| 1. |
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| 2. |
- Bergström, Maria
(författare)
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The Many Uses of Anti-Money Laundering Regulation – Over time and into the future
- 2018
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Ingår i: German Law Journal. - 2071-8322. ; 19:5, s. 1150-1167
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Tidskriftsartikel (refereegranskat)abstract
- Given the fast development of the field of AML Regulation, this Article aims to answer the following questions: First, how is money laundering dealt with and regulated on the EU level? Second, to which legal concerns do the chosen regulatory strategy give rise? Accordingly, this Article provides an overview of the various regulatory strategies in the global and EU regional AML Regime while at the same time points out some of the most pressing legal concerns in AML Regulation. These include the blurred line between administrative and criminal law measures and the protection of individual rights and fundamental freedoms including data protection and privacy issues in administrative and criminal law contexts respectively. Although briefly mentioning the global and international context, the focus of this Article is the EU regulatory action, its outcome and critique, and possible future.
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| 3. |
- Davitti, Daria
(författare)
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Beyond the Governance Gap: Accountability in Privatized Migration Control
- 2020
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Ingår i: German Law Journal. - : Cambridge University Press (CUP). - 2071-8322. ; 21:3, s. 487-505
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Tidskriftsartikel (refereegranskat)abstract
- This Article focuses on the accountability challenges raised by the increased involvement of Private Military and Security Companies (PMSC) in migration control. I argue that migration control activities outsourced to PMSC can be classified as high-risk operations for the purposes of the application of relevant business and human rights standards. This reclassification of migration control activities as high-risk business operations, in turn, has two significant implications in terms of establishing accountability for PMSC's wrongful conduct. First, it acknowledges that the privatization of migration control, especially within the context of continued containment and deterrence trends, entails a high risk of human rights abuses to which PMSC may contribute, both directly and indirectly. Second, this reclassification enables us to identify heightened obligations vested upon the home state of a PMSC, as well as the heightened responsibility of PMSC themselves. The article also examines what these heightened obligations and responsibilities entail.
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| 4. |
- Derlén, Mattias, 1976-, et al.
(författare)
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Characteristics of Precedent : The Case Law of the European Court of Justice in Three Dimensions
- 2015
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Ingår i: German Law Journal. - 2071-8322. ; 16:5, s. 1073-1098
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Tidskriftsartikel (refereegranskat)abstract
- The case law of the Court of Justice of the European Union (CJEU) is one of the most important sources of European Union law. However, case law’s role in EU law is not uniform. By empirically studying how the Court uses its own case law as a source of law, we explore the correlation between, on the one hand, the characteristics of a CJEU case— type of action, actors involved, and area of law—and, on the other hand, the judgment’s “embeddedness” in previous case law and value as a precedent in subsequent cases. Using this approach, we test, confirm, and debunk existing scholarship concerning the role of CJEU case law as a source of EU law. We offer the following conclusions: that CJEU case law cannot be treated as a single entity; that only a limited number of factors reliably affect a judgment’s persuasive or precedential power; that the Court’s use of its own case law as a source of law is particularly limited in successful infringement proceedings; that case law is particularly important in preliminary references—especially those concerning fundamental freedoms and competition law; and that initiating Member State and the number of observations affects the behavior of the Court.
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| 5. |
- Derlén, Mattias, 1976-, et al.
(författare)
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Peek-a-boo, it’s a case law system! : Comparing the european court of justice and the United States supreme court from a network perspective
- 2017
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Ingår i: German Law Journal. - 2071-8322. ; 18:3, s. 647-686
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Tidskriftsartikel (refereegranskat)abstract
- The decisions of the Court of Justice of the European Union (CJEU) have had an immense impact on development of European Union law, and this has raised a critical discussion about how the CJEU establishes and uses case law. Through a comparison with the United States Supreme Court (USSC) and network analysis, this article argues that much of the criticism is based on false expectations as to the nature of the CJEU. We argue that the Court of Justice must be understood as a precedent-driven constitutional court and that, if we take that as our starting point, its approach to case law is quite reasonable.
