Supremacy or Primacy of EU Law—(Why) Does it Matter?

Even 50 years on the principle of supremacy or primacy is still surrounded with ambiguity, which is apparent already on the level of semantics. The principle has not carried a single name, but three. This paper argues that a disparity in the denomination of the principle amounts to much more than semantics. It exhibits conceptual differences. Different conceptualisations of the principle of primacy or supremacy entail different models of structural principles of EU law: the hierarchical, the conditionally hierarchical and the heterarchical model. These are no mere theoretical constructions; rather they have influenced concrete practices of EU law, including the most recent Kücükdeveci case as well as the Lisbon decision of the German Constitutional Court. While none of the three models has yet found an unequivocal and conclusive endorsement in the EU practice, there are compelling theoretical and practical reasons for which one of them should be preferred over the others. Whether EU law has supremacy or primacy therefore matters.     

Reinforcing or Challenging Stigma? The Risks and Benefits of ‘Dignity Talk’ in Sex Work Discourse

The concept of ‘human dignity’ sits at the heart of international human rights law and a growing number of national constitutions and yet its meaning is heavily contested and contingent. I aim to supplement the theoretical literature on dignity by providing an empirical study of how the concept is used in the specific context of legal discourse on sex work. I will analyse jurisprudence in which commercial sex was declared as incompatible with human dignity, focussing on the South African Constitutional Court case of S v Jordan and the Indian Supreme Court case of Budhadev Karmaskar v State of West Bengal. I will consider how these courts conceptualise dignity and argue that their conclusions on the undignified nature of sex work are predicated on particular sexual norms that privilege emotional and relational intimacy. In light of the stigma faced by sex workers I will explore how a discourse, proclaiming sex work as beneath human dignity, may impact on the way that sex workers are perceived and represented culturally, arguing that it reinforces stigma. I will go on to examine how sex workers subvert the notion that commercial sex is undignified, and resist stigma, by campaigning for the right to sell sex with dignity. I will demonstrate that an alternative legal approach to dignity and sex work is possible, where the two are not considered as inherently incompatible, concluding with thoughts on the risks and benefits of using ‘dignity talk’ in activism and campaigns for sex work law reform.     

The EU-UK Trade and Cooperation Agreement – Exceptional Circumstances or a new Paradigm for EU External Relations?

In the final days of 2020, the European Union and the United Kingdom concluded a Trade and Cooperation Agreement (TCA) covering a broad range of policy areas, including cooperation of law enforcement authorities and social security systems. The EU-UK TCA is unique as concerns the circumstances of its negotiation and adoption, as well as its substance. However, contrary to the argument of the EU institutions, the agreement will have broad implications for the understanding of the EU's external competence and Member States’ ability to act in areas that are national competence and rely on national budgets. We are critical of the legitimacy of the TCA's conclusion process, consider that the lack of a deep constitutional analysis of the consequences of EU-only conclusion of the TCA, and of the TCA itself, are problematic, and believe that the choices made are likely to create difficulties for the implementation and enforcement of the agreement.     

Union Citizenship—Metaphor or Source of Rights?

After nearly ten years of introducing Union Citizenship as a concept into Community law it seems time to draw a preliminary evaluation of its importance in reshaping the legal and social positions of citizens living in the EU, more precisely in its Member States. The balance sheet is however mixed: On the one hand, the prevalent position in legal doctrine seems to be that Union citizenship is merely a derived condition of nationality, while on the other side certain fundamental rights are based on criteria other than citizenship/nationality alone. The European Charter on Fundamental Rights will not overcome this dilemma. This can be shown in conflictual areas which are in the centre of discusion in the paper, namely the (limited!) use of the concept of citizenship to extend existing free movement rights in the new case law of the Court of Justice, the resistance towards granting 'quasi-citizenship' rights to third country nationals lawfully resident in the Union for a longer period of time, and the yet unsolved problem of imposing 'implied duties' based on a doctrine of ' abus de droit ' upon citizens paralleling the rights granted to them. As a conclusion the author is of the opinion that the question asked for in the title can be answered in the positive only to a limited extent. Citizenship appears to be a sleeping fairy princess still be be kissed awake by the direct effect of Community law.     

Rectification of the Register – Prospective or Retrospective?

