Margin Of Discretion Research Articles

Violaciones al debido proceso en el procedimiento administrativo por contribuciones omitidas. Un análisis a luz de los derechos humanos

Dentro del presente trabajo se realiza el análisis del procedimiento administrativo por contribuciones omitidas que prevé el artículo 152 de la Ley Aduanera, para demostrar que este procedimiento vulnera el derecho humano al debido proceso, previsto tanto en la Constitución Mexicana como en el derecho internacional de los derechos humanos. Esta violación se presenta cuando se soslaya el principio de legalidad, otorgando con esto un margen de discrecionalidad a favor de la autoridad aduanal en contra de la figura del contribuyente. Con lo anterior, se observa una falta de armonización para la protección de los derechos humanos ya que, a pesar de que la reforma constitucional de 2011 en materia de derechos humanos trae aparejada un cambio en la forma de interpretar la Constitución y los tratados internacionales de los que el Estado Mexicano sea parte, es evidente que la legislación secundaria aduanal obstaculiza el cumplimiento de este fin.

Detentie van asielzoekers: een kwestie van gevoel?

This article analyses how street-level bureaucrats in the Netherlands decide on detaining asylum seekers. The article is based on interviews with officers of the national police and the military police who take these decisions as part of their job. The relevant Dutch and European legal rules are not clear and unambiguous and the officers are given wide margins of discretion in making these decisions. Many interviewees said that they ultimately rely on their ‘feelings’. The paper therefore pays special attention to whether and how gut feelings and emotions of the officers influence their decision-making. In addition, the paper examines whether and how the increased use of ICTs and the Europeanisation of migration and asylum law have reduced the officers’ discretion and autonomy.

Copula directional dependence of discrete time series marginals

To understand the dynamic relationship of discrete time series processes, we adopted copula directional dependence via beta regression model applied with generalized autoregressive conditional heteroscedasticity (INGARCH) marginals. To validate the proposed method, we completed simulations of two INGARCH processes from asymmetric bivariate copula function with members such as Gaussian and Plackett copula functions. The simulations show that the proposed method is consistent for deriving directional dependent measurements regardless of the choice of the symmetric members. The proposed method is applied to the bivariate discrete time series data of the monthly counts of sandstorms and dust haze phenomena in Saudi Arabia.

The decision to drop the case in the new EPPO’s regulation: Res Iudicata or transfer of competence?

This article discusses one of the most important decisions the European Public Prosecutor’s Office (EPPO) can take: the decision to drop a case. When this happens, the case will either be referred to national prosecutors or to the European Anti-Fraud Office (OLAF) or dismissed entirely. Why is this an important decision? Because it means the EPPO declines to prosecute, prosecution being (along with investigation) its very raison d’être. This is why it is important to understand how and when the EPPO may drop a case. In this respect, the EPPO Regulation (adopted on 12 October 2017) pursues two goals: first, it seeks to leave the EPPO a certain margin of discretion when deciding whether to drop a case; secondly, however, it seeks to limit that discretion in order to reduce the risk of decisions that are arbitrary or based on irrelevant considerations. This article argues that this strikes an acceptable balance between two different legal traditions: the ones inspired by the strict legality principle, such as Italy and Germany, and those inspired by the principle of opportunity, such as France or England and Wales. The article further explores how this balance is consistent with the emerging principles of international criminal law, where international tribunals try the most serious crimes only.

Transgender adolescents and genital-alignment surgery: Is age restriction justified?

In the case of controversial interventions there is a need for clinical guidelines to be founded on ‘expert opinion’ and an evidence base, in order to minimise individual clinicians making subjective decisions influenced by bias or cultural norms. This paper considers international clinical guidelines that through recommendation effectively prohibit the provision of genital-alignment surgery for competent adolescents with gender dysphoria. I argue that although the rationale for this particular guideline is based on serious concerns, these need to be better understood to allow reconsideration of this unilateral prohibitive recommendation. I do not propose that genital-alignment surgery should be prima-facia provided for any adolescent with gender dysphoria. Instead I argue that by developing our understanding of the current concerns, we can allow guidelines to incorporate a margin of clinical discretion, to allow clinicians to provide genital-alignment surgery to some adolescents, where clinically appropriate. In facilitating this we can move towards establishing a solid evidence-base. The basis of this position is that clinical guidelines and medical practice should treat these young people with the same standards of evidence-based care as others who have less controversial conditions. Whilst this paper uses English law and UK professional regulation for context, many of the ethical, legal and professional issues highlighted are applicable to other jurisdictions.

