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1
Puttler, Adelheid. "A. Ahlström Osakeyhtiö v. Commission of the European Communities." American Journal of International Law 83, no. 2 (April 1989): 357–61. http://dx.doi.org/10.2307/2202750.
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Canadian, Finnish and United States producers of wood pulp and two trade associations of such producers, one Finnish and one American, applied to the Court of Justice of the European Communities for annulment of a 1984 decision of the Commission of the European Communities. Under the 1984 decision, the Commission found the applicants to have infringed Article 85 of the EEC Treaty by engaging in concerted actions relating to the prices of wood pulp exports into the European Community (EC). The applicants, whose registered offices were all outside the Community, were ordered to terminate the pricing practices and to refrain in the future from measures having the same object or effect. The Commission fined all but two of the applicants for their past conduct. In this preliminary judgment, the Court held: (1) that the territorial scope of Article 85 of the EEC Treaty applies to the pricing practices of the applicants; (2) that by applying Article 85 to such practices, the EC had not infringed the public international law principles of territoriality and noninterference; (3) that the Commission’s decision is vacated insofar as it concerns the pricing actions of KEA, an association of U.S. wood pulp producers registered as an export cartel under the Webb-Pomerene Act; and (4) that the competition rules in the Free Trade Agreement between Finland and the Community do not preclude the application of the EEC Treaty.
2
Gray, Margaret, and Marie Demetriou. "Developments in EC competition law in 2006: An overview." Common Market Law Review 44, Issue 5 (October 1, 2007): 1429–62. http://dx.doi.org/10.54648/cola2007114.
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This article covers the major developments and general trends in EC competition law and policy in 2006. It discusses new EC legislation and other instruments adopted by the Commission of the European Communities, such as the steps taken to strengthen the Commission’s enforcement of the competition rules by the adoption of the 2006 Guidelines on the method of setting fines and the 2006 Leniency Notice. The decisional practice of the Commission is considered, in particular in the fields of cartels, fines and penalty payments, and merger control, along with recent policy initiatives, such as the potential roles of direct settlements of infringement proceedings and of private enforcement, primarily through damages actions for breaches of the competition rules. The case law of the Court of Justice and Court of First Instance during the period is surveyed. Important judgments regarding key concepts affecting the general application of the substantive provisions of Articles 81 EC and 82 EC, such as Meca-Medina, FENIN, SELEX and O2 Germany are addressed, as well as a number of rulings by the CFI on procedural issues, including certain rulings on the Austrian Banks — Club Lombard proceedings. Key case law on vertical agreements, such as GSK and Unilever Bestfoods is dealt with, as are the principal judgments concerning cartels and competitor cooperation, which principally focus on the levels of financial penalties imposed and largely confirm the Commission’s wide discretion in that area.
3
Zavhorodnia, V. M. "The origin and development of the European Union sports policy and law." SUMY HISTORICAL AND ARCHIVAL JOURNAL, no. 39 (2022): 50–58. http://dx.doi.org/10.21272/shaj.2022.i39.p.50.
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The presented work is devoted to highlighting the processes of evolution of the EU sports law and policy, identifying facts and events that have contributed to the development of communitarian regulation in this area and establishing trends and directions significant for Ukraine in the European integration aspect. Integration processes, first purely economic and then increasingly multidirectional, could not but affect this vital sphere of social life on the European continent and internationally. Sport is an essential element of the self-realization of a human personality and a sphere of economic activity. It is also a form of international communication, cross-cultural communication, the assertion of authority, and a positive image of countries. Also, sports can be an instrument of political and diplomatic influence or even a means of responding to violations of international law and order. The evolution of EU sports policy and law has been a difficult and long way in the general context of European integration processes. Initially, the sport was not covered by Community law and the spheres of competence of the Communities. However, since the 60s of the last century, the foundations of the European sports model began to form. Implementing the Council of Europe’s standards in the Member States’ practice was essential in forming this model. The European sports model implies, on the one hand, the unity of values and sports traditions of Europe. On the other hand, it is based on considering the national characteristics of European countries, pluralism, and diversity of the organization of sports relations and activities of non-governmental sports organizations. To the main features of the European sports model, which have developed historically and are preserved to this day, the author refers voluntary participation in sports competitions, non-discrimination, democracy, solidarity, compliance with the rules of “fair play,” good governance, and prevention of corruption and abuse. The article characterizes the role of the Court of Justice of the European Union (CJEU) in the creation of the EU acquis in the field of sport. CJEU developed the legal criteria system for extending communitarian rules and principles to the economic aspects of sports activities, including regulating relations with non-state actors such as national Olympic committees, sports federations, etc. Relevant CJEU decisions are analyzed in the study, approaches to the application of EU competition rules in sports, as well as to labor relations, freedom of movement of workers, and the provision of services, are revealed. Further integration and reform of the EU under the provisions of the Lisbon Treaty led to the emergence of a sector of the EU policy in the field of sports and several regulations and organizational measures aimed at realization of this policy. Implementation of the relevant standards in the national legislation, introduction of the best practices of governance in the field of sports in the state policy and activities of non-governmental sports organizations are important components of the implementation of Ukraine’s European integration aspirations, fulfillment of obligations under the Association Agreement and prospectively – the criteria for the EU membership.
