The Principle of Proportionality, Article 8 of the ECHR and Swedish Care Orders in Cases of Neglect. A Sketch of a Theoretical Framework

This study conducts an analysis of the rights in article 8 of the ECHR and the application of the proportionality principle when Swedish care orders may be regarded as a necessary interference in family life. The study has been based on an interdisciplinary approach. Text documents were studied through socio-legal methods and perspectives, by combining knowledge from legal sources and social sciences research through a content analysis derived from formal and substantive legal certainty. The article concludes that reasoning in Swedish administrative courts should routinely consider proportionality in cases of neglect, and sets out to sketch a theoretical framework for the principle of proportionality in decisions on care orders. The results show that, since decisions in child welfare cases cannot be made completely uniform and predictable, the focus of decisions in social child welfare work must be to satisfy the objectives and values of substantive legal certainty, instead of unrealistically striving for formal legal certainty through equal treatment and predictability. The results also show that, by requiring those who exercise public authority to present their assessments based on proportionality, new demands are made for the quality and efficiency of involuntary out-of-home placements. Child welfare investigations should nowadays include impact assessments that clarify the advantages and disadvantages of the care in relation to the risk of harm from the original home conditions. Abuse and neglect in out-of-home placements will therefore be of growing importance in decisions on care orders in the future.

Services of General Interest (EU) as Indicators of Public Functions in the Sense of Public Administrative Law

The article concerns the EU concept of 'Services of General Interest' (SGIs) which, due to their characteristics, are given special status in EU law. It connects these characteristics with public services that are carried out by private entities under service contracts, as well as the question of applicability of general principles of public administrative law to the relations between the providers and users of such services. The objective is to examine whether the definitions and examples of SGIs can help identify public functions in the sense of Icelandic administrative law. It examines whether they provide guidelines as to how services, carried out by private entities under service contracts with public authorities, may be singled out and so help identify public functions in the sense of Icelandic administrative law.

Case C-181/19, Jobcenter Krefeld: The End of the Union Citizenship as Previously Understood?

The European Court of Justice has taken a restrictive approach vis-à-vis economically inactive Union citizens ever since its rulings Brey and Dano. In a recent preliminary ruling, Case C-181/19 Jobcenter Krefeld, the Court confirms this approach with regard to social security benefits that resemble social assistance. Such benefits fall, just as the Court in held in Brey and Dano, under the Citizenship Directive and can be made dependent upon a right to reside. Thereby, the Court holds that the Citizenship Directive overrule Regulation 883/2004, that coordinates social security benefits, and its equal treatment principle which rule out additional residence requirements. However, the Court clarifies that if there is a right to reside on basis of Regulation 492/2011, such a right overrides the more restrictive right to reside that follows from the Citizenship Directive. Different standards seem to apply to economically active Union citizens and economically inactive Union citizens. Challenges lie ahead for the Member States' administrations as different authorities apply the respective Union law instruments.

The Control of Administrative Inaction in the Context of the COVID-19 Health Emergency in France: an Inadequate Response from the Interim Relief Judge?

Interim remedies before administrative courts are an essential tool for the protection of individuals' fundamental rights in the French legal system. The months of Covid-19 health crisis have given the French administrative courts the opportunity to develop their role when using the so-called 'fundamental rights interim remedy'. In this context, the use of the power of injunction in the context of the fundamental rights interim remedy is not limited to a purely technical dimension. It takes place in a political context and reflects the capacity of the administrative courts, and especially of the Council of State, to play the role of a counter-power vis-à-vis the executive power. This article examines the decisions of the Council of State adopted since 16 March 2020, following fundamental rights interim remedies whose purpose was to request an injunction. It analyses how the fundamental rights interim remedy can be a means of remedying administrative inaction and, on the basis of the analysis of the cases where the requests for interim injunctions have been rejected, it draws lessons on the role of the French administrative courts in the context of the health crisis.

The Application of National Law and Composite Procedures in the Single Supervisory Mechanism. Did the Court of Justice of the EU find a New Van Gend en Loos?

