Authors:Daniel Sarmiento Pages: 3 - 6 Abstract: Maastricht Journal of European and Comparative Law, Volume 28, Issue 1, Page 3-6, February 2021.
Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-02-18T03:48:20Z DOI: 10.1177/1023263X21994338 Issue No:Vol. 28, No. 1 (2021)
Authors:Lorin-Johannes Wagner Abstract: Maastricht Journal of European and Comparative Law, Ahead of Print. The question of who ought to be regarded as Union citizen is a central but not an easily answered question. Drawing on an analysis of the ECJ’s case-law and the underlying constitutional set up of Union citizenship, this article argues that the notion of nationality in EU law is based on a jurisdictional conception that builds on the idea of a genuine link and a territorial link with the EU. Relying on this understanding the article assesses the peculiar cases of Germany, the UK and Denmark, establishing not only if and how Member States can reconfigure the meaning of their nationality under EU law but also highlighting that the notion of nationality as a peremptory marker for Union citizenship is defined within the constitutional realm of EU law. The understanding that Member States are free to define their nationality within EU law, hence, is a misplaced overstatement of sovereignty. Against this backdrop the last part of the article turns to the case of Latvian non-citizens, arguing that Latvian non-citizens, who are generally not regarded as Union citizens, have been Union citizens all along. Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-03-10T11:35:36Z DOI: 10.1177/1023263X20986078
Authors:Jaakko Husa Abstract: Maastricht Journal of European and Comparative Law, Ahead of Print. This paper discusses comparative law and literature as an approach to studying law culturally, addressing how the study of literature from the standpoint of comparative law identifies one way of coding legal cultural knowledge in literature. The interaction between the worlds of law and culture is addressed through imaginary legal transplants. By transplanting legal ideas from the real world to literature, authors imagine worlds as they construct legal meanings in their storytelling. Whereas a legal transplant is a notion filled with problems and paradoxes, in literature it is far less problematic. Imaginary legal transplants are different from real-world transplants because in the real world legal diffusion takes place in mutant form, transforming transplants into irritants. The legislator never controls the world completely, whereas in fictional literature the creator of a written work controls the created world. In this sense, it is argued, imaginary legal transplants are perfect transplants. Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-02-17T05:41:03Z DOI: 10.1177/1023263X21995337
Authors:Celia Challet, Pierre Bachelier Abstract: Maastricht Journal of European and Comparative Law, Ahead of Print. The question of the recognition of the independence of Kosovo has been a dividing factor among Member States for more than a decade. Never before, however, had it led to an action for annulment before European courts. In Spain v. Commission, the Kingdom of Spain challenged the validity of a Commission decision providing for the participation of Kosovo’s national regulation authority in the Body of European Regulators for Electronic Communications (BEREC). The General Court ruled that the Commission could consider Kosovo as a third country in order to provide for the participation of its national regulation authority in BEREC. The Commission could also rely on the Stabilisation and Association Agreement concluded between the EU and Kosovo in order to enhance such cooperation. This judgment is of particular importance in terms of both EU-Kosovo relations and participation of third countries in EU agencies. Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-02-08T06:28:39Z DOI: 10.1177/1023263X20988232
Authors:Luigi Lonardo Abstract: Maastricht Journal of European and Comparative Law, Ahead of Print. This article considers whether national courts may act as catalyst of normalization of Common Foreign and Security Policy, in cases on the merits of which prima facie the Court of Justice of the European Union (CJEU) does not have jurisdiction. First, regardless of the exact scope of the CJEU’s jurisdiction, this contribution surveys arguments in favour (the principle of conferral and of effective judicial protection, expression of the value of the rule of law) and against (the notion of autonomy and consistency of EU law) the jurisdiction of national courts. It concludes in favour of the former option. Second, it considers whether national courts may act as agents of ‘normalization’ of CFSP, where this word means the application of general rules of EU law to this policy even in the absence of express literal provision in the Treaty. It argues that national courts may act as catalyst for the normalization of this policy in so far as they can, through the preliminary ruling procedure, give an opportunity to the CJEU to rule on (at least some) CFSP acts. Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-02-03T09:07:11Z DOI: 10.1177/1023263X20982582
