Open Norms Research Articles

A qualitative focus group study on legal experts’ views regarding euthanasia requests based on an advance euthanasia directive

BackgroundThe Dutch Euthanasia law permits euthanasia in patients with advanced dementia lacking decisional capacity based on advance euthanasia directives. Nevertheless, physicians encounter difficulties assessing the criteria for due care in such cases. This study explores the perspectives of legal experts on the fulfillment of these criteria and the potential for additional legal guidance to support physicians’ decision-making processes.MethodsA qualitative study was conducted with legal experts. Two focus group sessions were conducted. The data analysis was conducted iteratively, with the data being interpreted using thematic content analysis and the framework method.ResultsParticipants emphasize the importance of considering the patient’s current wishes and informing them about the limitations of advance euthanasia directives. While representatives and healthcare professionals can assist in interpreting wishes, the final decision regarding euthanasia rests with the physician. The participants also discuss the challenges posed by pre-recorded wishes due to changing preferences. Furthermore, they present different views on the value of life wishes of patients with advanced dementia. While some participants prioritize life wishes over advance euthanasia directives, others question whether such expressions still reflect their will. Participants find it essential to assess unbearable suffering in the context of the current situation. Participants acknowledge the necessity to interpret advance euthanasia directives but also current expressions and they entrust this interpretation to physicians, viewing them as the primary authority, despite consulting multiple sources.ConclusionsThe Dutch Euthanasia law’s due care criteria are open norms –which are open in substance and require further elaboration, mostly determined on a case-by-case basis to the field standards of the profession–, placing the responsibility on physicians to interpret advance euthanasia directives and patient expressions. Despite potential support from various sources of information, there is limited additional legal guidance available to assist physicians in making decisions.

Tobacco Industry Engagement in the House of Commons Science and Technology Select Committee E-cigarettes Inquiry

Background: A now extensive literature has documented political strategies of healthharming industries (HHIs), but little is known about their engagement with Parliamentary select committees. Recent investments by trans-national tobacco corporations (TTCs) in electronic nicotine delivery systems (ENDS) has raised concerns that industry actors may be using these to re-engage policymakers in ways precluded by the Framework Convention on Tobacco Control (FCTC) Article 5.3. Methods: This article examines tobacco industry engagement with the House of Commons Science and Technology Committee (STC) inquiry into electronic cigarettes. It draws on a qualitative analysis of semi-structured interviews with committee members and support staff (n=4) triangulated against written and oral evidence submissions. Results: TTCs featured prominently in the STC inquiry via written and oral submissions. Opportunities existed for industry engagement, and potential influence, at each stage of the process. There was an absence of oral testimony from those sceptical about the potential health benefits of ENDS. The governance mechanisms in place for select committees appear inadequate for protecting committee work from industry influence. As it relates to TTCs, this has implications for the UK’s commitments under FCTC Article 5.3, yet understanding of the FCTC and the requirements of Article 5.3 compliance within the committee were limited. Conclusion: The governance of select committees requires urgent reform in order to balance norms of openness and participation with the need to protect their work from power of economic actors with conflicts of interest. This is particularly the case in relation to TTCs and adherence to FCTC Article 5.3. These findings are of relevance to other select committees whose work affects the interests of HHIs. Further research is needed on other committees and sectors.

Towards a New Ethos of Science or a Reform of the Institution of Science? Merton Revisited and the Prospects of Institutionalizing the Research Values of Openness and Mutual Responsiveness

In this article, I will explore how the underlying research values of ‘openness’ and ‘mutual responsiveness’, which are central to open science practices, can be integrated into a new ethos of science. Firstly, I will revisit Robert Merton's early contribution to this issue, examining whether the ethos of science should be understood as a set of norms for scientists to practice ‘good’ science or as a set of research values as a functional requirement of the scientific system to produce knowledge, irrespective of individual adherence to these norms. Secondly, I will analyse the recent codification of scientific practice in terms of ‘scientific integrity’, a framework that Merton did not pursue. Based on this analysis, and illustrated on the case of COVID-19 as a case in which the institution of science was challenged to deliver urgently on societal desirable outcomes, I will argue that promoting open science and its core norms of collaboration and openness requires broader governance of the institution of science in its relationship with society at large, rather than relying solely on self-governance within the scientific community through a new ethos of science. This conclusion has implications for re-evaluating research assessments, suggesting that the evaluation of the scientific system should take precedence over evaluating individual researchers, and that incentives should be provided to encourage specific research behaviour rather than solely focusing on individual research outputs.