The Single Supervisory Mechanism (SSM) represents the most recent legal novelty in EU law. The SSM has created a hybrid dual administration formed by both national and European authorities. The application of national law and composite procedures make it more difficult to distinguish, in practice, which courts should be responsible for evaluating the legality of the measures adopted. This article attempts to analyse the existence of a gap in the current system of legal protection, and suggests some proposals to continue to guarantee access to courts and a complete and coherent system of judicial remedies under EU law. A possible extension of the approach used by the Court of Justice in the Rimšēvičs case could be considered in areas where there is a less marked distinction between EU and national law, such as in the SSM. Following this principle, the Court should be able to directly annul any national act that contravenes EU law.

A Procedural Idea of Environmental Democracy: the 'Débat Public' Paradigm within the EU Framework

The aim of this paper is to analyse the 'débat public' procedure, which finds its roots in the Canadian legal system and its most defined formulation in France, and which more recently has been circulating to Italy – first at the regional level and, since 2016, at the national level. The first part of the paper will thus be devoted to a historical overview of the débat public and to how it is implemented in each of the two legal systems. The second part will subsequently distil the 'paradigm', i. e. those distinctive traits that make the débat public an autonomous research subject, within the multi-layered legislative framework of environmental governance in Europe. Three main features of the paradigm will be pointed out (Participation, Effectiveness, Authority), thus highlighting how it can respond to the needs in light of which it has been designed, namely dealing with proximity conflicts and providing a forum for the construction of shared rational decisions in environmental decision-making. The paper eventually leads to the conclusion that the débat public, with its codified rules and procedures, represents the first and probably the most noticeable attempt towards the institutionalisation and generalisation of deliberative practices in environmental decision-making, thus towards developing a procedural stance in environmental democracy.

Mutual (Dis-)trust in the Area of Freedom, Security and Justice?

Mutual trust constitutes the foundation of the principle of mutual recognition, which in turn embodies a cornerstone of the Area of Freedom, Security and Justice (AFSJ). This contribution explores the development of the relationship between trust and distrust in two mutual recognition regimes of the AFSJ. It bases on the premise that trust and distrust are inextricably linked, and that their relationship should not be perceived as one of mutual exclusivity or contradiction. The analysis addresses exceptions to mutual recognition, which are often perceived as manifestations of distrust, and examines their potential impact on mutual trust. It is submitted that exceptions to mutual recognition are necessary requirements for building and maintaining trust in the AFSJ and that they constitute an adaptation of the principle of mutual recognition to the particularities of the AFSJ. Next to the horizontal dimension of trust (i.e., trust among Member States) the analysis adds a new perspective by highlighting the importance of the vertical dimension of trust.

A Digital Cross-border Interest in the Framework of Public Procurement Legislation: The Game Changer

Originally introduced by the Court of Justice of the European Union, the presence of 'certain cross-border interest' is used to justify the application of EU principles to public procurement contracts that fall out the scope of EU law. Nonetheless, crossborder interest needs to be proven based on the criteria settled by the CJEU. This article presents, firstly, a definition of cross-border interest and its relevance; secondly, the latest trends on digital public procurement and e-administration. Finally, the paper will discuss whether, based on the criteria of the CJEU, the expansion of digitalisation will render the presence of cross-border interest automatic, thus increasing transparency and consequently changing forever how we apply EU law.

Judicial Annulment of National Preparatory Acts and the Effects on Final Union Administrative Decisions: Comments on the Judgment of 29 January 2020, Case C-785/18 Jeanningros, EU:C:2020:46

The European Court of Justice's classic Borelli doctrine concerned administrative procedures where national authorities adopt preparatory acts which are binding upon the Union administration. In such cases, preparatory acts cannot be reviewed by Union courts as part of the review of the final Union decision and must instead be reviewed by national courts. Jeanningros provided the Court of Justice with an opportunity to clarify one of Borelli's remaining loose ends – the question of whether national courts should review the national preparatory acts even if the Union administration has already adopted the final decision. The Court answered in the affirmative, but nevertheless left new open questions for legal practice and scholarship to confront.