Search

European Papers - A Journal on Law and Integration, 2018 3(3), 1493-1502, European Forum Insight of 5 November 2018, I. Introduction. - II. The Family Reunification Directive in the light of the factual background of the case. - III. A critical appraisal of the Court's reasoning in A and S. - IV. The relevance of the Court's ruling in drawing recommendations to ensure the practical effectiveness of the right to family reunification. - V. Concluding remarks., Family reunification constitutes one of the most pressing human rights issues for refugees, who are especially unaccompanied minors. Yet, the practical effectiveness of such a right is not always adequately ensured. Drawing from the recent decision of the Court of Justice in A and S (judgment of 12 April 2018, case C-550/16), the Insight aims to investigate the protection framework established by the Family Reunification Directive for refugees who are unaccompanied minors. The judgment is the first decision dealing with the right to family reunification for refugees in EU Asylum Law. In particular, the case deals with the question of whether an unaccompanied minor who attains the age of majority during the asylum procedure retains their right to family unification. By answering such a question, the Court's reasoning offers a valuable opportunity to reflect on the scope of the Family Reunification Directive and suggest possible guidance as to the protective regime for refugees who are unaccompanied minors.

This article argues that the internationally declared “human right to safe water and sanitation,” although characterized by soft legality, may yet support universal access to such basic entitlements by virtue of its strong legitimacy. From a strategic perspective, human rights do indeed provide legitimacy to collective struggles aimed at realizing socioeconomic justice in contexts in which the human dignity of the poor is being structurally denied, often including even a simple enactment of their basic rights. Beyond the current focus on legality and in connection with the global development agenda beyond 2015, the authors draw on a number of water-related legal and political cases meant to illustrate distinct human rights strategies. They explore the impact of contextualized “upstream initiatives” and the use of abstract rights as instruments towards securing concrete entitlements, to be seen as a crucial complement to the “downstream” ventures still favored by those primarily concerned with the protection of human dignity from the perspective of international standard-setting and supervision.

The EU has become increasingly involved in enforcing European Union (EU) law, including directly vis-à-vis private actors. (Multilevel implementation) research has so far neglected the question of what role it is necessary for the EU to play in this direct enforcement of EU law in order to promote the implementation of EU policies. Given the purpose of this collection of works to discuss innovative approaches in multilevel implementation, this contribution unravels three of the EU’s direct enforcement strategies. It provides original data in relation to proliferating EU entities with direct enforcement powers and to EU enforcement networks, as well as discussing the EU’s growing influence over national direct enforcement via EU hard, soft and case law. It outlines the problem-solving potential of such enforcement strategies and signals the challenges that they bring along. The aim is to urge and facilitate further research on the EU’s (direct) enforcement strategies, their legitimacy, effectiveness and operation.

De EU krijgt nog steeds veelal gestalte via de uitoefening van de wetgevende bevoegdheden die ze in de loop der tijd heeft gekregen. De toenemende kritische houding van de burger tegenover de Unie – niet alleen in het Verenigd Koninkrijk, maar ook elders – heeft druk gezet op zowel de lidstaten als de Europese instellingen om de manier waarop die bevoegdheden worden uitgeoefend opnieuw te doordenken. Als zodanig kan de hernieuwde focus op ‘betere regelgeving’ goed worden begrepen. Het nieuwe Uniebeleid roept echter wel de vraag op, betere regelgeving voor wie? Die vraag heeft na het Britse ‘nee’ tegen het Unielidmaatschap nog meer lading gekregen.

National parliaments (NPs) had long been excluded from the European integration process and were in many Member States at best kept informed and rarely involved in daily EU affairs. With the Lisbon Treaty and its introduction of the Early Warning System (EWS), as well as the Political Dialogue initiated by former Commission President Barroso, NPs have now become full actors in the EU. Through the Political Dialogue, they can express their opinion on the Commission Annual Work Programme and influence the Commission's agenda. Now, through control of the respect of the principle of subsidiarity, and provided that their reasoned opinions attain the defined thresholds, they can potentially strike down an existing proposal. However the EWS leads to NPs still being constrained to a limited, reactive role: as ‘quasi veto-players' and not one of ‘agenda-setter’. Recent developments in favour of the introduction of a ‘green card’ would change this situation profoundly as NPs would eventually be able to prompt the Commission to make legislative proposals on their behalf. This article sheds light on the evolving role of NPs in EU policymaking from the Lisbon Treaty onwards, from veto players to proactive institutions committed to the good functioning of the EU.