Oops, I Sampled Again … the Meaning of “Pastiche” as an Autonomous Concept Under EU Copyright Law

With the return of the Metal auf Metal case (Pelham v. Hütter) to the Court of Justice of the European Union (CJEU), the Luxembourg court will again be faced with the question under which circumstances the reproduction of parts of a sound recording requires authorisation. When the case was first argued before the EU’s highest court, it revolved around the concept of partial reproduction of a sound recording and an interpretation of the quotation exception. In addition, the defendant had proposed that national courts, in the absence of an applicable exception, could provide for flexibility by allowing creative uses purely based on fundamental rights. The Court rejected this possibility, arguing that something akin to an open norm would create legal uncertainty. Following the first ruling, Germany, where the case originated, implemented the pastiche exception of Art. 5(3)(k) of the Information Society Directive into its national copyright law. In Pelham v. Hütter II, the CJEU is asked to give guidance on the interpretation of the concept of pastiche. Following the introduction of the exception under German law, German courts had interpreted the exception broadly, allowing a variety of derivative artistic uses. This article explores the concept of pastiche from an interdisciplinary and comparative perspective. After an overview of the relevant German decisions, it explores the various non-legal meanings of pastiche before comparing the development of the notion in the copyright laws of Italy, France and some other EU Member States. Since the non-legal as well as the different national legal understandings of pastiche do not crystallise a common understanding of the notion, pastiche is subsequently developed as an autonomous concept under EU law. In distinguishing pastiche from parody, which the CJEU developed as an autonomous concept in the Deckmyn case, the article proposes that pastiche should be understood as an exception that broadly permits referential uses that have no elements of humour or mockery – as distinct from parody – but are of an artistic nature. An important role must be assigned to the three-step test, which functions as a framework to balance the interests of rightholders and users in a given case.

사회변화와 사회적 기본권

From the first constitution in 1948, at least normatively, our Constitution not only guaranteed freedom, but also clearly declared that individual social circumstances should be considered and socioeconomic integration should be realized, and this was embodied through various social basic rights regulations. However, despite these normative circumstances, social basic rights did not have constitutional authority until the late 1980s. Constitutional reality and the unique realization structure of social basic rights worked here.
 Since the establishment of the Constitutional Court under the Constitution in 1987, the constitutional tasks of the welfare state have been discussed in earnest, laying the foundation for social basic rights to become a constitutional reality. Social basic rights are normatively open norms in their content, goals, and methods of realization, but their realization tends to be subordinated to external decisions about realistic situations. Social basic rights can be activated under a democracy where the possibility of dynamic and pluralistic decision-making is open, but on the other hand, it is also a factor that can deepen its instability. Among these tensions is the Constitutional Court. Although the Constitutional Court has contributed to the recognition and functioning of the Constitution as a norm with universal effect since 1987, it is inevitable to be critical of how much the Constitution and Constitutional Court have contributed to social integration, guaranteeing conditions for freedom and opportunities for social participation to all citizens. Until now, due to normative or practical obstacles, the Constitutional Court has repeated most of its passive judgments in judicial review of social basic rights. However, at a time when the scope of the constitutional task for the welfare state extends beyond welfare measures for marginalized human groups to the issue of intergenerational equity for sustainability, the constitutional trial can no longer settle for passive judgment.
 In order for constitutional values to play an important driving role in forming a social security legislative system for the realization of social basic rights in the future, the Constitutional Court should define the normative meaning of social basic rights and seek active guarantees for social basic rights.

Trading Repaired and Refurbished Goods: How Sustainable is EU Exhaustion of Trade Marks?

Abstract Analysing EU, Benelux and German case law, this article examines whether the exhaustion doctrine in trade mark law contributes to a more sustainable economy. It considers that ecological motives seem not to have played a role either in the policy choice against international exhaustion, or in the Court of Justice of the European Union (CJEU) case law on legitimate reasons and the repackaging of medication. Although exhaustion could, theoretically, incentivise traders to give new life to goods that were legitimately marketed before, the analysis shows that this is a risky business because of the thin and blurry line between lawful renewal activities and creating a false impression of affiliation. As such, it is unclear to what extent de-branding, re-branding, and co-branding can prevent liability for infringement, although co-branding renewed products is probably often the only way to do so. As an alternative to buy–renew–resell, traders could consider providing renewal services. On closer analysis, however, offering services puts them in an even less favourable position, and this seems hard to justify. In addition to trade mark rights, copyright and/or design rights will often cumulatively apply to mark-bearing products. Although the latter rights are also subject to a principle of exhaustion, the effects of exhaustion can de facto be overruled by the exception for legitimate reasons proper to trade mark law. Moreover, it is argued that repair exceptions in copyright and design legislation have limited effect and that announced legislative reforms are unlikely to change that. The unattractiveness of renewal businesses is further aggravated by the recurrent use of open norms and references to common practices. It is concluded that IP laws often leave it to the discretion of rightholders whether to offer sustainable post-sale solutions. Besides having clearer guidance on what is allowed, this paper suggests that exhaustion case law should take sustainability arguments into account, for instance by considering what would happen to goods if they were not renewed by the trader. To a large extent, the judiciary already has tools at its disposal to incorporate these kinds of elements.

