Injunctions against Innocent Third Parties: The Case of Website Blocking

The paper discusses the phenomenon of injunctions against third parties that are innocent from the tort law perspective. One such type of injunction, website blocking, is currently appearing in the spotlight around various European jurisdictions as a consequence of the implementation of Article 8(3) of the Information Society Directive and Article 11 of the Enforcement Directive. Website-blocking injunctions are used in this paper only as a plastic and perhaps also canonical example of the paradigmatic shift we are facing: the shift from tort-law-centric injunctions to in rem injunctions. The author of this paper maintains that the theoretical framework for the latter injunctions is not in the law of civil wrongs, but in an old Roman law concept of ‘in rem actions’ (actio in rem negatoria). Thus the term ‘in rem injunctions’ is coined to describe this paradigm of injunctions. Besides the theoretical foundations, this paper explains how a system of injunctions against innocent third parties fits into the private law regulation of negative externalities of online technology and explores the expected dangers of derailing injunctions from the tracks of tort law. The author’s PhD project – the important question of the justification of an extension of the intellectual property entitlements by the in rem paradigm, along with its limits or other solutions – is left out from the paper.

Framing the Europeanization footprint: a follow-up of the EU renewable electricity directive and its impact in Spai

És àmpliament conegut que l'europeïtzació ha guanyat molt terreny en els estudis europeus. Des de finals de la dècada de 1990, ha gaudit d'una important expansió per tal d'avaluar l'eficàcia de les polítiques a escala europea en l'àmbit intern. En aquest procés la política energètica ha jugat un paper molt paradoxal, sent persistentment exclosos de l'agenda de recerca de la europeïtzació, encara que la seva creixent importància en l'elaboració de polítiques comunitàries. No obstant això, la realitat és que, tot i haver estat reconegut recentment com una àrea de la UE amb l'aplicació del Tractat de Lisboa, també ha estat influenciat, directament o indirectament, pels efectes de l'europeïtzació. Com a resultat d'això, la política energètica ha estat considerat com un "cas especial" de l'europeïtzació, portant fins al moment per a la construcció d'un sector caracteritzat la política energètica europea. En aquest context, el present treball pretén explicar l'europeïtzació de les polítiques energètiques nacionals en l'elaboració de l'actuació de la UE per mitjà de la seva competència ambiental. Més explícitament, aquesta investigació tracta de la naturalesa de la reglamentació comunitària en matèria d'energia renovable com un mecanisme d'europeïtzació amb especial èmfasi en el seu impacte a Espanya. Aquest treball sosté que (1) la lluita europea contra el canvi climàtic s'ha obert un camí per a la participació de la UE en matèria de política energètica, i que (2) encara que limitat aquest procés està produint alguns canvis en les polítiques energètiques nacionals. Universitat

Sanctions and public enforcement of insider trading laws in Europe

The recent financial crisis triggered an increasing demand for financial regulation to counteract the potential negative economic effects of the evermore complex operations and instruments available on financial markets. As a result, insider trading regulation counts amongst the relatively recent but particularly active regulation battles in Europe and overseas. Claims for more transparency and equitable securities markets proliferate, ranging from concerns about investor protection to global market stability. The internationalization of the world’s securities market has challenged traditional notions of regulation and enforcement. Considering that insider trading is currently forbidden all over Europe, this study follows a law and economics approach in identifying how this prohibition should be enforced. More precisely, the study investigates first whether criminal law is necessary under all circumstances to enforce insider trading; second, if it should be introduced at EU level. This study provides evidence of law and economics theoretical logic underlying the legal mechanisms that guide sanctioning and public enforcement of the insider trading prohibition by identifying optimal forms, natures and types of sanctions that effectively induce insider trading deterrence. The analysis further aims to reveal the economic rationality that drives the potential need for harmonization of criminal enforcement of insider trading laws within the European environment by proceeding to a comparative analysis of the current legislations of height selected Member States. This work also assesses the European Union’s most recent initiative through a critical analysis of the proposal for a Directive on criminal sanctions for Market Abuse. Based on the conclusions drawn from its close analysis, the study takes on the challenge of analyzing whether or not the actual European public enforcement of the laws prohibiting insider trading is coherent with the theoretical law and economics recommendations, and how these enforcement practices could be improved.