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Oxman, Bernard H., Juliane Kokott, and Frank Hoffmeister. "A. Racke GmbH & Co. v. Hauptzollamt Mainz." American Journal of International Law 93, no. 1 (January 1999): 205–9. http://dx.doi.org/10.2307/2997963.
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A. Racke GMBH & Co. v. Hauptzollamt Mainz. Case C-l 62/96.Court of Justice of the European Communities, June 16, 1998.The German Bundesfinanzhof (Federal Finance Court) asked the Court of Justice of the European Communities whether an EEC Council regulation suspending the trade concessions provided for by the 1980 Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia was valid. The Court answered in the affirmative, holding that, in adopting the regulation, the Council had not acted contrary to the rules of customary international law concerning termination and suspension of treaty relations because of a fundamental change of circumstances.
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Salachová, Bohumila, and Bohumil Vítek. "Interpretation of European law, selected issues." Acta Universitatis Agriculturae et Silviculturae Mendelianae Brunensis 61, no. 7 (2013): 2717–20. http://dx.doi.org/10.11118/actaun201361072717.
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The article deals with the issue of interpretation of European law. It is based on the classical methodology of law interpretation in continental Europe, but it also reflects the particularities and recent approaches, which are used in European law as in independent and particular legal system. So it is essential to emphasize the autonomous conception of European law, which finally means its own methodology which is different from national attitudes. By practice of European bodies and mainly by judgments of Court of Justice of European Union was established specific set of rules which corresponds to peculiarities of European Union as an integrative society. The Court of Justice formulated in its decision two basic principles for the application of the European law in the Member States: the principle of direct effect of the European law in the Member States and the principle of the primacy of the European law rules in the national legal rules of the Member States. There should be further assigned to these two basic principles the principle of indirect effect of directives (uniform interpretation) and the principle of State liability for damage caused to an individual by breach of the European law. The application of principles of direct effect and primacy of the European law rules is closely related to the preliminary ruling procedure (prejudicial proceedings). The judge-made law can be used only by the Court of Justice, neither the administrative bodies of EU nor the national bodies have this capacity.
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Poffé, Léon R. L. "The European Convention on Human Rights: Merger Proposal for Commission and Court." Leiden Journal of International Law 2, no. 1 (May 1989): 90–96. http://dx.doi.org/10.1017/s0922156500001114.
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Most European courts face overloading. Therefore the Single European Act has incorporated Article 168A into the lifiC Treaty. According to this article the Court of Justice of the European Communities may request the Council to create a Court of First Instance with a limited jurisdiction. This request has been made by the Court on September 29, 1987; by its decision of October 24,1988 the Council has approved of this request. The reason behind this proposed change in the procedure before the Court of Justice is the enormous pile of cases on the desks of the Judges in Luxembourg. Apart from this, already institutionalised remedy, other ideas are also circulating in Luxembourg with a view to improve the existing practice of the Court of Justice. One of these ideas concerns the possibility of abandoning the institution of Advocates-General by merging them with the corps of judges. Only in cases of exceptional interest one of the judges could act as a Advocate-General. I do not intend, however, to give a full account of the possibilities which have already been put forward in order to improve the working of the Court of Justice. This note will look at the other ‘European Court’, that is, the European Court of Human Rights (European Court), which is one of the organs created by the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention). This Court is ill so overloaded with cases, just as its counterpart in Luxembourg. Kill unlike the constitutional changes in the European Communities, none of the proposal measures to improve and accelerate the work of the European Court has been incorporated in an amendment of, or an additional protocol to the European Convention.
