At this webpage we present some of the major, recent publications of the members of our research group. For a more detailed overview of our research output, we kindly refer you to our members personal pages.
De Somer S., 'Autonomous public bodies and the law : a European perspective', Cheltenham, Edward Elgar, 2017, 384.
This insightful book discusses the impact of EU law on the creation and empowerment of autonomous public bodies (APBs) at Member State level and analyzes recent attempts of European states to rationalize delegation to APBs. It examines the tensions between these trends: under what conditions can APBs be considered legitimate forms of government in the light of modern conceptions of constitutionalism, the rule of law and democracy - values that are deeply rooted in European constitutions? And to what extent do EU obligations on the independence of national regulators, data protection authorities and the like conflict with those conceptions?
Meeusen J., van Overbeeke F. and Verhaert L., 'The Link Between Access to Justice and European Conflict of Laws After Lisbon. Much Ado About Nothing?', RabelsZ, 2017, 858-883.
Since the Treaty of Lisbon, the access to justice principle has become ‘serious business’. Its insertion in the Treaty implies a certain gravity. The inclusion of conflict of laws within that realm provokes many questions. As has been explained in this paper, access to justice is not easy to define within the framework of the EU Treaty and is primarily understood in a procedural sense. It is therefore rather odd that European conflict of laws harmonization should be approached in its light, as a procedural concept of access to justice does not seem apt to impose a substantive, policy-inspired direction upon conflict of laws, apart then from promoting the benefits served by harmonization as such. Also, one could read in the strong emphasis by Articles 67(4) and 81(1) TFEU on mutual recognition of judicial and extrajudicial decisions in civil matters another confirmation of this procedural approach towards conflict of laws in the EU, which could eventually result in its completely auxiliary position.
From a conflict of laws perspective, yet paradoxically even more so from a broader EU perspective, such limited understanding of the purpose which choice-of-law rules can serve, would be unfortunate as some specific and valuable features of conflict of laws might remain unused. Appropriate choice-of-law rules may in their way contribute to the attainment of substantive policy goals. It should be noted however that not only this ability to incorporate policy objectives in choice-of-law rules pleads for a well-balanced approach between mutual recognition and European conflict of laws as developed by the EU legislature. Harmonized choice-of-law rules in important or delicate fields tend to create more legal certainty as well as inspire more political and judicial acceptance, one must assume, than a system solely based on mutual recognition. The Rome I, II and III Regulations and those on Maintenance and Succession illustrate the advantages of an elaborated, legislative system of conflict of laws very well.
The AFSJ, however broad and vague this concept still may be, can certainly serve as an appropriate framework for the elaboration of private international law within the EU with ample space for the establishment of such a well-balanced system. The prominent place of the AFSJ, enhanced by the Treaty of Lisbon and paralleled with the clear categorisation of conflict of laws in this area, can be very instrumental in both preventing an isolated approach to conflict of laws and providing a framework which would fit its proper characteristics. Possibly, the somewhat enigmatic link with access to justice, in a modern understanding which includes substantive policies, could even stimulate this process.
Meeusen J., 'Freedom of establishment, conflict of laws and the transfer of a company’s registered office: towards full cross-border corporate mobility in the internal market?', Journal of Private International Law, 2017, 294-323.
Cross-border corporate mobility in the internal market has developed in particular through the interpretation by the Court of Justice of the European Union of the Treaty provisions on freedom of establishment. Certain issues at the crossroads of conflict of laws and EU law are still the subject of debate. One of these is whether freedom of establishment includes a right to solely transfer a company’s registered office between Member States. As such transformation results in a change of the company’s lex societatis, it is intrinsically linked to the debate on regulatory competition in the EU internal market, freedom of choice and the proper balancing of the public and private interests involved. The author defends a nuanced position, referring to the true meaning of “establishment” in the internal market, the policy of “safe” regulatory competition and the equivalence of the Member States’ conflict of laws rules.
(This publication links to the line of research Multilevel Good Governance.)