In Gold Harp v MacLeod the Court of Appeal considered paragraph 8 of Schedule 4 of the Land Registration Act 2002 and interpreted this provision to mean that the priority between mistakenly de‐registered interests and registered interests can be altered following rectification. The court can give the de‐registered interest the priority which it ‘would have had’ but for the mistake. In other words, it allows for retrospective rectification. This case note concludes that this is the correct interpretation of paragraph 8 and of the words ‘for the future’. However, it argues that the current range of options available to the court in terms of rectification are producing uncertainty, and that a better approach may be to rely on the priority provisions in sections 28 and 29.     

‘Should I Stay or Should I Go ?’—A Critical Analysis of the Right to Withdraw from the EU

This article seeks to answer one of the key questions facing the EU in the future: what effect will the new right to withdraw have on the EU? Will it lead to a gradual fragmentation of what was supposed to be ‘an ever closer union of unlimited duration’? Or will it even mark the beginning of the end of the Union? In order to answer these complex questions, this article first briefly analyses the pre‐Lisbon situation regarding withdrawal. It then critically examines the newly inserted Article 50, which codifies the right to withdraw. Having done so, it will then examine whether non‐legal considerations, such as political and economic reasons, will render withdrawal a theoretical rather than realistic option.     

Subsidiarity in the Area of EU Justice and Home Affairs Law—A Lost Cause?

This article intends to highlight the concept of subsidiarity in the area of the third pillar and EU criminal law more generally. In doing so, the article tries to show that criminal law could and should be seen as imbued with 'subsidiarity' and, more specifically, that it could be viewed as an expression of the principle of ultima ratio—a minimalism approach—in criminal law. Accordingly, the article asks why subsidiarity appears to be forgotten in third pillar matters despite its important function in this area. Moreover, the article confronts such a desired application of subsidiarity in the context of established EC law doctrine, by questioning whether it is possible simply to transplant the supranational discussion into the terrain of criminal law. Further, the article explores the function of Article 47 EU as the watchdog of the supranational sphere and discusses also briefly the phenomenon of enhanced cooperation in relation to the principle of subsidiarity in the domain of EU Justice and Home Affairs.     

EU–China Competition Dialogue: A New Step in the Internationalisation of EU Competition Law?

EU has been the protagonist in promoting the internationalization of competition laws based on EU competition law norms. The development of China's Antimonopoly Law shows that EU has succeeded so far in establishing itself as the main reference point for China's competition regulation. The success can be mainly attributed to the EU‐China Competition Dialogue (Dialogue), a new initiative set up by EU and China in 2004. The paper reviews the internationalization of EU competition law and its characteristics. It then examines the Dialogue and how EU exported its competition law norms to one of the latest AML secondary legislations on Antimonopoly Pricing. It argues that the Dialogue's informal nature, EU's routinized technical assistance to Chinese competition authorities and its China‐oriented strategy in communication have been highly important in ensuring that the EU Competition Law becomes the main reference point for the AML. However, the paper argues that it is for the same reasons that EU faces weakness in controlling the reception of EU competition law norms by China. Based on this, the paper further illustrates that EU's understanding of competition law internationalization as reflected under the Dialogue has not undergone fundamental changes.     

“Murder–Suicide” or “Murder–Accident”? Difficulties with the Analysis of Cases

Abstract: Homicide where a perpetrator is found dead adjacent to the victim usually represents murder–suicide. Two incidents are reported to demonstrate characteristic features in one, and alternative features in the other, that indicate differences in the manner of death. (i) A 37‐year‐old mother was found dead in a burnt out house with her two young sons in an adjacent bedroom. Deaths were due to incineration and inhalation of products of combustion. (ii) A 39‐year‐old woman was found stabbed to death in a burnt out house with her 39‐year‐old de facto partner deceased from the combined effects of incineration and inhalation of products of combustion. The first incident represented a typical murder–suicide, however, in the second incident, the perpetrator had tried to escape through a window and had then sought refuge in a bathroom under a running shower. Murder–accident rather than murder–suicide may therefore be a more accurate designation for such cases.     