In an era in which doubt has been cast over the international legal discipline’s internationalist credentials, scholarship which addresses alternative perceptions and conceptions of international law in the non-West deserves our full attention. In this context, we welcome Lilian Chenwi and Takele Soboka Bulto’s collection on ‘Extraterritorial Human Rights Obligations from an African Perspective’, which highlights the destructive human rights impacts of states’ acts, decisions, and omissions outside their territory, and makes a convincing doctrinal case that extraterritorial obligations (ETOs) can legally be based on the African Charter on Human and People’s Rights (ACHPR). This is a carefully edited collection which forms a coherent whole. The individual contributions are well-written and contain a wealth of doctrinal insights and empirical information. The editors and contributors deserve particular credit for highlighting the ETO potential of the ACHPR, the refined reasoning of the African Commission (largely unknown outside Africa), and the extant and potential interactions between the African human rights system and other regional or universal systems. The voices of the new generation of African (and Africa-minded) scholars who have contributed to this volume deserve a wide audience.

Key PointsIncreasing multinational cooperation between intelligence and security services, including the establishment of a joint database on (alleged) jihadists, raises legal concerns over the protection of personal data, in particular with respect to the allocation of responsibility among participating states, the geographic scope of fundamental data protection norms, and the applicable law.It is argued that states participating in multinational cooperative efforts may share responsibility, eg in relation to a shared database. However, for reasons of proximity, the host state of the server has heightened duties of care.It is also argued that where a participating state, in particular the host state, exercises virtual control (jurisdiction) over an individual person’s data, such a state has data protection obligations towards that person, regardless of the latter’s location.Participating states, and again in particular the host state, are under an obligation to put in place adequate control systems, including with a view to preventing the transfer of data that have been gathered by states in breach of data protection guarantees.If systemic failures in the multilateral system are identified, states are barred from transferring data to the system, unless they can obtain credible guarantees that data will be adequately protected.General principles of data protection law, derived from case law as well as general or sector-specific regulations, govern the processing and transfer of data in the context of multinational intelligence cooperation, including the management of a joint database. There is no reason not to apply them in the context of national security.

In this chapter, the editors conclude this volume by trying to envisage “The Way Forward” as regards accountability, international business operations and the law. This chapter will, on the basis of the foregoing chapters, draw conclusions as to the most viable ways forward when it comes to holding international business actors to account for violations of human rights and environmental standards abroad. Returning to the six ambitions mentioned in the introduction (Chapter 1), this chapter will highlight existing accountability mechanisms that are applied in new ways by legal practitioners in the field as well as new accountability mechanisms that are considered additions or alternatives to those already-existing mechanisms. It will speculate on the extent to which these mechanisms can have transformative effects on the way in which transnational business operations are conducted, and will address potential thresholds and/or side effects. It will also discuss the sociopolitical sensitivities inherent in the introduction of new mechanisms and/or the optimization of existing ones. It will close off with some recommendations for legal scholars as regards topics that warrant further research, for legal practitioners as regards legal avenues that warrant further development through case law, and for policymakers as regards accountability mechanisms that warrant realization and/or optimization.

This chapter provides an introduction to the topic of “Accountability, International Business Operations, and the Law: Providing Justice for Corporate Human Rights Violations in Global Value Chains”

This chapter explores the exercise of jurisdiction in the common interest. Drawing on realism and actual practice, it is posited that the exercise of jurisdiction in the common interest is unlikely unless the state has a nexus to the situation subject to regulation. The presence of a nexus may in fact serve to allocate jurisdictional authority and responsibility and encourage action in the common interest. In practice, cosmopolitan jurisdiction is hardly exercised. Scarce resources, fear of retaliation or reciprocity, and lack of local interest in global issues may cause states to forego assertions of cosmopolitan jurisdiction, unless a ‘national interest’ can be identified. The chapter then considers the actual practice of universal criminal jurisdiction.

The first judgement of the General Court (EU) pertaining to the Single Supervision Mechanism (SSM) raised an issue concerning the source of the shared supervisory powers in the system of EU prudential supervision. In the General Court’s view, the SSM Regulation conferred on the European Central Bank (ECB) exclusive powers to carry out specific prudential supervisory tasks vis-à-vis all euro area credit institutions (significant and less significant). At the same time, the ECB’s national counterparts assist the former in implementing its supervisory tasks vis-à-vis less significant credit institutions. We argue that such a scheme requires a clear accountability relationship also between the ECB and the national competent authorities (NCAs), something that is not fully fledged in the current legal framework.