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Tasalov, К. A., S. G. Sokolova, and D. M. Osina. "Countering the corporate tax avoidance in the Court of Justice of the European Union practice." Law Enforcement Review 5, no. 3 (October 2, 2021): 178–94. http://dx.doi.org/10.52468/2542-1514.2021.5(3).178-194.
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The article contains the analysis of extensive CJEU practice regarding the issues of countering corporate tax avoidance, and legal framework, mostly the provisions of the Treaty on the Functioning of the European Union and Directives.The purpose of this paper is to conduct a comprehensive research of the issues of countering the corporate tax avoidance in the CJEU practice. For this reason the authors set the following tasks: (1) to consider the concept of abuse of law, developed by the CJEU practice, with respect to corporate tax avoidance; (2) to identify the interaction between national anti-avoidance rules and fundamental freedoms of the internal market as established by the CJEU practice; (3) to study the CJEU practice concerning the implementation of tax directives and the application of anti-avoidance measures; (4) to identify the main features of the Directives "Anti-Tax Avoidance Directive" (ATAD) in terms of their potential impact on the development of the CJEU practice.The research methodology includes the application of both general methods of formal logic (including analysis, synthesis, deduction and induction) and special legal methodology (formal legal and comparative legal methods).The main results of the study. The CJEU has repeatedly considered the problem of conflict of national anti-avoidance rules with the fundamental freedoms of the EU internal market. The conflict between these rules is resolved in different ways depending on the type of antiavoidance rules: (1) national rules aimed at countering the abuse of law, and (2) national rules developed to counter tax avoidance, which are strictly applied according to formal criteria, without any requirement to prove abuse of law in a particular situation. The application of national anti-avoidance rules may provide for the exemptions from the regime of fundamental freedoms of the internal market. Where national anti-avoidance rules are not aimed at combating wholly artificial arrangements, but are applied mechanically, due to formal criteria, such rules should apply subject to the legal regime of fundamental freedoms. The CJEU held that the concept of beneficial owner should be applied not only to interest and royalties, but also to the distribution of profits, despite the fact that the provisions of the Parent-Subsidiary Directive do not contain such a concept. EU law prohibits the granting of state aid. National anti-avoidance rules and law enforcement practice may be subject to such a prohibition in cases where they create positive discrimination.Conclusions. When implementing the provisions of the ATAD 1-2, the EU Member States committed numerous breaches of the EU law. It therefore can be expected that the CJEU practice regarding the proper implementation of the Directives may appear in the near future. The general prohibition of abuse of EU law shall apply, even in cases where the EU Member State has not implemented the anti-avoidance mechanisms of tax directives into its national law. The general prohibition of abuse of EU law shall apply despite the principle of legal certainty, which precludes directives from being able by themselves to create obligations for individuals, so the directives cannot be relied upon per se by the Member State as against individuals. Sections 1−2 were contributed by S.G. Sokolova, 3−4.1 by D.M. Osina (section 4.1 in collaboration with K.A. Tasalov), 4.1−7 by K.A. Tasalov (section 4.1 in collaboration with D.M. Osina).
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KLIMEK, LIBOR. "CASE-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION ON MARKET ABUSE AT EUROPEAN LEVEL." Economic problems and legal practice 16, no. 5 (October 20, 2020): 294–313. http://dx.doi.org/10.33693/2541-8025-2020-16-5-294-313.
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A set of legislative instruments regulating market abuse have been adopted by the European Union. The principal contemporary legislative instrument in this field, addressed to its Member States, is the Regulation No 596/2014 of the European Parliament and of the Council on market abuse. Legislation has been supplemented by the case-law of the Court of Justice of the European Union (formerly known as the Court of Justice of the European Communities). It is a key element for the development of legal practice in all Member States of the European Union. The assessment of case-law on market abuse is therefore needed. The paper analyses relevant cases. In each case at the outset a reference for a preliminary ruling is mentioned. Further, dispute in the main proceedings and the question(s) referred for a preliminary ruling are analysed. The most important parts of analyses are considerations by the Court of Justice and its rulings
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Louis, Frédéric. "Ferring Revisited: the Altmark Case and State Financing of Public Service Obligations." World Competition 27, Issue 1 (March 1, 2004): 53–74. http://dx.doi.org/10.54648/woco2004005.