Protection of data under unfair competition law in Japan and Korea—a case of asymmetric convergence?

Abstract This article explores the question of overlap in unfair competition law in Japan and Korea and discusses whether the introduction of a general clause could address the problem of overlap. Positive laws regulating unfair competition in Japan and Korea have adopted a similar set of rules based on specific conduct regulation, with some variation. Notably, Korean law now prohibits the unfair use of another’s achievement based on an open clause, complementing the specific list of prohibited conduct. The article first presents an overview of unfair competition law in Japan and Korea, highlighting the requirements for protection and limitations, and then explores the problem of overlapping claims surrounding data misappropriation. Contrasting the legislative techniques used by Japan and Korea, this article notes that an open norm may provide the judiciary with an interpretative tool to dynamically address emerging unfair conduct. However, as there is a danger of limiting free competition and potential internal inconsistencies, to avoid asymmetric convergence, open norms should be carefully coordinated with specific conduct prohibitions, with clear prioritization.

Interpreting and evaluating open norms of person-centred care in daily regulatory practice of the Dutch nursing home care setting

Objective:The emphasis on person-centred nursing home care poses a key challenge for inspectors who regulate quality of care, because of its situated characteristics (i.e., for each client different and changing over time). This makes it difficult to assess with predetermined norms in contrast to for example requirements of medication safety. In this paper, we therefore empirically investigate how inspectors operationalize and evaluate open norms of person-centred care in the Dutch healthcare setting.Methods:Qualitative methods were used to study the work of inspectors who assess the quality of nursing home care within the Dutch Health and Youth Care Inspectorate. The first author7it observed the inspection process of nursing home care organizations (preparation, inspection visit, consults between inspectors and team meetings) and conducted semi-structured interviews with the observed inspectors and managers of the assessed organizations. Furthermore, different versions of the quality report were analyzed.Results:Easy made operationalizations of person-centred care (e.g., choice for meal) received more attention than other, less easily made, operationalizations of person-centered care (e.g., group dynamics). The following three exclusion mechanisms show why certain aspects of person-centred care got less attention than others: 1) not being able to triangulate information 2) doubting the trustworthiness of a person 3) not being able to deviate from the structure of the inspection program. Furthermore, there are two exclusion mechanisms that show how the assessment of person-centred care is ignored or overruled by other values in the assessment framework: 1) downplaying person-centredness by mitigating circumstances and, 2) prioritization of safety risks over risks of lacking person-centredness.Conclusion:In evaluating person-centred nursing home care using open norms, certain mechanisms are in place that exclude the assessment of quality of (certain aspects of) person-centered care. To overcome these mechanisms, a different, more reflexive approach for regulation might be needed to encourage stakeholders to engage in self-observation and self-criticism. Reflexive regulation using narrative methods can be especially helpful with complex issues, which are associated with uncertainty about standards and where different perspectives play a role. In further participative action research, we will experiment with and study the use of reflexive regulation using narrative methods in long-term care.

The relation of the principle of good faith to the limiting and excluding circumstances of contractual liability

The content of the article reflects the relationship of the principle of good faith withthe circumstances of maintaining and excluding contractual legal responsibility, its relevance andcontradiction. The reasoning in the research is guided by the extent, to which circumstances, thatfocus on the limitation of liability, will pass the general test of the principle of good faith. Attentionis focused on the consistency and relevance of the principle of good faith with the norms stipulatedin the contract during contracting. Also, on the correct interpretation of good faith as a general,somewhat abstract and undefined, so-called “open norm”. The study of the article mainly serves todiscuss the limiting and excluding circumstances of contractual liability in combination with theprinciple of good faith. For more clarity, specific examples are discussed, as well as excerpts fromjudicial practice, which determine the compatibility of the principle of good faith and limiting andexcluding circumstances of responsibility.

