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- Lehrstuhl für Öffentliches Recht, insbesondere Europarecht und Völkerrecht (Univ.-Prof. Dr. Wolfgang Weiß) (9)
- Lehrstuhl für Öffentliches Recht, insbesondere deutsches und europäisches Verwaltungsrecht (Univ.-Prof. Dr. Ulrich Stelkens) (8)
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- Lehrstuhl für Volkswirtschaftslehre, insbesondere Wirtschafts- und Verkehrspolitik (Univ.-Prof. Dr. Dr. h.c. Andreas Knorr) (2)
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Whether a person who worked as an ‘expert on mission’ for the United Nations outside his home state was acting as an ‘official’ for the United Nations within the meaning of the Convention on the Privileges and Immunities of the United Nations and was, therefore, exempt from taxation by his home state.
The German Federal State
(2020)
From a democratic perspective, the replacement of government or parliament by a public manager to enforce budget discipline marks a serious intervention. Transferred to the local level, the replacement of the mayor and the council in three German municipalities by a state official (a so-called state commissioner) in recent years has raised questions about the legi-timacy and adequacy of such a strong interventionist instrument. One crucial answer to be given to this legitimacy issue concerns effectiveness, in other words whether the instrument can fulfill its designated task by improving the local fiscal situation since the fiscal success of the commissioner is a basic prerequisite for legitimacy. By using a time-series approach of the synthetic control method (SCM) and constructing a synthetic comparison case to the town of Altena, an answer regarding the commissioner’s potential to reduce the short-term debt can be given. The commissioner was successful in limiting the debt increase and seems to have reversed the debt trend. This finding supports the effectiveness of rather hierarchical instruments for ensuring fiscal discipline at the local level and thereby adds to broadening the international public management literature on municipal takeovers.
The regulation of blockchain is not easy. Many lawyers are curious about the technology but do not understand it. Then the technology offers many advantages - but what are its dis-advantages? Which issues need to be regulated legally and which do not? Can the state even do that? Who is better suited for this? How must lawyers change their thinking and work to get a grip on such new technologies?
After the invocation of security exceptions became more common, the first panel report ever on how to apply them has recently been issued in the Russia – Measures Concerning Traffic in Transit case. While this panel addressed the application of the security exception in a situation of threat to international peace and security, the question must be raised whether its approach also applies to the invocation of security exceptions for economic reasons. In this context, the present chapter focuses on the methodical preliminaries to applying security exceptions: Its application in WTO dispute settlement does not only prompt the question of the jurisdiction of WTO panels and the Appellate Body, but also pertains to the issues of standard of proof and standard of review. A related methodical issue concerns the feasibility of the expansive interpretive approach applied to the general exceptions to the security exception. Reading it in the same tune runs the risk of nullifying the concept of multilateral trade regulation altogether, even more so as the security exceptions miss the usual safeguard against abuse, i.e. the requirements of the general exceptions´ chapeau. The lack of such safety valve confirms that security exceptions are of a different character compared to other exceptions. This difference, however, may be difficult to maintain if security exceptions are also used to defend economic security interests. Finally, the application of security exceptions may - as debated with regard to other WTO exceptions - be subject to an inherent limitation against exterritorial application, which would restrain its scope of application in cases in which security measures against a third country intend to affect also the trade of WTO members, and could become relevant in assessing US sanctions against Iran.
This chapter identifies the most pressing challenges for the EU multilaterally oriented trade policy due to the changing global context for international trade and investment, caused by the shift of the US towards unilateralism and protectionism and by the re-orientation of China´s exceptionalism towards becoming a more influential actor. It explores and assesses how EU trade policy copes with the new polarities and finally formulates proposals for the way forward for the EU multilateral trade policy. It will be shown that the current challenges are more fundamental in character and may last longer than currently anticipated. It will also highlight that maintaining unity in the EU determination of trade policy is of pivotal importance for addressing the challenges, which however might become more difficult.