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On 24 July 2003, the Court of Justice of the European Communities (``the Court of Justice'') rendered its eagerly awaited judgment in the Altmark case, ending the controversy surrounding the application of the EC State Aid control regime to compensation granted to undertakings in consideration for public service obligations imposed on them, which had divided the Court of Justice and the Court of First Instance of the European Communities, and sparked a wide debate between four of the Court of Justice's Advocates General. The Court held that State compensation for public service obligations does not confer an advantage on the undertakings concerned, and hence does not constitute State Aid within the meaning of the EC Treaty (``EC''), provided four stringent conditions are satisfied, which will serve as safeguards to make sure that its ruling is not used by Member States to favour certain undertakings under the guise of compensating them for the costs incurred in discharging public service obligations. This judgment is meant to enable Member States to organise public services without having to submit their financing mechanisms to prior European Commission scrutiny under the State Aid control rules. However, the conditions determined by the Court of Justice will ensure that only the most clear-cut cases will benefit from the generous treatment provided for by the Altmark ruling. A number of issues remain unresolved and it is to be hoped that the Commission will now act quickly to provide Member States with the necessary guidance in this important field.
10
KLIMEK, LIBOR. "CASE-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION ON CRIMINAL ISSUES WITHIN MARKET ABUSE AT EUROPEAN LEVEL." Economic problems and legal practice 16, no. 06 (December 28, 2020): 237–55. http://dx.doi.org/10.33693/2541-8025-2020-16-6-237-255.
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A set of legislative instruments regulating market abuse have been adopted by the European Union. As regards criminal law sanctions, the principal contemporary legislative instrument in this field, addressed to its Member States, is the Directive 2014/57/EU on criminal sanctions for market abuse. Legislation has been supplemented by the case-law of the Court of Justice of the European Union (formerly known as the Court of Justice of the European Communities). It is a key element for the development of legal practice in all Member States of the European Union. The assessment of case-law on criminal issues within market abuse is therefore needed. The paper analyses relevant cases. In each case at the outset a reference for a preliminary ruling is mentioned. Further, dispute in the main proceedings and the question(s) referred for a preliminary ruling are analysed. The most important parts of analyses are considerations by the Court of Justice and its rulings.
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Nováčková, Daniela, and Tomáš Peráček. "The Common European Investment Policy and Its Perspectives in the Context of the Achmea Case Law." TalTech Journal of European Studies 11, no. 1 (May 1, 2021): 153–69. http://dx.doi.org/10.2478/bjes-2021-0010.
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Abstract Current developments in the field of international investment relations are influenced by the ruling of the Court of Justice in the Achmea case, when de facto European law became superior to international law. The verdict of the Court of Justice changes the usual legal procedures and customs in the field of bilateral investment agreements. However, the impact of this court decision is an almost unexplored area due to the lack of interest of legal theorists, and it is relatively difficult to find answers to the ambiguities and problems that have arisen. The scientific study analyses the current process of introducing new rules in the field of investment policy within the European Union, which means the end of bilateral investment agreements within the European Union. It also examines the European Union’s activities in the field of foreign direct investment and the development of a stable European investment policy. Determining the goal of the scientific study is based directly on current needs and emerging practical problems in practice. Their correct understanding and application has a fundamental impact on the possibilities of rules in the field of investment policy. Due to the nature of the researched topic, we applied selected qualitative methods suitable for recognising the law. However, we also analysed scientific literature, case-law and the analogy of law, thus providing qualified answers to the application pitfalls of legal practice.
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Лебедева, Я. И. ""Rule Simmental" in the latest practice Courts of Justice of the European Union." Юридическая мысль, no. 2(126) (May 28, 2022): 119–29. http://dx.doi.org/10.47905/matgip.2022.125.1.025.
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В статье рассматривается развитие правила Симменталь после принятия в 2007 году Лиссабонского договора, который знаменует собой современный этап развития права Европейского Союза (ЕС). Согласно указанному правилу, которое было принято Судом Европейских сообществ в 1978 году, национальный суд должен незамедлительно отказать в применении норме национального права, которая противоречит праву ЕС. Сегодня Суд в целом подтверждает правило Симменталь, позволяя отступать от него только в исключительных случаях по преобладающим соображения права ЕС или национального права. При этом стандарт доказывания по данным делам является чрезвычайно высоким, поскольку Суд старается сохранить принятый в деле Симменталь механизм действия принципа верховенства. This article attempts to consider the development of the Simmental rule after the adoption of the Lisbon Treaty in 2007, which marks the current stage in the development of the European Union law. According to this rule, which was adopted by the Court of Justice of the European Communities in 1978, the national court must immediately disapply a rule of national law contradicting EU law. Nowadays, the Court generally confirms the Simmental rule, allowing derogation from it only in exceptional cases for overriding considerations of EU law or national law. At the same time, the standard of proof in these cases is extremely high, since the Court is trying to preserve the mechanism of the primacy principle adopted in the Simmental case.
