In this episode of ‘In conversation with’ we are interviewing dr. Amalia Campos Delgado about her research on migration and border control in Mexico. |
Zoekresultaat: 154 artikelen
Literatuur |
Overzicht Literatuur maart 2020 t/m augustus 2020 |
Tijdschrift | Crimmigratie & Recht, Aflevering 2 2020 |
Interview |
In gesprek met dr. Amalia Campos Delgado |
Tijdschrift | Crimmigratie & Recht, Aflevering 2 2020 |
Auteurs | Maartje van der Woude |
SamenvattingAuteursinformatie |
Annotatie |
One train! (but different working conditions)CJEU 19 December 2019, C-16/18, ECLI:EU:C:2019:1110 (Michael Dobersberger v Magistrat der Stadt Wien) |
Tijdschrift | Arbeidsrechtelijke Annotaties, Aflevering 3 2020 |
Trefwoorden | Posting of workers, International train, Transport sector, Subcontracting, Short-term posting |
Auteurs | Marco Rocca |
SamenvattingAuteursinformatie |
The Dobersberger decision of the Court of Justice of the European Union deals with the legal situation of posted workers on an international train. These workers, employed by a Hungarian company and based in Hungary, operate on a train connecting Budapest with Salzburg and Munich. The Court concludes against their inclusion under the Posting of Workers Directive, considering their connection to the Austrian territory as too limited. This decision is based on a selective representation of the facts and sits difficultly with the letter of the law and the intention of the legislator. |
Article |
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Tijdschrift | Erasmus Law Review, Aflevering 4 2020 |
Trefwoorden | criminal proceedings, retrial in favour of the convicted, retrial to the disadvantage of the defendant, Germany, judicial errors |
Auteurs | Michael Lindemann en Fabienne Lienau |
SamenvattingAuteursinformatie |
The article presents the status quo of the law of retrial in Germany and gives an overview of the law and practice of the latter in favour of the convicted and to the disadvantage of the defendant. Particularly, the formal and material prerequisites for a successful petition to retry the criminal case are subject to a detailed presentation and evaluation. Because no official statistics are kept regarding successful retrial processes in Germany, the actual number of judicial errors is primarily the subject of more or less well-founded estimates by legal practitioners and journalists. However, there are a few newer empirical studies devoted to different facets of the subject. These studies will be discussed in this article in order to outline the state of empirical research on the legal reality of the retrial procedure. Against this background, the article will ultimately highlight currently discussed reforms and subject these to a critical evaluation as well. The aim of the recent reform efforts is to add a ground for retrial to the disadvantage of the defendant for cases in which new facts or evidence indicate that the acquitted person was guilty. After detailed discussion, the proposal in question is rejected, inter alia for constitutional reasons. |
Article |
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Tijdschrift | Erasmus Law Review, Aflevering 2 2020 |
Trefwoorden | Migration, EU migration law, time |
Auteurs | Gerrie Lodder |
SamenvattingAuteursinformatie |
States apply different material conditions to attract or restrict residence of certain types of migrants. But states can also make use of time as an instrument to design more welcoming or more restrictive policies. States can apply faster application procedures for desired migrants. Furthermore, time can be used in a more favourable way to attract desired migrants in regard to duration of residence, access to a form of permanent residence and protection against loss of residence. This contribution makes an analysis of how time is used as an instrument in shaping migration policy by the European Union (EU) legislator in the context of making migration more or less attractive. This analysis shows that two groups are treated more favourably in regard to the use of time in several aspects: EU citizens and economic- and knowledge-related third-country nationals. However, when it comes to the acquisition of permanent residence after a certain period of time, the welcoming policy towards economic- and knowledge-related migrants is no longer obvious. |
Article |
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Tijdschrift | Erasmus Law Review, Aflevering 3 2020 |
Trefwoorden | law and society, social change, discrimination, non-discrimination law, positive action |
Auteurs | Anita Böcker |
SamenvattingAuteursinformatie |
A question that has preoccupied sociolegal scholars for ages is whether law can change ‘hearts and minds’. This article explores whether non-discrimination law can create social change, and, more particularly, whether it can change attitudes and beliefs as well as external behaviour. The first part examines how sociolegal scholars have theorised about the possibility and desirability of using law as an instrument of social change. The second part discusses the findings of empirical research on the social working of various types of non-discrimination law. What conclusions can be drawn about the ability of non-discrimination law to create social change? What factors influence this ability? And can non-discrimination law change people’s hearts and minds as well as their behaviour? The research literature does not provide an unequivocal answer to the latter question. However, the overall picture emerging from the sociolegal literature is that law is generally more likely to bring about changes in external behaviour and that it can influence attitudes and beliefs only indirectly, by altering the situations in which attitudes and opinions are formed. |
