Sovereignty, Article 4(2) TEU and the Respect of National Identities: Swinging the Balance of Power in Favour of the Member States?

The question of whether and to what extent sovereignty has been transferred to the European Union (EU) from its Member States remains a central debate within the EU and is interlinked with issues such as Kompetenz-Kompetenz, direct effect and primacy. Central to any claim to sovereignty is the principle of primacy, which requires that Member States uphold EU law over national law where there is a conflict. However, limitations to primacy can traditionally be found in national jurisprudence and the Maastricht Treaty introduced a possible EU limitation with the requirement that the EU respect national identities of Member States. The Lisbon Treaty provided only minimal further support to the principle of primacy whilst simultaneously developing the provision on national identities, now found within Article 4(2) TEU. There are indications from the literature, national constitutional courts and the Court of Justice of the EU that the provision is gathering strength as a legal tool and is likely to have a wider scope than the text might indicate. In its new role, Article 4(2) TEU bolsters the Member States’ claim to sovereignty and the possibility to uphold aspects crucial to them in conflict with EU law and the principle of primacy. Consequently, it is central to the relationship between the constitutional courts of the Member States and the CJEU, and where the final elements of control remain in ‘hard cases’. However, it does so as part of EU law, thereby facilitating the evasion of direct fundamental conflicts and reflecting the concept of constitutional pluralism.

The legal needs of children and young people in Northern Ireland: the views of young people and adult stakeholders

This research was conducted on behalf of the Department of Justice to explore the following issues: the nature and extent of the legal needs of children and young people; the extent to which these legal needs are being met; barriers to children and young people accessing legal advice, information and representation; potential solutions to these barriers; and potential future mechanisms for meeting identified legal needs of children and young people.

Promoting normality in the management of the perineum during the second stage of labour

The management of the perineum during birth has multiple long-term effects on women and their families. The midwife has a key role to play and often the techniques they employ vary significantly, as does their justification of these practices. This article seeks to examine current evidence to explore what is known to contribute to lower perineal trauma rates and what practices should be avoided to protect childbearing women. The conclusions drawn show that the updating of
practice and antenatal education may be required so that woman are given the information they need to make an informed choice as to what they want for their own body, child and experience.

Constitutional Principles and Horizontal Effects: Kücükdeveci revisited

While German labour lawyers were still awaiting the German Constitutional Court’s final verdict on the principles established by the Mangold case, the Court of Justice of the European Union re-visited the question what exactly are the effects of Directive 2000/78 and the constitutional principle of non-discrimination on grounds of age. This article analyses the constitutional relevance of this case in two respects. First, it argues that the Court has accepted neither direct horizontal effects of directives nor direct effects of constitutional principles, but rather - much more cautiously - reiterated the rule that directives on constitutional principles such as non-discrimination can exclude the application of national legislation in horizontal cases. The article also demonstrates that this cautious approach has succeeded in convincing the German Constitutional Court that the Mangold judgment was not ultra vires. Consequently, the claim challenging that judgment was dismissed and a constitutional crisis avoided.

Intersectionality and the Notion of Disability in EU discrimination law

Defining the characteristics targeted by banning discrimination constitutes a central challenge for EU discrimination law, and defining disability is particular-ly challenging due to the dispute around the very concept of disability. From 2006, the Court of Justice has wrestled with this definition in six judgments, five of which were delivered from 2013. Instead of classifying the case law definition as conforming to a medical or social model of disability, this article analyses the case law with a view to illustrate challenges of defining discrimination grounds generally, demanding that a sufficiently precise and non-exclusive definition of each discrimination ground can be achieved by re-focusing EU discrimination law around the nodes of sex, race and disability. The analysis exposes that the ECJ definition of disability neither complies with the UN CRPD nor adequately responds to intersectionality theory, for example because the definition is exclu-sionary in relation to female experience of disability.

The complexity of biodiversity: A biological perspective on economic valuation

To value something, you first have to know what it is. Bartkowski et al. (2015) reveal a critical weakness: that biodiversity has rarely, if ever, been defined in economic valuations of putative biodiversity. Here we argue that a precise definition is available and could help focus valuation studies, but that in using this scientific definition (a three-dimensional measure of total difference), valuation by stated-preference methods becomes, at best, very difficult.We reclassify the valuation studies reviewed by Bartkowski et al. (2015) to better reflect the biological definition of biodiversity and its potential indirect use value as the support for provisioning and regulating services. Our analysis shows that almost all of the studies reviewed by Bartkowski et al. (2015) were not about biodiversity, but rather were about the 'vague notion' of naturalness, or sometimes a specific biological component of diversity. Alternative economic methods should be found to value biodiversity as it is defined in natural science. We suggest options based on a production function analogy or cost-based methods. Particularly the first of these provides a strong link between economic theory and ecological research and is empirically practical. Since applied science emphasizes a scientific definition of biodiversity in the design and justification of conservation plans, the need for economic valuation of this quantitative meaning of biodiversity is considerable and as yet unfulfilled.

Legal liability of coaches: a UK perspective

Attracting more coaches is fundamental to achievement of the European dimension in sport and the further promotion of sport in the European Union. Given the emerging relationship between the law and sports coaching, recruitment of such volunteers may prove problematic. Accordingly, this article critically considers the legal liability of sports coaches. To inform this debate, the issue of negligent coaching is critically scrutinised from a UK perspective, uncovering a number of distinct legal vulnerabilities facing volunteer coaches. This includes the inherent limitations of ‘objective reasonableness’ when defining the standard of care required in the particular circumstances. More specifically, fuller analysis of the justification of customary practice, and the legal doctrine of in loco parentis, reveals important ramifications for all organisations providing training and support for coaches. In short, it is argued that proactively safeguarding coaches from professional liability should be a priority for national governing bodies, and, following the recently published EU Work Plan for Sport for 2014–2017, the Expert Group on Human Resource Management in Sport. Importantly, given the EU’s supporting, coordinating and supplementing competence in developing the European dimension in sport, a Commission funded project to address the implications of the ‘compensation culture’ in sport is also recommended.

Cross-border Movement of Patients in the EU: A Re-Appraisal

The national welfare state, so it seems, has come under attack by European integration. This article focuses on one facet of the welfare state, that is, health care and on one specific dimension, that is, cross-border movement of patients. The institution which has played a pivotal role in the development of the framework regulating the migration of patients is the European Court of Justice (ECJ). The Court’s activity in this sensitive area has not remained without critics. This was even more so since the Court invoked Treaty (primary) law which not only has made it difficult to overturn case law but also has left the legislator with very little room for manoeuvre in relation to any future (secondary) EU law. What is therefore of special interest in terms of legitimacy is the legal reasoning by which the Court has made its contribution to the development of this framework. This article is a re-appraisal of the legal development in this field.

Future Visions of Policing

A critical examination of the delivery of Policing with the Community by the Police Service of Northern Ireland - ten years after the Independent Commission for Policing in Northern Ireland