*** SYBE DE VRIES, ULF BERNITZ, STEPHEN WEATHERILL (Eds.): The EU Charter of Fundamental Rights as a Binding Instrument. Five Years Old and Growing. Hart Publishing (16C Worcester Place, Oxford, OX1 2JW, UK. Tel: (44-1865) 517530 - Fax: 510710 - Email: mail@hartpub.co.uk - Internet: http://www.hartpub.co.uk ). "Studies of the Oxford Institute of European and Comparative Law" series, No. 20. 2015, 372 pp, £70. ISBN 978-1-78225-825-4.
In this book following on from a conference held nearly two years ago under the auspices of the Oxford University Institute of European and Comparative Law, sixteen leading lawyers draw up a scientific balance sheet of the consequences engendered by the binding nature granted to the European Charter of Fundamental Rights since the Lisbon Treaty came into force in 2009. Has this binding nature changed the attention that the European Union was supposed and is still supposed to pay to the respect of fundamental rights? Has it changed the relationship between the Union and its member states? Has it given new discretionary power to the European Court of Justice? These are some of the questions to which wise answers are given in the book.
The first section sees the authors looking at the constitutional dimension of this issue, particularly the relationship between the Charter, the European Convention of Human Rights and, in fine, national constitutions. The first chapter sees former judge Allan Rosas draw from his top-notch analysis of European Court of Justice case law the conviction that the now binding nature of the Charter as primary law is further proof of the existence of a constitutional and 'federating' order at Union level. Examining the Court of Justice's opinion that the agreement on the EU joining the Strasbourg Convention runs counter to Community law, Sionaidh Douglas-Scott (London University) sees this as demonstrating the latter's autonomy and also the fact that the Charter has now become, within the Union, the main reference in terms of human rights. Another essay aims to discern how the competent European and national courts could avoid treading on each other's toes when it comes to fundamental rights, with Jan Komárek inviting the latter to be concerned with the question at European level, an appeal that he justifies with references to the theory of law and democracy. On the same subject, Clara Rauchegger calls, on the contrary, for a fruitful dialogue to be established between the Court of Justice and national courts.
Equally rich and diverse views are found in the second part of the book, looking at the scope of application of fundamental rights, notably in the light of the fate reserved for social rights in this category. From their examination, Xavier Groussot (Lund University) and Gunnar Thor Petursson (Reykjavik University) reach the conclusion that a constitutional framework is emerging in European law through the Charter, whilst Prof. Ulf Bernitz (Stockholm University), in the light of the Akerberg Fransson case, argues that the rules arising from the Charter strengthen those of the Convention when EU law comes into play. Catherine Barnard (Cambridge University) points out the extent to which the Court of Justice's attitude can be ambivalent when it comes to social rights, seeing it in turn as a vow of silence, a welcome silence and a call for silence. The final contribution in this section is devoted to the way in which, in the fields of national social security, the Charter challenges traditional solidarity rules and national law. The final section looks at the relationship between human rights and the Single Market. In a provocative manner, Stephen Weatherill (Oxford University) calls in the title of his essay for protection of the single market for fundamental rights, going on to explain that the right applicable in the single market has foreseen for a very long time sufficient guarantees for the protection of public interest and national values. After a detour via the relationship between free circulation and the Charter, two other contributions look at the sensitive question of the protection of private information, though which, according to Federico Fabbrini (Copenhagen University), the Charter has contributed to the constitutionalising of the Court of Justice in Luxembourg. The two final contributions are devoted to fundamental rights when it comes to competition and state aid. Clearly, this is reference tome and will remain so until the next balance sheet is drawn up.… Pierre Bouvier
*** VASILIKI KOSTA: Fundamental Rights in EU Internal Market Legislation. Hart Publishing (16C Worcester Place, Oxford, OX1 2JW, UK. Tel: (44-1865) 517530 - Fax: 510710 - Email: mail@hartpub.co.uk - Internet: http://www.hartpub.co.uk ). "Modern Studies in European Law" series. 2015, 330 pp, £60. ISBN 978-1-84946-711-7.
Following on from a doctoral thesis for the European University Institute in Florence in 2007, this book is devoted to a meeting that many would initially be inclined to consider unlikely, namely the meeting of fundamental rights and the European Single Market without internal borders. However, aware that the European Union also has the duty to ensure protection for rights recognised as fundamental, it went without saying that some of these rights could not fail to have an impact within the single market. And this is what was demonstrated by a number of cases sent to the European Court of Justice, which have become emblematic, as highlighted at the start of the millennium, such as Viking and Laval, with the possibility of a clash between fundamental right coming clearly to light. Running throughout the work in this book edited by Vasiliki Kosta is the fact that 'since the rules of the market clearly interfere with fundamental human rights protection, as guaranteed at the national level, the balancing of fundamental human rights on the one hand and market freedoms on the other hand is to a certain extent transferred to the European level,' with member states losing some of their autonomy in this venture. Following on from that, the author, who now lectures in European law at Leiden University, backs the idea that it is no longer imaginable to reconcile the protection of these potentially contradictory different fundamental laws and freedoms with the negative integration for which the Court of Justice is the favoured instrument, since the legislator himself must table legislation to ensure positive integration can be illustrated in this domain. In a highly concrete manner, the author makes an in-depth analysis of the practices of harmonisation and legislative activity in the domains of greatest importance in terms of their impact on human life, in other words, civil and political rights on the one hand - data protection and the freedom of expression - and social and economic rights on the other, with the right to collective bargaining and the right to strike, for example, along with the right to fair and just working conditions and the right to health. This detailed examination leads the author to reveal in general conclusions that he draws that the policy of fundamental rights in and through the Internal Market is far more differentiated than people probably expect. (MT)
*** JOHANNES KEILER, DAVID ROEF (Eds.): Comparative Concepts of Criminal Law. Intersentia (31 Groenstraat, B-2640 Mortsel. Tel: (32-3) 6801550 - Fax: 6587121 - Email: mail@intersentia.be - Internet: http://www.intersentia.com ). 2015, 282 pp, €85, £80.75, $102. ISBN 978-1-78068-290-7.
