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Utrecht Law Review
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This is an Open Access Journal

Open Access journal
ISSN (Online) 1871-515X
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Centralised and Decentralised Responses to COVID-19: the EU and the USA
Compared
- Abstract: The European Union and the United States of America have experienced some of the most concerning outbreaks of COVID-19. This paper investigates the division of power in the EU and the USA, suggesting the radical uncertainty created by the COVID-19 pandemic means that states’ procurement and distribution of the materials they need for testing and the obtaining of medical supplies to treat the seriously ill might best be centrally administered. The centralised procurement and distribution of essential medical goods can resolve the problems arising from harmful competition between states to procure them and allow states to exercise their buying power. Moreover, it might solve the moral hazard problem, which leads to the hoarding of necessary medical goods, thereby creating a cross-border externality when other states within the federal system do not have enough of the medical items needed. However, the paper argues that the importance of local information suggests that organising the provision of testing programmes is optimally done as part of a decentralised process. Finally, to enable the most effective health responses for future pandemics and achieve the most effective integration of EU Member States, the current regulatory and legal adaptations and allocation of competences should also become permanent features in the EU’s constitutional landscape.JEL classification: C23, C26, C51, K42, O43 Published on 2022-11-11 12:47:20
The Court’s Interference with Contracts by Supplying and Converting
the Contractual Terms
- Abstract: Most modern legal systems have been searching for a legal measure that would help to imply omitted terms as well as rescue the validity of unsuccessfully concluded agreements, and they found such a solution in the concept of supplementary interpretation of contract, an example of which is conversio actus iuridici. The tendencies visible in genere prove that whenever the law provides for too rigorous requirements for private ordering, the idea to supplement, imply, or convert contracts occurs. The presented comparative legal perspective is of great importance for Polish jurisprudence, which generally rejects the concept of supplementary interpretation of contracts, but accepts conversio actus iuridici. The analysis presented in this paper encourages representatives of Polish jurisprudence to wider adoption of the idea of supplementary interpretation of contracts, following the example of foreign legal orders. Published on 2022-08-26 11:01:18
The Dutch Complaint Procedure: A “Picture- Perfect”
Procedure'
- Abstract: A Plea for More Research into the Causes of and Solutions for the Challenges of the Dutch Complaint Procedure in Prisons in the Light of Procedural Justice Theory The aim of this article is to urge the need for (further) research into the experiences of prisoners with the Dutch complaint procedure in prisons. Legally and theoretically speaking, the Dutch complaint procedure is almost “picture-perfect”: it has been set as an example by the ECtHR and has repeatedly received a high approval rating by the CPT. Therefore, it could serve – and is already serving – as an example for other member states of the Council of Europe. However, the Dutch Life in Custody Study shows that prisoners are not satisfied with the way their complaint is dealt with and the procedure is overflowing with complaints. For the Dutch complaint procedure to keep serving as an example for other countries, and at the same time to be able to overcome the challenges it faces today, the causes of and solutions for these challenges should be investigated. We argue that (inter alia) the notion of procedural justice could provide excellent opportunities for further research in this field. Published on 2022-05-05 14:05:43
Colonialism, Context and Critical Thinking: First steps toward
decolonizing the Dutch legal curriculum
- Abstract: In the summer of 2020, tens of thousands of people took to streets and squares around the Netherlands under the banner of the Black Lives Matter (BLM) movement. Many speakers called for Dutch institutions to ‘decolonize’ by reckoning with their own colonial history and racialized legacies. Addressing institutional racism at universities should be a multi-layered process. Recruitment and admission of students, curriculum design, hiring of academic staff, retention, promotion and teaching practices should all be considered. Those of us teaching at Dutch law schools, however, do not have to wait; by incorporating critical theoretical approaches and existing historical research on race and colonialism, Dutch law school teachers can begin to address structural racism and colonial legacies as soon as the next teaching term. This article gives concrete examples of where and how to begin. Published on 2022-05-05 13:56:58
Judicial Change to the Law-in-Action of Constitutional Review of Statutes
in Poland
- Abstract: One of the unexpected effects of the constitutional crisis in Poland that began at the turn of 2015 is the expansion of diffuse constitutional review of statutes. The Polish Constitution adopts a centralised model of constitutional review, but in the cases they hear common courts still independently disapply statutes that violate constitutional norms. Their stated grounds for doing so focus on the need to act in the place of the Constitutional Tribunal, which has lost its independence from the political power, as well as the necessity of continued effective preservation of the Constitution’s primacy and of the fundamental rights and freedoms of individuals. This article takes a more detailed look at this new judicial practice, describes the rationale for its adoption and analyses its consequences from the legal perspective. The trend is capable of being described in theoretical terms, which is the reason for this article’s research hypothesis that the courts’ activities are changing the law-in-action of constitutional review in Poland, as a consequence of the formulation and activation of a defensive mechanism for constitutional democracy. Published on 2022-05-05 13:51:55
Party Autonomy Under the New Brussels IIa (Recast) Regulation: Stalemates
and Innovation
