Date : 2023-05-04 Fabio Pascua Mateo
In some Member States, doctrine and case law of national courts have highlighted that, under currently applicable European electoral law, elections to the EP are of a second-order, whereby European issues give way to purely domestic ones. In any event, this does not hinder the position of the EP as a genuine legislative chamber, which, above all, demands effects from electoral law that it cannot provide
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The role of soft law in advancing the rights of persons with disabilities in the EU: A ‘hybridity’ approach to EU disability law European Law Journal (IF 1.4) Pub Date : 2023-02-27 Delia Ferri
This article discusses the role of soft law in advancing the rights of persons with disabilities in the European Union (EU). In doing so, it revisits the emergence of the standalone, yet cross-cutting, field of ‘EU disability law’ through the lens of the ‘hybridity theory’ advanced inter alia by Trubek and Trubek. Being speculative in nature, this article construes EU disability law as a fruitful area
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Issue Information European Law Journal (IF 1.4) Pub Date : 2023-02-15
No abstract is available for this article.
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The emerging role of the EU as a primary normative actor in the EU Area of Criminal Justice European Law Journal (IF 1.4) Pub Date : 2023-02-15 Irene Wieczorek
This article explores the role and justifications for EU action in the EU Area of Criminal Justice, also relying on a comparison with the justifications for EU action in the internal market. It distinguishes between a role for the EU as a subsidiary policy actor and as a primary policy actor. By substantiating both models, the article illustrates how the model of the EU as a subsidiary policy actor
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Normative justifications of EU criminal law: European public goods and transnational interests European Law Journal (IF 1.4) Pub Date : 2023-02-15 Jacob Öberg
EU policy-making in criminal law is a matter of significant public concern for EU citizens and the Member States. The exercise of EU public powers in the fields of criminal law and law enforcement have tangible and adverse consequences for the liberties and well-being of individuals. Furthermore, EU cooperation in the area of criminal law touches upon core functions of statehood including ‘core state
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Taking the normative foundations of EU criminal law seriously: The legal duty of the EU to criminalise failure to rescue at sea European Law Journal (IF 1.4) Pub Date : 2023-02-15 Elspeth Guild, Valsamis Mitsilegas
This contribution argues in favour of the use of Article 83(2) TFEU to adopt a Directive criminalising failure of rescue at sea. We explain how and why the EU's legal duty to comply with its obligations under Article 98 of the UN Convention on the Law of the Sea ought to translate into the adoption of a Directive requiring Member States to criminalise all action contrary to Article 98 UNCLOS on the
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From facts and political objectives to legal bases and legal provisions: Incremental European integration in the criminal law field European Law Journal (IF 1.4) Pub Date : 2023-01-02 Nicholas Franssen, Anne Weyembergh
This contribution intends to show that normative foundations, in the sense of foundations prescribing norms or expressing prescriptions, have been rather limited in determining or defining the legal bases, legal provisions and their evolution in EU criminal law. EU primary and secondary law in penal matters has indeed been adopted mainly in reaction to the need to adjust to reality, to face challenges
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Principles of EU criminalisation and their varied normative strength: Harm and effectiveness European Law Journal (IF 1.4) Pub Date : 2022-11-18 Nina Peršak
The increasing legislative activity of the Union in the field of criminal law highlights the need for a normative justification of EU action in this area. The article first examines and compares the existing EU legislative grounds for criminalisation, coupled with EU criminal policy orientations, with the well-established criminalisation grounds recognised in criminalisation theory in order to distil
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Reflections on the place of criminal law in the European construction European Law Journal (IF 1.4) Pub Date : 2022-11-09 Jörg Monar
Although the place of EU criminal law in the European construction has become incontestable today, it has historically been a far from obvious one. In its origins and development, two different rationales can be distinguished: a functional one aimed at using criminal law instruments to address specific cross-border crime challenges generated or enhanced by the progress of EU integration in other fields
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The European Union and the re-establishment of democratic authority European Law Journal (IF 1.4) Pub Date : 2022-11-07 Damian Chalmers
The European Union is blighted by a style of governance, EU police, which holds that the Union better balances different interests and values than other arenas but which is, in practice, distorted by anti-redistribution and status quo biases. To combat it, this article proposes a principle of European democratic authority that would found EU legal authority and condition domestic legal authority. This
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Old wine in a new bottle: Shaping the foundations of EU criminal law through the concept of legal interests (Rechtsgüter) European Law Journal (IF 1.4) Pub Date : 2022-11-08 Jannemieke W. Ouwerkerk
Ever since the establishment of EU competence to legislate in criminal matters, legal scholarship has been devoting a fair amount of attention to the scope of these powers as well as to their proper exercise. The many scholarly contributions this has led to make a commendable and laudable body of knowledge with respect to the matter at hand. Yet, as will be argued, its capacities to shape the normative
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The EU external border as a site of preventive (in)justice European Law Journal (IF 1.4) Pub Date : 2022-10-19 Valsamis Mitsilegas
The aim of the article is to fill a gap in the literature on the externalisation of immigration control by focusing not on practices of extraterritorial immigration control but on the externalisation of immigration control at the EU external border. The article will examine four parallel and inter-related trends of preventive injustice on the border: the denial of law and pushbacks, and their handling
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A theory of justice? Securing the normative foundations of EU criminal law through an integrated approach to independence European Law Journal (IF 1.4) Pub Date : 2022-10-17 Leandro Mancano
This paper raises the question as to whether a theory of justice exists in EU law. The focus is on justice as a system. The assumption is that the independence of institutional actors involved in the administration of criminal justice (mainly judges and prosecutors) vis-à-vis each other, and other State powers, is key to that system achieving justice as a value. Against the benchmark of judicial and
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Constitution and development of the European Union's penal jurisdiction: Responsibility, self-reference and attribution European Law Journal (IF 1.4) Pub Date : 2022-10-13 Pedro Caeiro
This article looks at how and why the EU has been/can be endowed with powers over criminal matters, within the framework of the theory of jurisdiction. It examines the extent to which the specific responsibility of the EU for the protection of certain legal interests justifies the establishment of a (peripheral) jurisdiction. Member States (MS) can confer such powers upon the EU, but this attribution