Authors:Daniele D’Alvia Abstract: Maastricht Journal of European and Comparative Law, Ahead of Print. This article aims to determine whether mobile payments can be characterized by a legal constant, or common legal meaning. Indeed, mobile payments are a new form of payment system that is shaping the new economy of financial markets. Generally, they are part of the Fintech phenomenon, and they are specifically regulated in Europe, inter alia, under the Payment System Directive and the Regulation on Multilateral Interchange Fees. Nonetheless, those secondary hard law acts do not include any compulsory legal definition for mobile payments, which remain undefined and conventionally identified as means of proximity or remote payments. With that in mind, the article introduces for the first time in comparative law a new concept that aims at discovering meanings rather than similarities and differences that are irremediably limited to a merely descriptive function. To this end, the article argues that each time the constant outside of the law is subsequently recognized as ‘legal’, it becomes a legal constant, which is in turn capable of effectively revolutionizing the same study of mobile payments as well as of comparative law tout court. Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-02-03T09:04:31Z DOI: 10.1177/1023263X20987190
Authors:Juho Saloranta First page: 102 Abstract: Maastricht Journal of European and Comparative Law, Ahead of Print. This article assesses the efficiency of non-judicial grievance mechanisms in providing victims of corporate human rights violations with improved access to remedy. As no such mechanism is currently available, this article formulates a proposal for a new mechanism in the form of a corporate responsibility ombudsman, which would offer a great deal of flexibility as well as being an inexpensive, expeditious and informal manner of dealing with such issues.The article argues in favour of utilizing states’ regulatory arsenal to improve victims’ access to remedy extraterritorially. Based on recent international developments, I elaborate approaches to human rights due diligence regulation and export credit financing by means of two corporate responsibility ombudsman proposals.In relation to these proposals, I divide the effectiveness criteria of Principle 31 of the United Nations Guiding Principles into three main categories: empowerment, investigation and enforcement. Since obtaining sufficient evidence is of paramount to those seeking remedies for violations of corporate responsibility, states should bestow quasi-judicial powers on corporate responsibility ombudsmen to achieve efficiency, which could also create legitimacy.This article provides decision-makers and scholars with insights into how access to remedy could be synchronized with the momentum of human rights due diligence legislation in the European Union and beyond. Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-01-08T05:16:42Z DOI: 10.1177/1023263X20981367
Authors:Filippo Annunziata First page: 123 Abstract: Maastricht Journal of European and Comparative Law, Ahead of Print. The Weiss affair, culminating in the BVerfG ruling of 5 May 2020 (Weiss II), marks a break-up point in the long-standing dialogue between the BVerfG and the CJEU. The judges in Karlsruhe refused to follow the decision rendered by the CJEU in a preliminary ruling (Weiss I) and ordered EU institutions to provide further clarifications on the proportionality assessment of the Public Sector Purchase Programme. This paper claims that the principles applied by the BVerfG in Weiss I are quite similar to those employed in the Gauweiler and Landeskreditbank-Banking Union cases. Considering that background, it will be argued that the construction of the principles employed by the BVerfG for the judicial review of EU acts did not undergo dramatic changes over time. The different outcome of Weiss II is due to the fact that, according to the BVerfG, insufficient elements of explanation and justification were provided by the ECB and the CJEU. Therefore, the central problem of Weiss II ends up being a procedural question of allegedly insufficient statements of reasons. From Gauweiler to Weiss II, one also sees the development of the standards for the judicial review of the ECB’s decisions, in the fields of both monetary policy and banking supervision. Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-01-08T05:58:37Z DOI: 10.1177/1023263X20969534
Authors:Magdalena Kučko First page: 143 Abstract: Maastricht Journal of European and Comparative Law, Ahead of Print. In March 2020, the CJEU delivered its judgment in the Case C-832/18 A and Others v. Finnair Oyj concerning the application of EU Regulation 261/2004 on air passenger compensation. It considered whether passengers are entitled to compensation for cancellations or long delays of ‘re-routed’ flights to which they have been placed following cancellations of their original flight. In its preliminary ruling, the CJEU also considered whether a technical failure of a part which has been identified by aircraft manufacturer as being potentially defective but is only replaced once it is actually defective (a so-called ‘on condition’ part), constitutes an ‘extraordinary circumstance’ that could exempt airlines from their obligation to compensate passengers. By answering the first question in the positive and the second in the negative, the CJEU reaffirmed its well-established practice of a passenger-friendly interpretation of Regulation 261/2004. Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-01-11T05:31:23Z DOI: 10.1177/1023263X20984635
