Sixth Revised Edition
Niels M. Blokker
Changing Concepts, Reform Proposals and New Institutional Realities
Age as a Protected Ground
Other titles published in this series:
- Comparative Discrimination Law: Historical and Theoretical Frameworks, Laura Carlson; isbn 9789004345447
- International Human Rights Law and Discrimination Protections; A Comparison of Regional and National Responses, Mpoki Mwakagali; isbn 9789004345461
This paper presents and critically analyses the case law of the Slovenian courts with regard to mass individual claims against the state due to nuisance from public roads and railroads. The courts have largely upheld these claims. In awarding monetary compensation for non-pecuniary loss, they have considered the fundamental right to a healthy environment to be a personality right. Moreover, they have held that the state is under a guarantee-like obligation towards the population in that noise arising from public roads and railways will not exceed the limit levels set by the Regulation on Limit Values of Environmental Noise Indicators. As a consequence, new mass claims are being filed, exposing the state to considerable liability. The author considers the approach taken by the civil courts in Slovenia to be misguided on several levels. A fair balance between should be sought public and individual interests. Upholding claims in full by individuals who did nothing to mitigate noise is inappropriate. The problem would be better dealt with by way of regulating noise protection; compensation by way of analogy to (partial) expropriation in the public interest should only be sought if noise protection measures are ineffective or disproportionate.
This article examines the mechanism for judicial rehabilitation in Serbia as a tool and as a reflection of state-sanctioned memory politics of the Second World War and Yugoslav state socialism. The mechanism of rehabilitation seeks to accommodate victims of unfair trials by revising them or declaratively and collectively rehabilitating victims of political persecution. In the case of Serbia, the legislation enables rehabilitation of persons responsible for collaboration and crimes during the Second World War as long as it can be argued that political and ideological grounds were also involved in their judicial or extrajudicial persecution. Acknowledging that individuals were unjustly persecuted in the postwar period, the article is primarily concerned with prominent military and political actors of the Second World War. Discussing rehabilitation in the context of the relation of history, memory and law, the article represents a perspective of history and memory studies rather than a purely legal-dogmatic analysis.
This article looks at the first phase of the implementation and application of the EU-Ukraine Association Agreement, which triggered unprecedented political, economic and legal reforms in Ukraine. In particular, the article focuses on the constitutional challenges that have arisen for Ukraine in the course of implementing the Association Agreement into its legal system. Two issues form the focus of consideration in the article. The first issue is effective implementation and application of the Association Agreement within the Ukrainian legal order. The second issue is compatibility between the Association Agreement and the Ukrainian Constitution. The latest political and legal developments in Ukraine are analyzed through the prism of effective implementation of the Association Agreement and the rise of pro-European judicial activism in Ukraine. In conclusion it is argued that the EU-Ukraine Association Agreement enhanced the adaptability of the national constitutional order to the European integration project and European common values.
Thorough legal regulation of arbitration involving consumers is significant for their protection, which is provided in the EU by the restrictive model, embedded in Council Directive 93/13/EEC on Unfair Terms in Consumer Contracts. It is submitted that EU Member States’ legislative reaction to achieve compatibility of their national laws with Directive 93/13 EEC was not identical and led to a debate on the effectiveness of consumer arbitration in the EU. The following article is an attempt to inform this debate. It provides a compact analysis of consumer arbitration agreements and discusses relevant arbitration law and practice in the Czech Republic, Slovakia, Austria and Germany – four EU Member States and also neighbors with intertwined mutual relationships. The thesis of this article is that even the most consumer-friendly legislation does not secure the success of consumer arbitration in all arbitrated cases. Equally, strongly pro-consumer legislation does not always mean arbitration-friendly legislation when legislative assimilation of litigation with arbitration is not avoided – indeed, quite the opposite.
Tomasz Tadeusz Koncewicz
History might have stopped for the Polish Constitutional Court in 2015–2016. After thirty years of building an impressive resume as one of the most influential and successful European constitutional courts and living proof of ‘the rule of law in action’, the Court has fallen under the relentless attack of a right-wing populist government and succumbed to it. This paper moves beyond the hitherto dominant perspective of ‘here and now’ and lawyers’ fixation on ‘the boat’, and instead focuses more on the journey and important lessons the journey might teach us and enhance the understanding of ‘our boat’. The Polish case (‘the boat’) is much more than just an isolated example of yet another government going rogue. An important European dimension colors what has transpired in Poland over the last twenty months. To understand what has happened in Poland and why, one has to take a longer view and revisit not only its 2004 accession, but also its 1989 constitutional moment. The constitutional debacle in Poland must be but a starting point for a more general analysis of the processes of the politics of resentment and constitutional capture that strike at core European principles of the rule of law, separation of powers and judicial independence.
A Comparative Analysis of French, English and Dutch Law
Lukas van den Berge
This article presents an analysis of the ways in which the public-private law divide is envisioned in French, English and Dutch law. First, it explains why French law’s tradition of regarding public and private law as ‘two separated worlds’ is now outmoded, failing to live up to the present trends of ‘governmentality’ and ‘network governance’ determining the modern art of government. Subsequently, it argues that the holistic idea of English ‘common law’ as French law’s conceptual counterpart is equally outmoded, with its ideology of ‘self-government’ within a ‘stateless society’ being out of touch with an age of managerialism and ‘governmentality’ in which the state withdraws from society only to increase its grip on societal processes. Finally, it proposes a paradigm recently developed in Dutch doctrinal thought as an attractive theoretical framework for structural innovations that may contribute to a stable and legitimate system of modern European public law that attunes to its present context without being alienated from its central classical tenets – be it either those rooted in the French or the English tradition.