Spring/Summer 2014 - Volume 7 - Issue 1

(2014) 7(1) European Journal of Legal Studies

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Editorial


Editorial: On Failure

By: Jan Zglinski   UK - Download PDF Version Download pdf (UK)

Theories of Law


Intelligence Agents, Autonomous Slaves and the U.S. Supreme Court’s Wrong (and Right) Concept of Personal Autonomy

By: Raphael Bitton   UK - Download PDF Version Download pdf (UK)

This paper traces the boundaries of consent in the relations of recruited intelligence agents and their handlers. The U.S. Supreme Court considered these relations to be contractual. However, such a contract, according to the Supreme Court, is unenforceable. An Agent’s autonomy largely underpins the argument for the prima facie legitimacy of Human Intelligence (HUMINT) relations with each agent. Autonomy is also an essential element in recognizing the formulation of a recruitment contract. Sketching its boundaries in the human intelligence context (namely between the spy recruited typically within enemy ranks and the recruiter) raises the paradoxical question: How free is the free choice to give up freedom of choice? In contrast to the common deontological approaches, this paper offers an account of personal autonomy which incorporates the examination of dignity-compromising (dehumanizing) influences on the choice-making process of the agent. If being autonomous is an exclusive human condition, then a condition in which a person is both dehumanized while making his choice, yet remains autonomous nonetheless, must be wrong. Hence, it is argued that any hierarchical model of personal autonomy should be interpreted as if incorporating a test of a dignity-compromising influence on the desires-setting or choice-making process of a person. The case of voluntary intelligence agents, as in the case of consenting slaves, emphasizes a distinction between two points in time: Before and after making the choice to become an agent. This paper’s interpretation of autonomy suggests that even the most agreeable intelligence agent is not autonomous during the second phase due to the influence of the irreversibility problem. The very fact that the potential choice to reverse is being held by another person (the handler) is a humiliating influence on agent’s choice to proceed and therefore suggests the agent is non-autonomous. The U.S. Supreme Court’s classification of handling relations as contractual is, therefore, wrong. However, by denying the binding promissory power of the handling ‘contract’, the Supreme Court is in fact right. Due to lack of autonomous will, these relations cannot formulate a contract to start with.

European Law


How Should Bitcoin Be Regulated?

By: Sergii Shcherbak   UK - Download PDF Version Download pdf (UK)

The lack of clarity about Bitcoin’s legal framework has meant that none of the regulators across the EU have yet achieved sufficient clarity in the legal treatment of Bitcoin and its stakeholders. This uncertainty poses a number of substantial risks to Bitcoin stakeholders and creates challenges for regulatory authorities. Therefore, there is a need for a clear strategy for Bitcoin’s regulation aiming to ensure the maximum possible balance between the interests of Bitcoin stakeholders longing for the preservation of Bitcoin’s benefits and mitigation of relevant risks, and the interests of regulators striving for ensuring the compliance of Bitcoin stakeholders with the law. In this paper, the author develops such a strategy. Its implementation provides for the official recognition of Bitcoin as an unregulated technology, the recognition of that Bitcoin users interacting between each other and Bitcoin miners are outside the regulatory scope, and the efficient application of existing legal mechanisms to Bitcoin merchants, Bitcoin exchanges and the relations between these categories of Bitcoin stakeholders with Bitcoin users. Thus, the balanced regulation of Bitcoin is achieved in the form of a partial regulation of the usage of Bitcoin at different levels of Bitcoin’s functionality.

Obstacles in European Competition Law Enforcement: A Potential Solution from Collective Redress

By: Zygimantas Juska   UK - Download PDF Version Download pdf (UK)

The primary focus of this article is to review the main obstacles in competition law enforcement in the European Union and to investigate how the development of collective redress could effectively facilitate enforcement of EU competition law. Arguably, antitrust enforcement remains sub-optimal due to the insufficient deterrent effect of EU antitrust fines and obstacles facing victims of competition law infringements in bringing damages actions. Central to my work, therefore, is the belief that collective actions constitute an attractive vehicle to solve, or at least diminish, the inefficienciesof antitrust enforcement. The paper explores some options as to how to design collective redress mechanisms in order to influence the ability to bring successful collective claims. This would, in turn, consider the advantages of opt-out collective actions in tackling the issues related to low participation rates, lack of funding and sub-optimal deterrence. From this perspective, the article moves on to propose collective actions as a potential remedy to facilitate access to justice, to deal with a wide range of legal and economic issues and to mitigate dysfunctional compensatory mechanism of EU antitrust enforcement.

Transparency in the Staff Selection Procedure of the EU Institutions: Comments on the Pachtitits Case

By: Jaime Rodriguez Medal   UK - Download PDF Version Download pdf (UK)

As one of the key principles governing the activities of the civil service of the European Union, transparency has become more and more important in the decision-making process, activities of the institutions, budget and staff-selecting process. The European Personnel Selection Process (EPSO) -the body in charge of organising the competitions to become EU staff- must ensure it in the selection procedures for the future employees. As a result of the efforts of the EU to apply that principle, candidates of the competitions have been able to get access to information on their performance in those exams. Furthermore, the Court of Justice of the EU has recognised such transparency of the EU administration towards the candidates in competition selection procedures. In 2007, a candidate in a staff selection process appealed the decision of EPSO to exclude him from the competition and alleged, amongst other grounds, a failure to comply with the EU principle of transparency. Despite the fact that there have been judgments and decisions, the issue has not been entirely addressed by both the Court of Justice of the EU and the European Ombudsman. The purpose of this paper is to assess that possible breach of the principle of transparency in the particular Pachtitis case.

European Union Towards the Banking Union, Single Supervisory Mechanism and Challenges on the Road Ahead

By: Mandana Niknejad   UK - Download PDF Version Download pdf (UK)

The financial crisis in the Eurozone has posed a serious challenge to the viability of the existing legal structure, which serves as the grounds for the European Union’s (EU) Member States’ economic cooperation. The EU’s financial and banking institutions and its decision-making bodies’ failure to predict, and to prevent this economic crisis, has led the Union’s decision-makers to conclude that they must reinforce the supervisory powers of the European Central Bank (ECB). The consequent establishment of the Single Supervisory Mechanism has increased ECB’s expectations from the administration of the European banks. However, as in any attempt at crisis management, the EU Member States face an important question: are the proposed solutions compatible with the existing structures that were put in place by current treaties? On the one hand, the European financial market’s vulnerability to each Member State’s crises indicates that it requires a higher degree of centralization in supervisory matters. On the other hand, all Member States, including the non-Eurozone EU Member States, reasonably expect that the ECB’s powers be limited to the matters in which they have agreed to relinquish their sovereign rights, and that they participate effectivelyin the decision-making process. The final resolution establishing the Single Supervisory Mechanism seems to meet some of these expectations. However, questions about this mechanism’s compatibility with existing treaties, as well as with EUstandards for the ECB’s accountability, remain far from being fully resolved.

Book Reviews


Book Review: Laura J Murray, S Tina Piper and Kirsty Robertson Putting Intellectual Property in its Place: Rights Discourses, Creative Labor, and the Everyday

By: Emma Linklater   UK - Download PDF Version Download pdf (UK)