Authors:Maja Nisevic First page: 7 Abstract: Maastricht Journal of European and Comparative Law, Ahead of Print. Manipulation with Big Data Analytics allows commercial exploitation of individuals based on unfair commercial practices. Consequently, the concepts of consumer protection are essential in the data-driven economy and a central issue for effective safety for individuals in the Big Data Age. Although the fields of consumer protection and data protection in the European Union (EU) have developed separately, there is an unambiguous relationship between them. While the GDPR plays a crucial role in an individual’s data protection in a case of personal data processing, Directive 2005/29/EC (UCPD) plays an essential role in regulating an individual’s protection from the unfair commercial practice when it comes to personal data processing. A vital aspect of the UCPD is the enforcement of issues related to consumer privacy. However, a much-debated question is whether the UCPD is fully effective or not when it comes to personal data processing. This paper examines case law examples on WhatsApp and Facebook in Italy, Germany and the United Kingdom. This paper also aims to come to a conclusion on the issue of the applicability of the rules on unfair commercial practice when it comes to data processing. Citation: Maastricht Journal of European and Comparative Law PubDate: 2020-12-22T05:21:14Z DOI: 10.1177/1023263X20961493
Authors:Gino Naldi, Konstantinos Magliveras First page: 30 Abstract: Maastricht Journal of European and Comparative Law, Ahead of Print. Following the 2016 referendum, the UK notified its intention to withdraw from the European Union pursuant to Article 50 TEU. Given the political and legal consequences of a much-questioned referendum and the strong opinion of many parts of British society that the UK’s membership should not be terminated, the question arose whether such a notification could be revoked unilaterally. In the absence of any mention in Article 50, expert opinion was divided. International law – that is, the law of treaties and the law of international organizations – does not appear to provide a definite answer, while state practice is rather scarce. The constituent instruments of international and regional organizations containing withdrawal clauses are also silent, except for African organizations and development/investment organizations, which invariably allow Member States to rescind withdrawal notices. As regards the EU Treaties, before the Lisbon Treaty they did not contain a withdrawal clause. In the preliminary ruling given in Wightman v. Secretary of State for Exiting the European Union, which concerned whether an EU Member has the sovereign power under Article 50 to revoke unilaterally a withdrawal notice, the Court of Justice helped to clarify a critical question of EU Law but also of international law. Citation: Maastricht Journal of European and Comparative Law PubDate: 2020-11-27T07:00:29Z DOI: 10.1177/1023263X20958378
Authors:Dr Joseph Lee, Mr Yonghui Bao First page: 59 Abstract: Maastricht Journal of European and Comparative Law, Ahead of Print. The paper discusses how asset managers are regulated in the UK in order to provide investor protection and market confidence. Fiduciary duties and the duty of care in the English common law, statutory laws, the rules of the FCA, and other industry codes are examined to provide an explanation of the UK regulatory approach to the asset management industry. The paper then discusses the extent to which a legal transplant of the UK model to China may be feasible as the asset management industry is currently being reformed in China. Recommendations are made for China to develop an independent asset management industry, to provide more investment outlets for investors, and to have effective enforcement mechanisms of laws and rules to deliver market confidence and investor protection. Citation: Maastricht Journal of European and Comparative Law PubDate: 2020-12-04T05:45:45Z DOI: 10.1177/1023263X20958375
Authors:Tamás Szabados First page: 83 Abstract: Maastricht Journal of European and Comparative Law, Ahead of Print. Corporate social responsibility (CSR) is gradually undergoing multilevel transformation in the European Union (EU). Hardening of the initially voluntary CSR approach of the EU is progressively taking place in an interaction between the law of the Member States and EU law. Domestic solutions can serve as a model for EU legislation. In this progress, the Non-Financial Reporting Directive, granting considerable flexibility both to companies and the Member States, can indeed be seen as an intermediate stage and it is expected that, under the impact of human rights due diligence requirements recently imposed on companies by Member States, more substantive obligations will also be introduced at an EU level in the future. Citation: Maastricht Journal of European and Comparative Law PubDate: 2020-12-01T04:25:34Z DOI: 10.1177/1023263X20958379
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