Research projects

Research projects

Grants and research projects done and/or directed

by Maria Elvira Mendez Pinedo, professor of European law

(Research Institute  in European Law) since 2007

 

1.  Title: EU and EEA law I. Legal order and main rules. A study of the case-law from the EFTA Court in the light of the European integration.

Description: The research addresses the relationship between Community law and national systems following the doctrine of the effetutile or effectiveness as established by the European Court of Justice (ECJ).

Goal: The main contribution of the research is to describe how the EFTA Court has managed, in its fifteen years of existence,to assure the same effectiveness of EEA law in this parallel legal order.

Background: It is essential to create a bridge of knowledge between Europe and Iceland in the field of European law (EU and EEA law).  A publication in English by a leading publishing house targeted to the Icelandic and the European specialists was considered essential for the development of the European legal studies.

Principal researcher: María Elvira Méndez-Pinedo .

Research assistant: Arnaldur Hjartarson (co-author Chapter 5 of the book).

Financing: Research project funded by the Research Fund of the University of Iceland. 2008 (600.000 ISK)

Publications: Publication of the book by the principal researcher, EC and EEA law A comparative study of the effectiveness of European Law, Europa Law Publishing, Groningen, 2009.

Summary of research findings – Book EC and EEA law, 2009

The effectiveness of European Community law is probably the most distinguishing feature of this unique legal order when compared with classic international law. By contrast, the effectiveness of European Economic Area law (EEA Law), the way this other even more sui generis legal system provides comparable rights for EFTA-EEA citizens, is a silent revolution brought by the EFTA Court that has not been properly researched and exposed in the fi eld of European law.

The book summarizes and explain the basic principles governing the relationship between EEA law and the national legal systems while searching for similarities and differences with EC law. These questions are explored from a European perspective in order to help students, scholars, practitioners and other professionals understand the effectiveness of European law, the special relationship between the Community/EEA legal orders with the national legal systems when the enforcement of European rights and the judicial protection of individuals are at stake.

2.  Title: EU and EEA law II. The role of judges in the EEA legal order. Jurisprudence of the ECJ, EFTA Court and Icelandic courts.

2.1.  Title: EU and EEA law II. The primacy of European law and the role of judges in the European legal order.

Description:  the research explores the principles of primacy of EU law and the “quasi primacy” of EEA law as viewed from the European courts (European Court of Justice (ECJ), the EFTA Court and also the national courts that must apply and enforce European law on a daily basis).

Goal: Preliminary research during 2009/2010 to study the role of Icelandic judges in the EEA legal order (differentiation between implemented and non-implemented EEA law and comparison to EU law).

Background: It is important to examine the role of Icelandic judges shaping the European constitutional legal order and to contribute to the legal science in the field of European law from an Icelandic perspective.

Principal researcher: María Elvira Méndez-Pinedo .

Research assistants: Ólafur Ísberg Hannesson (EUI-Florence) and Halldór Oddsson (Iceland).

Financing: Preliminary research project funded by the Research Fund of the University of Iceland. 2009. (600.000 ISK)

Publications: A publication expected in 2012 on the supremacy of European law over national law and the role of Icelandic and European judges  in shaping the European legal order through judicial dialogue.

Summary of research findings – Book The primacy of European law: an Icelandic perspective (provisional title), forthcoming 2012

 

The book aims to cast the light on two issues: in the first place, the principle of primacy in EU law as seen from the ECJ and different European national courts (both ordinary and constitutional courts), the most recent doctrine of European constitutional scholarship and the Lisbon Treaty; and, in the second place, the essential role of Icelandic judges as European judges of the European legal order and their constitutional position, difficulties, challenges and margin of manoeuvre with regards to the principle of  “quasi primacy” of EEA law over conflicting national law.

In seeking to explain the impact of the ECJ doctrine, on the one hand, and the EFTA Court doctrine, on the other, the authors take a look at the similarities between the constitutional pluralism that exists at the core of the relationship between the European Community and its Member States and aspects of legal pluralism in the relationship between the Icelandic and EEA practice. The examination of the parallels of the pluralism of jurisdictions and norms in the EU as compared to that of the EEA reveals important insights into the role of courts across these two different legal orders.

The authors explore the relationship between European law (EU/EEA law) and national law as constructed by the judicial dialogue between courts and tribunals in the interpretation and application of European law with a methodology based on a comparative approach and through a technique of “legal perspectivism” which adds different perspectives to the topic. The mission for the national courts is of crucial importance: that of guaranteeing the unity of EU/EEA law and avoid fragmentation. The interaction of European judges is considered at two levels. The first level is vertical: how do national courts perceive and react to European law? The second level is horizontal: what is the relationship of European jurisdictions between themselves, and more specifically, what is the role of the ECJ and the EFTA Court within the European constitutional legal order?

