The First Member State Rebellion? The European Court of Justice and the Negotiations of the ‘Luxembourg Protocol’ of 1971

This article delves into the history of the negotiations of the ‘Luxembourg protocol’ of 1971, which conferred jurisdiction upon the European Court of Justice (ECJ) for the interpretation of the 1968 Brussels convention. The protocol provided a preliminary ruling procedure that had undergone restrictive modifications in comparison with the European Economic Community (EEC) treaty's original (Article 177). Some have, therefore, interpreted the outcome of the negotiations as a sign that the mechanism was being criticised in national administrations. This article will, for the first time, bring to the surface archival evidence to explain why the protocol contained an altered version of Article 177 EEC. Furthermore, it will reveal that the governments' experts' intention to limit the procedure in the protocol caused serious concern inside the ECJ, of which some members consequently repeatedly urged national decision‐makers to opt for formulas identical with Article 177 EEC.     

‘Stop the ECJ’?: An Empirical Analysis of Activism at the Court

This article uses a disaggregated approach to study the role of the Advocate General in the European Court of Justice (CJ). It presents original empirical material based upon interviews with Advocates General (AsG) and referendaires at the CJ to assess the question of activism at the Court. Using answers to specific questions, I conclude that while the AsG are entrepreneurs, neither they nor the Court can be described as ‘activist’per se.     

‘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.     

Adding Value to an Arena Legislature? A Preliminary Examination of Topical Debates in the British House of Commons

The introduction of the topical debate mechanism in the autumn of 2007 sought to enhance the contemporary nature of debate in the British House of Commons and to increase opportunities for the participation of backbench MPs. Though experimental in the first instance, these debates have since become an entrenched feature of parliamentary life. This note seeks to assess the impact of topical debates on a legislature which has long been characterised by the strength of its plenary sessions. Analysis of the topical debates held during the 2007–08 parliamentary session demonstrates that topic selection has indeed been broad, examining issues of both national and constituency concerns. Whilst there has been no extraordinary change in the House, the use of topical debates by backbench opposition MPs in particular is significant and has the potential to add considerable value to the House of Commons as an arena legislature.     

Are Transition Houses Equipped to Meet the Needs of Women in Midlife and Older?

This study addresses the extent to which transition houses, defined as residential facilities for abused women and children, meet the needs of women in midlife and older. Seventeen transition house directors completed an on-line survey and eight participated in an interview. Women in midlife and older comprised 28 % of the transition house population. Thematic analysis resulted in the identification of three key themes: life at home and in the community, living in the transition house, and starting a new life. While policies, accessibility, privacy, support and outreach could be improved, the transition houses offered safety and security for women across the lifespan. Recommendations for research, policy and practice are included to ensure that transition houses offer a welcoming, suitable, and supportive environment for women in midlife and older.     

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?     

Political Reluctance and Judicial Activism in the Area of Free Movement of Persons: The Court as the Motor of EU–Turkey Relations?

Progress in the EU–Turkey accession negotiations has been slow in recent years, with the free movement of persons constituting one of the most controversial issues. The political reluctance and public opposition towards opening up free movement rights to Turkish nationals have led to a deadlock in this area since the early 1980s. In the face of a reluctant legislator, the Court has taken an activist stance. In a number of recent cases, it has interpreted the rights of Turkish migrants extensively, allowing for a transformation of status from family member/student to worker and applying the standstill clauses to conditions of admission. This article explores the role of the Court in pushing forward the free movement agenda. It discusses the implications of the Court's rulings for the free movement of persons between the EU and Turkey, and for the division of tasks between the Court and the legislator.     

Who Has to Pay for Periods of Insolvent Insurance in Long-Tail Coverage Claims? New Jersey High Court Changes the Game in Favor of Policyholders

Two new cases have changed the game in New Jersey for allocating defense and indemnity costs in long-tail environmental or toxic tort claims. The high court has established that solvent insurers must absorb insolvent insurers’ share of costs in long-tail claims until all solvent insurance is exhausted, at which time insolvent shares will be borne by the Property-Liability Guaranty Association. In addition, the high court has established that insurers have a right of contribution against other insurers when they pay more than their allocated share of defense or indemnity.     

‘The referring court asks,in essence’: Is reformulation of preliminary questions by the Court of Justice a decision writing fixture or a decision‐making approach?

The Court of Justice can rephrase or otherwise depart from the questions referred to it by national courts under Article 267 of the Treaty of the Functioning of the European Union. It does so routinely: a practice known as reformulation. Legal literature often argues that reformulation is used to clarify national court questions and bring them within the scope of European Union law. The aim of the present article is to explore this claim systematically. To this end, it compiles a unique dataset consisting of the Orders for Reference, in which the referring courts embed the preliminary questions, and the judgments, in which the Court of Justice communicates the answers. The findings suggest that reformulation is a decision‐making approach rather than a fixture of decision writing. It's main function is to neutralize conflicts and Europeanise disputes. It underlines the Court's power to shape the preliminary ruling procedure and its outcomes.     