Fall from a Balcony—Accidental or Homicidal? Reconstruction by Numerical Simulation

In the case presented, conflicting witness accounts and the subject's injuries were highly suspicious of an assault that might have caused the balcony fall. For the reconstruction, a simulation software, originally designed for motor vehicle accident reconstruction, was used. Three scenarios were simulated using the PC‐Crash multibody pedestrian model: (S1) Subject was pushed against and fell over balcony rail, (S2) subject fell off from a seated position, (S3) subject fell off from a prone position on the rail. (S1) could be ruled out due to inconsistent results in terms of landing area and minimum velocity. Realistic results were obtained for (S3) with a fall off from a prone position on the rail. After a few months, the comatose subject awoke and gave an account of what had happened being consistent with the simulation results. This case demonstrates the feasibility of multibody simulations also in cases of nontraffic incidents.     

Governing Without Law or Governing Without Government? New‐ish Governance and the Legitimacy of the EU

The way the EU is governed and the way such governance is perceived contributes centrally to the legitimacy of the European enterprise. This legitimacy underpins both the acceptance and the effects of EU activity. Legitimacy is a product of the way in which decisions are taken, and the nature and quality of such decisions. Pressures created by concerns about both forms of legitimacy affecting EU decision making partially explain the turn in legal scholarship away from the more traditional preoccupation with the analysis of legislative instruments and case-law, towards a more broadly based conception of governance which involves the examination of a more diverse range of processes and instruments. This article offers an analysis of the parameters of newness in governance. The overall argument is that some of the more innovative governance modes are not so new, whilst more recent and celebrated modes, although displaying elements of newness, are, perhaps, not that innovative. The focus of the new governance in the EU is largely on governing without law, rather than the more radical governing without government; hence the suggestion that we are experiencing only 'new-ish governance'. The article asks whether a limited conception of new governance is inevitable given the legitimacy constraints within which the EU operates, or whether the potential for developing a broader conception of governance, through wider participation and involvement of non-governmental governing capacities, might bolster legitimacy through both better processes and better outcomes.     

Human Rights in the Council of Europe and the EU: Towards ‘Individual’, ‘Constitutional’ or ‘Institutional’ Justice?

Abstract: The European Convention on Human Rights, promulgated by the Council of Europe in 1950, is widely regarded as the world's most successful experiment in the trans‐national judicial protection of human rights. The EU's much more recent judicial and political interest in human rights has also been widely welcomed. Yet, while the crisis currently afflicting the Convention system has not gone unnoticed, the same cannot equally be said of the difficulties presented by the increasing interpenetration of the two systems. Amongst the few who have shown some interest in these problems, the dominant view is that good will and common sense will provide adequate solutions. We disagree. Instead, we detect a gathering crisis which, unless properly analysed and effectively tackled, will only deepen as the EU's interest in human rights develops further. In our view, the problem is essentially conceptual and that, ultimately, it boils down to a much‐neglected question, simple to state but not so easy to answer: is the trans‐national protection of human rights in Europe a matter of ‘individual’, ‘constitutional’ or ‘institutional’ justice?     

The Human Rights Act – A New Equity or a New Opiate: Reinventing Justice or Repackaging State Control?

The proposed incorporation of the European Convention on Human Rights into the main stream of the United Kingdom's common law system has a number of historical parallels. This article considers what can usefully be drawn from these parallels and then analyses why the modern state feels impelled to take (what appears to be) such a fundamental constitutional step. It considers whether the incorporation agenda is in fact a more subtle discourse initiated by the 'Establishment' and designed to divert attention from matters of greater sensitivity to the state.     

Europeanization or National Specificity? Legal Approaches to Sexual Harassment in France, 2002–2012

This paper examines whether—and if so how—a 2002 European Directive on sexual harassment has changed the practice and content of sexual harassment law in France. It finds that the European Directive shaped how French courts address sexual harassment and informed the content of a new sexual harassment law France passed in 2012. Yet, its influence has been mediated by dominant national attitudes about: (1) the nature of sexual harassment, (2) which legal institutions are best suited to address it, and (3) the character of women who claim to have been harassed. This paper further suggests that news reporting on a 2011 arrest of a French politician for sexual assault led to more positive attitudes about sexual harassment victims.     

