Articles

Italy’s Gentle Revolution: The New Law on Same-Sex Partnerships

M. M. WINKLER

The Digest - National Italian American Bar Association (NIABA) Law Journal

2017, vol. 25, pp.1-31

Départements : Droit et fiscalité, GREGHEC (CNRS)

Mots clés : Italy; Constitutional Law; Human Rights; LGBT Rights

http://heinonline.org/HOL/LandingPage?handle=hein.journals/digst25&div=1&src=home


This Article comments the genesis and the content of the Italian law on civil partnerships between people of the same sex, enacted in May, 2016, and eventually entered into operation, together with a bunch of administrative regulations, in early 2017. As the last country of Western Europe to adopt such a law, the Italian law recognises civil partnerships for same-sex couples but presents several flaws in terms of equality and nondiscrimination based on sexual orientation

James Elliott Construction (C-613/14) : A "New(ish) Approach" to judicial review of standardization

A. VAN WAEYENBERGE, D. RESTREPO AMARILES

European Law Review

2017, vol. 42, pp.883-894

Départements : Droit et fiscalité, GREGHEC (CNRS)


This article analyses the decision of the Court of Justice of the European Union in the James Elliot Construction case delivered on 27 October 2016. In its decision, the Court has for the first time affirmed its jurisdiction to interpret harmonised technical standards on a preliminary reference. In this contribution, we argue that the decision marks an important breakthrough in the evolution of EU law by recognising harmonised technical standards as part of Union law. This opening offers new possibilities for litigating technical standards and assuring the centrality of the rule of law in the achievement of the internal market. The article concludes by analysing the implications of the decision in relation to the Meroni doctrine, the potential conflicts between the principle of free access to the acts of the Union and the protection of intellectual property, and the impact that greater litigation over harmonised technical standards may have on the caseload of the Court

Questionable Transactions, Unquestionable Rules: The Odebrecht/Braskem Case and the Foreign Corrupt Practices Act

L. SCOLLO, M. M. WINKLER

Diritto del Commercio Internazionale

2017, vol. XXXI, n°3, pp.521-542

Départements : Droit et fiscalité, GREGHEC (CNRS)


This article offers a critical analysis of the Odebrecht/Braskem case under theForeign Corrupt Practices Act (FCPA ). Two Brazilian companies, Odebrecht S.A.and its subsidiary Braskem S.A., have been caught in a massive bribery machinethat concerned Brazil as well as many other countries, including Switzerland andthe United States. Not only did these companies create a true consortium throughwhich they controlled Brazil’s public procurement system in a way to adjudicateand make profit out of multibillion projects in South America and abroad, but theyalso exploited the U.S. financial market to transfer money to corrupt public officers.The two companies cut a deal with the U.S. prosecutors under the FCPA, which thearticle comments in two parts. First, it recounts the case’s factual background,casting a light on the companies’ business models and corrupt conduct. The secondpart delineates the legal arsenal underlying the deal signed with the U.S. prosecu-tors, which reflects a consolidated practice of the U.S. government to prosecutenon-American multinational enterprises pursuant to the FCPA. Such practice isbased on the broad discretion enjoyed by U.S. federal prosecutors in exercising their prosecutorial power, which includes the possibility to halt or defer theprosecution upon the condition that the defendant pays a penalty and submits to certain compliance and self-reporting obligations. Through the FCPA, they cantarget foreign corporations whose bribery scheme involved, even indirectly, theU.S. financial market. Finally, the Odebrecht/Braskem case represents the firstexample of a deal that was indirectly participated by foreign governments, whosesanctions were considered part of the deal itself

Thinking Justice Outside the Dock: A Critical Assessment of the Reform of the EU's Court System

A. ALEMANNO, L. PECH

Common Market Law Review

février 2017, vol. 54, n°1, pp.129-176

Départements : Droit et fiscalité, GREGHEC (CNRS)


The 2015 reform of the EU’s court system will go down in history as the most radical transformation of the EU judicial architecture since the establishment of the General Court in 1989. It entails not only the doubling of the number of General Court judges but also the dissolution of the Civil Service Tribunal. This article offers a critical assessment of these two major, structural changes, by focusing on both the process by which they were adopted and its overall merits. After providing a detailed examination of its tortuous legislative history and highlighting its unique underlying procedural feature – with the Court itself initiating the reform process -, this article identifies and systematises the major reform’s shortcomings. It criticises both the diagnosis underpinning the reform and the cure administered. It concludes by presenting this reform process as a missed opportunity to address, in a more holistic manner, the pressing non-docket related challenges faced by the EU judicial system and, in particular, to reform a governance structure which is no longer fit for purpose considering the massive transformation of the EU judicial branch since the CJ was first established in 1951

A Comparative Overview of EU and US Legislative and Regulatory Systems: Implications for Domestic Governance & the Transatlantic Trade and Investment Partnership

A. ALEMANNO, R. W. PARKER

Columbia Journal of European Law

hiver 2016, vol. 22, n°1

Départements : Droit et fiscalité, GREGHEC (CNRS)

Mots clés : TTIP, Regulatory Cooperation, Convergence, Divergence, Mutual Recognition, Equivalence, MRA, US-EU, race to the bottom, direct effect, implementation

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2721038


The aim of this report is to inform the EU-US Transatlantic Trade and Investment negotiations on enhanced regulatory coherence and cooperation, by providing negotiators, stakeholders and the public with a comparative overview of the US and EU legislative and regulatory processes in their current form, highlighting differences and similarities