In this context the authors try to reply to the following questions: What is the present status, nature and scope of the principle of primacy of Union law in the light of the theory of constitutional pluralism and the jurisprudence of constitutional resistance? What is the status of the EFTA Court’s “quasi-primacy” doctrine in the light of theories of legal pluralism and the Icelandic Supreme Court‘s national perception of EEA law in the Icelandic constitutional order?

2.2. Title: EU and EEA law II. The protection of individual rights in European law and the role of the European judges in the EEA legal order.

Description:  Part I. The principle of primacy of Union law in the light of constitutional pluralism and the jurisprudence of constitutional resistance. Looking into the Treaty of Lisbon through legal perspectivism. Part II. Giving Effect to EEA Law before Icelandic Courts: An Analysis of the Interpretation Obligation and the Primacy of Implemented EEA Law

Goal: Doctoral thesis to be completed at the EUI in 2012. Publications in Icelandic/English expected in  2012.

Background: Continuation of the project on EU/EEA law II ( judicial protection of European individual rights in EU and EEA law: An Icelandic perspective).

Financing: A grant was given to finance the doctoral  studies  of Ólafur Ísberg Hannesson at the European University Institute-EUI Florence. Supervisors:  former Dean of the Law School Professor E-U. Petersmann and Professor M. Elvira Méndez Pinedo (external supervisor). Research project funded by Rannís –Icelandic Center for Research (Hlutverk dómstóla við að tryggja réttindi einstaklinga sem leiða af Evrópurétti: Íslensk sjónarhorn). 2010-2012 ( aprox. Funding 3 million ISK per year).

Principal researchers: María Elvira Méndez-Pinedo and  Ólafur Ísberg Hannesson (EUI-Florence).

Publications: A publication expected in 2012 on the supremacy of European law over national law and the role of Icelandic and European judges  in shaping the European legal order through judicial dialogue. Publisher: Law Institute. University of Iceland.

Summary of research findings – Book The primacy of European law: an Icelandic perspective (provisional title), forthcoming 2012, Lagastofun HÍ.

The book aims to cast the light on two issues: in the first place, the principle of primacy in EU law as seen from the ECJ and different European national courts (both ordinary and constitutional courts), the most recent doctrine of European constitutional scholarship and the Lisbon Treaty; and, in the second place, the essential role of Icelandic judges as European judges of the European legal order and their constitutional position, difficulties, challenges and margin of manoeuvre with regards to the principle of  “quasi primacy” of EEA law over conflicting national law.

In seeking to explain the impact of the ECJ doctrine, on the one hand, and the EFTA Court doctrine, on the other, the authors take a look at the similarities between the constitutional pluralism that exists at the core of the relationship between the European Community and its Member States and aspects of legal pluralism in the relationship between the Icelandic and EEA practice. The examination of the parallels of the pluralism of jurisdictions and norms in the EU as compared to that of the EEA reveals important insights into the role of courts across these two different legal orders.

The authors explore the relationship between European law (EU/EEA law) and national law as constructed by the judicial dialogue between courts and tribunals in the interpretation and application of European law with a methodology based on a comparative approach and through a technique of “legal perspectivism” which adds different perspectives to the topic. The mission for the national courts is of crucial importance: that of guaranteeing the unity of EU/EEA law and avoid fragmentation. The interaction of European judges is considered at two levels. The first level is vertical: how do national courts perceive and react to European law? The second level is horizontal: what is the relationship of European jurisdictions between themselves, and more specifically, what is the role of the ECJ and the EFTA Court within the European constitutional legal order?

In this context the authors try to reply to the following questions: What is the present status, nature and scope of the principle of primacy of Union law in the light of the theory of constitutional pluralism and the jurisprudence of constitutional resistance? What is the status of the EFTA Court’s “quasi-primacy” doctrine in the light of theories of legal pluralism and the Icelandic Supreme Court‘s national perception of EEA law in the Icelandic constitutional order?

3.  Title: Access to justice in Europe: in search of a new theory and methodology

Research on access to justice in European law following different lines of inquiry which have been funded by different grants.