Independent Discretion or Democratic Legitimisation? The Relations between National Regulatory Authorities and National Parliaments under EU Regulatory Framework for Network‐Bound Sectors

The European legislator, being supported in that regard by the Court of Justice, confers upon national regulatory authorities (NRAs) the exercise of the most important tasks concerned with the regulation of the network‐bound sectors, while at the same time guarantees NRAs a far‐reaching independence in exercising of their discretionary powers and shielding NRAs against other public authorities, including national parliaments. This, in turn, raises many doubts from the perspective of some essential constitutional principles of the Member States, such as, among others, ‘the domain of the law,’ which reserves the regulation of issues sensitive to the citizens as an exclusive parliament's prerogative. It is submitted in this article that national parliaments should play a much more active role in regulating the network‐bound sectors. The main point is to strengthen the protection of fundamental rights of regulated parties and create the real democratic legitimisation of NRAs, while not undermining those regulatory objectives that are already accorded at the EU level.     

Submissive Lobby Fodder or Assertive Political Actors? Party Loyalty of Career Politicians in the UK House of Commons, 2005–15

Are career politician members of parliament (MPs) more or less likely to vote against the party line than their peers? Despite growing interest in the behavior of career politicians across parliamentary systems, answers to this question are marked by considerable theoretical and empirical uncertainty. I derive the two most common (but opposing) behavioral predictions before testing them over all legislative votes of two UK House of Commons terms (2005–15) using multilevel modeling of new and disaggregated data on MPs' occupational backgrounds. The finding that career politicians are more likely to rebel challenges conventional wisdom and provides an important empirical foundation for the ongoing debate.     

Is It the What or the How? The Roles of High‐Policing Tactics and Procedural Justice in Predicting Perceptions of Hostile Treatment: The Case of Security Checks at Ben‐Gurion Airport,Israel

What affects perceptions of hostile treatment by police, characterized by feelings such as humiliation and intimidation? Is it what the police do to the citizen, or is it about how they do it? The important effects of procedural justice are well documented in the policing literature. Yet, it is not clear how high‐policing tactics, coupled with procedural justice, affect one's sense of hostile treatment: is it the case that what the police do does not matter as long as they follow the principles of procedural justice, or do some invasive or unpleasant tactics produce negative emotions regardless of the amount of procedural justice displayed by the officer? In the present study we examine this question in the context of security checks at Ben‐Gurion Airport, Israel. Using a survey of 1,970 passengers, we find that the behavioral elements of procedural justice are an important antidote, mitigating the negative effects of four “extra” screening measures on the perceived hostility of the checks. At the same time, two security measures retain an independent and significant effect. We discuss the implications of our findings and hypothesize about the characteristics of policing practices that are less sensitive to procedural justice.     

The Google conundrum: Perpetrator or facilitator on the net? – Forging a fair copyright framework of rights, liability and responsibility in response to search engine 2.0 – Part I: The Google Images Search Engine

Is Google in its quest for search engine optimization through the creation of new technologies, which not only improves its search algorithms but also refines its search functions for users, doing it in a manner that makes it a perpetrator of primary copyright infringement or an invaluable facilitator for Internet functionality? How should the balance of interests in the treatment of creative works be recalibrated in the face of changes in search engine technology and operations, and the disputes that have arisen within the last decade in the context of the digital age and its needs? Using Google as a case study, this paper will look at the two main areas of dispute over the operations of information locator tools and services that either threatens search engine functionality and efficiency or weakens copyright holders’ exclusive rights. It proposes a concerted set of solutions through a reassessment and amendment of copyright law to optimize the social benefits and objectives of both the copyright regime and technological innovations in the electronic model of information archiving, indexing and delivery. A fair distribution of responsibilities and allocation of rights and liabilities will be suggested. In the process, due consideration will be given to both public and private interests, with the former taking precedence; while the recommended solutions will be made within the currently outdated framework for Internet intermediary protection (i.e. safe harbor laws) and exceptions (i.e. specific statutory exemptions and the general fair use defense) under the existing copyright regime. Thus, the proposed changes will be far reaching without being too radical a departure from current law, an evolution that will likely be more acceptable and realistic a solution to the problem.This paper is published in two parts. Part One of this paper will deal with the challenges to the copyright regime posed by the operations and technology behind the Google Images Search Engine, while Part Two that will be published in the subsequent edition of the CLSR will assess the benefits of the Google Books Search Project vis-à-vis the effects it will have on the scope of copyright protection. Recommendations are made to copyright law to accommodate both functions while generally preserving the main objectives of copyright protection.