El Estado regulador. Implicancias para el control judicial de la discrecionalidad administrativa

El presente trabajo tiene como objetivo replantear los criterios sobre los que se asienta actualmente el control judicial de la discrecionalidad administrativa. Hoy, las sentencias judiciales limitan al máximo el margen de apreciación o libre elección hacia las autoridades administrativas en situaciones imprevistas. Por ello, en el presente artículo nos proponemos mostrar la necesidad, dado el modelo de Estado de Bienestar actualmente vigente, de un nuevo paradigma en el control judicial de la administración pública que, a un mismo tiempo, recoja, oriente y regule las reglas de la economía en procura de la satisfacción más plena del bien común. Para ello el derecho administrativo, junto con el poder judicial, se constituyen como dos herramientas jurídicas esenciales que, más que confrontación o tensión, como hemos visto hasta hoy, requieren coordinación de una parte y autorrestricción por la otra.

Constitutional Review and the Economic Crisis: In the Courts We Trust?

A reflection on the constitutional effects of the economic crisis is now both possible and useful. The paper assesses the judicial reaction to the national and EU measures introduced for containing the economic crisis. The focal point of analysis is the intensity of review and the judicial justifications given during that period. The working hypothesis is that the jurisprudence is characterized by the utilization of the ‘crisis vocabulary’, by the application of a low intensity review yardstick, by the application of a narrower in scope version of the principle of proportionality and by the wide margin of discretion recognized for the decision-maker. The analysis concludes that the jurisprudence was not uniform; significant differentiations exist both in approach and in the impact of the relevant case law on the respective legal order. The courts are divided between those of Member States and supranational courts (CJEU and ECtHR). The CJEU approached the matter in jurisdictional terms and formalistically, thus placing the burden on the national constitutions. The Strasbourg court applied the margin of appreciation doctrine, thus limiting review to cases where the impact of the legislative measures resulted in danger to survival. On the other hand, the national courts are classified as either ‘lenders’ (Germany) or ‘borrowers’ (Greece, Portugal and Cyprus). Constitutional review in fuller effect can be found in the German example, while in the case of ‘borrowers’ the national courts faced a moral and existential dilemma. The result was that crisis laws were approached as requiring light review, thus transforming national legal orders and unsettling the equilibrium of constitutional coexistence. National constitutional orders were transformed and the courts were placed in the impossible position of adjusting constitutional review to the economic needs. During the crisis, pragmatism became the new norm.

The ECB’s accountability within the SSM framework: Mind the (transparency) gap

With the establishment of the Banking Union, the European Central Bank has become the main banking supervisor within the framework of the Single Supervisory Mechanism. Unlike monetary policy tasks, which the European Central Bank performs in line with numerically set objectives, supervisory ones are more difficult to quantify. At the same time, supervisory decisions entail a margin of discretion, which opens the way for potential ‘political interferences’ within the supervisory process. Considering that in supervision the European Central Bank disposes with the same level of independence as in monetary matters, concerns emerge on how to secure the European Central Bank’s accountability in this domain. Indeed, recent reports by European Union actors have warned about a ‘transparency gap’ undermining the European Central Bank’s accountability within the Single Supervisory Mechanism. This contrasts the European Central Bank’s monetary policy practice where transparency has been consistently prioritized over time with positive outcomes. This article highlights the shortcomings in respect of European Central Bank’s supervisory transparency by reviewing standards and practices in the monetary and supervisory domain. Arguing that transparency is salient to the European Central Bank’s accountability within the mechanism’s multilevel governance framework, the paper suggests potential enhancements of existent information channels in line with the unique requirements of supervision.