Article |
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Tijdschrift | Erasmus Law Review, Aflevering 3 2020 |
Trefwoorden | Positive obligations, sexual minorities, sexual orientation, European law, human rights |
Auteurs | Alina Tryfonidou |
SamenvattingAuteursinformatie |
This article seeks to examine the development of positive obligations under European law in the specific context of the rights of sexual minorities. It is clear that the law should respect and protect all sexualities and diverse intimate relationships without discrimination, and for this purpose it needs to ensure that sexual minorities can not only be free from state interference when expressing their sexuality in private, but that they should be given the right to express their sexuality in public and to have their intimate relationships legally recognised. In addition, sexual minorities should be protected from the actions of other individuals, when these violate their legal and fundamental human rights. Accordingly, in addition to negative obligations, European law must impose positive obligations towards sexual minorities in order to achieve substantive equality for them. The article explains that, to date, European law has imposed a number of such positive obligations; nonetheless, there is definitely scope for more. It is suggested that European law should not wait for hearts and minds to change before imposing additional positive obligations, especially since this gives the impression that the EU and the European Court of Human Rights (ECtHR) are condoning or disregarding persistent discrimination against sexual minorities. |
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Tijdschrift | Erasmus Law Review, Aflevering 3 2020 |
Trefwoorden | Roma, Travellers, positive obligations, segregation, culturally adequate accommodation |
Auteurs | Lilla Farkas en Theodoros Alexandridis |
SamenvattingAuteursinformatie |
The article analyses the jurisprudence of international tribunals on the education and housing of Roma and Travellers to understand whether positive obligations can change the hearts and minds of the majority and promote minority identities. Case law on education deals with integration rather than cultural specificities, while in the context of housing it accommodates minority needs. Positive obligations have achieved a higher level of compliance in the latter context by requiring majorities to tolerate the minority way of life in overwhelmingly segregated settings. Conversely, little seems to have changed in education, where legal and institutional reform, as well as a shift in both majority and minority attitudes, would be necessary to dismantle social distance and generate mutual trust. The interlocking factors of accessibility, judicial activism, European politics, expectations of political allegiance and community resources explain jurisprudential developments. The weak justiciability of minority rights, the lack of resources internal to the community and dual identities among the Eastern Roma impede legal claims for culture-specific accommodation in education. Conversely, the protection of minority identity and community ties is of paramount importance in the housing context, subsumed under the right to private and family life. |
Artikel |
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Tijdschrift | Netherlands Journal of Legal Philosophy, Aflevering 2 2020 |
Trefwoorden | Judicial independence, Rule of law, Judicial ethics, Hungary, Criminalization of homelessness |
Auteurs | Petra Gyöngyi |
SamenvattingAuteursinformatie |
This article examines the tension between the constitutional obligation of judges to uphold rules of positive law and possibly conflicting standards of conduct arising from professional-ethical values. The theoretical analysis will be illustrated by the case of Hungary, an EU member state experiencing rule of law challenges since 2010 and where the 2018-2019 criminalization of homelessness exemplifies the studied tension. Inspired by the theories of Philip Selznick and Martin Krygier, rule of law will be viewed as a value that requires progressive realization and context-specific implementation. By contextualizing the relevant Hungarian constitutional framework with the content of the judicial code of ethics and judicial practice, it will be shown how the legitimate space for Hungarian judges to distance themselves from legislation possibly in conflict with rule of law values is reduced. Theoretical suggestions for addressing such rule of law regressions will be made. |
Article |
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Tijdschrift | Erasmus Law Review, Aflevering 1 2020 |
Trefwoorden | youth justice, age limits, minimum age of criminal responsibility, age of criminal majority, legal comparison |
Auteurs | Jantien Leenknecht, Johan Put en Katrijn Veeckmans |
SamenvattingAuteursinformatie |
In each youth justice system, several age limits exist that indicate what type of reaction can and may be connected to the degree of responsibility that a person can already bear. Civil liability, criminal responsibility and criminal majority are examples of concepts on which age limits are based, but whose definition and impact is not always clear. Especially as far as the minimum age of criminal responsibility (MACR) is concerned, confusion exists in legal doctrine. This is apparent from the fact that international comparison tables often show different MACRs for the same country. Moreover, the international literature often seems to define youth justice systems by means of a lower and upper limit, whereas such a dual distinction is too basic to comprehend the complex multilayer nature of the systems. This contribution therefore maps out and conceptually clarifies the different interpretations and consequences of the several age limits that exist within youth justice systems. To that extent, the age limits of six countries are analysed: Argentina, Austria, Belgium, the Netherlands, New Zealand and Northern Ireland. This legal comparison ultimately leads to a proposal to establish a coherent conceptual framework on age limits in youth justice. |
