This paper provides first of all the introduction to this special issue on ‘Legal constraints on the indeterminate control of “dangerous” sex offenders in the community: A European comparative and human rights perspective’. The issue is the outcome of a study that aims at finding the way legal control can not only be an instrument but also be a controller of social control. It is explained what social control is and how the concept of moral panic plays a part in the fact that sex offenders seem to be the folk devils of our time and subsequently pre-eminently the target group of social control at its strongest. Further elaboration of the methodology reveals why focussing on post-sentence (indeterminate) supervision is relevant, as there are hardly any legal constraints in place in comparison with measures of preventive detention. Therefore, a comparative approach within Europe is taken on the basis of country reports from England and Wales, France, Germany, The Netherlands and Spain. In the second part of the paper, the comparative analysis is presented. Similar shifts in attitudes towards sex offenders have led to legislation concerning frameworks of supervision in all countries but in different ways. Legal constraints on these frameworks are searched for in legal (sentencing) theory, the principles of proportionality and least intrusive means, and human rights, mainly as provided in the European Convention on Human Rights to which all the studied countries are subject. Finally, it is discussed what legal constraints on the control of sex offenders in the community are (to be) in place in European jurisdictions, based on the analysis of commonalities and differences found in the comparison.

This article presents an overview of the legal regime provided in the Spanish system of criminal sanctions regarding the control of dangerous sex offenders in the community. It focuses on the introduction, in 2010, of a post-prison safety measure named supervised release. We describe the context of its introduction in the Spanish Criminal Code, considering the influence of societal upheaval concerning dangerous sex offenders in its development, and also the historical and theoretical features of the Spanish system of criminal sanctions. We also analyse the legal framework of supervised release, the existing case law about it and how the legal doctrine has until now assessed this measure. After this analysis, the main aim of this article consists in evaluating the effectiveness and the proportionality of the measure, according to the principle of minimal constraints and the rehabilitative function of the criminal sanctions in Spanish law, stated in Article 25.2 of the Spanish Constitution.

After release from prison or a custodial preventive institution, offenders may come under supervision in Germany, which means that their conduct is controlled for a period of up to five years or even for life by a judicial supervising authority. Supervision is terminated if it can be expected that even in the absence of further supervision the released person will not commit any further offences. From the theoretical point of view, supervision is not considered a form of punishment in Germany, but a preventive measure that is guided by the principle of proportionality. After a presentation of the German twin track system of criminal sanctions and a glimpse at sentencing theory, the capacity of the principle of proportionality to guide and control judicial decisions in the field of preventive sanctions is discussed. The human rights perspective plays only a minor role in the context of supervision in Germany.

In the Netherlands, the legal possibilities for post-custodial supervision have been extended considerably in recent years. A currently passed law aims to further increase these possibilities specifically for dangerous (sex) offenders. This law consists of three separate parts that may all result in life-long supervision. In the first two parts, the supervision is embedded in the conditional release after either a prison sentence or the safety measure ‘ter beschikking stelling’ (TBS). This paper focuses on the third part of the law, which introduces an independent supervisory safety measure as a preventive continuation of both a prison sentence and the TBS measure. Inevitably, this new independent sanction raises questions about legitimacy and necessity, on which this paper reflects from a human rights perspective. Against the background of the existing Dutch penal law system, the content of the law is thoroughly assessed in view of the legal framework of the Council of Europe and the legal principles of proportionality and less restrictive means. In the end, we conclude that the supervisory safety measure is not legitimate nor necessary (yet). Apart from the current lack of (empirical evidence of) necessity, we state that there is a real possibility of an infringement of Article 5(4) ECHR and Article 7 ECHR, a lack of legitimising supervision ‘gaps’ in the existing penal law system, and finally a lack of clear legal criteria. Regardless of the potential severity of violent (sex) offenses, to simply justify this supervisory safety measure on the basis of ‘better safe than sorry’ is not enough.

France literally ‘discovered’ sexual abuse following neighbour Belgium’s Dutroux case in the late 1990s. Since then, sex offenders have been the focus of politicians, media and law-makers’ attention. Further law reforms have aimed at imposing mandatory supervision and treatment, and in rare cases, preventive detention. The legal framework for mandatory supervision and detention is rather complex, ranging from a mixed sentence (custodial and mandatory supervision and treatment upon release or as a stand-alone sentence) to so-called ‘safety measures’, which supposedly do not aim at punishing an offence, but at protecting society. The difference between the concepts of sentences and safety measures is nevertheless rather blurry. In practice, however, courts have used safety measures quite sparingly and have preferred mandatory supervision as attached to a sentence, notably because it is compatible with cardinal legal principles. Procedural constraints have also contributed to this limited use. Moreover, the type of supervision and treatment that can thus be imposed is virtually identical to that of ordinary probation. It is, however, noteworthy that a higher number of offenders with mental health issues who are deemed ‘dangerous’ are placed in special psychiatric units, something that has not drawn much attention on the part of human rights lawyers.

