How Does the European Court of Justice Reason? A Review Essay on the Legal Reasoning of the European Court of Justice

This review essay analyses two significant recent contributions to the debate over the reasoning of the Court of Justice (CJ). These contributions highlight the impossibility of a wholly scientific and deductive approach to attributing ‘correct’ outcomes to the Court's case‐law. At the same time, their analysis adds significant findings for the debate over the Court's possible ‘activist’ or political role. Following from these contributions, this essay makes two arguments: firstly, that the inability of the Court to anchor its reasoning solely in a deductive form of legal reasoning should encourage the CJ to engage in a more advanced ‘constitutional dialogue’ with the EU's political institutions; and secondly, that truly understanding the Court's reasoning involves a closer analysis of the institutional and personal dynamics influencing Court decisions. Understanding European judicial reasoning may require a closer look at the social and political—as well as doctrinal—context within which European judges act.     

European democracy,parliamentary decline and the ‘democratic deficit’ of the European Union

This article examines two different, yet interrelated, phenomena: parliamentary decline in western Europe and the ‘democratic deficit’ of the European Union (EU). It argues that the latter has helped to consolidate, and in certain areas, facilitate, the former. This is illustrated by two sets of empirical studies, covering first the European Community (and in particular the Common Agricultural Policy and Economic and Monetary Union) and then the Common Foreign and Security Policy, and co‐operation in Justice and Home Affairs. The main conclusion to be drawn is that a simple reordering of some policies within and across different pillars will not remedy the current democratic shortfalls of the EU which stem as much from the inadequacy of existing parliamentary structures to hold EU decision makers to account, as from the absence of a European demos. The combined effects of the above are particularly crucial for the democratic viability of the emerging European polity which, as with any other political system in the modern democratic era, needs to strike a balance between efficiency and accountability.     

Taking Care of Strasbourg: The Status of the European Convention on Human Rights and the Case-Law of the European Court of Human Rights in Kosovo’s Domestic Legal System

This paper addresses the position of the European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR) case-law in Kosovo’s domestic legal order. To begin with, it reviews the background of the issue of human rights in Kosovo highlighting its distinct position and perspective. This article then analyses the position held by the European Convention on Human Rights and its protocols in Kosovo’s legal order while also addressing the ECHR’s constitutionalization, its direct effect and the constitutional review on basis of it. The paper then examines whether the case-law of the ECtHR is binding in Kosovo, whether it is directly effective, and whether Kosovo’s Constitutional Court can use it as a ground in the conduct of constitutional reviews. This paper argues that the ECHR and the case-law of the ECtHR both hold a privileged status under Kosovo’s constitutional law, despite Kosovo not being a party to the ECHR and, therefore, having no international liability to implement the ECHR. In addition, the paper offers certain arguments regarding the relative positions of the ECHR and the case-law of the ECtHR within the current practice of Kosovo’s judicial system. This paper concludes with the argument that the ECHR and the case-law of the ECtHR hold a privileged status in the context of Kosovo’s domestic legal order—one which could serve as a precedent in respecting human rights and freedoms.     

Going Unnoticed? Diagnosing the Right to Asylum in the Charter of Fundamental Rights of the European Union

Article 18 of the Charter of Fundamental Rights of the European Union enshrines the right to asylum. Nonetheless, despite its ‘constitutionalisation’ within primary law, asylum remains a far too amorphous right, whose axiological potential has gone virtually unnoticed in the ongoing migratory crisis. The paper will argue that this is partly due to the fact that the Court of Justice on a few occasions has declined to clarify the scope of Article 18. The provision at issue therefore remains a pathological element that requires an adequate diagnosis on which accurate prognoses can be based. In an attempt to diagnose the right to asylum enshrined in Article 18 of the Charter of Fundamental Rights of the EU, this paper will compare different hermeneutical approaches and reflect on the contextualisation of the mentioned provision through the lens of domestic and EU case law and in the light of the recent EU–Turkey Statement. The article will ultimately propose to interpret the EU asylum legislation as instrumental to the effective exercise of the right to asylum.     

An information network of officials? Dissecting the role and nature of the network of parliamentary representatives in the European Parliament

Enhancing the role of national parliaments in the European Union’s decision-making process has for some time been a popular way in which policy-makers have sought to address legitimacy problems in the European Union, the Early Warning Mechanism being only one example. In response to these developments, an increasing number of scholars have addressed the question of how parliaments make use of these powers in practice. An important dimension of the process – the role of parliamentary officials in parliamentary scrutiny and control – has so far been neglected in the literature. Against this background, this article examines the role of the representatives of national parliaments in the European Parliament with the aim of understanding the role and the nature of this ‘bureaucratic network’. While falling short of an epistemic community, these officials play an important role in enabling parliamentary scrutiny through the dissemination of information.     

