Maastricht Journal of European and Comparative Law

Publisher:: Sage Publications, Inc.
Publication date:: 2021-09-06

ISBN:: 1023-263X

Issue Number

Latest documents

Fedotova and Others v. Russia: Dawn of a new era for European LGBTQ families?
The judgment of the Grand Chamber in the case of Fedotova and Others v. Russia has recognized the right to legalized same-sex unions under the Convention, thereby significantly impacting LGBTQ rights throughout Europe. However, this decision also presents intricate challenges concerning the Court's legitimacy, and resilience amidst the prevailing culture wars on LGBTQ rights. Following an introduction to the factual background of the case, the note proceeds to analyse the Court's judgment. Section 4 critically evaluates the judgment and examines its extensive implications on geopolitical affairs and the ongoing culture wars. Finally, section 5 provides a concluding statement.
Be careful what you ask for: The European Court of Justice's EAW jurisprudence meets the Catalan secession crisis and the European rule of law crisis in Puig Gordi and others, C-158/21, EU:C:2023:57
Puig Gordi and others, a consequence of the Europeanization of the Catalan secession crisis, is another case in the constant evolution of the Court of Justice of the European Union's (CJEU) case law on the European Arrest Warrant (EAW). To this judicial cooperation mechanism of an automatic nature, the CJEU has gradually incorporated the evaluation of fundamental rights as an integral part of its nature. This incorporation has been needed even more in the context of the rule of law crisis. In the particular case, the CJEU guides the application of the two-step test only on the possible violation of the fundamental right to a court established by law but does not express guidelines regarding other possible violations. Problems in the drawing of the preliminary reference explains the CJEU's lack of a complete answer, which may create uncertainty for the parties involved as to how the EAW should be executed in the particular case.
Exploring different national approaches to prohibiting childlike sex dolls
There is currently no empirical evidence on whether or not the use of childlike sex dolls would prevent or encourage sexual abuse of children. Yet, more and more countries prohibit or contemplate prohibiting these objects, and the EU Commission also announced it would consider this issue in the context of the fight against child sexual abuse. This article describes and compares the laws and policies of five countries in which childlike sex dolls are currently banned: Australia, Germany, Denmark, Norway and the UK. These countries have adopted different approaches to dealing with the newly emerging phenomenon of childlike sex dolls: While in Australia, Germany and Denmark dedicated laws prohibiting these dolls are introduced, in Norway and the UK existing laws are applied to these objects. By juxtaposing and critically assessing the different approaches to prohibiting childlike sex dolls, the article aims to inspire and guide other countries that also contemplate legislative action in this context.
The faceless court? The role of individual CJEU members
The CJEU is perceived to be a rather faceless court due to the principle of collegiality that is supposed to suppress individuality in its inner workings. This paper argues that this is not necessarily true in all cases and discusses instances wherein individual faces of the CJEU's members become discernible, in particular in their roles as President and Vice-President, respectively, the judge-rapporteur, Advocates General, single judges at the General Court, during public oral hearings, as litigants themselves, and of course in their academic publications. It also shows that judicial visibility can, in itself, certainly be construed to support the legitimacy of a court, but that it can, at the same time, also undermine its functioning, especially when judges are, as appointees, dependent on the will of their home Member State and others in the Council. Overall, it will be demonstrated that there are various situations in which individual CJEU members may emerge from an otherwise anonymous bench and play important judicial roles as individuals, thus rebutting the long-standing presumption that the CJEU is a faceless court.
The interface between EU climate and energy law
This article critically discusses the interface between EU climate and energy law. It argues that legal scholarship should explore and expose the interrelationships between these legal disciplines through shared understanding and evaluation of both the disparities and synergies found. It maps the origins of EU climate and energy law to demonstrate how they have evolved side by side, guided by separate legal rationales and distinct legislative developments yet sharing partially overlapping objectives and instruments. By comparing EU climate and energy law as legal disciplines, the article identifies dynamic and static attributes that characterize the interface between EU climate and energy law. These attributes, combined with the evolution of EU climate and energy law, are key elements in facilitating disciplinary convergence. As an outcome of the analysis, the article calls for critical legal scholarship that acknowledges the climate and energy law interface, allowing disciplinary convergence to develop between them.
Who needs the European Society for Empirical Legal Studies?
Autonomous but interdependent: Constitutional traditions on judicial protection and the general principle of effective judicial protection
The EU general principle of effective judicial protection is the epitome of the EU liberal-constitutionalism. The creative force of this principle has emerged, among others, in connection with the protection of the rule of law and the introduction of procedural guarantees both at the national and EU level. It is well established that effective judicial protection stems from the ECHR and the constitutional traditions common to the Member States. While existing scholarship has explored the influence of the ECHR over the development of this principle, less attention was paid to the impact of constitutional traditions from the Member States. Yet, exploring the role of constitutional traditions in shaping effective judicial protection, the primus inter pares among the general principles of EU law, goes at the heart of the conundrum of the EU: the latter is an autonomous legal system, which is inevitably shaped by the legal concepts and traditions existing in the Member States. This exploration is particularly timely. Some Member States affected by the rule-of-law backsliding have recently invoked constitutional traditions on judicial protection to delimit the application of EU standards of effective judicial protection, thus questioning the relationship between the EU principle and national conceptions of judicial protection.
Who needs the European Society for Empirical Legal Studies?
The gay cake controversy in the United Kingdom and Italian inertia
In Lee v. United Kingdom, the European Court of Human Rights left gay people partially unprotected against discrimination in commercial transactions in the United Kingdom and, by analogy, in other legal systems, such as the Italian system, where such protection is absent. In this article, it will be argued that the lack of substantive engagement by the European Court of Human Rights should be considered a missed opportunity for the development of European legal systems that do not grant full anti-discrimination protection to gay people.
Autonomous but interdependent: Constitutional traditions on judicial protection and the general principle of effective judicial protection
The EU general principle of effective judicial protection is the epitome of the EU liberal-constitutionalism. The creative force of this principle has emerged, among others, in connection with the protection of the rule of law and the introduction of procedural guarantees both at the national and EU level. It is well established that effective judicial protection stems from the ECHR and the constitutional traditions common to the Member States. While existing scholarship has explored the influence of the ECHR over the development of this principle, less attention was paid to the impact of constitutional traditions from the Member States. Yet, exploring the role of constitutional traditions in shaping effective judicial protection, the primus inter pares among the general principles of EU law, goes at the heart of the conundrum of the EU: the latter is an autonomous legal system, which is inevitably shaped by the legal concepts and traditions existing in the Member States. This exploration is particularly timely. Some Member States affected by the rule-of-law backsliding have recently invoked constitutional traditions on judicial protection to delimit the application of EU standards of effective judicial protection, thus questioning the relationship between the EU principle and national conceptions of judicial protection.