목차 일부
1 Introduction = 1
A Object and Purpose = 1
1 The Coupling of Business and Fundamental Rights and Freedoms = 1
2 The European Convention and Corporate Rights = 2
3 Exposing The Structure o...
목차 전체
1 Introduction = 1
A Object and Purpose = 1
1 The Coupling of Business and Fundamental Rights and Freedoms = 1
2 The European Convention and Corporate Rights = 2
3 Exposing The Structure of Echr Protection = 4
B Overview = 6
C Materials = 8
D Companies and The Echr An Overview = 10
1 The Company: Protagonist of Private Business Enterprise = 10
2 Companies and The Echr: Basic Facts = 13
3 The System of Private Application: Overview = 14
(a) The Admissibility Stage = 14
(b) Examination on The Merits = 16
4 Providing a Structural Framework: Preliminary Issues = 17
(a) The Regulatory State and The Nature of Echr Obligations = 17
(b) Echr Compliance = 18
(c) The Court's Methodology and Mode of Reasoning = 20
(i) The Teleological Approach = 20
(ii) The Court's Minimalist Reasoning = 22
2 Companies and The Structure of Convention Protection = 25
A An Occasional Sense of Controversy = 26
1 Voices of Dissent: The United Kingdom's Echr Discourse = 26
(a) a Conceptual Mismatch? = 27
(b) Ideological and Political Motives = 28
(c) Disproportional Litigious Advantages = 29
(d) Considerations of Symmetry and Merit = 31
2 The Echr's Singular Human Rights Ideology = 32
B Treaty Text and Drafting History = 32
1 The Text Read in Isolation = 33
2 Tacit Acceptance in The Travaux Prearatoires = 35
C The Convention's Value System = 36
1 The Preamble's Significance = 36
2 Individual Dignity = 37
3 Democracy = 39
(a) Democracy's Importance = 40
(b) The Pre-eminence of Political Discourse = 41
(c) Private Enterprise and Liberal Democracy = 42
4 The Rule of Law = 44
(a) The Convention's Rule of Law Principle = 44
(b) The Rule of Law and Companies = 46
5 European Liberalism = 47
(a) European Liberalism As Convention Value = 47
(b) Liberalism and Companies' Rights = 48
(c) Free Enterprise and European Integration = 50
D Consideration of Whose Interests? = 51
1 What Kinds of Rights and Freedoms? = 51
(a) Collective and Individual Aspects of Convention Rights = 52
(b) Economic Aspects of Civil and Political Rights = 54
2 Objective and Instrumental Functions of Convention Protection = 57
(a) The Subjective Approach = 57
(b) The Objective Approach = 58
3 Public Interests = 60
(a) Community Interests = 60
(b) Sovereignty Concerns = 62
E a Many-sided Convention = 63
3 The Court's Approach to Corporate Personality = 65
A The 'victim' Requirement and Shareholders' Claims = 67
1 The 'victim Requirement = 67
2 Shareholding and Echr Protection = 69
(a) Protection of Shareholders' Rights = 69
(i) Shares As Property = 70
(ii) Shareholder Rights = 71
(b) Protection of Shareholder Interests: Identification Claims = 73
(i) The Rights/interests Distinction = 73
(ii) 'veil-piercing' a La Strasbourg = 74
B The Starting Point: Preservation of Corporate Personality = 76
1 Starting Point: No Identification = 76
(a) The Agrotexim Case = 76
(b) The Reach of Agrotexim = 78
2 Exploring The Court's Approach: The Given Justifications = 80
(a) Difficulties in Determining Who Can Represent The Company in Strasbourg = 80
(i) The Reasoning = 80
(ii) Sufficiently Coherent? = 81
(b) Unreasonable Application of The Local Remedies Rule = 83
(i) The Reasoning = 83
(ii) Sufficiently Coherent? = 84
(c) The Comparative Legal Context = 87
(i) Constitutional Solutions = 87
(ii) The Barcelona Traction Citation = 88
3 The Agrotexim Approach in Context = 89
(a) Concern for The Company's Fundamental Attractiveness = 90
(b) Structural Aspects of Convention Protection = 92
(i) Subsidiarity = 92
(ii) Domestic Implementation = 93
(iii) Concern for National Interests = 93
C Disregard for The Corporate Veil in Exceptional Circumstances = 95
1 The 'impossibility' Exception = 95
(a) 'impossibility' As Ground for Admissibility = 95
(b) The 'impossibility' Exception's Rationale = 97
(i) No Risk of Competing Claims = 97
(ii) The Court Ascertains Effective Protection of Central Convention Values = 98
2 The 'vehicle' Approach = 99
(a) The Approach of Pine Valley V Ireland = 99
(b) Explaining The 'vehicle' Approach = 101
(i) No Risk of Competing Claims = 101
(ii) Effective Protection of Shareholder Investment = 102
3 a Pragmatic Overall Assessment = 104
D Concluding Observations = 108
4 The Court's Response to Hard Cases of Applicability = 110