Shifting Paradigm? Long-Term Value Creation as a Normative Principle in a Hostile Takeover: Evidence from the Netherlands

Abstract This article provides additional insight on the effectiveness of long-term value creation as a legally enforceable norm in the corporate governance system and provides a framework to anchor long-term value creation in takeover decisions. Since the 2008 financial crisis, a growing number of voices in the business world, government and academia, have urged Western economies to move towards a long-term sustainable growth agenda. Boards have a vital part to play in the development of responsible companies. Corporate governance should encourage boards to do so. This could be viewed as a reaction to the negative effects of capital markets and the resulting short-termism. One key method to encourage sustainable value creation in companies is by incorporating long-term value creation as an open norm in corporate governance systems. In the case of a hostile takeover, the risk of short-termism is exacerbated. As a guiding principle, long-term value (LTV) creation should prevent hostile takeovers that could harm the success of the company concerned. In this research paper, we argue that the recent shift in Dutch case law and revision of the Corporate Governance Code in the Netherlands may serve as an important catalyst for ‘sustainable’ takeover decisions. Through ground-breaking judgments by the Dutch Supreme Court and Enterprise Court, Cancun and Akzo Nobel, LTV has acquired the status of an enforceable norm. We investigated whether this legal norm is empirically substantiated. The research results allow us to make well-grounded statements about the effectiveness of enforcing LTV in future hostile takeover situations.

Towards a Framework for Effective Regulatory Supervision of Sustainability Governance in Accordance with the EU CSDD Directive. A Comparative Study

Abstract 203This article emphasizes that the wave of regulation focusing on sustainability, like the CSDDD, is fundamentally different in scope and character from traditional rulemaking. Given the wide-ranging objectives of the CSDDD and its open norms, companies and supervisory authorities will need to cooperate and have open and fair discussions to develop alternative instruments and best practices taking account of what can be reasonably required from companies in addressing complex issues in an even more complex world also in terms of feasibility and resources. This is fully in line with the CSDDD which explicitly recognizes that companies will have to balance diverging interests, and – as set out in Articles 6-8 CSDDD – will inevitably need to make choices and prioritize actions. Where traditionally regulatory supervisors focus on strict compliance, the CSDDD marks a fundamental change to process rules and goals to be achieved and therefore calls for a fundamentally different approach and oversight strategy by supervisory authorities. It is also demonstrated that extending liability rules for companies is not an effective policy instrument. This article compares developments in the UK, France, Germany, Norway and the Netherlands, and by identifying the lessons learned, concludes that a strategy as set out above seems best fit to realise the ambitious goals set by the CSDDD. Therewith a paradigm shift is in the making. Governments and regulatory supervisors would misinterpret the signs of the times if, in promoting the purposes of the CSDDD, they were to cling to traditional ideas of how supervisors should operate.204

Een narratieve analyse van maatwerk in de Wet maatschappelijke ondersteuning 2015. Conflicterende betekenissen van maatwerk

In this article we study the policy ideal of providing personalized public services which has gained considerable ground in recent years: both in the Netherlands and abroad.Personalization may be seen as an example of an ‘empty signifier’ (Laclau 1985): it is subject to diverse interpretations without making the distinctions explicit. As such, several policy objectives and interests can be covered without disagreeing about its overarching importance. It is therefore important to identify the different meanings given to personalization and determine the extent to which these can be reconciled. The case at hand is the Social Support Act (SSA) in the Netherlands which entails the open norm to provide tailored support. Policymakers presented this act as a remedy for numerous social problems, such as the fragmented provision of care and increased regulatory pressure.By conducting a narrative policy analysis of personalization in policy discourse, we identified four different narratives of personalization: personalization as market logic of matching supply and demand; personalization as professional discretionary room, personalization as the emphasizing of self-reliance and problem-solving abilities of the clients themselves and those around him, and lastly, personalization as the coordination of integrated care.These different meanings in policy discourse are not easily harmonized in daily practices. Based on recent empirical research on the existing bottlenecks in executing the SSA, we were able to identify key tensions between different narratives of personalization. For example, focusing primarily on activating one’s own problem-solving capacities is at the expense of professional room to adjust care to what the client needs. Integrated care has also lost its meaning due to the emphasis on empowerment and is mainly instrumental in obtaining a complete picture of the citizen and his network. These tensions create dilemmas for professionals, citizens and local policymakers. Moreover, in our case personalization provided the legitimacy for extensive public service reform in the changing welfare state, while political hang-ups, such as the associated cuts, could be circumvented. It is therefore of great importance that national policymakers and the legislator reflect on the complexities of personalization as a policy ideal and take into account the tensions between different meanings of personalization in practice.

