区域贸易协定与WTO保障条款的冲突及其解决

区域贸易协定是多边贸易体制最惠国原则的例外。取消区域内贸易的限制与保障措施的非歧视适用存在制度上的冲突。NAFTA为区域内实施保障措施设定了特殊的条件。区域贸易协定成员国可以排除保障措施的相互适用。《保障措施协议》脚注1解决的是谁可以实施保障措施的问题,而不涉及对谁实施的问题。保障措施的调查所涉对象国的范围应与实施范围保持一致。     

The More the Merrier? Hungarian and Romany Minorities in Slovakia

This article discusses some important aspects of thetreatment of minorities in the Republic of Slovakia.It discusses the 1992 Constitution and subsequentdevelopments such as the State language law 1995, therestriction of political rights of Hungarians,educational policies, the setback of EU entry talks,the September 1998 general elections, the Dzurindagovernment's ``De-Meciarization', the 1999 MinorityLanguage Law, and recent electoral legislation. Thespecial condition of the Romany is considered. Theeffectiveness of international mechanisms for theprotection of minority rights (the Organisation forSecurity and Cooperation in Europe, the InternationalCovenant for Civil and Political Rights, the EuropeanConvention of Human Rights, the Framework Conventionfor the Protection of National Minorities) isassessed, as is the involvement of the EU. Finally,the role of the judiciary is reflected upon.     

Terrorist profiling: human rights concerns

Post-9/11, law-enforcement agencies have expanded the processing of personal data for terrorist profiles; this is actually among the very reasons why personal data are processed in the first place. De facto terrorist profiles tend to be based predominantly on the use of such criteria as ‘race’, colour, religion, or ethnic and national origin to single out persons for enhanced scrutiny. Terrorist-profiling practices, therefore, raise the question as to their conformity with the right to privacy, the protection of personal data, and the principle of non-discrimination. This article critically examines to what extent, if any, terrorist-profiling practices may be regarded as compatible with the principle of non-discrimination and the fundamental rules pertaining to the protection of personal data. For this purpose, it looks at various approaches to defining profiling in the context of countering terrorism, as well as describing de facto manifestations of terrorist-profiling practices. The conclusion is that terrorist-profiling practices all too often fail to comply with the fundamental requirement that any restrictions on the right to privacy and the protection of personal data are adequately regulated, necessary and proportionate. The so-called ethnic profiling gives rise to particularly serious problems. It tends to assume the nature of ‘racial’ profiling and, accordingly, entail discriminatory effects that can result in feelings of humiliation and stigmatisation among the targeted groups. Since the risk of further marginalisation and even radicalisation within those groups also appears to be a very real consideration, the whole necessity of ethnic profiling in the name of countering terrorism must be called into question in a contemporary democratic society built on the principles of pluralism and respect for different cultures.     

Dignity or discrimination: what paves the road towards equal recognition of same-sex couples in the European Union?

Abstract

The article analyses possibilities for the Court of Justice of the EU to go beyond its current narrow approach towards same-sex couples’ rights within the EU non-discrimination law framework, considering a comparative treatment of dignity-based arguments. It critically reviews the CJEU’s current approach exclusively focusing on direct discrimination and the comparator paradigm. By doing so, the Court has tolerated a situation of de facto discrimination and limited advancement of same-sex rights. The question is then whether the situation could be overcome if the CJEU would follow other courts and develop reasoning based on dignity to underpin the EU non-discrimination analysis with substantive meaning. The article rejects this proposition. Dignity is not suitable because it is both too wide and to narrow to ensure certainty and substantive protection within EU non-discrimination law. While the concept of dignity protects a minimum standard and can provide a floor of rights, non-discrimination law fosters equality by imposing procedural standards and challenging measures that effect groups differently. The concepts should thus not be conflated. Instead, a consistent application of the concepts of direct and indirect discrimination seems more promising.     

The EU's Role in the Fight Against Racism and Xenophobia: Evaluation and Prospects After Amsterdam and Tampere

The Treaty of Amsterdam has strengthened thepossibility of the European Union (EU) adoptingmeasures in the fight against racism and xenophobia.These can be based both on the extendednon-discrimination clause of Article 13 TEC and newArticle 29 TEU relating to common action in thecontext of the area of freedom security and justice.So far EU action has concentrated on public awarenessmeasures, increasing the exchange and the analysis ofinformation on racism and xenophobia, and improvingjudicial cooperation and cross-border training in thisarea. The scope of EU action continues to be limited,however, because of the absence of a `mainstreamingclause', very limited funding and structural deficitsin the decision-making system. Both the new AmsterdamTreaty provisions and the renewed emphasis placed onthe fight against racism and xenophobia by the TampereEuropean Council of October 1999 should be used forextending the EU's role in this area which is ofcrucial importance to its credibility as a politicalcommunity.     

欧盟所得税协调与税收非歧视待遇的发展

为了保障共同市场中服务、人员和资本等要素的自由流动,欧盟禁止成员国所得税法采取基于国籍的歧视措施,也禁止成员国税法限制本国国民在共同市场内行使自由流动的权利。欧盟的实践拓展了双边税收协定中的非歧视待遇,是所得税区域性协调的尝试。但是,欧盟现行机制制约了税收非歧视待遇的进一步发展。