Maastricht Journal of European and Comparative Law

Sage Publications, Inc.
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  • Headscarves and the CJEU: Protecting fundamental rights or pandering to prejudice

    This article examines the Opinion of AG Rantos in two cases concerning Islamic headscarves before the CJEU and argues that this Opinion appears to give almost carte blanche to (private) employers to adopt neutrality policies in their workplaces based on the wishes of their customers. In doing so, the AG appears to allow employers to pander to the prejudices of their customers and to push believers, and especially Muslim women, even further out of sight. It is argued that this affects not only the employment opportunities, but also the social inclusion of people from groups especially vulnerable to discrimination and that this goes against the founding values of the EU. The CJEU now has a choice: it can choose to protect the fundamental rights of religious minorities by taking these rights into account when assessing the two cases before it, or it can allow employers to pander to the prejudice of customers against people from religious minorities.

  • Enforcing WTO/GATS law and fundamental rights in EU infringement proceedings: An analysis of the ECJ’s ruling in Case C-66/18 Central European University

    This article analyses the ECJ’s ruling in Case C-66/18 (Central European University), in which the Court found that two amendments to Hungary’s Law on Higher Education violate EU law and the WTO GATS Agreement. The ruling is remarkable in legal and political terms: it touches upon a series of fundamental issues, such as the EU’s efforts to protect European values, democracy and the rule of law in its Member States, infringement proceedings against Member States for their failure to comply with international agreements, the applicability of the Fundamental Rights Charter in EU external relations, the tension between the ECJ and the WTO dispute settlement system, national measures enacted to ward off ‘undesirable’ investments and other cross-cutting questions of EU law.

  • A resisting enclave of social rights – protecting the children of former workers: C-181/19 Jobcenter Krefeld – Widerspruchsstelle v JD

    The boundaries of financial solidarity between the Member States have long been a hotly debated issue. With Jobcentre Krefeld, the Court puts an end to the saga of the rights of children of former workers and their primary carer. It firmly anchors its ruling in the free movement of workers and distinguishes the case from the Dano and Alimanovic cases.

  • The Commission’s digital services and markets act proposals: First step towards tougher and more directly enforced EU rules?

    On 15 December 2020, the European Commission presented its long-anticipated Digital Services and Digital Market Acts proposals. If and when adopted, those proposals would put in place a more stringent regulatory framework ensuring coordinated oversight over the online platform services and digital markets. They would also enhance EU coordinated and direct enforcement in the digital economy, by streamlining the organization and sanctioning powers of national administrative bodies and granting the European Commission far-reaching market supervision and enforcement powers. This legal development article analyses both Acts and calls on the EU legislator to pay sufficient attention to ensuring the feasibility of new regulatory obligations and to foreseeing better procedural safeguards accompanying Commission direct enforcement practices.

  • Cross-border exchange of tax information upon request and fundamental rights – Can the right balance be struck?: Joined cases C-245/19 and C-246/2019 État luxembourgeois contre B

    On 6 October 2020, in joined cases C-245/19 and C-246/19, État luxembourgeois contre B, the Court of Justice delivered a landmark ruling about the fundamental right to a judicial remedy against an information order issued by the national tax authorities of a Member State in the application of Directive 2011/16/EU. The Court ruled that the holders of the taxpayer’s information have the right to directly challenge the request to provide information but, differing from the Opinion of Advocate General Kokott, the Court decided that, when other remedies are available, the taxpayer under tax investigation and other third parties concerned do not have the right to direct judicial remedy against the information order. Likewise, the Court clarified how specific and precise the information requested must be in order to admit that the request for information is foreseeably relevant for the taxation of the concerned taxpayer. Following the Berlioz case, the ruling at hand continues to outline the content, scope and limits of fundamental rights in cross-border exchanges of tax information upon request in the European Union. However, this casuistic approach will not necessarily result in the development of a coherent and general framework of protection, which underlines the need for a common minimum standard to enhance the protection of fundamental rights in cross-border situations.

  • Tort conflicts rules in cross-border multi-party litigation: Which law has a closer or the closest connection?

