Dr. Michèle Finck, LL.M.

Edited Works

Cambridge Handbook of the Law of the Sharing Economy, Cambridge University Press, Cambridge 2019 (together with Nestor Davidson, John Unfranca).

Books and Monographs

Blockchain Regulation and Governance in Europe, Cambridge University Press, Cambridge, MA 2019, 215 pp.

Subnational Authorities and EU Law (Oxford Studies in European Law), Oxford University Press, Oxford 2017, 240 pp.

Contributions to Collected Editions, Commentaries, Handbooks and Encyclopaedias

Information Management, in: Peter Cane, Eric Ip, Peter Lindseth (eds.), Oxford Handbook of Comparative Administrative Law, Oxford University Press, Oxford 2020, forthcoming.

The Platform Economy and EU law, in: Cambridge Handbook of the Law of the Sharing Economy, Cambridge University Press, Cambridge 2018, forthcoming.

The Principle of Loyalty in Federations, in: Rüdiger Wolfrum, Frauke Lachenmann, Rainer Grote (eds.), Max Planck Encyclopaedia of Comparative Constitutional Law (MPECCoL), Oxford Constitutional Law, Oxford 2017.

• http://oxcon.ouplaw.com/view/10.1093/law-mpeccol/law-mpeccol-e296

The Impact of EU Law in Luxembourg: Does Size Matter?, in: Caroline Morris, Petra Butler (eds.), Small States in a Legal World (The World of Small States, 1), Springer, Cham 2017, 65 - 85. DOI

• This chapter engages with Luxembourg’s nature as a small state, and the impact its size may have on its relation with the European Union (and in particular its legal order), of which it is a founding Member State. When it comes to size, Luxembourg’s relationship to the European Union is ambiguous. Territorially and demographically speaking, Luxembourg is, with its 2.586 km2 and just over half a million inhabitants, a lightweight, no doubt. Historically and politically speaking, Luxembourg however punches above its geographical weight. It is not only a founding Member State of the EU but has also continuously acted and been perceived as a loyal partner of the European integration project, a stable economy embedded in the internal market and a significant diplomatic player. The European Commission and the institutions that preceded it have had eighteen presidents over time, three of which were Luxembourg nationals: Gaston Thorn was the President of the European Commission from 1981–1985, Jacques Santer from 1995–1999 and Jean-Claude Juncker is the Commission’s current head. Luxembourg, and especially its capital, Luxembourg City, host divisions of the European Parliament and the European Commission as well as the Court of Justice of the European Union (‘CJEU’ or ‘the Court’). In April, June and October of each year, the meetings of the Council are held in Luxembourg.

Journal Articles

Copyright Law on Blockchains: Between New Forms of Rights Administration and Digital Rights Management 2.0, IIC - international review of intellectual property and competition law 2018-8, 20.12.2018 (together with Valentina Moscon). DOI

• This article examines the potential and limitations of blockchain technology and blockchain-based smart contracts in relation to copyright. Copyright has long been enforced through technological means, specifically Digital Rights Management. With the emergence of blockchains, many are now predicting a new era regarding the administration and enforcement of copyright through computer code. The article introduces the technology and related potential and limitations while stressing its capacity to act as a form of normative ordering that can express public or private objectives.

Blockchain Regulation, German Law Journal 2018, forthcoming.

• This paper examines the emergence of blockchain technology and evaluates regulatory techniques designed to regulate the technology in its early stages.
• Also published at SSRN as Max Planck Institute for Innovation & Competition Research Paper No. 17-13

Fragmentation as an Agent of Integration, International Journal of Constitutional Law 2018, forthcoming.

Platform Regulation, European Law Review 2018, forthcoming.

The Role of Human Dignity in Gay Rights Adjudication, International Journal of Constitutional Law 14, 1 (2016), 26 - 53. DOI

Sharing and the City, Vanderbilt Journal of Transnational Law 49, 5 (2016), 1299 - 1369 (together with Sofia Ranchordas).

• The sharing of public infrastructure, the exchange of small services, and the traditional "cup of sugar borrowed from the neighbor" are practices intrinsic to most urban agglomerations. In the digital age, these sharing initiatives are facilitated by online platforms such as Feastly, Peerby, and HomeExchange. These platforms allow city residents to share the idle capacity of some of their assets (e.g., clothing, tools, or a spare bedroom) with other residents living in close proximity to them, or with tourists looking for accommodation. While these practices can be justified by efficiency and sustainability concerns, some of them appear to be in conflict with longstanding regulations on localtransportation, food safety, zoning, taxation, and short-term accommodation. This Article explores urban peer-to-peer sharing practices from a comparative perspective and discusses how a number of large cities in Europe, the United States, and Asia are currently addressing the regulatory challenges inherent to sharing platforms. We argue that cities should rethink their regulations in light of this new form of urban sharing. The legal literature has thus far conveyed an incomplete image of the sharing economy by focusing on controversial platforms such as Uber and their ongoing lawsuits. In this Article, we reestablish the historical, economic, and legal meaning of genuine "urban sharing." First, this Article distinguishes between genuinely collaborative initiatives that promote the sharing of underutilized assets (e.g., spare guestrooms) and non-collaborative platforms that are not driven by sustainable consumption (e.g., Uber). Second, it provides an overview of the economic and geographic sharing potential of cities and discusses how outdated regulations might restrict it. Third, drawing on the experience of the so-called sharing cities (e.g., Seoul), it suggests a new legal framework for the regulation of genuine sharing practices. In this context, we argue that cities should, in some cases, experiment with the regulation of sustainable sharing initiatives in order to gather more information as to their benefits or risks, and, in other cases, engage in collaborative decision-making by negotiating the content of new legal provisions and policies with digital platforms.