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| 6. |
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| 7. |
- Jonsson Cornell, Anna, 1973-, et al.
(författare)
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Emergency Laws in Comparative Constitutional Law : The Case of Sweden and Finland
- 2018
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Ingår i: German Law Journal. - 2071-8322. ; 19:2, s. 219-249
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Tidskriftsartikel (refereegranskat)abstract
- Within Scandinavia, Sweden stands out for not having gone to war in over 200 years. Its neighboring states—Finland, Denmark, and Norway—have not been as fortunate. Their respective constitutions each provide insight into their different experiences. The Swedish Constitution remains silent on emergency situations that do not rise to the predefined level of “war.” The Finnish constitution differs from the Swedish in that it allows for time-limited restrictions to protect fundamental rights and freedoms during a state of emergency, aggression, or any other situation that poses a severe threat to the nation, if stipulated by law and in congruence with international obligations of Finland. Importantly, when and how a government can declare a state of emergency is a question of ordinary law, rather than a constitutional one. This Article offers a comparative constitutional law analysis of the relative constitutional silence in Sweden and Finland as concerns emergency powers. The analysis takes as its starting point Böckenförde’s The Repressed State of Emergency: The Exercise of State Authority in Extraordinary Circumstances.
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| 8. |
- Kelemen, Katalin, 1980-
(författare)
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Dissenting opinions in constitutional courts
- 2013
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Ingår i: German Law Journal. - 2071-8322. ; 14:8, s. 1345-1371
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Tidskriftsartikel (refereegranskat)abstract
- Although long considered alien to the civil law tradition, the publication of separate dissenting or concurring opinions is now permitted by the majority of European constitutional courts, the only exceptions being the Austrian, Belgian, French, Italian, and Luxembourgish constitutional courts. The decades-long history of dissenting opinions in the practice of several European constitutional courts calls for an analysis. While there is an extensive literature in the United States regarding the use of dissenting opinions, comprehensive empirical research is still absent in Europe. American scholars have conducted research from several different points of view. Legal scholars have dealt primarily with the relationship between dissenting opinions and the doctrine of binding precedent, and have tried to solve the problem of the precedential value of plurality decisions, e.g. decisions lacking a reasoning shared by the majority of the judges. Political scientists, for their part, have studied the policy-making role of judges and strategic opinion-writing. Scholars of law and economics have analyzed the costs and benefits of writing separately. Even judges themselves have often expressed their own thoughts in essays or conference speeches on the matter.
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| 9. |
- Künkler, Mirjam, et al.
(författare)
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Statism, Secularism, Liberalism - Böckenförde's Contributions to German Law in the Light of Contemporary Challenges within and beyond the State
- 2018
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Ingår i: German Law Journal. - 2071-8322. ; 19:2, s. 137-160
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Tidskriftsartikel (refereegranskat)abstract
- This introduction lays out the rationale behind the special issue examining Böckenförde's concepts and arguments in light of contemporary crises of democracy. Considering the enormous challenges facing democracies today, how should one judge Böckenförde's optimistic view of the regulatory capabilities of the state? Is it irrelevant, given the de facto power of both supra- and non-state actors? Or does Böckenförde's view still possess explanatory value, as the state remains the most important political unit? The article consists of two parts. First, Böckenförde will be introduced as a thinker whose work centred on questions of statism, liberalism and secularism. He paid special attention to the relation between politics and religion in contexts of democratic statehood. In addition to his interest in these themes, his understanding of the constitution and constitutional interpretation will be sketched. Second, we will introduce the three topoi on which the articles of this special issue focus: Böckenförde's insistence that the state of exception ought to be constitutionalised by exploring the relevance of this proposition in four different jurisdictions; whether his model of democratic secularism as open encompassing neutrality can serve as a useful starting point to manage religious and social diversity; the future of Europe. Against this backdrop, the conclusion then aims to connect Böckenförde's ideas on relative homogeneity with the contemporary crises of democracy.
