This paper analyses the use of the rule-of-law principle in the jurisprudence of the constitutional courts of the new Member States of the European Union. The purpose is to discover whether past or recent decisions could clarify the use of the principle in these countries. An example is the legalistic concept of the rule of law as expressed by the Hungarian and Polish constitutional courts in examining the constitutionality of lustration laws. On the other hand, some constitutional courts (such as the Czech one) have used a wider and more sophisticated application of the rule of law. Considering the severe rule-of-law crisis which has been taking place in Hungary and Poland in recent years, this recognition is particularly important in order to avoid cumulative judgments that could devalue the former communist countries in general, trivializing the harsh path of democratic conditionality with its strengths and weaknesses.
Angela Di Gregorio
This article discusses the need, preconditions and possibilities for modifying the constitutionally consolidated regulation whereby the Constitutional Court of the Republic of Lithuania gives conclusions on the issues specified in the Constitution while, on the basis of its conclusions, the Seimas takes a final decision; in addition, the discussion looks at other issues that have emerged in the course of the lately adjudicated cases of the type in question and necessitate the modification of the consolidated legal regulation. These issues are examined in the context of powers conferred on constitutional justice institutions in other Central and Eastern European states, with a view to comparing the scope of powers vested with constitutional justice institutions in Lithuania and other states of this region in the area under discussion.
This article examines the proposed amendment to the Third Gas Directive, which extends the applicability of the core principles of EU energy legislation to import pipelines from third countries within EU territory. The article describes the potential impacts of this amendment, in particular regarding the Nord Stream 2 gas pipeline, and why this amendment can be considered a “Lex Nord Stream 2”. Furthermore, the article gives an overview of the applicable primary and secondary legislation and core principles of EU energy law.
The political discourse on regulation of extreme speech in Central Europe has shifted in favor of militant democracy, an approach which supports enhanced criminal law restrictions on speech. Developing the conceptual framework of the consequences of militant democracy and applying legal and parliamentary discourse analysis, this article shows whether and how the legal restrictions on extreme speech adopted in the Czech Republic, Slovakia and Hungary fulfilled the purpose for which they were adopted. The juxtaposition of justifications for restrictions and their application by judiciaries uncovers how extreme speech became normalized and appeared in more sophisticated forms due to the failure of legal militant democratic measures. Thus, it highlights how without reflecting the contextual specifics in the respective countries, restrictive legal regulation may not achieve the very purpose it was adopted for.
Seeing that a bilateral agreement between the EU and Russia on the Nord Stream 2 pipeline project is highly unlikely to be concluded due to political considerations, this paper enquires which existing legal regime is applicable to the governing of this pipeline, especially in order to guarantee solidarity and security within the EU energy market through third-party access and unbundling requirements. The question is whether EU law in general (which the Council denies) or international law applies, and if the latter, which specific regime(s): the Energy Charter Treaty, wto law, the law of the sea, or a combination of regimes? Lastly, this paper also investigates whether and to what extent these international law regimes might guarantee the same solidarity and energy security standards as EU law.
Public procurement relies in an apparent irreconcilability between competition, which implies some confidentiality, and transparency. The latest Public Procurement Directives have made e-procurement a mandatory feature. Since blockchain technology has been developed and designed to accomplish integrity, transparency, efficiency and data accuracy, goals which are very much appreciated in public procurement, an interesting question then arises: is there room to apply this technology within public procurement procedures? Will smart contracts be an interesting tool within public procurement? Considering public duties such as data protection, which must be complied with by contracting authorities, and some blockchain features such as non-withdrawable information and the likely broad access to the information there enclosed, one can be drawn to conclude that there is no possible conciliation between these two procedures. The mandatory e-procurement implies some neighbouring problems with this technology. Yet, are there any technological solutions for some of the drawbacks?
Reflections from a Public Economic Law Perspective
Riccardo de Caria
The article considers the radical challenge that blockchain, and in particular the blockchain-based cryptocurrency Bitcoin, poses to state sovereignty. If blockchain ever succeeds to be adopted on a large scale, Bitcoin, or any other permissionless blockchain-based cryptocurrency for that matter, is a direct threat to one of the key tenets of sovereignty: the monopoly over money. Without this traditional monopoly, states will not be able to exist as they have so far. Building on this premise, the article argues that blockchain-based money is currently posing a serious challenge to state sovereignty and could therefore reshape public law.
This article also contends that Bitcoin in particular might collapse for technical reasons. However, if Bitcoin proves to be resilient enough to resist ongoing legal challenges, then the very “basic norm” of our legal systems will arguably change.
de lege lata and de lege ferenda
Much like initial public offerings produce publicly traded securities, Initial Coin Offerings (icos) produce crypto tokens tradeable on crypto exchanges. Despite an apparent need for investor protection the ico and the tokenisation phenomenon have yet to be addressed by legislative action on the EU level. The paper studies the suitability of the EU regulatory framework to capture tokenised financial instruments and utility tokens based on the views of the EU supervisory and national competent authorities. It is argued that EU regulators shall first ensure legal certainty by defining the scope of tokenised financial instruments subject to MiFID. Further, authorisation and ongoing requirements shall be adapted to address the risks posed by distributed technology and direct global access of investors to crypto markets. Finally, there is no immediate need for a bespoke EU-wide regime governing utility tokens; fragmentation of the market is a positive development providing a testing field for future supranational initiatives.
In Empirical Research and Workplace Discrimination Law, part of the series Comparative Discrimination Law, Alysia Blackham offers a succinct comparative survey of empirical research that is occurring in workplace discrimination law, across jurisdictions such as the United States of America, the United Kingdom, Canada, Australia and New Zealand. Drawing on case studies of existing scholarship, Blackham offers both a rationale for conducting empirical research in this area, and methodological options for researchers considering empirical work. Using examples from case law and public policy, the author considers the impact that empirical research is having on discrimination law and policy, and highlights fundamental gaps in existing empirical scholarship.