The introduction will describe the constant evolving global political context correlated to the events occurring, specifically, in the trade environment and the unprecedented challenges they pose for the EU Trade Policy. These identified and introduced challenges will be addressed in detail in the following book chapters. It will also introduce the reader to the individual contributions of the book and briefly present and anticipate the results attained.
Mixed agreements have been a preferred form of entering into international treaties chosen by the EU and its Member States, despite the complexities their usage implies. Recent attempts of the EU institutions to prefer the conclusion of EU only agreements to mixed agreements, as a consequence of the broad interpretation of EU exclusive trade competences by the CJEU in Opinion 2/15 are motivated by the hope for increased efficiency in EU treaty making. They, however, provoke criticism with regard to democratic legitimacy and the EU principle of conferral, which constrain the EU to adopt only those legal acts for which it is competent. As this criticism is particularly strong in Germany and led to constitutional challenges of EU only acts, the present contribution will explain the treatment of mixed agreements in the constitutional order of Germany and explore the constitutional challenges that EU only agreements pose to the German constitutional order. This discussion will thus show the German legal order’s continued preference for mixed agreements, in view of the jurisprudence of the German Federal Constitutional Court (FCC). Those constitutional challenges are particularly topical in view of the most recent case law of the CJEU that stressed the political leeway of the EU Council to choose, when it comes to the negotiation and conclusion of EU agreements based on shard competences, between either an EU only agreement or a mixed agreement. This political leeway turns mixity into a facultative endeavour in the hands of the Council. Under the constitutional perceptions of the FCC, such type of facultative mixity meets with considerable constitutional concerns because it replaces what was formerly held obligatory mixity.
As WTO members increasingly invoke security exceptions and the first panel report insofar was issued in Russia-Traffic in Transit, the methodical and procedural preliminaries of their adjudication must be reassessed. The preliminaries pertain to justiciability and to the proper interpretive approach for their vague terms that seemingly imply considerable discretion to WTO members, all the more as general exceptions are subject to expansive interpretation. Reading security exceptions expansively appears not viable as they miss the usual safeguard against abuse (i.e. the chapeau of Arts XX GATT/XIV GATS). This lack of safeguards rather suggests caution in conceptualising them expansively, as do the systemic consequences of recent attempts to re-politicise security exceptions which run the risk of nullifying the concept of multilateral trade regulation altogether. Furthermore, the appropriate standards of review and proof must be explored which have to strike a balance between control and deference in national security.
Considering the new focus of the European Union (EU) trade policy on strengthening the enforcement of trade rules, the article presents the proposed amendments to the EU Trade Enforcement Regulation 654/2014. It analyzes the EU Commission proposal and the amendments suggested by the European Parliament Committee on International Trade (INTA), in particular with regard to uncooperative third parties and the provision of immediate countermeasures. The amendments will be assessed in view of their legality under World Trade Organization (WTO), Free Trade Agreement (FTA), and general international law and in view of their political implications for the EU’s multilateralist stance. Finally, the opportunity to amend Regulation 654/2014 to use it for the enforcement of FTA trade and sustainable development chapters will be explored. The analysis shows that the shift towards more effective enforcement should be pursued with due care for respecting existing international legal commitments and with more caution to multilateralism.
Artificial Intelligence (“AI”) is already being employed to make critical legal decisions in many countries all over the world. The use of AI in decision-making is a widely debated issue due to allegations of bias, opacity, and lack of accountability. For many, algorithmic decision-making seems obscure, inscrutable, or virtually dystopic. Like in Kafka’s The Trial, the decision-makers are anonymous and cannot be challenged in a discursive manner. This article addresses the question of how AI technology can be used for legal decisionmaking and decision-support without appearing Kafkaesque.