Are Dictates of Public Conscience a Norm of jus cogens in International Humanitarian Law?

This essay deal with one of the components of the general principles of law that has a normative character in international humanitarian law: the dictates of public conscience. Through a critical approach to international law, this essay intends to contribute to the academic discussion in the sense that the dictates of public conscience have acquired the status of jus cogens in international law. To this end, Part I of this essay reviews the evolution of dictates of public conscience. Part II of this essay shows that the complexity of the dictates of public conscience is given by the difficulty of establishing a specific content as a normative device. In this regard, the intended contribution is to point out that the dictates of public conscience are an open norm that nevertheless has an identifiable purpose. Part III reinforces the previous statement by pointing out that the content of the dictates of public conscience is dynamic and therefore situational, which allows for a progressive interpretation. It concludes with the assertion that the dictates of public conscience have attained the character of jus cogens.

СОЦІАЛЬНА ВІДПОВІДАЛЬНІСТЬ В КОНТЕКСТІ ДІДЖИТАЛІЗАЦІЇ БІЗНЕСУ

The need to implement the principles of social responsibility of business arose in 1970 in the USA and Great Britain as a result of the requirements of the public regarding the necessity to ensure compliance with the following conditions: social protection and prevention of discrimination of hired workers; responsible choice of business partners; guarantee of quality and safety of products; careful attitude of business to society and ecology; compliance with the norms of openness and transparency of business conduct; taking into account public interests in making strategic business decisions. The norms and principles of social responsibility of business are established by the International Standard ISO 26000:2010. Principles and norms of social responsibility of business are aimed at regulation of the following issues: organizational management; human rights; labor relations; environment; good business practices; social and economic development of society. In the current situation, the time of companies that are focused on maximizing their current profits has passed, modern business should be oriented toward long-term development prospects with clear adherence to the norms and principles of social responsibility and transition in the digital economy. In accordance with the requirements of Directive 2014/95/EU, since 2018, large companies have to reflect non-financial indicators in annual reports, at that, having the right to choose which recommendations to follow – International, EU or national norms. In the world practice it is accepted to distinguish several models of social responsibility of business: european, british, american, asian and african. The development of social responsibility of business in Ukraine began in 2000 years, to achieve systemic and qualitative changes in 2008 an expert organization has been established on public institutions in Kyiv «Development of corporate social responsibility». In 2010-2011, the working group of the Committee on Industry and Regulatory Policy and Entrepreneurship of the Verkhovna Rada of Ukraine the concept of the national strategy of social responsibility of business has been developed. The need to ensure the cyber-stability of management and production business processes, the need to provide a remote business environment, The transition to the Internet of things has become an incentive to move business to the digital square economy. The process of forming social responsibility under the conditions of business deditalization has an impact external and internal factors, some of which pose threats. Conduct business in the context of ensuring social responsibility rules and regulations creates additional value of the company and competitive advantages.

The Power of Open Norms

The Power of Open Norms

How perceived Australian sexual norms shape sexual practices of East Asian and sub-Saharan African international students in Sydney

IntroductionSexual norms, real or perceived, shape young people’s sexual behaviour and may constitute one of the greatest challenges in HIV/STIs prevention among this population. This study used sexual script theory to explore how international students in Sydney, Australia – from traditional cultures of East Asian and sub-Saharan African countries – construct home backgrounds and Australian sexual norms and how this may shape their sexual practices during their studies in Australia.MethodsThe study involved face-to-face and telephone semi-structured in-depth interviews. Data were provided by 20 international students who are enrolled in various universities in Sydney. Interviews were audio-recorded, transcribed, coded into NVivo and analysed using reflexive thematic analysis.ResultsIdentified patterns in the data showed three themes through which participants perceive sexual norms in Australia as distinctly different from their home country norms. First, participants stated that unlike their home country norms, sexual norms in Australia are permissive. Second, participants hold the view that compared to their home country norms, sex in Australia is largely casual as it is not always attached to love. Some participants revealed that this could shape their own sexual practices during their studies in Australia. Finally, participants noted that compared to their home countries’ norm of sex talk taboo, Australia has an open sexual communication norm; which they believe, enables young people in western societies to easily acquire sexual health information.ConclusionsFindings provide evidence to support a need for contextualized and effective sexual health services for international students that take account of perceptions around sexual norms and how they can be modified to ensure that sexual practices which these students may engage in, will be managed in a safe and responsible manner.