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| 10. |
- Künkler, Mirjam, et al.
(författare)
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Statism, Secularism, Liberalism - Böckenförde's Contributions to German Staatsrechtslehre in the Light of Contemporary Challenges within and beyond the State
- 2018
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Ingår i: German Law Journal. - : Cambridge University Press (CUP). - 2071-8322. ; 19:2, s. 137-160
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Tidskriftsartikel (refereegranskat)abstract
- This introduction lays out the rationale behind the special issue examining Böckenförde's concepts and arguments in light of contemporary crises of democracy. Considering the enormous challenges facing democracies today, how should one judge Böckenförde's optimistic view of the regulatory capabilities of the state? Is it irrelevant, given the de facto power of both supra- and non-state actors? Or does Böckenförde's view still possess explanatory value, as the state remains the most important political unit? The article consists of two parts. First, Böckenförde will be introduced as a thinker whose work centred on questions of statism, liberalism and secularism. He paid special attention to the relation between politics and religion in contexts of democratic statehood. In addition to his interest in these themes, his understanding of the constitution and constitutional interpretation will be sketched. Second, we will introduce the three topoi on which the articles of this special issue focus: Böckenförde's insistence that the state of exception ought to be constitutionalised by exploring the relevance of this proposition in four different jurisdictions; whether his model of democratic secularism as open encompassing neutrality can serve as a useful starting point to manage religious and social diversity; the future of Europe. Against this backdrop, the conclusion then aims to connect Böckenförde's ideas on relative homogeneity with the contemporary crises of democracy.
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| 11. |
- Käll, Jannice, 1985
(författare)
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A Posthuman Data Subject? The Right to Be Forgotten and Beyond
- 2017
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Ingår i: German Law Journal. - 2071-8322. ; 18:5, s. 1145-1162
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Tidskriftsartikel (refereegranskat)abstract
- The general assumption in the West is that there still is an inherent difference between persons and things. This divide informs how “the human” and human subjectivity are constructed as distinct from all others. Recently, the distinction has been challenged in posthumanist theory, where it has been argued that the divide between human and nonhuman agents—or rather, bodies—is always an effect of a differential set of powers. For this reason, the boundaries between human and nonhuman are always in flux. As posthumanist theorists have argued, this change in boundaries may be specifically visualized in relation to digital technology. Today, such technologies obfuscate the boundaries between persons and things, and the extensive utilization of smartphones, social media, and online search engines are just three common examples. In parallel to the continuous expansion of digital technologies, critical understandings of how “data” and human personhood are produced are increasingly raised in legal theory. Recent developments establishing increased privacy online through EU law, including the new General Data Protection Regulation and the famous Right to Be Forgotten case could possibly be understood to have struck a balance between interests of the human–in the form of privacy—and the digital—in the form of information diffusion. In this Article, a posthumanist theoretical perspective is utilized to show how the new data protection legislation, with a focus on the Right to Be Forgotten, produces such protection yet continuously withdraws data as a separate body from human bodies. For this reason, it is argued that the construction of new human rights, such as those considering data protection, would benefit from understanding how the separation is, in itself, an effect of advanced capitalism.