Are Criminal Sanctions Always Appropriate in Business Law? The French Example of Combining Civil and Criminal Law

N. STOLOWY

Journal of Business Law

2016, vol. 7, pp.607-623

Départements : Droit et fiscalité, GREGHEC (CNRS)

Mots clés : Commercial law; Corporate liability; Criminal liability; France; Offences; Penalties; White collar crime


Developments in business law have shown a general trend towards autonomy or indeed particularism.French commercial law is not homogeneous in substance, although several laws have been combined and the codification has been unified.1France’s Commercial Code comprises a number of different branches that each claims their own particularism.This codification is an administrative resource. It provides a formal presentation of a discipline, without interfering with its content. In some instances the codification improves the accessibility of information, but the major divisions of commercial law remain, and this does not contribute to overall coherence.The criminal sanctions applicable in business law fall into the scope of a specific criminal law. The groupings have been so artificial that is it sometimes very difficult for these disciplines to display their particularism. For example, different criminal laws have developed in such diverse areas as criminal labour law, criminal consumer law, criminal planning and environment law, criminal tax law which completes criminal company law, and criminal business law which is a counterpart to (and sometimes difficult to distinguish from) criminal economic law.These different branches show up boundaries that are often vague, and relative specificities.3 They are best justified on the level of criminal sociology, since they concern clearly identified actors in the various activities involving exposure to certain risks. General or special classifications have had to be found for those risks.These disciplines have the merit of imposing a constructed coherence on the study of criminal offence classifications relating to the major sectors of economic and corporate activity, in order to secure and moralise those activities.Criminal business law occupies a prominent position owing to the company law logic, to which it claims to be a response, but also owing to the difficulty of clearly determining its legal purpose. Its scope varies depending on the author, and the sociological than a legal reality. It is easier to understand that the aim of criminal sanctions is to bring morality into the world of business when they have a repressive dimension or are imposed by the court to ensure compliance. In this perspective they act as a sword of Damocles, and are more effective than court orders or injunctions, which remain civil law sanctions that have few consequences for the individual, and more importantly can be covered by insurance.Criminal law as applied to business is simply a reflection of the complexity of social relations and the difficulty, not to say impossibility, of finding a dividing line between the human, social and economic activities. The economic activity criterion is doubtless the most relevant. Criminal business law acts as a combined law.After an analysis of the appropriateness or otherwise of the decriminalisation of business law, we study its most typical criminal sanctions.

At Long Last, Italy Moves to Comply With European Human Rights Imperative to Recognize Same-Sex Partners

M. M. WINKLER

Lesbian/Gay Law Notes

juin 2016, vol. 6/2016, pp.226-228

Départements : Droit et fiscalité, GREGHEC (CNRS)


Balancing free movement and public health the case of Minimum Unit Pricing of alcohol in Scotch Whisky

A. ALEMANNO

Common Market Law Review

aout 2016, vol. 53, n°4, pp.1037–1063

Départements : Droit et fiscalité, GREGHEC (CNRS)

Mots clés : EU law, Proportionality, Tax, Minimum unit pricing, Alcohol, Lifestyle, NCD, Precautionary principle, Risk regulation, Judicial review

http://ssrn.com/abstract=2803165


Scotland is the first jurisdiction in the world to introduce a minimum price per unit of alcohol to reduce consumption. The relevant industry did not hesitate to challenge this new alcohol control policy before courts. The ensuing judgment contains a wealth of insights stemming from regulatory autonomy to proportionality review

Commercio Elettronico, Clausole Abusive e Lois De Police: Il Caso Expedia (Tribunal De Commerce De Paris, 7 Mai 2015)

M. M. WINKLER

Diritto del Commercio Internazionale

2016, vol. Anno XXX, n°Fasc. 2, pp.559-586

Départements : Droit et fiscalité, GREGHEC (CNRS)


Il piombo e l’oro: riflessioni sul caso Oliari c. Italia

M. M. WINKLER

GenIUS - Rivista di studi giuridici sull'orientamento sessuale e l'identità di genere

décembre 2016, vol. 3, n°1, pp.46-61

Départements : Droit et fiscalité, GREGHEC (CNRS)

Mots clés : Italy; Constitutional Law; Human Rights; LGBT Rights

http://www.articolo29.it/wp-content/uploads/2017/03/genius-2016-02.pdf


Il presente articolo propone un’analisi della sentenza resa in data 21 luglio 2015 dalla Corte europea dei diritti umani nel caso Oliari c. Italia. Qui la Corte, dichiarando che l’assenza di una legge sulle unioni omosessuali viola l’art. 8 della Convenzione europea dei diritti umani, ha di fatto accelerato il dibattito interno sulla legge sulle unioni civili promulgata, dieci mesi più tardi, il 20 maggio 2016. Nella prima parte, l’articolo esamina la sentenza Oliari, che rappresenta la conclusione di un percorso di formazione, attraverso il diritto sovranazionale, di uno statuto giuridico delle unioni omosessuali secondo il diritto italiano. La seconda parte, invece, esplorerà il “detto” e il “non detto” della sentenza Oliari, in particolare nella sua dimensione comparata e egualitaria. Infine, la terza parte metterà a confronto le statuizioni della Corte di Strasburgo con le disposizioni della legge n. 76/2016 sulle unioni civili per verificare se effettivamente il legislatore italiano abbia adempiuto ai propri obblighi internazionali.


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