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Tijdschrift | Erasmus Law Review, Aflevering 1 2020 |
Trefwoorden | age boundaries, right to be heard, child’s autonomy, civil proceedings, neuropsychology |
Auteurs | Mariëlle Bruning en Jiska Peper |
SamenvattingAuteursinformatie |
In the last decade neuropsychological insights have gained influence with regard to age boundaries in legal procedures, however, in Dutch civil law no such influence can be distinguished. Recently, voices have been raised to improve children’s legal position in civil law: to reflect upon the minimum age limit of twelve years for children to be invited to be heard in court and the need for children to have a stronger procedural position. |
Article |
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Tijdschrift | Erasmus Law Review, Aflevering 1 2020 |
Trefwoorden | age limits, dynamic legal position, children’s rights, maturity, evolving capacities |
Auteurs | Stephanie Rap, Eva Schmidt en Ton Liefaard |
SamenvattingAuteursinformatie |
In this article a critical reflection upon age limits applied in the law is provided, in light of the tension that exists in international children’s rights law between the protection of children and the recognition of their evolving autonomy. The main research question that will be addressed is to what extent the use of (certain) age limits is justified under international children’s rights law. The complexity of applying open norms and theoretically underdeveloped concepts as laid down in the UN Convention on the Rights of the Child, related to the development and evolving capacities of children as rights holders, will be demonstrated. The UN Committee on the Rights of the Child struggles to provide comprehensive guidance to states regarding the manner in which the dynamic legal position of children should be applied in practice. The inconsistent application of age limits that govern the involvement of children in judicial procedures provides states leeway in granting children autonomy, potentially leading to the establishment of age limits based on inappropriate – practically, politically or ideologically motivated – grounds. |
Article |
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Tijdschrift | Erasmus Law Review, Aflevering 1 2020 |
Trefwoorden | age discrimination, old people, young people, complete life view, fair innings argument |
Auteurs | Beryl ter Haar |
SamenvattingAuteursinformatie |
Claims have been made that the Court of Justice of the European Union (CJEU) is more lenient in accepting age discriminating measures affecting older people than in those affecting younger people. This claim is scrutinised in this article, first, by making a quantitative analysis of the outcomes of the CJEU’s case law on age discrimination cases, followed by a qualitative analysis of the line of reasoning of the CJEU in these cases and concluding with an evaluation of the Court’s reasoning against three theoretical approaches that set the context for the assessment of the justifications of age discrimination: complete life view, fair innings argument and typical anti-discrimination approach. The analysis shows that the CJEU relies more on the complete life view approach to assess measures discriminating old people and the fair innings argument approach to assess measures discriminating young people. This results in old people often having to accept disadvantageous measures and young workers often being treated more favourably. |
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Tijdschrift | Erasmus Law Review, Aflevering 2 2020 |
Trefwoorden | Basel Accords, EU Law, shadow banking, financial stability, prudential regulation |
Auteurs | Katarzyna Parchimowicz en Ross Spence |
SamenvattingAuteursinformatie |
In the aftermath of the 2007 global financial crisis, regulators have agreed a substantial tightening of prudential regulation for banks operating in the traditional banking sector (TBS). The TBS is stringently regulated under the Basel Accords to moderate financial stability and to minimise risk to government and taxpayers. While prudential regulation is important from a financial stability perspective, the flipside is that the Basel Accords only apply to the TBS, they do not regulate the shadow banking sector (SBS). While it is not disputed that the SBS provides numerous benefits given the net credit growth of the economy since the global financial crisis has come from the SBS rather than traditional banking channels, the SBS also poses many risks. Therefore, the fact that the SBS is not subject to prudential regulation is a cause of serious systemic concern. The introduction of Basel IV, which compliments Basel III, seeks to complete the Basel framework on prudential banking regulation. On the example of this set of standards and its potential negative consequences for the TBS, this paper aims to visualise the incentives for TBS institutions to move some of their activities into the SBS, and thus stress the need for more comprehensive regulation of the SBS. Current coronavirus crisis forced Basel Committee to postpone implementation of the Basel IV rules – this could be perceived as a chance to complete the financial regulatory framework and address the SBS as well. |