Opdebeek I., De Somer S., 'Algemeen bestuursrecht. Grondslagen en beginselen', Antwerpen, Intersentia, 2017, 732.
Belgian administrative law has become a labyrinth in which even experienced lawyers sometimes lose their way. Due to the lack of a general legislative framework, it is characterized by a multitude of normative texts, emanating from various parliaments and administrations. On top of that, considerable institutional variety exists, not only on the level of the executive (that can take various forms), but also on the level of the administrative courts (specialized courts are widespread nowadays and Flanders is slowly but surely developing its own system of administrative justice). Academics as well as legal practitioners in administrative law are increasingly becoming specialists in specific subdomains, in which detailed, technical rules exist that change at a quick pace. This complexity is enhanced by today’s reality of multilevel law-making and decision-making. Various domains of administrative law are today (to a greater or a lesser extent) influenced by European Union law. At the same time, the sub state entities, being the regions and the communities, have important competences in the area of administrative law. Whereas the Europeanization of administrative law holds the promise of harmonization for some matters, the federal state structure entails fragmentation for others.
This book goes back to the foundations and guiding principles of Belgian administrative law. Its delineation is best understood via the metaphor of a tree. The book starts from the general values that feed our system of administrative law, being the constitutional principles and the principles of good governance. These form ‘the roots’ of administrative law. The book then discusses and analyses the general concepts, doctrines, principles and normative texts that constitute the basis of all administrative law. They are all located in ‘the trunk’ that keeps the tree’s ‘branches’ together. The book does not as such discuss any of these specific, substantive branches of administrative law, such as urban planning law, environmental law, educational law, asylum law etc. It does, however, use examples from sector-specific legislation to illustrate the interplay between general administrative law and the rules that govern these more specific domains. Thus, we hope to convince fellow academics, practicing lawyers and the administration not to lose sight of the theories of general administrative law. The competent legislatures may perhaps also find inspiration in this book for the development of a general legislative framework of administrative law, following the examples of e.g. the Netherlands, France and Germany.
Popelier P., Van de Heyning C., ‘Procedural rationality : giving teeth to the proportionality analysis’, European constitutional law review, 2013, 230-262.
This contribution advocates the use of procedural rationality review by courts, which imposes a rationalized decision making process by rule-makers – both executives and Parliaments. It is published in a Web of Science journal which is identified as a top publication for the evaluation of TTBOF-researchers. It gives evidence of the collaboration of authors within the research group and the group’s strategy to encourage co-autorship, as it is co-authored by both a junior and a senior member.
(This publication links to the line of research Governance and Public Decision Making.)
Vanheule D., Frank W., 'Asylum legislation and asylum applications: a geographical analysis of Belgian asylum policy by country of origin (1992-2003)', International Migration, 2009, 48:1, 129-147.
This article is published in a Web of Science journal. It studies, in an interdisciplionary way, the potential impact of changes in legislation on flows of asylum seekers. It gives evidence of the group’s strategy to encourage co-authored publications and collaborate with experts in non-legal disciplines.
(This publication links to the line of research Governance and Diverse Societies.)
Velaers J., Vanpraet J., Peeters Y., and Vandenbruwaene W. (eds), 'De zesde staatshervorming: instellingen, bevoegdheden en middelen', Antwerp, Intersentia, 2014, 1034.
This book was the first to broadly discuss the sixth state reform that took place in 2014, and gives evidence of the group's leading position regarding state reform and federalism in Belgium. It demonstrates the group's coherence and its strategy to collaborate, bringing together junior and senior researchers. The book contains articles written by ten members of the research group, as well as articles written by members of other research groups and by practitioners. The book gives evidence of the group’s intra-disciplinary approach, bringing together contributions by constitutionalists, fiscal experts, social security experts, financial experts, etc. It also demonstrates the group's multidisciplinary approach: while most contributions take a legal approach, the volume also contains non-legal contributions.
(This publication links to the line of research Rule of Law and Constitutionalism.)