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Rutgers, Jacobien W. "Editorial." European Review of Private Law 12, Issue 5 (October 1, 2004): 587–88. http://dx.doi.org/10.54648/erpl2004034.
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On 28 March 2003 the Amsterdam Institute for Private Law organized a conference named ?European Constitutionalization of Private Law?. The aim of this conference was to discuss the influence of European constitutional public law on (national) private legal systems. To do so, speakers from the area of private law and European public law were invited. Although, there is no formal European Constitution, the European Court of Justice (ECJ) considers the European Treaties the ?constitutional charter? of the European Communities in its Les verts-decision. The heart of this substantive constitution is the internal market and the core thereof are competition rules and the free movement of goods, services, capital and persons. The ECJ has guaranteed the application of these European rules by the development of the doctrines of direct effect and supremacy of European law.
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Gruodytė, Edita, and Saulė Milčiuvienė. "Anonymization of Court Decisions: Are Restrictions on the Right to Information in “Accordance with the Law”?" Baltic Journal of Law & Politics 9, no. 2 (December 1, 2016): 150–70. http://dx.doi.org/10.1515/bjlp-2016-0016.
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Abstract In Lithuania rules for the anonymization of court decisions were introduced in 2005. These rules require automatic anonymization of all court decisions, which in the opinion of the authors violates the public interest to know and freedom of expression is unjustifiably restricted on behalf of the right to privacy. This issue covers two diametrically opposed human rights: the right to privacy and the right to information. The first question is how the balance between two equivalent rights could be reached. The second question is whether this regulation is in accordance with the law as it is established in the national Constitution and revealed by the Constitutional Court of the Republic of Lithuania and developed by the jurisprudence of the European Court of Human Rights. The authors conclude that the legislator is not empowered to delegate to the Judicial Council issues which are a matter of legal regulation and suggest possible solutions evaluating practice of the Court of Justice of the European Union, the European Court of Human Rights, and selected EU countries.
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Medović, Vladimir. "Provisional measures in the proceedings before the court of First Instance of the European Communities." Glasnik Advokatske komore Vojvodine 72, no. 8-9 (2000): 79–86. http://dx.doi.org/10.5937/gakv0003079m.
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The Treaties establishing European Communities provide that actions before Court ot Justice shall not have suspensive effect but the Court may, if it considers that circumstances so require, order that the application of the contested act be suspended. The application for suspension may relate to the contested measure as a whole or to some of its provisions. Furthermore, they provide that the Court may prescribe any necessary interim measure. The appiicatin for interim measure must state the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for interim measure applied for. The application must also have direct link with the subject matter of the main action. The President of the Court of First Instance rules on the application for interim relief by way of summary proceedings. The order granting the interim relief has only provisional effect and is without prejudice to the final decision of the Court. The parties to the proceedings may lodge an appeal against any decision of the Court of First Instance concemig the interim reliefs within two months from their notification.
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Traversa, Enrico. "Protection of Part-time Workers in the Case Law of the Court of Justice of the European Communities." International Journal of Comparative Labour Law and Industrial Relations 19, Issue 2 (June 1, 2003): 219–41. http://dx.doi.org/10.54648/ijcl2003012.
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Abstract: The author examines 20 years of case law of the Court of Justice of the European Communities on part-time work. The 25 judgments are scrutinized on the basis of homogenous areas of the employment relationship such as pay, access to career advancement, access to vocational training, working conditions including conditions of dismissal, occupational pension schemes and statutory social security allowances. The Court has applied former Article 119 of the Treaty and provisions of Community Directives on equal treatment between men and women at work since it has consistently found that many more women than men are employed on a part-time basis. The overall picture which emerges from the cases brought before the Court of Justice appears to give rise to concern because discrimination relates to a wide range of working conditions, affecting mainly low-skilled workers, and derives from both national laws or regulations and collective agreements signed by trade unions representatives. As a result, detailed and enforceable Community rules appear to be indispensable to ensure adequate legal protection for part-time workers.