Are grandparents really absent from the family tradition?: Forbears in the Region of Vernon (France) around 1800

The history of grandparents is too often founded on a demographic prejudice, that is, the very low statistical possibility of children having known their grandparents before the rise in life expectancy in the twentieth century. On the basis of a sample of several thousand children bom in the region of Vernon (Normandy) at the end of the eighteenth and the beginning of the nineteenth century, the article contests this idea and shows that newborns knew about half of their grandparents, with a slight advantage on the grandmothers' side. Inequalities were present between elder and younger siblings, but the latter also profited from the presence of their forbears. Consequently, the study of the different functions served by grandparents in the traditional family should be pursued, and questions should be raised about the contemporary concept of “new grandparents” by separating it from the demographic assumption on which it is based.     

Are There Methods of Reasoning on ‘Meta‐Legislation’? The Interpretation of Legislative Competence Norms within the Methodology of European Constitutional Law

Legislative competence norms are paradigmatic elements of European constitutional law and the supranational, post‐federal era. The article aims to address legislative competence norms from the viewpoint of methodology by considering significant features of reasoning on European legislative competence norms. The discussion will be based on understanding legislative competences as ‘meta‐legislation’. That concept encompasses a substantive rather than formalistic, and a politically informed rather than strictly positivist account of legislative competences and their methodology. Against that background, the interpretation of competence norms is assessed. Subsequently, the process of interpretation is discussed according to judicial practice, constitutional theory and general legal methodology. A consideration of the significance of the—usually vast—wording of competence norms completes that discussion. Finally, consequences about the political inclusiveness of interpreting competence norms and the issue of ‘clarity’ are drawn. A conclusion summarises the results.     

Access to Documents,Accountability and the Rule of Law—Do Private Watchdogs Matter?

: The ECJ has not so far developed a single, consistent approach to cases in which the right to access official documents is exercised by individuals and organisations pursuing their individual cause (private watchdogs). While in some cases the Luxembourg jurisprudence has followed a restrictive approach, supporting interests and secondary law provisions conflicting with transparency, in other it has unconditionally endorsed a supreme character of the access right. This contribution confronts both of the approaches whenever the access right exercised by private watchdogs has clashed with confidentiality stemming from secondary law provisions: from state aid, staff rules, data protection, antitrust and beyond. The article argues that most often the judicial standard restricting the access right interferes with a feedback relationship between transparency, accountability and the rule of law. This relationship, when properly construed and appraised, may form a basis for an arguably more uniform and stable judicial standard.     

Falling Short of Constitutional Norms: Does “Normative (In)Congruence” Explain the Courts' Inability to Promote the Right to Water in South Africa?

In South Africa, municipal noncompliance with legislation promoting the constitutional right to sufficient water is both a failure of the rule of law and a betrayal of that right. Judicial intervention has prompted formalistic compliance with water law, but the underlying commitment to sufficient water remains unfulfilled. Does the inability of courts to achieve social justice despite enforcing social legislation confirm the thesis that commitments to the rule of law and to social justice are inconsistent, that upholding the rule of law may not advance social justice? This article offers an alternative to this “inconsistency thesis,” arguing that the rule of law can accommodate social justice if it demands normative congruence alongside congruence with formal rules. Empirical investigation reveals that structural challenges and the multifarious normative demands on officials create a condition of normative incongruence that impedes the pursuit of social justice, even as courts compel congruence with formal rules.     

Risk Assessment—the Key to More Security? Factors,Tools, and Practices in Dealing with Extremist Individuals

European Journal on Criminal Policy and Research - In recent years, risk assessments for violent extremism have attracted great interest from both scholars and practitioners, and many assessment...     

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.     

Another type of ‘Other’ in EU Law? AB (2) MVC v Home Office and Rahman v Secretary of State for the Home Office

EU citizenship law has to date paid little attention to the extended family members of Union citizens, a group mentioned just once in Citizenship Directive 2004/38. This note suggests that the current EU legal framework gives too much discretion to the member states, providing scope for the rights of EU migrant workers to be breached with impunity. It also questions whether the new mechanisms for addressing misapplication of EU law are robust enough to hold national authorities to account for their treatment of other family members.     

On the Justiciability of the China's Social Security Rights in Contemporary——Based on the text analysis of Anthology of People's Court Case(1992-2010)

国家义务是实现社会保障权的法定义务.探讨社会保障权的可诉性,对全面把握和评判社会保障权之国家义务履行状况,具有决定性意义.以《人民法院案例选》(1992-2010)为参照系,当前中国对社会保障权的维护主要体现在社会保险权之工伤保险领域,在内容上主要表现为国家的尊重和保护义务.在明显具有给付性质或特征的社会保险权之养老保险、社会救助权、社会福利权等领域,国家对其法定义务的履行还任重而道远.在工伤认定案件中,法院对劳动者权利诉求的支持;以及在社会优抚权案件中,法院对《行政诉讼法》的扩张性解释,这些人性化举措都将如星星之火,可以燎原.