Annulment of a Commission's Decision on a Commitment Waiver under Article 6(1)(b) and (2) of the EU Merger Regulation (T-712/16 Deutsche Lufthansa)

Case T-712/16 Deutsche Lufthansa AG v European Commission, Judgment of the General Court of 16 May 2018 Article 263 TFUE – Decision declaring a concentration compatible with the internal market subject to commitments – Request for a waiver of part of the obligations forming the subject matter of the commitments – Air transport market – Slot commitments – Fare commitments – Cooperation agreements between airlines – margin of discretion – burden of proof - manifest error of assessment

General Principles of Law in EU Antitrust Law

This paper examines the extent of the use and content of unwritten general principles of EU law in EU antitrust law. In particular, three unwritten general principles will be explored in more detail: effectiveness, proportionality and non-discrimination. The contribution will start by examining the explicit use of the general principle of effectiveness in antitrust law proceedings and rules related to its enforcement. The second part will explore the role of proportionality, both within the EU antitrust procedural law and the substantive assessment of an antitrust case. Finally, it will focus on the role of non-discrimination within the substantive assessment of EU antitrust cases. The paper shows that these principles are affirmed, expressly or implicitly, not only in procedural but equally in substantive antitrust law. Yet, their role and actual use varies significantly between antitrust procedure and the substantive assessment of a case. While these principles have a more explicit role in antitrust procedure, their role is less pronounced in the substantive assessment of antitrust cases. The assessment of these principles in the substantive case might also be different as the principles can be applied in a way that is open to economic reasoning and the EU Courts afford a high margin of discretion to the Commission in making complex economic assessments.

Computationally efficient Bayesian estimation of high-dimensional Archimedean copulas with discrete and mixed margins

Estimating copulas with discrete marginal distributions is challenging, especially in high dimensions, because computing the likelihood contribution of each observation requires evaluating $$2^{J}$$ terms, with J the number of discrete variables. Our article focuses on the estimation of Archimedean copulas, for example, Clayton and Gumbel copulas. Currently, data augmentation methods are used to carry out inference for discrete copulas and, in practice, the computation becomes infeasible when J is large. Our article proposes two new fast Bayesian approaches for estimating high-dimensional Archimedean copulas with discrete margins, or a combination of discrete and continuous margins. Both methods are based on recent advances in Bayesian methodology that work with an unbiased estimate of the likelihood rather than the likelihood itself, and our key observation is that we can estimate the likelihood of a discrete Archimedean copula unbiasedly with much less computation than evaluating the likelihood exactly or with current simulation methods that are based on augmenting the model with latent variables. The first approach builds on the pseudo-marginal method that allows Markov chain Monte Carlo simulation from the posterior distribution using only an unbiased estimate of the likelihood. The second approach is based on a variational Bayes approximation to the posterior and also uses an unbiased estimate of the likelihood. We show that the two new approaches enable us to carry out Bayesian inference for high values of J for the Archimedean copulas where the computation was previously too expensive. The methodology is illustrated through several real and simulated data examples.

Environmental subsidiarity in the EU: or halfway to green federalism?

Abstract Environmental protection and sustainable development are competences that the EU is entitled to integrate into the definition and implementation of its policies. However, shared competences in these areas are still a reality, as a margin of discretion persists for Member States, aimed at maintaining a high level of decentralisation, particularly where issues related to national policies and more (nation) specific sectoral legislation are concerned. This paper intends to analyse the application of the principle of subsidiarity to environmental issues within the EU, to examine the characteristics of a possible path to the future of green federalism in Europe.

A Family of Heuristic-Based Inequalities for Maximizing Overall Safety Margins in Aircraft Parking Stands Arrangement Problems

We consider the problem of arranging a set of aircraft in a maintenance hangar operated by an independent aircraft service provider. The overall safety margins of the parking layout need to be maximized within the limited available space, measured by the weighted sum of the individual discrete safety margins of each aircraft. A mixed-integer linear programming model is developed, and the positions of the aircraft are determined by the position-controlling binary variables associated with a set of revised No-Fit Polygons (NFPs). Due to the nonconvex irregular shape of aircraft, the model involves a great number of binary variables associated with the revised NFP. The default branch-and-bound algorithm is inefficient in solving such a model as the infeasibility information of the precedent visited solution cannot be directly utilized by the default method to update the bounds. A heuristic algorithm is developed to provide practical solutions, and the intermediate infeasible solutions identified during searching are utilized to develop valid and approximate inequalities, tightening the optimality gap. The computational results demonstrate that the addition of inequalities improves the computational efficiency in solving a wide range of instances and in tightening the optimality gap while the stopping criterion is met.