First, two types of machine learning algorithms are outlined: both Decision Trees and Artificial Neural Networks are commonly used in decision-making software. The real-world use of those technologies is shown on a few examples. Three types of use-cases are identified, depending on how directly humans are influenced by the decision. To establish criteria for evaluating the use of AI in decision-making, machine ethics, the theory of procedural justice, the rule of law, and the principles of due process are consulted. Subsequently, transparency, fairness, accountability, the right to be heard and the right to notice, as well as dignity and respect are discussed. Furthermore, possible safeguards and potential solutions to tackle existing problems are presented. In conclusion, AI rendering decisions on humans does not have to be Kafkaesque. Many solutions and approaches offer possibilities to not only ameliorate the downsides of current AI technologies, but to enrich and enhance the legal system.
The article discusses how COVID-19 could reinforce corruption, cronyism and mistrust in the politico-administrative system of the Middle East and North Africa (MENA)
Each crisis is dreadful in its own special way, and so is the COVID-19 pandemic. Beyond its lethal nature and truly global spread, one of its characteristics lies within the detachment of cause and effect. The cause, i.e. SARS-CoV-2, can clearly be attributed to health issues, though the COVID-19 pandemic challenges entire public administration (PA) systems well beyond the health sector. Both the lockdown as executed and the first careful exit-steps in their entire complexity increase scope and scale of PA’s tasks and responsibilities, challenging not only health authorities, but all parts of the administrative system, from security administration to public service delivery, with the entire world remaining in very turbulent water. Thus, the question arises how the PA should react to ensure high performance in times of crisis. Our findings underpin the relevance of trust in public administration (or “the government” in general), notably in times of crisis: the higher trust levels are, the more likely compliance of citizens and successful networking with non-state actors is. Even in the absence of many trust generating factors, trust levels are increasing in the current COVID-19 pandemic.
The Covid-19 pandemic constitutes a veritable capacity test for local administrations in Germany and Austria. Based on a survey among systematically sampled Austrian (n=130) and German (n=517) employees of local public administrations, the article taps into the perceptions of how the bureaucracies in the two federal states coped with the challenges emerging at the early stage of the crisis. As it turns out, in the administratively well-equipped and—in comparison to disastrous situations elsewhere—mildly hit countries, local administrations did fine—even growing beyond themselves. Key to a higher probability of coping well with Covid-19 appears to be an intelligent administrative networking strategy. Five tentative lessons are drawn on what—at this early stage—can only constitute an incomplete picture taken from a fluid context.
This article conceptualizes the vulnerability of the different stages of Public-Private Partner-ship (PPP) models for corruption against the backdrop of contract theory, principal-agent theory and transaction cost economics, and discusses potential control mechanisms.
The article’s contribution to the debate on PPPs is twofold: first, an issue widely neglected by the pertinent literature is conceptualized. Second, as these PPPs are used not only in de-veloped countries whose legal order may shield them sufficiently, but also in developing countries, carving out the vulnerable points in PPP arrangements may enable decision mak-ers to install appropriate control mechanisms, if need be on project level.
The number of public–private partnerships (PPP) is on the rise. The authors analyse empirical evidence (including outcomes from interviews and a survey of civil servants in Germany), about the importance of transaction costs and trust in PPP implementation and perfor-mance. The paper makes an important contribution to the literature by reflecting on trust relations in PPPs, as well as providing empirical evidence for higher transaction costs in PPPs, compared to entirely public sector provision.
The Covid-19 pandemic affects societies worldwide, challenging not only health sectors but also public administration systems in general. Understanding why public administrations perform well in the current situation—and in times of crisis more generally—is theoretically of great importance; and identifying concrete factors driving successful administrative performance under today‘s extraordinary circumstances could still improve current crisis responses.
This article studies patterns of sound administrative performance with a focus on networks and knowledge management within and between crises. Subsequently, it draws on empirical evidence from two recent public administration surveys conducted in Germany in order to test derived hypotheses. The results of tests for group differences and regression analyses demonstrate that administrations that were structurally prepared, learned during preceding crises, and that displayed a high quality in their network cooperation with other administrations and with the civil society, on average, performed significantly better in the respective crises.