Towards an ever closer union between residents and citizens? On the possible extension of voting rights to foreign residents in Luxembourg, European Constitutional Law Review 11, 1 (2015), 78 - 98.

Surrogacy Leave as a Matter of EU Law: CD and Z - Judgments of the Court of Justice (Grand Chamber) in Case C-167/12, C.D. v. S.T., EU:C:2014:169 and Case C-363/12, Z. v. A Government Department and The Board of management of a community school, EU:C:2014:159., Common Market Law Review 52 (2015), 281 - 298 (together with Betül Kas).

Challenging the Subnational Dimension of the Principle of Subsidiarity, European Journal of Legal Studies 8, 1 (2015), 5 - 17.

• (upon invitation of the editorial board)
• This article, which forms part of the New Voices' series and is hence drafted as an essay rather than a proper academic article, examines the principle of subsidiarity in its application to local and regional authorities as they exist within the various Member States. While subnational authorities ('SNAs) have been studied extensively within the respective domestic contexts, their relation with other levels ofpublic authority, such as the European Union, is less well-defined. Subsidiarity is often cast as the principle capable of recognising the existence ofsubnational autonomies by the EU, and guiding their interaction with the latter. This is so in particular after Article 5(3) TEU has been amended on the occasion of the Lisbon Treaty revision to include an express reference to local and regional authorities. This short essay challenges this perception of subsidiarity, putting forward that the core legal provisions that deal with subsidiarity in EU law do not allocate any meaningful role for SNAs. This is so, it is argued, because subsidiarity remains anchored in an understanding of the European Union and its legal order as composed of and shaped by the EU and the Member States to the exclusion of any other actor.

The Role of Localism in Constitutional Change: A Case Study, The Journal of Law & Politics 30, 1 (2014), 53 - 95.

• This Article investigates the role local governments have played in bringing about constitutional change in the area of gay rights. Localities are conventionally framed either as administrative agents that implement state and federal norms or as creators of local regulation, the effect of which is strictly limited to the local territory. Conventional images of constitutional law accordingly assume that the competences of local governments are too limited to influence constitutional change. I take issue with this assumption and illustrate that localities can be generators of important legal norms that transcend the local territory. By acting through legal, rather than purely political means, the performative nature of local regulation influences state and federal law in a constitutional order characterized by polycentricity and porosity. As such, municipal policies have been one of many driving forces behind the significant changes in gay rights at the state and federal levels over the past years.

Above and Below the Surface: The Status of Sub-National Authorities in EU Climate Change Regulation, Journal of Environmental Law 26, 3 (2014), 443 - 472. DOI

• European Union (EU) legal studies generally picture the Member States’ local and regional authorities as implementers of national and supranational norms rather than independent regulators. Yet, sub-national authorities (SNAs) have become active regulators in the context of climate change mitigation and adaptation, a role not foreseen by EU primary law, which this article understands to constitute the surface of EU law. This article examines regulatory activity of SNAs from the perspective of EU law. It illustrates that sub-national, national, supranational and international actors are engaged in a process of mutual learning and experimentation and that, below its surface, EU law recognises that SNAs are not mere implementers of norms but also independent regulators.

Research Papers

Smart Contracts as a Form of Solely Automated Processing Under the GDPR (Max Planck Institute for Innovation & Competition Research Paper, No. 19-01), 2019, 29 pp. DOI

• This article examines the interaction between smart contracts and Article 22 GDPR. There is currently much debate regarding the potential of smart contracts. In spite of their name, this form of computer code is however neither necessarily smart nor a contract. I argue that they are, however, a form of solely automated data processing under Article 22(1) GDPR and subsequently examine the interaction between smart contracts and the European data protection framework to highlight uncertainties regarding the interpretation of the legal regime applying to solely automated forms of data processing under the GDPR.

Blockchains and Data Protection in the European Union (Max Planck Institute for Innovation & Competition Research Paper, No. 18-01), 2017, 31 pp.

• This paper examines data protection on blockchains and other forms of distributed ledger technology (‘DLT’). Transactional data stored on a blockchain, whether in plain text, encrypted form or after having undergone a hashing process, constitutes personal data for the purposes of the GDPR. Public keys equally qualify as personal data as a matter of EU data protection law. We examine the consequences flowing from that state of affairs and suggest that in interpreting the GDPR with respect to blockchains, fundamental rights protection and the promotion of innovation, two normative objectives of the European legal order, must be reconciled. This is even more so given that, where designed appropriately, distributed ledgers have the potential to further the GDPR’s objective of data sovereignty.
• Available at SSRN