Is the EU Disinformation Review Compliant with EU Law? Complaint to the European Ombudsman About the EU Anti-Fake News Initiative

The EU’s approach to fake news, as epitomised by the European External Action (EEAS) Service East Stratcom Disinformation Review, violates the rights to freedom of expression and due process of those accused of distributing disinformation. The EU Disinformation Review is a publication of the European External Action Service (the European Union’s diplomatic service) to target fake news and online disinformation. Following our request for access to documents, EEAS conceded that the EU Disinformation Review uses an “ad hoc” methodology for conducting its fact-checks, which makes it an outlier in the international fact-checking community led by the International Fact-Checking Network (IFCN). Despite being a well-intentioned initiative to respond to the challenges posed by pro-Kremlin disinformation, the EU should ensure the respect of fundamental rights when engaging in fact-checking. The EU Disinformation Review seeks to control the right to freedom of expression by labelling publishers as “disinforming outlets” and their content as “disinformation,” creating a chilling effect on the work of journalists that is central to democracy. The right to freedom of expression is expressed in Article 11.1 of the Charter of Fundamental Rights of the European Union (2000/C 364/01) and Article 10 of the European Convention on Human Rights. The labelling of publishers as “disinformation outlets” is contrary to principle of the freedom of press established by the European Court of Human Rights: “[a] general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press’ role of providing information on current events, opinion and ideas.” In addition, the methodology used by EEAS in the EU Disinformation Review is “ad hoc,” which constitutes a violation of the fundamental right to good administration in Article 41 of the European Charter of Fundamental Rights. Specifically, the ad hoc design and operation of the EU Disinformation Review fails to ensure the review acts “impartially, fairly and within a reasonable time.” First, publications are not provided with the right to be heard or proper notice. The EU Disinformation Review’s homepage offers an opportunity to contact the Task Force report a suspected mistake in a fact-check but the page is only available in English, in violation of the principle of multilingualism, and no notice if given to outlets accused of being “disinforming outlets” before or after fact-checks of their content are published. Second, the EEAS does not fulfil its duty to motivate. EEAS is given a broad margin of discretion to identify disinformation, but fails to do so according to a consistent methodology. Therefore, EEAS cannot justify, on the basis of objective criteria, its choice of which content to review and how to determine its truth or falsehood. To comply with EU law and ensure the respect of fundamental rights, the EEAS should develop and make public (1) a methodology for selecting partnerships and reviewing fact-checks in line with international standards and (2) a notice and response mechanism for journalists, publishers and citizens whose content is being reviewed. If EEAS is unable to comply with the above, the EU Disinformation Review should be shut down.

A Better Signpost, Not a Better Walking Stick: How to Evaluate the European Consensus Doctrine

One contested practice of the European Court of Human Rights is the role of an 'emerging European consensus,' concerning alleged common ground among the States. The Court sometimes defends its ‘dynamic interpretation’ of the European Convention on Human Rights (‘Convention’) by such a Consensus. A consensus may lead the Court to restrict the margin of discretion it accords an accused state, or subject it to stricter scrutiny. The article assesses this consensus practice. A much needed specification of the practice should draw on a normative account of why and where the Court should draw on a consensus, if at all. Section 1 sketches the Consensus practice, section 2 identifies several vague aspects. Section 3 considers critically several arguments offered in its favour. The practice does not render the interpretation more democratic. And consensus toward one particular legislative solution is inappropriate. Consensus may however help discover hitherto unnoticed discrimination against groups.

