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Please help us test our new pre-print finding feature by giving the pre-print link a rating. A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Abstract: This article studies how local governments interface with the adoption of smart city initiatives, and the challenges this poses from a public law perspective. Although every smart city develops within an administrative territory regulated by a local government, this dimension often remains overlooked in legal and smart city literature. Municipal governments can act as regulators through their existing competences in spatial planning, environmental protection, local by-laws, financial subsidies, and partnerships. However, through an analysis of the Amsterdam Smart City program, this article shows that the smart city challenges this traditional role as regulator. Specifically, it observes four elements: (1) fragmentation, (2) networked governance, (3) multilevel governance, and (4) experimentation. These elements illustrate four challenges for the role and position of municipalities in the smart city: (1) collaborating across municipal departments, (2) steering smart city programs through public-private networks, (3) navigating the limits of local government’s powers on smart city issues, and (4) experimenting with new forms of public procurement. These challenges push municipal governments to find new ways to fulfil their role as public authorities, such as the creation of new municipal departments, the development of soft law instruments, and the use of innovative procurement. Legal research needs to examine these shifts in a context where citizens’ rights are put under pressure. Volume 28 Online ISSN 1354-3725 PubDate: Fri, 22 Apr 2022 00:01:09 GMT Issue No:Vol. 28 (2022)
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Abstract: The present contribution aims to critically reflect on the future direction of data retention at the EU and the national levels by discussing the lessons arising from two seminal Court of Justice of the EU (CJEU) decisions: Privacy International and Quadrature du Net. The article addresses four main themes: (1) the broad reach of EU data privacy law, (2) the detailed typology of permissible data retention models and the conditions applicable to these, (3) the evolving interaction between the CJEU and the European Court of Human Rights (ECtHR) in cases of bulk surveillance, and (4) the relevant legislative developments regarding data retention enshrined in the proposed ePrivacy Regulation. It advances four main lines of criticism. The first concerns the Court’s reasoning regarding the expansive scope of application of EU data protection law that – while anticipated – appears unconvincing. The second regards the shortcomings and weaknesses in the CJEU’s analysis laying down a taxonomy of permissible data retention systems. The third line of criticism is broader and concerns the progressive re-legitimisation of bulk as well as other surveillance models that seems to be the path undertaken by both the CJEU and ECtHR. Finally, we criticize the ways the EU legislature is trying to ‘circumvent’ the CJEU’s data retention rulings. Volume 28 Online ISSN 1354-3725 PubDate: Fri, 22 Apr 2022 00:01:09 GMT Issue No:Vol. 28 (2022)
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Abstract: In June 2020, the Danish Parliament adopted a new Climate Act that included legally binding measures. Two months earlier, in March 2020, the European Commission presented a proposal for a European Climate Law Regulation based upon the content of the Paris Agreement. Subsequently, the EU adopted the EU Climate Law Regulation in April 2021. This article presents a comparative legal analysis of the Danish 2020 Climate Act and the 2021 European Climate Law Regulation and investigates these new types of climate acts that have risen as results of the Paris Agreement and international climate law in general. Moreover, the article presents and discusses some examples of the implementation results in Denmark and the latest EU climate strategies. It is concluded that both the Danish and the EU Climate Acts can be considered umbrella legislation presenting the binding climate objectives and legal bases for future climate law however without presenting substantive legal provisions that implement the climate objectives. Volume 28 Online ISSN 1354-3725 PubDate: Fri, 22 Apr 2022 00:01:09 GMT Issue No:Vol. 28 (2022)
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Abstract: The article analyses the issue of Sharing and Collaborative Cities from a primarily methodological perspective. Starting from statistical data that confirm the constant growth of the urban population, and taking into account the major issues that affect urban policies (environment, inequalities, poverty), the author focuses on the different methodological approaches in the study of collaborative cities. Subsequently, an Italian case study is presented, which involves shared administration and the main implementation tools involved (Regulation of the management and regeneration of urban commons, including collaboration agreements). Volume 28 Online ISSN 1354-3725 PubDate: Fri, 22 Apr 2022 00:01:09 GMT Issue No:Vol. 28 (2022)
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Abstract: The objective of the article is first to show there are worrying signs that the consensus about independent regulation is cracking in several countries that matter. We then go on to demonstrate that there are blind spots in the European framework of public service regulation. Regulation in the EU focuses too much on competition and not enough on other objectives. Finally we attempt to rethink the regulatory framework of public services in Europe in a way that would take all the competing interests of society into account. Although the main focus of the article falls on French and European experiences, it also adopts a broader view. Volume 28 Online ISSN 1354-3725 PubDate: Fri, 22 Apr 2022 00:01:09 GMT Issue No:Vol. 28 (2022)
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Abstract: In December 2020 the Court of Justice of the EU approved the legality of a decree, adopted by the Flemish Region in Belgium, which introduced an outright ban on slaughtering of animals by means of traditional Jewish and Muslim rites. The Court, which did not adopt the opinion of Advocate General Hogan, effectively nullified an express derogation for ritual slaughtering found in the EU’s regulation on slaughtering. This article will critically examine the Judgment, arguing that it has not only misinterpreted EU regulations, but also compromised the rights of European minorities to religious freedom under the Charter on the basis of questionable and inconsistent arguments of animal welfare. Volume 28 Online ISSN 1354-3725 PubDate: Fri, 22 Apr 2022 00:01:09 GMT Issue No:Vol. 28 (2022)
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Abstract: The EUIPO’s Boards of Appeal are called upon to decide on appeals against decisions by the bodies of ‘first instance’. However, their judicial function has always been denied. Conversely, the essay tends to place the Boards of Appeal of the EUIPO in any case within the concept of ‘court’, as defined by the ECtHR, within the framework of Article 6 ECtHR, because it assesses their independence, impartiality, and in general the guarantees required by the ‘fair trial’, until concluding that it is a paradigmatic model in the overall administration and judicial system. Volume 28 Online ISSN 1354-3725 PubDate: Fri, 22 Apr 2022 00:01:09 GMT Issue No:Vol. 28 (2022)
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Abstract: The hypothesis of the article is that advisory opinions of the European Court of Human Rights (ECtHR) under Protocol No. 16 to the European Convention on Human Rights (ECHR), although non-legally binding on the requesting court or tribunal, legally affect States, including those which have not ratified the Protocol. This will be demonstrated here conceptualizing the notion of ‘vertical’ non-binding effect of advisory opinions (i.e., that effect, regarding the requesting court or tribunal, under Article 5 of Protocol No. 16 which states that ‘Advisory opinions shall not be binding’) and the notion of their ‘horizontal’ legal effect (i.e., that ‘undeniable legal effect’ which comes from the fact that advisory opinions are ‘valid case-law’ which the ECtHR ‘would follow when ruling on potential subsequent individual application’). From a wider perspective of constitutional law, it will be then argued here that the producing of the aforementioned ‘horizontal’ effect constitutes a good reason for States to ratify Protocol No. 16 in light of judicial dialogue: non-ratifying States would be affected by them but at the same time there would be no opportunity for their highest courts or tribunals to contribute in creating that case-law via judicial dialogue (i.e., by requesting advisory opinions). Volume 28 Online ISSN 1354-3725 PubDate: Fri, 22 Apr 2022 00:01:09 GMT Issue No:Vol. 28 (2022)
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