    This article compares Owen v. Galgey under Article 4 Rome II Regulation and YANG Shuying v. British Carnival Cruise under Article 44 Chinese Conflicts Act in the context of cross-border multi-party litigation on tort liability. The questions raised in these two cases include how to interpret the tort conflicts rules of lex loci delicti, lex domicilii communis and the closer/closest connection test when determining the applicable law. In particular, as regards the meaning of lex loci delicti, the notion of ‘damage’, the common habitual residence of the parties and the criteria to determine the closer/closest connection, different interpretations were provided in these two cases. In order to clarify certain ambiguity of tortious applicable law rules in cross-border multi-party litigation, a comparative study of Chinese and European tort conflicts rules is conducted. This article does not intend to reach a conclusion as to which law is better between the Rome II Regulation and the Chinese Conflicts Act, but rather highlights a common challenge faced by both Chinese courts and English courts in the field of international tortious litigation on personal injury and how to tackle such challenge in an efficient way under current legislation.

  • Bringing the EU up to speed in the protection of living standards through fundamental social rights: Drawing positive lessons from the experience of the Council of Europe

    Ever since the adoption of the European Pillar of Social Rights, the EU seems committed to explore and expand its social dimension to deliver a decent standard of living to the European society. This new endeavour gives rise to a number of questions, not least regarding how the notion of a standard of living that is compatible with a life in dignity ought to be interpreted and what the obligations of Member States are in this quest. The aim of this contribution is precisely to shed some light on these questions. To this end, the article looks into how different (quasi)judicial bodies have interpreted fundamental rights that entitle individuals to minimum subsistence resources that are deemed to achieve a standard of living that is compatible with the right to human dignity. In particular, it analyses how the ECJ, the ECtHR and the ECSR have interpreted (minimum) living standards through different fundamental rights. It then suggests a number of ‘learning points’ for the ECJ to draw from the experience of the other two bodies and emphasizes the need for building solid bridges between the three.

  • Case C-336/19 Centraal Israëlitisch Consistorie van België: Animal welfare and freedom of religion

    Article 13 of the Treaty of the Functioning of the European Union (TFEU) explicitly provides for animal welfare. Animals are sentient beings, and thus the EU and Member States have an obligation to take animal welfare into consideration. At the same time, Article 10(1) of the Charter guarantees freedom of religion. Case C-336/19 Centraal Israëlitisch Consistorie van België dealt with the balance between animal welfare and freedom of religion. Regulation 1099/2009 stipulates that animals must be protected at the time of killing and established the principle of prior stunning in slaughter. Ritual slaughter based on religion is accepted as a derogation of this principle. In the Centraal case, which is pivotal in the context of ritual slaughter, the opinion of Advocate General Hogan and the judgment of the Court of Justice of the European Union were divided over the interpretation of the contested regulation. Ultimately, the Court demonstrated a definite preference for animal welfare over freedom of religion. In so doing, the Court attached a high value to national legislative competence and in paying attention to changes in society to ensure that citizens are increasingly aware of animal welfare.

  • 20 Years of the SE Regulation – The Rise of a Specific Purpose Vehicle?
  • Formalism versus pragmatism – A comparative legal and empirical analysis of the German and Dutch criminal justice systems with regard to effectiveness and efficiency

    The German and the Dutch criminal justice systems not only share a common legal history but also follow the inquisitorial tradition with the prosecution playing a strong role. Despite these commonalities, there are a number of remarkable differences between the two jurisdictions, particularly with a view to procedural law and legal practices. While the German criminal law is known for being formal and rather doctrinal, the Dutch system is strongly driven by pragmatism and efficiency. This efficiency has become an important factor for the progressing Europeanization of criminal law and increasingly influences German criminal procedural law. This article compares selected aspects of the Dutch and German criminal justice systems. While previous legal comparative studies of the two neighbouring countries have focused on substantive criminal law, this paper will mainly deal with procedural criminal law and prosecutorial practices. The emphasis will be on criminal justice effectiveness and efficiency. Some of the questions addressed are: what constitutes an efficient criminal justice system? How is efficiency defined and implemented in legal practice? A variety of indicators for criminal justice efficiency are proposed and applied to criminal proceedings, prosecutorial practices and the sentencing systems in both countries.

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