3.1.  Title: Access to justice in European and Icelandic law in the light of the classic theory and methodology developed by Cappelletti and Garth in 1978 (European University Institute)

Description:

First stage: The project aims to summarise the origins, aims and approach of the access-to-justice doctrine and methodology, which was developed in the seventies under the leadership of Professor Mauro Cappelletti of the European University Institute and to examine Icelandic and European procedural laws in the light of the theory and methodology.

Second stage: Research on how to enhance social justice giving greater access to law in the framework of the European integration. Theoretical and empirical study from a critical contemporary legal perspective. Special focus on diversity and non-discrimination.

Goal: promote better understanding of access to justice in the discipline of European legal studies.

Principal researcher: María Elvira Méndez-Pinedo.

Research assistant: Matthea Oddsdóttir.

Financing:

Preliminary research project funded by the Research Fund of the University of Iceland . 2010 (750.000 ISK). The grant was used  for the salary of research assistang.

Second stage of the project funded  by the new Center of Excellence – EDDA (University of Iceland). 2010-2011 (800.000 ISK). EDDA financed a research study visit to the European University Institute during the autumn 2011 where the principal researcher was appointed  visiting scholar.

Publications by MEMP:

1)      “Access to justice: a world-wide movement to make rights effective”, 18 p., in the book Afmælisrit Björns Þ. Guðmundssonar, Lagadeild HÍ, 2009, pp. 137-165.

2)      “Access To Justice As Hope In The Dark: In Search For A New Concept In European Law”, International Journal of Humanities and Social Science, 2011, Vol. 1 No. 19, pp. 9-19.

Summary of research fundings.

1. Legal report on Access to Justice in Icelandic law (Matthea Oddsdóttir). Available upon request.

Research on access to justice in Icelandic law  completed in summer 2010 by research assistant Matthea Oddsdótir. A legal report  of 50 pages written produced. This report will become part of a larger publication on access to justice in European law/Icelandic law when research project on access to justice in European law is completed.

The general conclusion is that although Icelandic law establishes the fundamental right to access to courts it is important to look further than the minimum requirements under international obligations and that the general aim of procedural reforms under Icelandic law must focus on ensuring fair justice and also respond to demands of the public for new procedural remedies. Here, it is important that renovations to civil law procedure are thought of as a renovation to the system as a whole – not only one or particular aspects, or to separate fields of law specially, as seems to be the case in environmental law. This is particularly important as the citizens needs for access to courts is always changing, and in a modern society, where the legislator cannot foresee all the possible events that can go before a court of law – the legislation must be well concluded and thought of to best meet the needs of the society. Only then will we have equality before the law.

2. Access to justice in European law (work in progress)

Ongoing research has been presented at the IV Conference on Legal Ethics organised by the University of Stanford (2010), at the Conference on the EU Charter of Fundamental Rights organised by the University of Iceland (2011) and at the VI Worldwide Conference of the Global Alliance for Justice Education hosted by the University of Valencia (2011) and the V Conference on Legal Ethics organised by the University of Alberta (2012).

Research paper presented at Standford University, 2010.

The entry into force of the Lisbon Treaty in December 2009 should have far-reaching implications for the development of a European policy on justice and access to justice as it “constitutionalizes” for the first time this important topic. But real access to justice will not be provided in Europe unless the European Union (EU) revises its own theory and methodology concerning this issue. The author argues that, so far, the European law (EU and European Economic Area law – EEA) have been unable to construct and provide proper access to justice for European citizens.

In spite of its inherent limitations to change society, the classic theory and methodology of “access-to-justice” developed a horizontal comprehensive strategy to construct a new procedural law based on the needs of the ordinary citizens. This classic theory and methodology developed in the early 80s is still unknown in European law as both the European legislator and the European judges use a narrow and outdated construction of access to justice as referring simply as access to courts. 

While the European legislator has adopted a vertical and fragmented approach to deal with justice and civil law, based mostly on the mutual recognition of national civil procedural laws on cross-border disputes, the focus of this contribution is to draw attention to some important issues of judicial protection and effectiveness of rights at European level which show the limitations of the current European model lacking a proper theory. In particular, the focus is on the case-law of the Court of Justice of the European Union (ECJ) and the EFTA Court and the double standard of access to justice in different procedures.

In EU/EEA law, there is a multi-level system of judicial protection of individual rights based on direct and indirect actions. Direct actions are brought before the ECJ and the EFTA Court. Indirect actions require the mutual collaboration of national and European judges.  European rights are to be exercised ordinarily through national remedies and civil procedural laws which fall under the competence of the different EU Member States. The case-law developed by the ECJ and the EFTA Court add to pre-existing problems. It is almost a paradox that, while the European judges require national judges to provide remedies at national level, they insist on strict rules on the admissibility of direct actions when citizens challenge the EU legislation directly.