The Political and Judicial Life of Metadata: Digital Rights Ireland and the Trail of the Data Retention Directive. CEPS Paper in Liberty and Security No. 65, May 2014

This paper examines the challenges facing the EU regarding data retention, particularly in the aftermath of the judgment Digital Rights Ireland by the Court of Justice of the European Union (CJEU) of April 2014, which found the Data Retention Directive 2002/58 to be invalid. It first offers a brief historical account of the Data Retention Directive and then moves to a detailed assessment of what the judgment means for determining the lawfulness of data retention from the perspective of the EU Charter of Fundamental Rights: what is wrong with the Data Retention Directive and how would it need to be changed to comply with the right to respect for privacy? The paper also looks at the responses to the judgment from the European institutions and elsewhere, and presents a set of policy suggestions to the European institutions on the way forward. It is argued here that one of the main issues underlying the Digital Rights Ireland judgment has been the role of fundamental rights in the EU legal order, and in particular the extent to which the retention of metadata for law enforcement purposes is consistent with EU citizens’ right to respect for privacy and to data protection. The paper offers three main recommendations to EU policy-makers: first, to give priority to a full and independent evaluation of the value of the data retention directive; second, to assess the judgment’s implications for other large EU information systems and proposals that provide for the mass collection of metadata from innocent persons, in the EU; and third, to adopt without delay the proposal for Directive COM(2012)10 dealing with data protection in the fields of police and judicial cooperation in criminal matters.

The Racial Equality Directive – from law to practice. IES Policy Brief Issue 2013/07/September 2013

The transposition of the Racial Equality Directive (2000/43/EC) has immensely enhanced legal protection against discrimination on the grounds of racial and ethnic origin throughout the EU. More than 10 years after its adoption, the main challenge identified in many Member States is the enforcement of anti-discrimination laws in practice, in particular with regard to access to justice. Ultimately it is up to the domestic courts to ensure effective implementation of anti-discrimination law. Polls regularly show that the discrepancy between the levels of discrimination experienced and discrimination reported by victims must be seriously addressed. Awareness is low not only among the public but also among the members of the legal professions, leading to under-reporting of discrimination cases. In addition, data that reflect the ethnic or racial composition of the population are scarce which makes it difficult to prove discrimination before the competent authorities. Moreover, certain procedural difficulties that affect access to justice and effective enforcement also stem from the short limitation periods foreseen in legislation, lengthy procedures, evidence, high costs and failures in the provision of legal aid, ineffective sanctions, as well as barriers in the form of language and issues relating to legal standing or legitimate interest. The law remains complex and remedies often inadequate.

Role of price and enforcement in water allocation: Insights from Game Theory

As many countries are moving toward water sector reforms, practical issues of how water management institutions can better effect allocation, regulation, and enforcement of water rights have emerged. The problem of nonavailability of water to tailenders on an irrigation system in developing countries, due to unlicensed upstream diversions is well documented. The reliability of access or equivalently the uncertainty associated with water availability at their diversion point becomes a parameter that is likely to influence the application by users for water licenses, as well as their willingness to pay for licensed use. The ability of a water agency to reduce this uncertainty through effective water rights enforcement is related to the fiscal ability of the agency to monitor and enforce licensed use. In this paper, this interplay across the users and the agency is explored, considering the hydraulic structure or sequence of water use and parameters that define the users and the agency`s economics. The potential for free rider behavior by the users, as well as their proposals for licensed use are derived conditional on this setting. The analyses presented are developed in the framework of the theory of ""Law and Economics,`` with user interactions modeled as a game theoretic enterprise. The state of Ceara, Brazil, is used loosely as an example setting, with parameter values for the experiments indexed to be approximately those relevant for current decisions. The potential for using the ideas in participatory decision making is discussed. This paper is an initial attempt to develop a conceptual framework for analyzing such situations but with a focus on the reservoir-canal system water rights enforcement.

Mitigated directness in Honglou meng: directive speech acts and politeness in eighteenth century Chinese

This paper is situated within a theoretical discussion that asserts a positive correlation between indirectness and politeness, and uses these claims as a springboard for an examination of polite ways of issuing directives in eighteenth century Chinese. On the basis of an analysis of directive speech acts from dialogue in the novel Honglou meng, it argues that the concept of indirectness, as it applies to the illocutionary transparency of individual speech acts, has no particular value in the culture and language of eighteenth century Chinese men. It is found that other linguistic devices such as particles, the reduplication of verbs, terms of address, and the presence and sequencing of supportive moves are far more significant to the communication of politeness. The findings suggest a need to rethink current theoretical positions on this subject and move beyond the analysis of individual speech acts to examine the role discourse structure and management play in the enactment of politeness. (C) 2002 Elsevier Science B.V. All rights reserved.