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| 12. |
- Mindus, Patricia
(författare)
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Dimensions of Citizenship
- 2014
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Ingår i: German Law Journal. - 2071-8322. ; 15:5, s. 735-750
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Tidskriftsartikel (refereegranskat)abstract
- The Maastricht Treaty (the “Treaty”) first introduced the status of EU citizenship. The twentieth anniversary of the signing of the Treaty, marked in 2013, was declared the European Year of the Citizen. Union citizenship has been understood as the world’s first post-national citizenship, although it is still complementary to national citizenships. EU citizens enjoy rights that have been expanded, modified, and reinterpreted in light of the EU integration process. The Court of Justice of the European Union (CJEU) has been a driving force in this process. This twentieth anniversary has provided the occasio for this special issue. Indeed, much has happened over the last two decades. The Maastricht Treaty entered into force on the heels of German reunification, and afterwards, a series of EU treaties followed: The Amsterdam Treaty, the Nice Charter of Fundamental Rights, the aborted constitutionalization process and the Rome Treaty in 2004, and the Treaty of Lisbon. The Euro took over former national currencies in 2002; the enlargement process led to today’s twenty-eight Member States. But the ratio of this special issue is based on other events as linked to the 2008 financial crisis, bailouts, the fiscal compact, and similar measures. In a nutshell, the timeliness of this volume is linked to the current financial disarray. Since prognosis presupposes diagnosis, no further words are necessary as to the importance of this task. It is (almost) self-evident that before taking action and preparing for the future, one needs to address the very first question: Nosce te ipsum...
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| 13. |
- Ó Cathaoir, Katharina
(författare)
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Deviating from the Norm? : The Pregnant Body in Scandinavian Health Law
- 2024
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Ingår i: German Law Journal. - : Cambridge University Press. - 2071-8322. ; , s. 1-25
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Tidskriftsartikel (refereegranskat)abstract
- This article explores how the political ideal of data interacts with the legal entitlement of autonomy in the care of pregnant people guided by feminist theory and critical approaches to data. Using Scandinavian legislation and administrative practice, it analyses how the presence or absence of data, namely scientific evidence, interacts with pregnant people’s legal autonomy in healthcare. Data –particularly scientific evidence - is shown as something that is not neutral but open to interpretation and misappropriation. First, administrative complaints illustrate that not only a lack of scientific studies on pregnant people but also patriarchal attitudes have implications for care. Second, Scandinavian legislation authorizes the involuntary detention of pregnant drug users despite an absence of evidence supporting such drastic actions. Third, complaints bodies are found to frame injury to pregnant bodies as a natural consequence of birth, despite clear evidence as to the duties of healthcare professionals in preventing harm. A relational approach that sees the pregnant body and fetus as integrated though quintessentially unequal is needed. Evidence is not the only answer; an approach that recognizes the dignity of pregnant people must be central. This requires eliminating coercion, recognizing the pregnant patient as the decision maker in healthcare choices and prizing the birthing patient’s voice as a valuable data source.
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| 14. |
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| 15. |
- Stoyanova, Vladislava
(författare)
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The right to life under the eu charter and cooperation with third states to combat human smuggling
- 2020
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Ingår i: German Law Journal. - : Cambridge University Press (CUP). - 2071-8322. ; 21:3, s. 436-458
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Forskningsöversikt (refereegranskat)abstract
- According to EU policy documents, "[s]aving lives of people in distress is a primary goal of EU action in relation to managing the EU external borders."The EU preferred strategy to achieve this objective is to take measures against human smuggling - including the establishment of cooperation with third countries - ostensibly so that migrants are contained and their irregular movement is prevented. This Article examines whether this strategy complies with the positive obligations corresponding to the right to life as enshrined in Article 2 of the EU Charter of Fundamental Rights. After considering any formal obstacles that might prevent the activation of the Charter, this Article clarifies the factors that determine the scope of these positive obligations. Procedural and substantive obligations are then distinguished. The procedural positive obligation demands that the EU and its Member States (MS) consider alternatives to the measures of containment. Due to difficulties in assessing the reasonableness of such alternatives, the EU and the MS are also under the positive obligation to initiate studies that can provide reliable evidence that alternative measures - such as the possibility of issuing humanitarian visas - would be too burdensome. As to the substantive positive obligation corresponding to the right to life, this Article will argue that the EU and the MS need to be attentive about the cumulative outcome of their migration policies. The more successful they are in their indiscriminate containment policies - and the more unlikely any protection possibilities in the region of containment - the more likely it is that the positive obligation to protect life will remain unfulfilled.