Although international human rights law establishes the individual right to receive reparations, collective reparations have been considered a common response from judicial and non-judicial bodies to reparations for victims of gross violations of human rights. As such, collective reparations have been awarded within the field of international human rights law, international criminal law and transitional justice. Yet the concept, content and scope of collective reparations are rather unspecified. To date, neither the judicial nor the non-judicial bodies that have granted this kind of reparations have ever defined them. This thesis presents the first study on collective reparations. It aims to shed light on the legal framework, content and scope of collective reparations; and to the relationship between collective reparations and the individual right to reparations. In order to do so, the research analyses specific case law from the IACtHR, the ICC and the ECCC. Additionally, the practices of non-judicial mechanisms were examined, specifically those of the Peruvian and Moroccan Truth Commissions and of two mass claims compensation commissions (the UNCC and the EECC). Finally, it provides an overview of the challenges that collective reparations present to the fields of international human rights law and international criminal law, including in their implementation.

The aim of this article is to better understand the conditions outlined in the 'CILFIT' judgment and their role in creating a meaningful dialogue about European Union law. For these purposes two distinct views on the relation between language and meaning are utilised, as has been argued for by Ludwig Wittgenstein in his 'Philosophical Investigations'. In the 'CILFIT' judgment both of these views surface, which imply different challenges to the participants of the EU dialogue. In the conclusion, we suggest how these challenges can be met in order to facilitate a mutually meaningful dialogue about EU law.

The dissertation of Van Rijsbergen is the first to discuss the pertinent questions of legitimacy and effectiveness concerning EU agencies’ soft law. It focuses on the European Securities and Markets Authority (ESMA), the EU agency responsible for improving the functioning of the financial markets in Europe. ESMA has been given a variety of soft rule-making powers to deal with the lack of effectiveness which blighted the work of its predecessor. The ‘hard’ effect of ESMA’s soft law (technical standards, guidelines, and other non-binding instruments) raises, however, the legitimacy concerns of such instruments. What procedural and institutional safeguards regarding EU agencies’ soft law instruments would reflect an adequate balancing of both legitimacy and effectiveness concerns? This study develops an assessment framework for this ‘balancing exercise’. Van Rijsbergen tests the framework for each category of ESMA’s soft law acts at each stage of the policy cycle and demonstrates that the framework can be applied to other EU agencies with soft rule-making powers similar to those of ESMA. She uses multidisciplinary literature and case law as well as the results of an extensive empirical study conducted at ESMA during her traineeship. The research presents guidance for policymakers and the Union legislator in setting up EU agencies with soft rule-making powers. It is essential for practitioners confronted with the use of EU agencies’ soft law instruments and academics in the fields of soft law, EU agencies and national authorities, regulatory governance, and financial markets.

This introduction sets the context of the analysis conducted in this special issue. In particular, it examines the issue of the democratic legitimacy of the European Union (EU) Economic Governance, the role of national parliaments and of the European Parliament in the European integration process. It also addresses the question of throughput legitimacy within the EU that guides all contributions. This serves as basis to study the urgency of the democratic challenge in the EU economic governance, as well as its specificity. After the contributions to this special issue are briefly presented, this introduction examines what they bring to the overall debate on democratic legitimacy in this policy domain, among others in terms of the difficulties that have arisen across Member States. At the same time, perspectives of possible future developments are also spelt out, in particular in the context of an EU-27 post Brexit.

In het arrest Altun van het Hof van Justitie van de Europese Unie is het Hof teruggekomen op eerdere jurisprudentie dat detacheringsverklaringen bindend zijn voor de gaststaat en dat alleen nadat een speciale procedure gevolgd is de gaststaat niet gebonden kan zijn aan detacheringsverklaringen. In geval van fraude kan ook de gaststaat ze intrekken. In dit artikel worden de omstandigheden van de zaak besproken en de consequenties van deze benadering.

The term ‘passing-on’ in the framework of private enforcement of European competition law has been a point of discussion for a considerable period of time now. The debate has elevated to its peak following the judgments of the Court of Justice of the European Union (hereinafter CJEU, Court of Justice or the Court) in case Courage and later Manfredi.1 In those milestone cases the Court supported the idea that any individual who suffers harm as a result of competition law infringement ought to be able to claim damages. As a result of this jurisprudential development, it soon became clear that the EU legislator will have to catch up with the idea of strengthening the position of individuals in private enforcement proceedings.

The EU institutions and agencies have become increasingly involved in enforcing EU law directly vis-à-vis private actors. A number of such EU entities have also acquired the so-called emergency powers, which allow interference with the legal position of a private party. Given the lack of research in this area, the question that this article addresses is whether relevant safeguards have been introduced to ensure the rule of law in such situations to prevent the abuse of executive discretion by public authorities. What are the relevant safeguards in the emergency in the EU in the first place? Having analysed relevant EU legislation and case law, the article offers a complete overview of all the existing EU entities with the emergency powers and shows a great diversity in the extent to which the EU legislator has regulated procedural safeguards in relevant law. The article discusses what safeguards need to be ensured in an emergency and argues for clarity of legislative frameworks in this respect.