The Janus Face of the Liberal International Information Order: When Global Institutions Are Self-Undermining

AbstractScholars and policymakers long believed that norms of global information openness and private-sector governance helped to sustain and promote liberalism. These norms are being increasingly contested within liberal democracies. In this article, we argue that a key source of debate over the Liberal International Information Order (LIIO), a sub-order of the Liberal International Order (LIO), is generated internally by “self-undermining feedback effects,” that is, mechanisms through which institutional arrangements undermine their own political conditions of survival over time. Empirically, we demonstrate how global governance of the Internet, transnational disinformation campaigns, and domestic information governance interact to sow the seeds of this contention. In particular, illiberal states converted norms of openness into a vector of attack, unsettling political bargains in liberal states concerning the LIIO. More generally, we set out a broader research agenda to show how the international relations discipline might better understand institutional change as well as the informational aspects of the current crisis in the LIO.

Safeguarding the Dynamic Legal Position of Children: A Matter of Age Limits?

In this article a critical reflection upon age limits applied in the law is provided, in light of the tension that exists in international children’s rights law between the protection of children and the recognition of their evolving autonomy. The main research question that will be addressed is to what extent the use of (certain) age limits is justified under international children’s rights law. The complexity of applying open norms and theoretically underdeveloped concepts as laid down in the UN Convention on the Rights of the Child, related to the development and evolving capacities of children as rights holders, will be demonstrated. The UN Committee on the Rights of the Child struggles to provide comprehensive guidance to states regarding the manner in which the dynamic legal position of children should be applied in practice. The inconsistent application of age limits that govern the involvement of children in judicial procedures provides states leeway in granting children autonomy, potentially leading to the establishment of age limits based on inappropriate – practically, politically or ideologically motivated – grounds.

Activating norm collisions: Interface conflicts in international drug control

AbstractThis article puts forward a constructivist-interpretivist approach to interface conflicts that emphasises how international actors articulate and problematise norm collisions in discursive and social interactions. Our approach is decidedly agency-oriented and follows the Special Issue’s interest in how interface conflicts play out at the micro-level. The article advances several theoretical and methodological propositions on how to identify norm collisions and the conditions under which they become the subject of international debate. Our argument on norm collisions, understood as situations in which actors perceive two norms as incompatible with each other, is threefold. First, we claim that agency matters to the analysis of the emergence, dynamics, management, and effects of norm collisions in international politics. Second, we propose to differentiate between dormant (subjectively perceived) and open norm collisions (intersubjectively shared). Third, we contend that the transition from dormant to open – which we term activation – depends on the existence of certain scope conditions concerning norm quality as well as changes in power structures and actor constellations. Empirically, we study norm collisions in the area of international drug control, presenting the field as one that contains several cases of dormant and open norm collisions, including those that constitute interface conflicts. For our in-depth analysis we have chosen the international discourse on coca leaf chewing. With this case, we not only seek to demonstrate the usefulness of our constructivist-interpretivist approach but also aim to explain under which conditions dormant norm collisions evolve into open collisions and even into interface conflicts.

Towards a European 'Fair Use' Grounded in Freedom of Expression

It is often claimed that an open-ended provision for copyright limitations such as the US fair use clause would be unfit for civil law countries because of their author-centered traditions of copyright law and their traditional skepticism towards “judge made law” encouraged by open norms. However, the rising application in those countries of fundamental rights by the judiciary to solve copyright cases (mainly based on freedom of expression and information) and the balancing of interests it requires resemble in many aspects the practice of common law jurisdictions and the weighing of factors typically done in the context of a fair use analysis. As a consequence, this article argues that some sort of “fair use” is already a reality in Europe; therefore, the debate should shift from the question of the compatibility of an open-ended copyright limitation with the European legal system to the question on how to draft a “fair use” provision that would better fit the European legal tradition. In order to do so, the paper analyses in detail the judicial application of the freedom of expression’s test of proportionality to IP disputes. It further demonstrates that, by providing for a developed list of fairness factors analogous to those of the US fair use, the courts have developed appropriate and functioning criteria to assess the legality of a copyright use, which, once systematized, could serve as a European open-ended copyright limitation. Since in Europe a clause analogous in openness and flexibility to the US fair use provision is lacking, the article advocates the legislative incorporation of an open-ended clause grounded in freedom of expression in EU copyright law in order to enhance clarity, transparency and legal security, and concludes with a drafting proposal for such a provision.