This book is about the existence and effectiveness of written and unwritten standards of good administration developed within the framework of the Council of Europe (CoE). It analyses the (possible) impact of these standards on and their added value for the domestic administrative law of the CoE’s forty-seven Member States (representing more than 800 million people). This book argues that these standards, called here the ‘pan-European general principles of good administration’
This contribution examines how checks and balances can be organised so that individual freedoms of users in the digital space are protected from encroachment by platforms. Indeed, platforms are quasi-states which enjoy legislative, judiciary and executive powers. This merging of functions in the hands of one single entity illustrates the failure of the liberal attempt at setting up a cyberspace free of sovereign power: platforms are the new sovereign. Modern thinkers like Foucault and Habermas have examined how sovereigns in the past have seen their powers curtailed and the role that the birth of two distinct spheres, one public and one private, has played in this process. Traditional public economic law builds on this public-private dichotomy, leaving little room to conceptualize hybrids. Yet this paper shows that platforms are such hybrids. Building on an analysis of the activities taking places on platforms, as well as the rights at stake in platform governance, it finds that platforms’ immaterial locus is both political and economic, bundling public and private powers. Hence, this paper puts forward the idea that public economic law should seek to develop mirroring hybrid counter-powers: civil society especially should be conceptualized in the digital space, with its rights, duties and responsibilities, to foster balanced relationships between the various actors on platforms.
This paper asks which legal tools digital operators could use to manage colliding rights on their platforms in a digitalised and transnational space such as the Internet. This space can be understood as a “modern public square”, bringing together actions in the digitalised world and their interactions with actual events in the physical world. It is then useful to provide this space with a discursive framework allowing for discussing and contesting actions happening on it. In particular, this paper suggests that two well-known legal concepts, proportionality and sanctions, can be helpfully articulated within that discursive framework. In a first step, proportionality, a justificatory tool, is often used to suggest a way for managing colliding rights. This paper argues that for proportionality to be useful in managing colliding rights on digital platforms, its role, scope and limits need to be better framed and supplemented by an overall digital environment which can feed into the proportionality test in an appropriate way. This can be provided, thanks to a second step, namely labelling in law the actions digital operators take as sanctions. Sanctions are the reactions organised by digital operators to bring back social order on the platforms. The labelling of these reactions under the legal category of “sanctions” offers a meaningful tool for thinking about what digital operators do when they manage colliding rights by blocking or withdrawing contents and/or accounts. As different types of sanctions can be distinguished, differentiated legal consequences, especially in relation to managing colliding rights, can be identified. Here the role played by the proportionality test can be distinguished depending on the type of sanctions.
In any case, for sanctions and proportionality to help address colliding rights on the modern public square, a discursive framework needs to be developed, which depends on the existence of relevant meaningful communities engaging in reflecting on the use of sanctions and proportionality.
From a comparative perspective the Covid-19 pandemic provides a unique grand-scale life experience: nearly all countries have been confronted with a similar issue, that of quickly fighting the pandemic, balancing individual health with the sustainability of the national health system, and juggling economic imperatives with the duty to care for the most vulnerable individuals in society. Access and use of data are key to this difficult balancing exercise. One question arises: is the Covid-19 pandemic conducive to developing shared legal strategies or does it reinforce cultural legal features when it comes to data protection?
Blogdroiteuropeen asked experts in data protection to reflect on key developments in their national systems. No definitive answer is possible as Covid-19 is not over yet. However, this preliminary information leads to the identification of six trends underlying the Covid-19 crisis and its impact on data protection. First, all countries were not equal before the pandemic due to differences in their factual and legal backgrounds. Secondly, constitutional techniques proved resilient to a large extent in general and in particular when it comes to data protection. Thirdly, the effectiveness of data protection legislation is connected to its embeddedness in the wider legal context. Fourthly, tracking the spread of Covid-19 through tracing apps may turn out to be a unicorn defeated by data protection even though different technologies have been attempted. Fifthly, aggregation of data or collective harvesting of data in some form has been implemented to very different extents, provided some data protection requirements are met. This leads to the final trend: the ever more articulated pressure on the European Union to decide how far it wants to reclaim its digital sovereignty, and what this would entail concretely. As legal systems may have to cope with the long-term consequences of Covid-19 all over the world it may be useful to take stock of these emerging trends before designing any grand scheme for post-Covid-19 society.