The Lisbon Treaty has brought new promising clauses that need to be further developed in the field of justice. But the author argues that the European model of access to justice based on litigation and on the defense of individual rights is inherently limited. She advocates a change of approach, aiming for a better definition of a substantive notion of access to justice in the light of a broad system of European social justice and equality. 

Article: „Access To Justice As Hope In The Dark: In Search For A New Concept In European Law”.

This study elaborates on the concept of “access to justice” and analyses it in the framework of European law.[1]It complements existing research in the field of EU law by offering a broad overview of the concept in European human rights law and in international law. This exercise is necessary to build a new and better concept in European law. The author argues that the concept commonly used in EU law is not broad nor comprehensive enough as access to justice is understood in a limited way as equivalent to access to courts and effective judicial remedies. It is argued that a new concept is needed in European law which goes beyond formal aspects of procedural law and reflects better all stages of the justice process, such as awareness, information, rights and remedies, A second necessary dimension is to move from formal justice towards substantive justice and aim for legal and judicial outcomes that are just and equitable, thus reconciling law and justice together. By providing a higher firm standard that EU and Member States must comply to we will serve the real needs of citizens and the true purpose of the law. Revealing the shortcomings of the concept in EU law is not an end in itself, the ultimate aim of this contribution is to pave the way for the construction of a new theory and methodology on access to justice in Europe.

 

4. Title: Equality into Reality: Action for Diversity and  Non-Discrimination in Iceland. Participation in the research project directed by Associate Professor Brynhildur Flóvenz. (EU Progress Grant 2010).

Description: Research and dissemination on the newest trends and challenges within European equality law and Icelandic non-discrimination law in order to formulate and implement a comprehensive equality legislation in Iceland taking into account possible transposition of the newest EU anti-discrimination directives.

Goal: promote research and fund other activities in the field of non-discrimination: international conference, university seminar, training and a publication organised by the University of Iceland.

Background:There is no general non-discrimination law in force in Iceland, despite a general equality clause in the Icelandic Constitution ensuring equality before the law. The only equality law is on gender equality, No. 10/2008. To formulate effective and viable legislation to combat discrimination based on grounds other than gender, substantial scholarly research, training and dissemination is needed in the field of European non-discrimination law. Iceland is a member of the European Economic Area and the EEA-Agreement but the Agreement does not contain any provisions such as those set out in Article 13 of the EC-Treaty. Thus, EU Directives derived from Article 13 have not been transposed into Icelandic law as they are not considered EEA relevant. This situation is bound to change in view of the new political will and the accession negotiations to the EU.

Director of the research: Brynhildur Flóvenz. Research supervisor: María Elvira Méndez-Pinedo.

Financing: Project under the management of the Icelandic Human Rights Center. Grant given by the EU – Progress programme 2010. A total of 99.000€ was awarded for the University of Iceland.

Publications:  Publication of the book Equality into Reality. Action for Diversity and Non-discrimination in Iceland by the University of Iceland University Press,  2012, edited by Prof. Evelyn Ellis and Kristín Benediksdóttir.

Article by MEMP: “Access to Justice and non-discrimination in European Law – A critical view”, pp. 109-147, 2012, University of Iceland Press. Research financed by the EU Progress programme in the framework of the project “Equality into Reality. Iceland-Europe”.

Summary of the research fundings – chapter 3 (access to justice in European (non-discrimination law)

European and national procedural laws need to be adapted to the 21st century and to the requirements of substantive equality and social justice. We need to move from access to courts to access to justice, from procedural justice to substantive justice. As happened in the field of equality law, where there was an evolution from formal equality to substantive equality, a similar transformation must take place as regards the application and enforcement of European law in general and EU non-discrimination law in particular. Procedures dating sometimes from the 19th century need to be revisited, reassessed and adapted to our current needs in the field of non-discrimination. As Professor Micklitz has noted, the internal market was completed a long time ago; the challenge now is to move from the economic freedoms of individual actors to social justice through the European legal order and the principles of equality and non-discrimination. We should aim to think about rights through remedies, and to think about remedies in the context of rights, taking into account that procedural and substantive laws are intrinsically interrelated. In this process the EU should adopt a new horizontal and non-fragmented approach to access to justice. While advancing on this at a general level, the field of equality and non-discrimination law could be a pilot project to test the effectiveness and justice of a new theory and methodology based on a revised version of the access to justice approach and open for experimentation at national level.