Is there an EU Copyright Jurisprudence? An Empirical Analysis of the Workings of the European Court of Justice

The Court of Justice of the European Union has seen a dramatic and controversial increase in copyright cases during the last decade. This study investigates empirically two claims: (i) that the Court has failed to develop a coherent copyright jurisprudence (lacking domain expertise, copyright specific reasoning, and predictability); (ii) that the Court has pursued an activist, harmonising agenda (resorting to teleological interpretation of European law). We analyse the allocation of copyright and database right cases by Chambers of the Court, Advocate General (AG) and Reporting Judge, and investigate the biographical background of the Judges and AGs sitting. We trace patterns of reasoning in the Court's approach through quantitative content analysis. Legal topoi that are employed in the opinions and decisions are linked to the outcomes of each case.     

Political representation in the networked society: the Americanisation of European systems of responsible party government?

The Internet provides a new technological opportunity structure for political representatives to communicate with constituents. Its potential for decentralised, interactive mass communication allows MPs to bypass intermediary organisations such as political parties and to establish a direct relationship with their constituents. Students of electronic democracy are divided over the political consequences of this technological change in telecommunications. While cyber-optimists envisage a transformation of responsible party government into a more direct, individualised type of political representation, cyber-sceptics adopt a more cautious approach and predict a reinforcement of established systems of political representation in the networked society. This article aims to develop a theoretical foundation as well as to carry out an empirical test of both positions. In the theoretical section, these two contradictory positions are modelled on the assumption that party government is a rationalistic concept. In the empirical section, both positions are tested in a statistical analysis of the use of personal websites in the German Bundestag, the Swedish Riksdag and the US House of Representatives.     

Judicial Interpretation or Judicial Activism? The Legacy of Rationalism in the Studies of the European Court of Justice

During the last two decades, law as a factor in European integration has attracted great scientific interest. Numerous studies and theoretical analyses have been published that have undertaken the task of examining and explaining the role of law in the progress of integration. The European Court of Justice (ECJ) in particular, as Europe's judiciary body, draws much attention in this context. However, the inflexible, mechanistic and universalistic notion of rationality that these works employ leads to serious misinterpretations and unjustified criticism regarding the role the ECJ takes in the course of integration. Within the frameworks of contemporary approaches, the Court is perceived as just one more political player among other actors and institutions, able to shape the EU in the pursuit of its own rational interests. By outlining the theoretical concept of context rationality, this article shows that the logics of law and judicial lawmaking are based on a non‐trivial and non‐political rationality and cannot be understood appropriately without paying attention to the context of European law.     

Hybrid Texts and Uniform Law? The Multilingual Case Law of the Court of Justice of the European Union

The case law of the Court of Justice of the European Union (ECJ) is shaped by the language in which it is drafted—i.e. French. However, because French is rarely the mother tongue of those drafting that case law, the texts produced are often stilted and awkward. In addition, those drafting such case law are constrained in their use of language and style of writing (owing to pressures of technology and in order to reinforce the rule of law). These factors have led to the development of a ‘Court French’ which necessarily shapes the case law produced and has implications for its development, particularly insofar as it inevitably leads to a type of precedent in that case law. That case law also undergoes many permutations of translation into and out of up to 23 different languages. The resultant texts that make up the case law are hybrid in nature—consisting of a blend of cultural and linguistic patterns, constrained by a rigid formulistic drafting style and put through many permutations of translation. The present paper investigates the production of the Court’s multilingual case law and considers whether the hybrid nature of that case law can actually aid the presentation (and thus the development) of a ‘uniform’ EU case law.     

European integration assessed in the light of the ‘rules vs. standards debate’

The interplay of various legal systems in the European Union (EU) has long triggered a debate on the tension between uniformity and diversity of Member States’ (MS) laws. This debate takes place among European legal scholars and is also paralleled by economic scholars, e.g. in the ambit of the ‘theory of federalism’. This paper takes an innovative perspective on the discrepancy between ‘centralized’ and ‘decentralized’ law-making in the EU by assessing it with the help of the rules versus standards debate. When should the EU legislator grant the national legislator leeway in the formulation of new laws and when should all be fixed ex ante at European level? The literature on the ‘optimal shape of legal norms’ shall be revisited in the light of law-making in the EU, centrally dealing with the question how much discretion shall be given to the national legislator; and under which circumstances. This paper enhances the established decisive factors for the choice of a rule or a standard in a national setting (complexity, volatility, judges’ specialization and frequency of application) by two new crucial factors (switching costs and the benefit of uniformity in terms of information costs) in order to assess law-making policies at EU level.     