A Hard Cases of Applicability = 110
B Object and Purpose As Arguments Against Applicability = 112
1 Article 8(1): Business Premises As a Company's 'home' = 113
(a) a Distinction between The Private Sphere and General Private Activity = 113
(b) Article 8 Primarily Protects The Natural Person = 114
(c) Absence of 'fit' With Philosophical Justifications = 116
2 Article 10(1): (corporate) Commercial Expression = 117
(a) Defining 'commercial Expression' = 117
(b) The Rationale for Free Expression Does Not Fit = 119
(i) The Democracy Argument = 120
(ii) Individual Self-fulfilment = 121
(iii) Pursuit of Truth = 122
3 Article 41: Companies' Compensation for Non-pecuniary Loss = 122
(a) Cogent Reasons for Concern? = 122
(b) Contested Opinions and Probable Causes = 124
(i) Difficulties in Determining The Meaning of Non-pecuniary Loss = 124
(ii) Rhetorical Incompatibility = 126
C The Court's Favourable Response = 128
1 Article 10 and Corporate Commercial Expression: Autronic Ag V Switzerland = 129
2 Article 41 and Monetary Compensation for Non-pecuniary Loss: Gomingersoil Sa V Portugal = 130
3 Article 8 and Corporate 'home' Protection: Colas Est Sa and Others V France = 132
D a Revamped Teleology = 134
1 Rationalizing The Court's Approach = 134
(a) Avant-garde Jurisprudence = 134
(b) a Revamped Teleology = 135
2 Pragmatism = 137
3 Securing Objectiveness = 139
(a) Equal Treatment of Indistinguishable Cases = 139
(b) Rule of Law = 141
(c) Collective Aspects of Individual Rights Protection = 143
(i) Collectivism in Article 41 = 143
(ii) Article 8: Collective Aspects of Privacy = 144
(iii) The Public Aspect of Free Speech Protection = 145
4 Progressiveness = 147
(a) Reliance Upon Prior Case Law = 147
(b) Analogous Matters Only = 148
(i) Article 8 = 148
(ii) Article 10 = 149
(iii) Article 41 = 150
(c) Progressive Reasoning As Legitimating Factor = 151
(d) a Comment on The Dynamic Interpretation in Colas Est = 152
E Summary Observations = 153
5 Lenient Standards of Review = 155
A Conflicting Interests and The 'necessity' Criterion = 157
1 The Public-private Tension: 'necessity' and Proportionality = 158
(a) 'necessity' = 159
(b) The Proportionality Assessment = 160
2 The Supranational Dimension: The Margin of Appreciation Doctrine = 161
(a) The Margin of Appreciation Doctrine = 161
(b) Its Role in The Assessment of 'necessity' = 162
B Introducing The Two Standards of Review = 163
1 Article 10(2): The Markt Intern Standard = 164
(a) Introducing The Standard = 164
(b) The Elements of Leniency = 165
(c) The Markt Intern Approach Prevails = 167
(i) The Currency of The Standard = 167
(ii) Doubt As to Whether Statements Are 'commercial' = 170
2 Article 8(2): The Colas Est Standard = 172
(a) Introducing The Standard = 172
(i) Elements of Strictness = 172
(ii) Elements of Leniency: The 1viemietz Implication = 173
(b) The Standard's Content and Scope = 174
(i) Is There a Colas Est Standard? = 174
(ii) a Broader Margin of Appreciation = 176
C Leniency and The Court's Weighing of Competing Interests: a Suggested Rationale = 177
1 An Approach in Need of Rationalization = 177
2 Lowering The Applicant's Convention Protection by Teleological Interpretation = 180
(a) Emphasis Upon The Object and Purpose of Convention Protection = 180
(b) The Nearer The Provision's Core, The Narrower Is The Margin of Appreciation = 181
(c) Does Disassociation With The Core Purpose Suggest a Wider Margin? = 182
3 Deference to Democratic Processes in The Economic Field = 184
(a) Introducing The 'complexity and Fluctuation' Rationale Under Article 10 = 185
(b) Democratic Legitimacy and The 'necessity' Criterion = 186
(c) The Special Status of Property Protection Under The Convention = 188
(d) The Social Function of Property = 189
(i) Protocol 1 Article 1 and Property Protection = 190
(ii) a Systematically Wide Margin in The Implementation of Economic Policies = 192
D Summary Observations = 193
6 Retrospect and Prospect = 197
A Retrospect = 197
1 The Framework That Shapes The Court's Response = 197
2 The Court's Response = 198
(a) The Court's Response Identified = 199
(b) Justifying The Court's Response = 200
B Questions of Wider Significance = 202
1 a Many-sided Teleology = 202
2 Economic and Collective Aspects of Civil and Political Rights = 204
3 a Liberal Project = 205
C Whither Corporate Echr Protection? = 206
Bibliography = 209
Index = 229
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