- Abstract: The Brussels IIa (Recast) Regulation – the long-anticipated revision of the 2003 Brussels II bis Regulation – has brought about significant changes to the EU’s jurisdictional rules that apply to cross-border matrimonial matters (divorce and legal separation) and matters of parental responsibility. However, the role of party autonomy – in this context, the opportunity for parties to the proceedings to designate a closely-connected jurisdiction – continues to be a divisive matter under this renewed instrument. Whilst the pre-existing possibility for parties to participate in the determination of jurisdiction for matters of parental responsibility has been fine-tuned by this recast, the new instrument negates to include a much-needed choice of court provision for cross-border divorce and legal separation. This omission has wide-ranging consequences, both for the use of the instrument itself, as well as for the possibility of coordination with jurisdictions that govern related proceedings. Published on 2022-05-05 13:45:53
Removing Barriers to Trade in Services in the Single Market with the Help
of the Services Directive – Assessment of the Recent Case Law of the
Court of Justice
- Abstract: The main objective of the Services Directive was to remove barriers to trade in services within the Single Market of the European Union. The achievement of this objective still remains an unfulfilled promise according to the Commission, the Member States, and other stakeholders. As was previously raised in the literature, this may be derived mainly from the legislative shortcomings of the Services Directive. In this paper, the author assesses how the Court of Justice of the European Union has contributed to the fulfilment of this aim, during the 14 years since its adoption, in a practical way – through responding to preliminary questions and issuing rulings on the ground of the Commission’s enforcement activity. The analysis covers the delimitation between the regimes for the protection of the freedom of establishment and the freedom to provide services, the forms of restrictions and the potential justification grounds, as interpreted by the Court in its judicial practice. Published on 2022-05-05 13:38:10
Mobility in a European Post-Crisis Scenario: Law-Making Dynamics and
Law-Enforcement Challenges
- Abstract: Security and mobility have become a seemingly inseparable concept in the recent European geopolitical landscape. While the historically deeply rooted social, economic and legal aspects of migration have been extensively studied, the current emphasis on emergency in mobility management, which has has been radically shaping the law-making and law-enforcement dynamics, has been rather underexplored. Taking stock of the challenges emerging in view of adjusting the law-making and enforcement set-up at the national and European levels to a context of emergency, this Special Issue pursues the ambitious goal of shedding light on the post-crisis controversial scenario of mobility in Europe, characterised by the political impasse over the reform of the overall European governance of migration. Based on a neoliberal conceptual framework, this multidisciplinary consideration of human mobility across European borders questions whether the crisis is really over or whether the sense of crisis is projected onto the future policy developments. Published on 2022-02-15 11:22:31
The ‘Crises’ of Lesbos
- Abstract: Since 2015 hundreds of thousands of migrants have arrived on the Greek island of Lesbos, many fleeing war and poverty, others hoping to find work in Europe and give their children a better future. The arrival of migrants on Lesbos was accompanied by an influx of ‘humanitarian pilgrims’: hordes of journalists, celebrities, academic researchers and volunteers for diverse NGOs. Because the migrants arrived in such large numbers in 2015, they became part of the daily reality of both the local residents and officials at different levels of authority, from local municipalities to EU representatives. The migrants’ arrival on the island was presented in the media both as a historic event and an urgent public problem. The term ‘refugee crisis’ was born. Although its importance and urgency was widely recognized by policymakers, the inability of European and local institutions to manage the influx of migrants in this time of crisis soon became obvious. This ‘unmanageable’ situation, which demanded quick and creative solutions, involved responding to the suffering of the migrants who needed ‘to be managed’, and appealing to the local people’s solidarity and hospitality. The announcement that hundreds of thousands of refugees were arriving on the shores of Greece came at a time when the country was facing severe political and economic problems. The question is when is something ‘announced’ as a crisis and by whom, and which parties define and create a specific public problem and also suggest solutions and remedies. Based on an empirical case study in Greece, this contribution reflects on the concept of ‘Crisis’ from an interdisciplinary perspective, including a historical, philosophical and sociological understanding of its use in the refugee context. Published on 2022-02-15 11:17:30
Addressing a Crisis through Law: EU Emergency Legislation and its Limits
in the Field of Asylum
- Abstract: The Common European Asylum System (CEAS) has been in a situation of protracted crisis. This has hampered its process of reform and has urged the European Commission to launch a new Pact on Migration and Asylum, in order to offer a ‘fresh start’ to ‘build a system that manages and normalises migration for the long term.’ While an emergency-driven approach has surfaced as a mandatory route for the future of the CEAS, what does constitute a situation of emergency in EU asylum law' In an attempt to unpack the evolution and understanding of the concept of ‘emergency’ in EU asylum law, the paper argues that the parameters to determine the existence of a situation of emergency have been politically controversial and purposefully left open-ended. This has consequences at the level of EU legislative responses. In particular, the paper will illustrate the potential and limits of the EU emergency legislation in the field of asylum and aims to explain how this legislation impacts both the ordinary legislation at the regulatory level as well as the legislative autonomy of the Member States in situations of emergency. Ultimately, the paper discusses whether the recently proposed legislative instruments, which are designed to address situations of crisis in the field of asylum, are well suited for this role. Published on 2022-02-15 11:12:20

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