J.H. Gerards

The prism of fundamental rights

European Court of Human Rights – Suggestions for reducing case backlog and national criticism of the Court – Alternative to incremental case law and reasoning by analogy – Greater deference to national courts where individual interests, rather than fundamental rights are at stake – Guidelines to find objective criteria for the definition of fundamental rights – Sharper delineation of Convention rights – Procedural review preceding substantive review

Intensity of Judicial Review in Equal Treatment Cases

Courts are frequently confronted with complaints about unequal treatment of various sorts, varying from legislative acts limiting the rights of inheritance of illegitimate children, to unequal taxation criteria for property taxes. The need to assess different cases of unequal treatment against the equality principle places before the courts a difficult task. The equality principle demands that the courts examine the reasonableness and justifiability of each specific case of unequal treatment, however different the subject. In doing so, the courts need to respect both the discretion or freedom of the party that is responsible for the difference in treatment, and the interests of the person or group that is disadvantaged by it. In order to enable the courts to take account of all interests at stake in any relevant equal treatment case, some variation in the intensity of review is indispensable. In some cases, it is appropriate to exercise restraint in assessing the justification for an inequality in treatment, while other cases call for the strictest scrutiny. In this contribution, the various factors that are relevant to the determination of the appropriate level of review are identified on the basis of a comparative study of the case law of the European Court of Justice, the European Court of Human Rights and the US Supreme Court. In addition, a standard is offered to balance intensity-determining factors pointing in different directions.

Regulation of genetic and other health information in a comparative perspective.

In the present article, the authors provide a general overview of the academic and legal debate on the regulation of access to and use of genetic information by non-medical actors. Their aim is to give some insight in the academic views on the need to introduce specific genetics legislation and on the balance that might be struck between the various interests concerned. Furthermore, by analyzing relevant legislation and policy measures in the US and in Europe, they identify the issues that are deemed relevant in considering and, eventually, introducing regulative measures with respect to genetic information.

Procedural Review in European Fundamental Rights Cases

Library of Congress Cataloging-in-Publication Data Names: Gerards, J. H. (Janneke H.), author. | Brems, Eva, author. Title: Procedural review in European fundamental rights cases / Janneke Gerards and Eva Brems. Description: Cambridge [UK] ; New York : Cambridge University Press, [2017] | Includes index. Identifiers: LCCN 2016046814 | ISBN 9781107183773 Subjects: LCSH: Human rights – Europe. | Civil rights – Europe. | European Court of Human Rights. | Proportionality in law. | Subsidiarity. | Complementarity (International law) Classification: LCC KJC5132 .G47 2017 | DDC 341.4/8094–dc23 LC record available at https://lccn.loc.gov/2016046814

Advisory, opinions, preliminary rulings and the new protocol No. 16 to the European Convention of Human Rights:: A comparative and critical appraisal

Through the introduction of an advisory opinions procedure, Protocol No. 16 to the European Convention of Human Rights (the Convention) aims to strengthen the interaction between national courts and the European Court of Human Rights (hereafter the Court), as well as to alleviate the Courts caseload. National courts can present questions to the Court on important aspects of the interpretation of the Convention, on which the Court will give a non-binding opinion. This article critically examines the potential of the procedure established by Protocol No. 16 in the light of its objectives. To this end, a comparison with the preliminary reference procedure in EU law is made to assess the procedures prospective effects and its impact. It is concluded that it is not to be expected that the advisory opinions procedure will bring much added value, partly as a result of the different legal structure of the procedure of Protocol No. 16 when compared to the preliminary reference procedure in EU law, and partly because of the particular context in which the procedure is introduced.

Knowledge in Ferment

Dilemmas, fundamental controversies, basic oppositions between methods and approaches, occur in all fields of science and scholarship. Often dilemmas arise at the interface where science and society meet, or whenever several sciences or disciplines clash.The paradox of dilemmas is that although one might prefer to do without them, they are nevertheless indispensable.Without dilemmas progress in science and scholarship would be unthinkable. New paradigms come into existence and compete with the old for acceptance.Thus, by inciting researchers to make new efforts and pose new questions, dilemmas reveal new insights and sustain the ferment of knowledge.

Implementation of the Article 13 Directives in Dutch Equal Treatment Legislation

In the Netherlands, an elaborate legal system of legislative protection against discrimination has been in place since 1994. Partly with the aim of implementing the Article 13 Directives, two new statutes were added to the system in 2003 (disability discrimination) and 2004 (age discrimination) and a number of amendments have been made to the existing legal framework. This has resulted in a highly complex system of legislation. The complicated differences between the scope and exceptions of the various legislative acts will be difficult for most people to comprehend. As far as content is concerned, however, the Dutch legislation generally seems to comply with the requirements of the Directives and often even provides a higher level of protection. Most issues of debate in the Dutch implementation process concern relatively minor points, such as terminology (discrimination or “distinction”?). It is clear, however, that some elements of the Dutch legislation can be considered to be incompatible with the Directives, in particular the complete exclusion of religious institutions and the clergy from the scope of application of the ETA and the decision to define the elements of harassment cumulatively instead of alternatively.

Process and Substance in Judicial Review in the United Kingdom and at Strasbourg: Proportionality, Subsidiarity, Complementarity?

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Access to Justice in the European Convention on Human Rights System

The numerous reforms to the Convention system of the past two decades have unquestionably had an effect on applicants’ means to access justice in the system. It is, however, open to question how these changes should be evaluated: with reference to the individual right to petition, or with reference to a more substantive and general conception of access to justice. This article explores these two approaches to the notion of access to justice both generally and for the Convention system specifically. The main argument of the article is to show the value of taking a substantive approach to access to justice in the Convention system. Thus, it challenges the centrality of the individual right to petition in discussions on reform of the system. Further, to show how taking a different perspective on access to justice may lead to different analyses, an evaluation in the light of both approaches is made of five sets of central changes to the Court’s procedure and its working method. This includes the revised Rule 47, single-judge formations and the priority policy.

The Paradox of the European Convention on Human Rights and the European Court of Human Rights’ Transformative Power

Human rights problems exist all over Europe. Although the European Court of Human Rights is competent to deal with individual complaints about such problems, the Court is much criticised. Moreover, there may be little political will or capacity to tackle the structural problems which have caused such complaints to be made. At the same time, the judgments of the Court can be shown to have great impact on national case-law, legislation and policy. Paradoxically, thus, the Court’s case-law has an important transformative power, as is further explained in this article.