The Council of Europe (CoE) has a long-standing record of promoting standards of good administration in the European legal space. Today, these standards encapsulate the entire range of general organisational, procedural and substantive legal institutions meant to ensure a democratically legitimised, open and transparent administration respecting the rule of law. Therefore, these standards are about the ‘limiting function’ of administrative law, that is, its function to protect individuals from arbitrary power, to legitimise administrative action and to combat corruption and nepotism and other ‘diseases’ with which even a democratic polity willing to be governed by the rule of law may be infected. These CoE standards can be described as ‘pan-European principles of good administration.
Der Vortrag fand in zwei Teilen statt: Zunächst ging es um "Blockchain Technology in public administration? Regulatory, technological and organizational challenges of decentralized IT-systems" und dann um "Artificial Intelligence and the Law", jeweils mit anschließender Diskussion. Im Anschluss an den Vortrag kam es zu mehreren Gesprächen mit der Gruppe, die sich im Trendseminar mit Regulierungsfragen auseinandersetzte.
The article focuses on the legal aspects of intergenerational solidarity in the German statutory pension system. Organised on a pay-as-you-go basis, it relies on a balance of those obliged to pay contributions vs. those who receive benefits. The footing of this system, however, becomes fragile in times of rising life expectancy and declining birth rates: fewer employees will have to finance the pension rights of a growing number of pensioners. These developments do not only lead to lower acceptance of the “intergenerational contract” by the economically active who have to invest a large share of their income in the financing of current pensions while facing the risk of receiving low payments in the future. It also raises questions of intergenerational justice.
The market for voluntary carbon offsets, i.e. those outside the strictly regulated Kyoto framework for tradable carbon emission permits, is growing with a vengeance. With only six such organisations in the business in 2000, their number has virtually skyrocketed to more than 232 commercial as well as not-for-profit outfits today – the vast majority of which entered the trade only after 2005. This trend has not eluded the world of commercial aviation. By contrast, starting in the early millennium years, voluntary carbon-offsetting schemes were appeared to have become a serious concern for the top management of some of the world’s leading airlines. Carriers as diverse as Air Canada, British Airways, Ethiopian Airways, Qantas (incl. its subsidiaries QantasLink and Jetstar), Continental, Cathay Pacific, Japan Air Lines, Air France/KLM, the SAS Group, EasyJet and Virgin Blue, to name just a few, then began to actively encourage their passengers to pay for the ‘neutralising’ services of select carbon offset providers on top of the ticket price whenever they book a flight. Finally, also some large online travel agencies such as Expedia and Travelocity as well as leading car rental companies (AVIS) opted to invite their customers to purchase carbon offsets. However, as this chapter will demonstrate, both the economic efficiency and ecological effectives of voluntary carbon offsetting as a tool to address the challenge of climate change appear very limited.
Algorithms have a profound and growing influence on our lives, but partially remain a black box to us. Keeping the risks that arise from rule-based and learning systems in check is a challenging task for both: society and the legal system. The essay undertakes the challenge to examine existing and adaptable legal solutions and to complement them with further proposals. It designs a regulatory model in four steps along the time axis: preventive regulation instruments, accompanying risk management, ex post facto protection and the vision of an algorithmic responsibility code. Together, they form a legislative blueprint to further regulate applications of artificial intelligence.
It is an open question what impact public governance reforms have had in the MENA (Middle East and North Africa) region, which is challenged by domestic transformative societal developments as well as by transformational pressures from abroad. To assess their differential impact, the article first revisits the legacies that characterize the public administrative systems of the MENA region. Then, using data from the newly-developed Arab Administrative Elites Survey, it taps into the images and aspirations of public governance insiders as regards crucial public sector values. According to this data, the reforms aim to increase efficiency and to bring public administrations closer to the people. Arguably, reforms in MENA public governance converge, though from a relatively low level, with the direction of global standards of public management.