Artikel |
Trials in absentia of foreign terrorist fighters in the Netherlands and Belgium |
Tijdschrift | Crimmigratie & Recht, Aflevering 1 2020 |
Trefwoorden | the right to be present, trials in absentia, foreign terrorist fighters, The Netherlands, Belgium |
Auteurs | Mr. Zoë Heij |
SamenvattingAuteursinformatie |
Judgements rendered in the accused’s absence form a special category of criminal judgements that undoubtedly do not provide for the same safeguards that would be in place when a judgement is rendered in the accused’s presence. Nonetheless, provided that strict conditions are adhered to, trials in absentia can be compatible with the accused’s right to be present. This article examines the standards that have been developed under international human rights law, providing for the normative framework, to see to what extent the trials in absentia of foreign terrorist fighters in the Netherlands and Belgium comply therewith. By pointing to analogies and contrasts, this article wishes to contribute to finding answers to this dilemma. |
Artikel |
From the securitisation of migration to the criminalisation of solidarity towards migrantsThe shrinking space for NGOs and volunteers in the Mediterranean Sea |
Tijdschrift | Crimmigratie & Recht, Aflevering 1 2020 |
Trefwoorden | migration, securitisation, solidarity, growing pattern of criminalisation |
Auteurs | Fleur Boixiere |
SamenvattingAuteursinformatie |
In recent years, migration has been at the centre of European debates and the number of migrants trying to cross the Mediterranean remains alarming. To this day, hundreds of people continue to risk their lives crossing the Mediterranean on small boats in order to flee conflict zones, persecution or extreme poverty. However, due to the lack of legal alternatives, migrants engage in dangerous journeys and find themselves helpless in the hands of smugglers. This article will address the growing pattern of criminalisation of migration and humanitarian assistance throughout Europe and consider the extent to which national, European and international anti-smuggling laws affect the work of civil society actors. |
Case Law |
2020/1 EELC’s review of the year 2019 |
Tijdschrift | European Employment Law Cases, Aflevering 1 2020 |
Auteurs | Ruben Houweling, Daiva Petrylaitė, Peter Schöffmann e.a. |
Samenvatting |
Various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks. |
Article |
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Tijdschrift | Family & Law, februari 2020 |
Auteurs | Caranina Colpaert LLM |
SamenvattingAuteursinformatie |
De grote toestroom van migranten en asielzoekers in de EU houdt vandaag nog steeds verschillende regelgevers wakker. Niet alleen de nationale overheden, maar ook de EU-regelgevers zoeken naarstig naar oplossingen voor de problematiek. Daartoe trachten de EU-regelgevers het Gemeenschappelijk Europees Asielstelsel (GEAS) bij te werken. |
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Tijdschrift | Erasmus Law Review, Aflevering 2 2019 |
Trefwoorden | Medical Device Directive, Medical Device Regulation, regulatory, European Union, reform, innovation, SPCs, policy |
Auteurs | Magali Contardi |
SamenvattingAuteursinformatie |
Similar to pharmaceutical products, medical devices play an increasingly important role in healthcare worldwide by contributing substantially to the prevention, diagnosis and treatment of diseases. From the patent law perspective both, pharmaceutical products and a medical apparatus, product or device can be patented if they meet the patentability requirements, which are novelty, inventiveness and entail industrial applicability. However, regulatory issues also impact on the whole cycle of the innovation. At a European level, enhancing competitiveness while ensuring public health and safety is one of the key objectives of the European Commission. This article undertakes literature review of the current and incoming regulatory framework governing medical devices with the aim of highlighting how these major changes would affect the industry at issue. The analysis is made in the framework of an on-going research work aimed to determine whether SPCs are needed for promoting innovation in the medical devices industry. A thorough analysis the aforementioned factors affecting medical device’s industry will allow the policymakers to understand the root cause of any optimal patent term and find appropriate solutions. |
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Tijdschrift | Erasmus Law Review, Aflevering 2 2019 |
Trefwoorden | machine-generated data, Internet of Things, scientific research, personal data, GDPR |
Auteurs | Alexandra Giannopoulou |
SamenvattingAuteursinformatie |
Data driven innovation holds the potential in transforming current business and knowledge discovery models. For this reason, data sharing has become one of the central points of interest for the European Commission towards the creation of a Digital Single Market. The value of automatically generated data, which are collected by Internet-connected objects (IoT), is increasing: from smart houses to wearables, machine-generated data hold significant potential for growth, learning, and problem solving. Facilitating researchers in order to provide access to these types of data implies not only the articulation of existing legal obstacles and of proposed legal solutions but also the understanding of the incentives that motivate the sharing of the data in question. What are the legal tools that researchers can use to gain access and reuse rights in the context of their research? |