In lijn met Europees schadevergoedingsrecht wendt de Hoge Raad overcompensatie af. In de recente follow-on kartelschadeprocedure TenneT c.s/ABB c.s. maakt de Hoge Raad namelijk de weg vrij voor een consistente toekenning van het zogenoemde passing-on verweer. Daarbij geeft hij te kennen ruimer te zijn gaan denken over het leerstuk van voordeelstoerekening. In deze bijdrage wordt het belang van deze ontwikkelingen voor zowel het mededingingsrecht als het algemene schadevergoedingsrecht geduid.

De aansprakelijkheidsregeling voor gebruikers van ongeschikte medische hulpzaken volgens artikel 6:77 BW heeft geleid tot rechtsonzekerheid en discussie. Om nieuwe inzichten te verkrijgen is het interessant om een rechtsvergelijking te maken met twee nabijgelegen landen die voor wat betreft het rechtssysteem en de juridisch-culturele ontwikkeling op Nederland lijken. In deze bijdrage is daarom onderzocht wie in Frankrijk en Duitsland door patiënten kunnen worden aangesproken, wat daar de tendensen in zijn en op welke manier het Nederlandse recht daar inspiratie aan kan ontlenen.

In Europe, female circumcision has been considered a grave violation of human rights. However, many European countries fail to combat this illegal practice. This article answers the question why criminal law enforcement with regard to female circumcision seems to fail in various European states, with the exception of France. To answer this question, this article analyses various models of citizenship.

EU employment protection is usually limited to “employees”, meaning that independent contractors are not covered. However, EU law often leaves it to Member States to determine the meaning of employee. The directives regulating transfers of undertakings, collective redundancies, written working conditions, information and consultation, part-time work, temporary agency workers etc. are all examples of protection covering only ‘employees’ as defined by each Member State.
Consequently, the interpretation of ‘employee’ at the national level determines whether protection in EU law applies. This case report concerns the distinction between an independent contractor and employee. The question was whether a support worker for a child needing extra care and support should be considered as employed by Ålesund municipality. The majority (4-1) found that the support worker was an employee. The case illustrates how the notion of employee in Norwegian law adapts to new ways of organising work and may be of interest in other jurisdictions.

The Rome I Regulation only applies to contracts concluded before 17 December 2009 insofar as the contract has undergone major change afterwards. It precludes overriding mandatory provisions other than those of the forum court.

An employee may bring a claim for invalid termination before the German Labour courts, irrespective of the law governing the employment relationship. In Germany, it is only possible for an employer to dismiss a severely disabled person if the competent state authority grants a permit enabling it to do so. However, this requirement is limited to those with employment agreements under German Law.

The definition of ‘worker’ in Directive 2008/104 on temporary agency work includes those who are similar to employees, without having employee status under domestic law.

The Austrian Supreme Court has ruled that the general prohibition of Muslim face veils by an employer does not constitute unlawful discrimination. In this landmark decision, Austria’s Supreme Court expresses the view that an uncovered face is a prerequisite to proper communication. Thus, termination of employment by reason of an employee’s refusal to come to work unless she can wear a face veil is not unlawful under the Austrian Equal Treatment Act. Whether this rule also applies to other religious clothing such as headscarves remains to be seen.

The comparative discussions held during this seminar show that the different jurisdictions make use of – approximately – the same ingredients for their legislation on adult guardianship measures and continuing powers of attorney. Given the common international framework (for example the UN Convention on the Rights of Persons with Disabilities) and given the common societal context (cfr. the strong increase of the ageing population) this may not come as a surprise. Despite these common ingredients, the different jurisdictions have managed to arrive at different dishes spiced with specific local flavours. Given that each jurisdiction bears its own history and specific policy plans, this may not come as a surprise either. The adage ‘same same but different’ is in this respect a suitable bromide.
For my own research, the several invitations – that implicitly or explicitly arose from the different discussions – to rethink important concepts or assumptions were of most relevance and importance. A particular example that comes to mind is the suggestion to ‘reverse the jurisprudence’ and to take persons with disabilities instead of healthy adult persons as a point of reference. Also, the invitation to rethink the relationship between the limitation of capacity and the attribution of a guard comes to mind as the juxtaposition of the different jurisdictions showed that these two aspects don’t need to be automatically combined. Also the discussion on the interference between the continuing powers of attorney and the supervision by the court, provoked further reflection on hybrid forms of protection on my part. Finally, the ethical and medical-legal approaches may lead to a reconsideration of the traditional underlying concepts of autonomy and the assessment of capacity.

Fighting outlaw motorcycle gangs is currently one of the top priorities of many governments around the world. This is due to the notion that outlaw motorcycle gangs do not consist solely of motorcycle enthusiasts. Numerous cases reveal that these clubs, or at least their members, are involved in (organised) crime. In order to tackle these clubs, the former Dutch Minister of Security and Justice announced a whole-of-government strategy towards outlaw motorcycle gangs in 2012. As part of this effort, authorities such as the Dutch National Police, the Public Prosecution Service, the Dutch Tax Authority and local governments aim to cooperate in order to disrupt and restrict outlaw motorcycle gangs by means of Criminal, Administrative and Civil Law. Part of this strategy is to hinder club-related events. This article discusses the latter strategy in light of the distinction between prevention and pre-emption. As the latter two concepts are often used interchangeably, this article attempts to use a more strict division between prevention and pre-emption. Thereby, it becomes apparent that outlaw motorcycle gangs are to some extent governed through uncertainty. The author suggests that maintaining the ‘prevention–pre-emption distinction’ can offer an interesting and valuable point of departure for analysing today’s crime policies.