Fighting climate change in the air: lessons from the EU directive on global aviation

The European Union's (EU) decision to include aviation into the Emissions Trade Scheme was heatedly contested. Countries around the world, but mainly the Brazil, Russia, India, China and South Africa group (BRICS) and the US, denounced the EU's initiate as illegal and unilateral. Following a decade of frustrated negotiations at the International Civil Aviation Organization (ICAO), this paper interrogates why such measure, in principle climate-friendly, inspired so much global resentment. I argue that concerns with competitiveness and risks of legal inconsistency are important, but insufficient elements to explain the core of the conflict. The paper suggests that the EU was strongly criticized because third countries perceived this action as an imposed solution, which fostered an environment of distrust. Therefore, I claim that the problem has more to do with a normative divide than with a substantive divergence on what should be done regarding aviation emissions. My analysis is informed by the present literature on the links between trade and climate change, but gives particular weight to first-hand information through interviews with key stakeholders. The paper is divided in three parts. First, it presents the scope of the EU directive in historical perspective. Second, it explores the EU's measure through three different angles: legal, economical and political. The final part explores some possible solutions to overcome these divergences.

Economic sanctions and human rights: an analysis of competing enforcement strategies in Latin America

This article addresses the consequences of economic sanctions for the protection of human rights in Latin America. The literature on sanctions and compliance informs three hypotheses, which investigate the relationship between sanctions and the level of rights protection in two groups of countries: those that were targeted by sanctions and those that were not. Using data from the Political Terror Scale (PTS) and from Freedom House, I find empirical evidence that sanctions do improve the level of protection in countries that were not targeted. This finding can be explained by the deterrent effect attributed to sanctions by the compliance literature, broadly interpreted. The presence of economic sanctions in a given year increases the probability of observing better human rights practices by almost 50%. These results hold for the 12 Latin American countries that were not subject to economic sanctions for the period 1976-2004.

The ICT use in the implementation of Directive 2011/24/EU

This article has as main objective to evaluate the role of information and communication technologies (ICTs), in particular the eHealth (electronic health), in the implementation of the directive 2011/24/EU, of the European Parliament and of the Council of March 9th, on the exercise of patients' rights in cross-border healthcare within Member States of European Union. Being currently underway the deadline for transposition of the Directive, it is important to analyze the probable results for national health systems. Innovatively, the Directive specifically proposes the implementation of a European network of eHealth in the provision of cross-border healthcare. Within ICT, we focus on telemedicine as a key tool for the implementation, on a context of public budgets constrains. In this context, it is assumed that the EU will support and promote cooperation and the exchange of scientific information between member states within the framework of a voluntary network composed by the national authorities responsible for health (or eHealth). We apply the S.W.O.T. (strengths and weaknesses, opportunities and threats) analysis to forecast the main points that should be focused on deeper research. We discuss the technological, economic and social aspects of the use of ICT on the implementation of the directive. It is thus important to evaluate the context of ICT by S.W.O.T. tool to define strategies to sensitize policy-makers, health managers, and citizens, in order to be able to turn threats into opportunities and mitigating the weaknesses in the implementation of the Directive and to promote a better healthcare access for citizens, ensuring safe, effective healthcare and with different quality.

Performance measurement and management in Portuguese law enforcement

Performance measurement of police services is complicated by ambiguous and complex goal- and objectives-setting, and by the difficulties of measuring outputs. This article looks at the organizational and management changes being made in Portuguese police forces. The authors fill a gap in the literature on performance measurement in Portugal by taking a national approach to the study of how law enforcement agencies are introducing new management accounting changes. The article therefore widens the debate on performance measurement and performance improvements in law enforcement.

Implementation of thr INSPIRE Directive on road infrastructure in Portugal

Prémio - CEN/TC 287 AWARD FOR EXCELLENCE IN INSIRE 2012 Implementation of the INSPIRE Directive on Road Infrastructure in Portugal Inês Soares, aluna de Mestrado em engenharia civil do ISEL, Instituto Superior de Engenharia de Lisboa e Paulo Martins, e o seu orientador, receberam um prémio europeu, no dia 27 de junho, em Istambul na Turquia, numa conferência internacional organizada pela Comissão Europeia e pelo governo Turco.  A jovem portuguesa foi escolhida entre cerca de 20 candidatos de vários países. Paulo Matos Martins, professor no ISEL, além de mentor do trabalho premiado, foi orientador de mestrado da aluna e explica que se trata de um estudo sobre a aplicação da Diretiva comunitária INSPIRE à infraestrutura rodoviária nacional que contou com a estreita colaboração do InIR, Instituto da Infraestrutura Rodoviária através da coorientação da engenheira Adelaide Costa e colaboração técnica do engenheiro Rui Luso Soares.  O projeto-piloto correspondeu à criação de uma aplicação informática que permite aceder a informação geográfica harmonizada relativa à infraestrutura rodoviária nacional, de acordo com as disposições de execução INSPIRE, dando cumprimento aos requisitos impostos pela Diretiva às entidades responsáveis por este tipo de informação, entre as quais se incluem diversos organismos públicos (podendo no futuro vir a incluir as autarquias), permitindo aos decisores políticos e a todos os cidadãos o fácil acesso a informação de qualidade sobre as infraestruturas, o território e o ambiente.