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| 16. |
- Stoyanova, Vladislava
(författare)
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The Right to Life under the EU Charter and the Cooperation with Third Countries to Combat Human Smuggling
- 2020
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Ingår i: German Law Journal. - 2071-8322.
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Tidskriftsartikel (refereegranskat)abstract
- According to the EU policy documents ‘[s]aving lives of people in distress is a primary goal of EU action in relation to managing the EU external borders.’ The chosen means for achieving this objective is taking measures against human smuggling and human trafficking; these measures include the establishment of cooperation with countries of origin and transit so that migrants’ movement is prevented. This article examines whether the chosen means comply with the EU’s and the EU Member States’ positive obligations corresponding to the right to life as enshrined in Article 2 of the EU Charter of Fundamental Rights. After engaging with any formal obstacles that might prevent the activation of the Charter, the article clarifies the scope of these positive obligations. It concludes that these obligations demand that the EU and its Member States propose alternative measures and initiate an assessment as to whether any alternatives (e.g. legal routes to entry) might be too burdensome and unreasonable.
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| 17. |
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| 18. |
- Wegerstad, Linnea
(författare)
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Sex Must Be Voluntary: Sexual Communication and the New Definition of Rape in Sweden
- 2021
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Ingår i: German Law Journal. - : Cambridge University Press (CUP). - 2071-8322. ; 22:5, s. 734-752
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Tidskriftsartikel (övrigt vetenskapligt/konstnärligt)abstract
- Many countries are in the process of replacing outdated sex offense regulations with laws that accurately correspond to late modern ideas about gender equality, sexual self-determination, and consensual sex. One example is Sweden, where a law that defines rape based on a criterion of nonvoluntary participation entered into force in 2018. This article analyzes the representation of rape in the new law and legal discourse in Sweden, and shows that rape is represented as a matter of choice and communication in sexual situations. Further, the new rape law is coupled to an emerging problem within such disparate spheres as public health, social media campaigns, sexual education, and gender studies; namely, the problem of sexual communication and gray zones in sexual encounters. To understand this new representation of rape, further exploration is suggested both into the effects of sexual violence being framed as a matter of individual choice, consent, and communication in late modernity and into the role of criminal law in the era of thin normativity. The article concludes that the new rape law sends a clear message about what sex should be—namely, something voluntary—but does not accurately describe the crime and the conduct that deserves criminal censure.
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| 19. |
- Kebede Reda, Abel, et al.
(författare)
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Identification of the regional and economic contexts of sustainable urban logistics policies
- 2020
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Ingår i: Sustainability. - : MDPI AG. - 2071-1050. ; 12
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Tidskriftsartikel (refereegranskat)abstract
- Urban logistics policies have become instrumental in achieving sustainable transport systems. Developing and emerging countries still lag far behind in the implementation of such policies when compared with developed countries. This exposure gap provides an opportunity for policy transfer, but this is a complex process requiring knowledge of many contextual factors and involving multiple steps. A good understanding of those contextual factors of measures by cities may be critical for a successful transfer. Our study aimed to identify the different contexts of urban logistics measures or policies worldwide and to assess their significance for policy transferability. In this study, urban logistics measures discussed in the literature were retrieved with a systematic literature review method and then the contexts were recorded, distinguishing between economic development levels and geographical regions. The analysis revealed that the economic level and geographical location of cities both have a strong association with the type of measure implemented. Barriers and drivers were identified by assessing policy transfer between developed and developing countries. Institutional and physical barriers appeared to be highly pertinent for a range of measures, while drivers or facilitators were identified from specific problems in developing countries and the respective measures in developed countries. Thus, the analysis of contextual factors can provide a first response to the key challenges and opportunities of sustainable urban logistics policies transfer to developing countries.
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