Category: Article

Distinguishing “individual rights” from “principles”

Julian Kulaga, 4th Year Student LLB “English Law and German Law” at King’s College London / Humboldt University of Berlin

Introduction

As a general rule, individuals cannot rely on the provisions of EU Directives themselves in proceedings between two private parties[1] even when such provisions are clear, precise and unconditional[2] and even after the state has not transposed the directive by the prescribed deadline.[3]

However, in 2005, the CJEU decided in Mangold that a directive establishing a general framework for equal treatment had horizontal direct effect because it was the responsibility of the national court to guarantee the full effectiveness of the general principle of non-discrimination in respect of age.[4] Yet Mangold is considered to be one of the most controversial cases due to the uncertainty this exception creates[5] while relying on an unwritten general principle.[6]

Since the entry into force of the Treaty of Lisbon in 2009, Article 6(1) TEU puts the Charter of Fundamental Rights of the European Union[7] on an equal footing with the TEU and the TFEU.[8] This has raised the question whether an unconditional and sufficiently clear and precise directive can have direct horizontal effect whenever any general principle of EU law, including human rights protection, is sufficiently connected to the application of the respective directive.[9]

As a result, in two recent cases, Kücükdeveci[10] and AMS,[11] the CJEU had to determine whether a directive could be invoked in a dispute between two private parties in conjunction with one the fundamental rights embodied in the Charter. Continue reading “Distinguishing “individual rights” from “principles””

Why ‘New Public’ is the Wrong ‘Public’ for the Communication to the Public Right under EU Copyright Law

Justin Koo, PhD Candidate at King’s College London

The communication to the public right under EU copyright law has increasingly been under scrutiny in the last few years due to several important decisions delivered by the Court of Justice of the European Union (CJEU). The consequence of this intense focus has been the increasing recognition and criticism that aspects involved in the application of the communication to the public right are not legally sound and potentially unjustifiable and indefensible. One such aspect is the ‘new public’ criterion. Perhaps, it can be said that the ‘new public’ criterion is one of the defining concepts of the communication to the public right because it ultimately determines the finding of liability, but for where a ‘communication’ is made by a ‘different technical means’.[1] As such, it is necessary to illustrate why the ‘new public’ criterion is ill suited to EU copyright law and moreover, why the ‘new public’ criterion should be abandoned. Continue reading “Why ‘New Public’ is the Wrong ‘Public’ for the Communication to the Public Right under EU Copyright Law”

A European Dimension to Educational Quality Assurance?

Robert Miklós Babirad

1          Introduction

A Eurydice report released on February 10, 2015 offered a review of how schools providing compulsory education across the EU’s Member States are being evaluated in order that future educational quality may be improved through the development of effective quality assurance systems.[1] The report’s paramount goal is that of providing information concerning how schools are being evaluated with the objective of providing for the future enhancement of the educational quality being offered to students throughout the EU.[2]

The report also importantly acknowledged recognition at the European level, for achieving the objective of enhanced educational quality assurance.[3] The European Commission was invited by the Council in 2014 to support and strengthen Member States in developing their respective quality assurance arrangements for schools providing compulsory education.[4] Support was also offered by the Council for promoting quality educational assurance with a “European dimension” that would facilitate the evaluating of schools across Member State borders, and which does not appear to be limited any longer to institutions of higher education.[5]

However, the issue arises whether there can actually be a meaningful “European dimension” to educational quality assurance (particularly with regard to schools providing compulsory education), given the differing interpretations of quality assurance, which presently exist across the EU’s Member States.[6]

Continue reading “A European Dimension to Educational Quality Assurance?”

UK in the EU? A Rhetorical Question

Luca Carmosino, LLB student, King’s College London

In 2012, Cohen-Bendit MEP stated that the UK will have to decide whether it stays in the EU or whether it becomes the 51st United States’ State.[1] This quote summarises most of the argument as it illustrates the fact that full independence is, potentially, no longer a solution for the UK. However, I will not restrict my analysis to a citation!

In 1975, the United Kingdom (UK) held a referendum on the (then) European Economic Community (EEC) membership: 67.2% voted in favour.[2] The wind -since then- has apparently changed with the UK constantly ‘threatening’ the European Union (EU) to propose an in-out referendum.[3] This post makes a case for the UK staying in the EU. The first argument will relate to domestic politics. Indeed, the main reason why the UK domestic political parties focus so much on ‘Brexit’ is because it attracts votes by blaming the EU for the politically sensitive issues, namely, immigration, unemployment and many more. Secondly, following the political analysis, an economic perspective is essential. Indeed, the UK largely benefits from the EU as a commercial partner. The third and final part of this post discusses and portrays the globalised context in which we live and argues that the UK is bound by the EU and that political and economic integration is essential in light of the globalisation effect.

Continue reading “UK in the EU? A Rhetorical Question”

When the Presumption of Compliance Results in Outsourcing of Responsibility: Protecting the Fundamental Rights of Europe’s Asylum Seekers

Amy Dunne, LLB (Trinity College Dublin), Master of Law, KU Leuven (cum laude), PhD candidate Leiden Universiteit and Knowledge Management, Freshfields Bruckhaus Deringer LLP, Brussels 

This submission discusses the limits of the presumption of compliance as encapsulated by the sovereignty clause, Article 3(2), of Regulation (EC) No 604/2013 (Dublin III Regulation) through analysing the evolutions set out in the ECtHR case Tarakhel v Switzerland. It is argued herein that the presumption of compliance has diminished the collective responsibility of Member States for Europe’s asylum seekers – with northern States relying on the presumption to outsource their collective responsibility to southern States, without due regard for fundamental rights concerns, in a manner contrary to the spirit of the Dublin Regulation. Continue reading “When the Presumption of Compliance Results in Outsourcing of Responsibility: Protecting the Fundamental Rights of Europe’s Asylum Seekers”