Article 260(2) TFEU: An Effective Judicial Procedure for the Enforcement of Judgments?

Article 260(2) TFEU (ex 228(2) EC) enables the European Court of Justice to enforce compliance with its judgements. This article analyses its use in doing so and questions whether it could be applied more effectively. It commences by highlighting the principally economic and environmental context of the case-law, and by examining the initiatives taken to tackle delays in bringing these cases before the Court. The article then critically evaluates the effectiveness of the financial sanctions available to the Court. In doing so, it aims to fill a gap in present research by looking beyond the procedural measures through which the Court and the Commission operate to examine the practical impact of Article 260(2) itself.

Germany v Italy:The Triumph of Sovereign Immunity over Human Rights Law

This article analyses the doctrine of State immunity within the context of the recent judgment of the International Court of Justice (ICJ) concerning the Jurisdictional Immunities of the State (Germany v Italy: Greece intervening). The object of this article is to explore the implications of the State immunity from foreign judicial proceedings in cases of jus cogens crimes. Challenging the assumption that the law of immunity is merely procedural in nature, this article argues that there can be no immunity in cases of undisputed international crimes.

Article 6 ECHR, Civil Rights and the Enduring Role of the Common Law

This article examines the role that the common law has played in Human Rights Act 1998 case law on the protection of 'civil rights' within the meaning of Article 6 ECHR. Focusing on Article 6 ECHR's 'disclosure' and 'full jurisdiction' requirements, it highlights an increasingly nuanced relationship between the ECHR and common law in cases under and outside the Human Rights Act 1998. Although the general pattern within the case law has been one of domestic court fidelity to the ECHR - something that is wholly consistent with section 2 of the Human Rights Act 1998 - the article notes areas in which the courts have been reluctant to adapt common law principles, as well as instances of common law protections exceeding those available under Article 6 ECHR. The article suggests that such lines of reasoning reveal a robustness within the common law that brings a multi-dimensional quality to the Human Rights Act 1998. It also suggests that such robustness can be analysed with reference to 'common law constitutionalism' and a corresponding imagery of 'dialogue' between the domestic courts and European Court of Human Rights.

Financial Taxes and the Sand in the Wheels of Financialization:Legal Challenges for the EU Directive Implementing Enhanced Cooperation in the Area of Financial Transaction Tax

One of the many results of the Global Financial Crisis was the insight that the financial sector is under-taxed compared to other industries. In light of the huge bailouts and continued subsidies for financial institutions that are characterized as too-big-to-fail demands came on the agenda to make finance pay for the mega-crisis it caused. The most prominent examples of such taxes are a Financial Transaction Tax (FTT) and a Financial Activities Tax (FAT). Possible effects of such taxes on the economic constitution and increasingly in particular on the European Single Market have been discussed controversially over the last decades already. Especially with the decision of eleven EU member states to adapt an FTT using the enhanced cooperation procedure a number of additional legal challenges for implementing such a tax have emerged. This paper analyzes how tax measures of indirectly regulating the financial industry differ, what legal challenges they pose, and what their overall contribution would be in making the financial system more stable and resilient. It also analyzes the legal arguments against enhanced cooperation in this area and the legal issues related to the British lawsuit against the Commission’s Directive proposal in the European Court of Justice on grounds of the extra-territoriality application of tax. The paper concludes that the feasibility of an FTT is legally sound and given the FTT’s advantages over a FAT the EU Directive should be implemented as a first step for a European-wide FTT. However, significant uncertainties about its implementation remain at this stage.

Considering Just-World Thinking in Counter-Terrorism Cases: Miscarriages of Justice in Northern Ireland

Recent literature has drawn a parallel between the discriminatory application of counterterrorism legislation to the Irish population in the United Kingdom during the Northern Ireland conflict and the targeting of Muslims after September 2001. Less attention has been paid to lessons that can be drawn from judicial decision making in terrorism-related cases stemming from the Northern Ireland conflict. This Article examines Northern Ireland Court of Appeal (“NICA”) jurisprudence on miscarriages of justice in cases regarding counterterrorism offenses. In particular, the Article focuses on cases referred after the 1998 peace agreements in Northern Ireland from the Criminal Cases Review Commission (“CCRC”), a relatively new entity that investigates potential wrongful convictions in England, Wales, and Northern Ireland. Although the NICA’s human rights jurisprudence has developed significantly in recent years, the study of CCRC-referred cases finds that judges have retained confidence in the integrity of the conflict-era counterterrorism system even while acknowledging abuses and procedural irregularities that occurred. This study partially contradicts contentions that judicial deference to the executive recedes in a post-conflict or post-emergency period. Despite a high rate of quashed convictions, the NICA’s decisions suggest that it seeks to limit a large number of referrals and demonstrate a judicial predisposition to defend the justness of the past system’s laws and procedure. This perspective is consistent with what social psychologists have studied as “just-world thinking,” in which objective observers, although motivated by a concern with justice, believe—as a result of cognitive bias—that individuals “got what they deserved.” The Article considers other potential interpretations of the jurisprudence and contends that conservative decision making is particularly dangerous in the politicized realm of counterterrorism and in light of the criminalization of members of suspect communities.

Relatively Absolute? The Undermining of Article 3 ECHR in Ahmad v UK

The recent decision of the European Court of Human Rights in Ahmad v UK dangerously undermines the well-established case law of the Court on counter-terrorism and non-refoulement towards torture, inhuman and degrading treatment or punishment. Although ostensibly rejecting the ‘relativist’ approach to Article 3 ECHR adopted by the House of Lords in Wellington v Secretary of State for the Home Department, the Court appeared to accept that what is a breach of Article 3 in a domestic context may not be a breach in an extradition or expulsion context. This statement is difficult to reconcile with the jurisprudence constante of the Court in the last fifteen years, according to which Article 3 ECHR is an absolute right in all its applications, including non-refoulement, regardless of who the potential victim of torture, inhuman or degrading treatment is, what she may have done, or where the treatment at issue would occur.