This book's authors provide a comparative presentation of the fundamental concepts and basic rules of penal law, filling an important gap in the theoretical debate about the legal domain. In the context of gradual Europeanising of penal law, they explore legislation on crime in three major European legal systems - the common law system in England and Wales and the civil law systems of Germany and the Netherlands. In the book's various chapters, they focus on constitutive elements of penal responsibility - actus reus or elements external to the crime, mens rea or moral element - and analyse notions such as the principle of legality, attenuating circumstances vis-à-vis penal responsibility and inchoative or ingressive crimes, in other words aspects of behaviour that are a step in the direction of preparing to commit a crime. Throughout the book, they highlight the similarities and differences relating to these concepts in the three legal systems under consideration. They show that the process of convergence that has affected European legal systems has gradually and substantially reduced the dichotomy between common law and civil law. The theme of enlargement of the scope of penal responsibility in society is also addressed, and the fact that the current epoch has seen the emergence of a legal culture of control and repression is highlighted. These days, elements such as the demand for increased security - undefined pursuit of the inaccessible… - from citizens, and the focus on identifying and mastering threats of all sorts by the authorities, strongly influence the nature of criminal legislation and its role in society. Legal systems have therefore started to cover new risks and dangers, such as those arising from technological developments or diseases such as AIDS and the Ebola virus. Legal systems have also become more punitive, based on concepts of dissuasion and crime prevention. The conclusion is devoted to this same extension of criminal responsibility, with David Roef analysing the mechanisms regulating crimes committed by … companies. (JBe)
*** BERNARD HUBEAU, ASHLEY TERLOUW (Eds.): Legal Aid in the Low Countries. Intersentia (see above). 2014, 375 pp, €79, £75.05, $94.80. ISBN 978-1-78068-256-3.
Access to justice is every citizen's fundamental right. It involves the possibility of obtaining the services of a lawyer or any other legal professional in order to have his interests defended or problems translated into legal terms. Such aid is crucial for ensuring effective access to justice, independently of the plaintiff's economic and social conditions. Each country of Europe therefore has a legal aid system, but these systems differ considerably in their organisation. This book presents an analysis of the legal aid systems in force in Belgium and the Netherlands. These regimes are interpreted in terms of various models and assessed in the light of various criteria, such as accessibility, simplicity, effectiveness and utility. The authors also discuss historical changes in legal aid in the two countries, highlighting various analogies of origin and gradual changes since the 1970s. In fact, the Belgian and Dutch systems both developed from the classical model of charity (a system where legal aid is essentially the responsibly of the legal professions and lawyers providing aid at their discretion as a pro bono activity without the State's intervention) but are now examples of the judicial model (a system of provision by a legal aid mandate whereby private lawyers provide legal services to legally-aided clients and reimbursed by government programmes) which is characterised by a more active role for institutions. However, the organisation and practical effectiveness of the Dutch and Belgian systems give rise to rather differing outcomes. In this connection, it should be noted that both systems are today under financial pressure due to budget cuts and increased demand for legal aid - both of which as a consequence of the economic crisis. The cost of legal aid in Belgium and the Netherlands goes up each year and several cuts have already been made in the budget. These reductions affect the effectiveness of legal aid and could restrict the right to access justice in the two countries, particularly for economically disadvantaged individuals. Moreover, although the two countries have opted for systems that are basically free-of-charge, access to certain related services remains problematic for the most vulnerable. Problems with accessing legal aid tend to be more serious in Belgium than in the Netherlands: according to the authors, as the Dutch system seems to be more generous and generalised and there is a higher level of government supervision than in the Belgian system. In the book's conclusions, the authors identify solutions which, for the same reasons as legal aid, could allow access to justice and update legal aid in Belgium and the Netherlands. In this connection, the authors highlight the need to spread access to alternative methods of conflict resolution, promote the use of e-Justice instruments and encourage greater research in this domain. (JBe)
*** KIRA KOSNICK (Ed.): Postmigrant Club Cultures in Urban Europe. Peter Lang (1 Moosstrasse, CH-2542 Pieterlen, Switzerland. Tel: (41-32) 3761717 - Fax: 3761727 - Email info@peterlang.com - Internet: http://www.peterlang.com ). 2015, 162 pp, €34.95. ISBN 978-3-631-64295-5.
As multiculturalism increasingly comes under fire in European Union countries, this collection of essays arising from a research programme financed by the European Research Council puts a number of ideologically preconceived ideas in their place by examining the leisure practices of young 'post-migrants,' in other words the children and grandchildren of immigrants who arrived to work in Europe and finally settled here. What social training do these young people receive when they frequent predominantly ethnic cultural clubs, such as North African rap or Turkish pop music? What new forms of urban social instinct can arise from this? How do these places influence segregation and exclusion? These are some of the questions to which the authors provide answers after long-term investigations in Berlin, London and Paris. These scientific examinations, combined with sociology, ethnography and anthropology, enable a degree of unravelling of the cluster of threads that lead among other things to racism, sexism, homophobia and stratified classes. (PBo)