People with mental illness usually experience higher rates of disability and mortality. Often, health care systems do not adequately respond to the burden of mental disorders worldwide. The number of health care providers dealing with mental health care is insufficient in many countries. Equal access to necessary health services should be granted to mentally ill people without any discrimination. E-mental health is expected to enhance the quality of care as well as accessibility, availability and affordability of services. This paper examines under what conditions e-mental health can contribute to realising the right to health by using the availability, accessibility, acceptability and quality (AAAQ) framework that is developed by the Committee on Economic, Social and Cultural Rights. Research shows e-mental health facilitates dissemination of information, remote consultation and patient monitoring and might increase access to mental health care. Furthermore, patient participation might increase, and stigma and discrimination might be reduced by the use of e-mental health. However, e-mental health might not increase the access to health care for everyone, such as the digitally illiterate or those who do not have access to the Internet. The affordability of this service, when it is not covered by insurance, can be a barrier to access to this service. In addition, not all e-mental health services are acceptable and of good quality. Policy makers should adopt new legal policies to respond to the present and future developments of modern technologies in health, as well as e-Mental health. To analyse the impact of e-mental health on the right to health, additional research is necessary.

This article discusses hedge funds activism based on Hirschman’s classic. It is argued that hedge funds do not create the loyalty concerns underlying the usual short-termism critique of their activism, because the arbiters of such activism are typically indexed funds, which cannot choose short-term exit. Nevertheless, the voice activated by hedge funds can be excessive for a particular company. Furthermore, this article claims that the short-termism debate cannot shed light on the desirability of hedge funds activism. Neither theory nor empirical evidence can tell whether hedge funds activism leads to short-termism or long-termism. The real issue with activism is a conflict of entrepreneurship, namely a conflict between the opposing views of the activists and the incumbent management regarding in how long an individual company should be profitable. Leaving the choice between these views to institutional investors is not efficient for every company at every point in time. Consequently, this article argues that regulation should enable individual companies to choose whether to curb hedge funds activism depending on what is efficient for them. The recent European experience reveals that loyalty shares enable such choice, even in the midstream, operating as dual-class shares in disguise. However, loyalty shares can often be introduced without institutional investors’ consent. This outcome could be improved by allowing dual-class recapitalisations, instead of loyalty shares, but only with a majority of minority vote. This solution would screen for the companies for which temporarily curbing activism is efficient, and induce these companies to negotiate sunset clauses with institutional investors.

The number of comparative tax law studies is substantial. The available literature on the methodology behind these tax comparisons, however, is rather limited and underdeveloped. This article aims to contribute to the theoretical background of tax comparisons by explicating methodological considerations in a comparative tax research on tax incentives for cross-border donations and relating it to the available methodological literature. Two aspects of tax law make comparative research in tax law a challenging endeavour: its complexity and fast-changing nature. To overcome these issues, this article proposes to divide jurisdictions into a limited number of categories. In this process the different legal levels are analysed systematically, resulting in categories of jurisdictions. Among the jurisdictions in one category, common characteristics are identified. This results in an abstract description of the category. I use the term ‘ideal types’ for these categories. The high level of abstraction in the use of ideal types allows for comparison of tax jurisdictions, without the risk that the comparison gets outdated. An additional advantage of working with ideal types is that the conclusions of the comparison can be applied to all jurisdictions that fit in the ideal type. This increases the generalisability of the conclusions of the comparative tax research.

The evolution of the case law in the field of free movement of goods has been marked by consecutive changes in the legal tests applied by the Court of Justice of the European Union for the determination of the existence of a trade restriction. Starting with the broad Dassonville and Cassis de Dijon definition of MEEQR (measures having equivalent effect to a quantitative restriction), the Court subsequently introduced the Keck-concept of ‘selling arrangements’, which allowed for more regulatory autonomy of the Member States, but proved insufficient to capture disguised trade restrictions. Ultimately, a refined ‘market access’ test was adopted, qualified by the requirement of a ‘substantial’ hindrance on inter-State trade. Contrary to the free movement of goods, the free movement of capital has not undergone the same evolutionary process. Focusing on the ‘golden shares’ case law, this article questions the broad interpretation of ‘capital restrictions’ and seeks to investigate whether the underlying rationale of striking down any special right that could have a potential deterrent effect on inter-State investment is compatible with the constitutional foundations of negative integration. So far the Court seems to promote a company law regime that endorses shareholders’ primacy, lacking, however, the constitutional and institutional legitimacy to decide on such a highly political question. It is thus suggested that a refined test should be adopted that would capture measures departing from ordinary company law and hindering market access of foreign investors, while at the same time allowing Member States to determine their corporate governance systems.