Anonymisation of personal data – A missed opportunity for the European Commission

As early as the 1970's, privacy studies recognised that ‘anonymisation’ needed to be approached with caution. This caution has since been vindicated by the increasing sophistication of techniques for reidentification. Yet the courts in the UK have so far only hesitatingly grappled with the issues involved, while European courts have produced no guidance.     

No child left behind in the European Union?: the position of Romani children

This paper analyses how different EU documents (communications, recommendations, reports and surveys, etc.) focusing on Roma frame the position of Romani children. Many studies have shown that because of their intersectional positioning, Romani children often face multiple discrimination and triple exclusion: on the basis of their ethnicity, their age and their socio-economic status. The paper comments on selected findings on Roma in the Second European Union Minorities and Discrimination Survey published by the Fundamental Rights Agency in late 2016. One of the main findings of this Survey was that 80% of Roma live below the country-specific risk of poverty line in all EU Member States in which the Survey has been conducted. By specifically examining the implication this finding has for the position of Romani children, I argue that their position is, in fact, produced and reproduced with systemic, but also everyday racism. When it comes to Roma, but specifically Romani children, not even the European Union (EU), based on principles of fundamental human rights, is immune to such phenomena.     

Does the Emperor Have Financial Crisis Clothes? Reflections on the Legal Basis of the European Banking Authority

The European Union institutional package launched in response to the financial crisis used Article 114 TFEU as its legal basis. The author explores the legal basis for one of the European Supervisory Authorities recently established – the European Banking Authority (EBA). The use of Article 114 TFEU, the main Treaty basis used to harmonise laws in order to further the internal market, as the foundation for the EBA, is considered in detail. A paradox of contemporary EU institutional law is assessed here, considering whether on the one hand, the EBA is functionally both too narrow and too broad as a matter of law, while on the other hand, it may prove to be central to restoring confidence in EU regulatory powers, rendering it ‘too big to fail,’ despite its slender foundations in Article 114 TFEU.     

All part of the process? A qualitative examination of change in online child pornography behaviors

Over the past two decades, there has been increased attention on offending behaviors and motivations of child pornography offenders (CPOs). Although existing research has provided a knowledgeable foundation in regard to this offending subpopulation, the literature has been relatively limited on examining changes in offender behaviors and motivations. This study used interviews with 25 online CPOs in a southern state to identify themes underlying offending behaviors and motives at onset, as well as, continuation of offending over time. We found that offenders reported various circumstances (ranging from intentional to unintentional) and motivations (including thrill-seeking and attraction) at onset; however, CPOs reported thrill-seeking and attraction to be the most common factors driving their continued offending. We applied these themes to the existing literature on child pornography offending and recommended directions for future research. Based on our findings, we offered considerations for the treatment of CPOs.     

Case comment: C-82/10 European Commission v Ireland—judgement of the Court of Justice of the European Union,September 29, 2011 (VHI case)

This article is the case comment on the recent judgement (September 29, 2011) of the Court of Justice of the European Union in the case No C-82/10 concerning non-life insurance. This case was initiated by the European Commission against Ireland for failure to fulfil its obligations by not covering the Voluntary Health Insurance Board by insurance supervisory scheme as provided for by relevant Directives. The above insurance institution which is the main health insurer in Ireland enjoys exemption from the supervisory scheme envisaged by relevant Directives. Ireland may maintain this exemption if its capacity is not amended; otherwise the above institution must be covered by the insurance supervisory scheme. This article provides a brief summary of facts and court conclusions alongside with relevant comments on the impact of this judgement. The author has commented both legal and economic aspect of this case paying particular attention to the role of this judgement in the development of the insurance supervisory scheme in the European Union law.     

Is the European Medical Products Authorisation Regulation Equipped to Cope with the Challenges of Nanomedicines?

This article analyses the emerging European regulatory activities in relation to nanopharmaceuticals. The central question is whether the regulatory responses are appropriate to cope with the regulatory problems nanomedicinal development is posing. The article explores whether the medical product regulations are robust enough, whether there are certain regulatory gaps, and whether the competent bodies have the expertise to evaluate nanomedicinal products when approval is applied for. Based on a social‐constructive approach, the article identifies significant regulatory actors, their ideas on regulatory problems, and preliminary governance responses to them. It finds that the current dynamic regulatory structure appears robust enough to adapt to some of the technological challenges posed by nanomedicines. It concludes that regulators have not yet responded adequately to regulatory gaps related to definitions, classification and specific safety, quality, and efficacy standards that nanopharmaceutical development seems to require. As a consequence of these deficiencies legal certainty, a principle of high priority in European medical regulation policy, cannot be sufficiently provided.     

The Evolution of Anti-dumping Legislation of European Union

The Course of DevelopmentJanuary 1, 1958 entry into force of the "European Econ-omic Community (EEC) Treaty", more commonly known as the"Rome Treaty," the establishment of the first European Econ-omic Community established based on the principle of the Cu…