In the context of this research project comparing European and Icelandic equality and non-discrimination law, it is important to question the current understanding that the general principles provided by the national constitutions of EEA Member States provide sufficient protection for victims of discrimination. During the conference organized in Reykjavík where research conclusions were debated, it was clear that new remedies and procedural rules which European citizens enjoy in the field of equality law do not seem to exist in Iceland. The minimum requirements of access to justice understood as access to courts, assumed under international obligations (ECHR), cannot justify the existing gap. De lege ferenda, Icelandic procedural law should be seriously studied and compared with European law from the perspective of the access to justice legal theory and methodology so that substantive rights are complemented by appropriate and effective remedies.

 

5. A new consumer credit law in Europe after the financial crisis - challenges for Iceland.

Description:  The project will critically analyse past and current developments in European consumer credit protection law. It aims to bring new knowledge to Iceland and present the tensions, paradoxes and new paradigms in the European legal order.

Goal:  To advance research in the field of new consumer credit and mortgage law needed in the aftermath of the financial crisis which can be a guide to solve Icelandic specific problems, ie price-indexed loans (verðtrygging) under the general principles of EU/EEA consumer law. It will explores conventionally disregarded issues such as fundamental rights, fairness, distributive justice, ethical and sustainable banking and solidarity in connection with financial services.

Background:

In the last years and in reaction to the economic and financial crisis, the EU has started redrafting the body of legislation (consumer acquis), trying to find an alternative to the current minimum harmonization approach and counteracting existing legal fragmentation. At the same time, the EU is reforming the internal market in financial services and proposing new legislation on consumer and house credit.

Consumer protection is standing thus at the crossroads. European consumer law is currently a fragmented body of law (“aquis”) under reform and criticism. After the long period of adopting consumer directives from the 1980s until 2001, and especially in reaction to the global economic and financial crisis, the EU has now entered into a new phase of redrafting and systemizing of consumer legislation in order to complete the internal market with a more coherent common consumer protection law. In March 2011, for example, the Commission proposed new legislation in the field of credit arrangements relating to residential property. All the main pillars of the research project, consumer law, financial services law, mortgage credit, are currently being reformed and/or constructed at European level.

Despite the importance of consumer credit law to the European societies, only very few specialists are working in the field. The leading scholar is Prof. Hans-W. Micklitz at the European Law Institute in Florence, Italy. His publications on consumer law, together with other researchers, especially Norbert Reich from the University Bremen, Germany, are of seminal importance (see bibliography).

There is a need for further analysis and critical examination of consumer protection in European law regarding financial services and credit. Existing research tends to concentrate on respectively one aspect of consumer protection, general horizontal consumer protection in the EU and/or issues of private contract law (European Civil Code project). What is more, research is often “internal”, which neglects the impact of other non-legal matters on consumer protection law. Issues such as the sustainability of the banking sector and the financial system in general are disregarded as necessary parts of research concerning consumer credit law.

Moreover, there is a research gap in Iceland concerning specifically Icelandic problems such as the history of high inflation, high volability of the Icelandic króna and price-indexed loans (verðtrygging). These issues of consumer credit are specific to Iceland but must be examined under the light of general principles of European law, since EU law is applicable through the EEA-Agreement. Even though economic studies abound, no important legal research has been done, for example, in the area of European consumer law and financial services in Iceland. Legal research on these issues is very limited. Moreover, Iceland has started negotiations for accession to the EU, which underlines the general undeniable relevance of European law for its domestic legal system.

For these reasons a broad and complete research project, combining all these issues and including other topics such as the reform of the financial supervisory system in the EU and the tension with socio-economic fundamental rights, is of fundamental importance to the European legal field and to Iceland .

Principal researcher: Irina Domurath, Ph.D. Candidate at the University of Iceland and the University of Copenhagen.

Financing: Research project funded by the Research Fund of the University of Iceland for 2012 (grant for research in the field and two publications by doctoral student and supervisor Prof. MEMP - 1.300.000 ISK) and for 2013-2015 (Grant to doctoral student for aprox. 3.600.000 ISK per year)

Publications:  Some articles will be produced by Irina Domurath during her postgraduate studies  and her supervisor but the main goal is to complete a doctoral dissertation to be defended in Iceland and in Denmark which can be published by a specialised house in the field of European law at the end of 2015.

 

 

 


[1] When the author uses the generic term “European law“, she is referring to EU law, European Human Rights law (ECHR) and European Economic Area law (EEA law). When differences between these legal orders are emphasized, a proper distinction is made referring to one or another.

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