FREEDOM OF EXPRESSION AND THE “MARGIN OF APPRECIATION” OR “MARGIN OF DISCRETION” DOCTRINE

When an international court decides to keep certain information confidential and orders a ban of any publicity upon them, does it have to abide by the requirements of necessity and proportionality? These requirements have been established by the different human rights conventions and by the jurisprudence of the human rights courts, and human rights bodies. However, for the evaluation of the requirements of necessity and proportionality, states dispose of certain margin of appreciation. International criminal courts might invoke the margin of appreciation doctrine for the same reasons. This paper explores the doctrine of the margin of appreciation recognized to states while assessing a situation before curtailing freedom of expression. After exploring the margin of appreciation doctrine, its justification, the criticism that it faces and the scope of its application, it appeared that it is a well-established and well-accepted doctrine, despite its disadvantages. The relevant case law was then studied in an attempt to come up with a theory concerning its extension to international criminal courts. However, the studied literature or case law was inconclusive. There could be a legal gap in this field. In any case, it seems that international law offers no protection of individuals’ rights at this level in particular. The only recourse open is an appeal, but before the same court. It is clear that checks and balance procedures are not available in what concerns international criminal courts. If a state has a margin of discretion, at least we know that internal remedies and procedures are available, and that they hinder abuse attempts, which is not the case in international criminal courts. This is perhaps a weakness that makes peoples rather uncomfortable about international criminal justice despite the huge relief to see international crimes tried and punished.

GcKrig: An R Package for the Analysis of Geostatistical Count Data Using Gaussian Copulas

This work describes the R package gcKrig for the analysis of geostatistical count data using Gaussian copulas. The package performs likelihood-based inference and spatial prediction using Gaussian copula models with discrete marginals. Two different classes of methods are implemented to evaluate/approximate the likelihood and the predictive distribution. The package implements the computationally intensive tasks in C++ using an R/C++ interface, and has parallel computing capabilities to predict the response at multiple locations simultaneously. In addition, gcKrig also provides functions to simulate and visualize geostatistical count data, and to compute the correlation function of the counts. It is designed to allow a flexible specification of both the marginals and the spatial correlation function. The principal features of the package are illustrated by three data examples from ecology, agronomy and petrology, and a comparison between gcKrig and two other R packages.

A general algorithm for covariance modeling of discrete data

We propose an algorithm that generalizes to discrete data any given covariance modeling algorithm originally intended for Gaussian responses, via a Gaussian copula approach. Covariance modeling is a powerful tool for extracting meaning from multivariate data, and fast algorithms for Gaussian data, such as factor analysis and Gaussian graphical models, are widely available. Our algorithm makes these tools generally available to analysts of discrete data and can combine any likelihood-based covariance modeling method for Gaussian data with any set of discrete marginal distributions. Previously, tools for discrete data were generally specific to one family of distributions or covariance modeling paradigm, or otherwise did not exist. Our algorithm is more flexible than alternate methods, takes advantage of existing fast algorithms for Gaussian data, and simulations suggest that it outperforms competing graphical modeling and factor analysis procedures for count and binomial data. We additionally show that in a Gaussian copula graphical model with discrete margins, conditional independence relationships in the latent Gaussian variables are inherited by the discrete observations. Our method is illustrated with a graphical model and factor analysis on an overdispersed ecological count dataset of species abundances.

«X and X v Belgium»: the need for EU legislation on humanitarian visa

This article examines the recent judgment of the Court of Justice of the European Union in the case of X and X v. Belgium (C-638/16 PPU). The issue at stake concerns an application for a visa with limited territorial validity (LTV) requested by a Syrian family at the Belgian embassy in Beirut in order to apply for asylum in Belgium. The article discusses the different interpretations given by the Advocate General and the Court of Justice and agrees with the AG that the EU Charter of Fundamental Rights leaves a limited margin of discretion to Member Sates and imposes a positive obligation to issue a LTV Visa in cases like X and X. It also concludes that the judgment in question clearly shows the need for the EU to adopt legislation regulating the issuance of humanitarian visas under the Visa Code.

The "specific" liability regime for blood products

Based on the system of liability for defective products as organized by the European Directive of 25 July 1985, responsibility for blood products does not therefore constitute a genuine specific regime. However, European law leaves States a margin of discretion in the implementation of the Directive with regard to health products. This is the case in particular with the exemption for development risk.