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Hojnik, Janja, and Rajko Knez. "Non-Privileged Applicants: Local Communities as Applicants of the Annulment Action before the European Court of Justice." Lex localis - Journal of Local Self-Government 7, no. 3 (October 14, 2009): 283–306. http://dx.doi.org/10.4335/87.
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In addition to the option of submitting requests for reviewing constitutionality and legality to the Constitutional Court of the Republic of Slovenia, it has been possible for the Slovenian local communities to contest EC Acts before the EC Courts over the last five years. But the terms and conditions for that are much stricter than those required by the national law. The paper analyses the complex system of legal rules determining the terms and conditions to be observed by local communities to contest the legal acts issued by the EU institutions. These conditions are very strict. They can be hardly fulfilled by local communities because equal conditions apply both to them and to legal / natural persons. For this reason, EU has been criticized for not providing an efficient system of legal remedies to protect the rights of natural and legal persons to whom also local communities pertain. The European Court of Justice partially accepted criticism, thereby facilitating contestation of EC Acts. However, it limited itself primarily to some specific areas of EC law. Wide criticism of the ECJ has led to some changes being made under the Lisbon Treaty, although these changes are not as liberal as expected.
EC Treaty • locus standi • local communities • individual concern • direct concern • Slovenia • EU
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Quinot, Geo. "Substantive Legitimate Expectations in South African and European Administrative Law." German Law Journal 5, no. 1 (January 1, 2004): 65–85. http://dx.doi.org/10.1017/s2071832200012256.
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The doctrine of legitimate expectation was authoritatively accepted as part of South African administrative law in the landmark case of Administrator, Transvaal v Traub in 1989. In that case Chief Justice Corbett extended the scope of application of the rules of natural justice, specifically the audi principle, beyond the traditional “liberty, property and existing rights” formula to cases where something less than an existing right, a legitimate expectation, required a fair procedure to be followed. This acceptance followed the trend in other Commonwealth jurisdictions to extend the application of the rules of natural justice and hence afford greater procedural protection to individuals affected by administrative decisions. Although Chief Justice Corbett expressly stated that the content of the expectation may be substantive or procedural in nature, the protection of that expectation, if found to be legitimate, was exclusively procedural. Since the Traub decision, the doctrine of legitimate expectation has been deeply entrenched in South African administrative law to extend the scope of procedural rights afforded individuals affected by administrative action. It is now an established principle of South African administrative law that a person, who has a legitimate expectation, flowing from an express promise by an administrator or a regular administrative practice, has a right to be heard before administrative action affecting that expectation is taken. The doctrine, has however, by and large, remained one that provides procedural protection in South Africa. In a number of recent decisions by South African courts, ranging from the High Court to the Supreme Court of Appeal and the Constitutional Court, there have been increasing calls for the application of legitimate expectations beyond procedural claims.
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Cramér, Per. "Does the Codification of the Principle of Supremacy Matter?" Cambridge Yearbook of European Legal Studies 7 (2005): 57–79. http://dx.doi.org/10.5235/152888712802730828.
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A little more than four decades ago, the European Court of Justice declared that the law of the European Communities constitutes the supreme law of the Member States. The national institutions, most importantly the national courts, were to apply rules of Community law and, in so doing, were required to set aside conflicting provisions of national law, however framed. Since then, this judicially formulated constitutional principle has been developed and restated in later judgments by the ECJ. However, during the same period the absolute character of the principle has been continually challenged by the Member States.
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Cramér, Per. "Does the Codification of the Principle of Supremacy Matter?" Cambridge Yearbook of European Legal Studies 7 (2005): 57–79. http://dx.doi.org/10.1017/s152888700000450x.
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A little more than four decades ago, the European Court of Justice declared that the law of the European Communities constitutes the supreme law of the Member States. The national institutions, most importantly the national courts, were to apply rules of Community law and, in so doing, were required to set aside conflicting provisions of national law, however framed. Since then, this judicially formulated constitutional principle has been developed and restated in later judgments by the ECJ. However, during the same period the absolute character of the principle has been continually challenged by the Member States.
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Clément-Wilz, Laure. "The Advocate General: A Key Actor of the Court of Justice of the European Union." Cambridge Yearbook of European Legal Studies 14 (2012): 587–613. http://dx.doi.org/10.5235/152888712805580435.
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AbstractIt is argued that the Advocate Generals have helped to create a distinct and identifiable body of EU law. In the context of increasingly complex legislation and legal structures, the Advocate Generals have also contributed to improving the coherence of legislation and case law. It is also argued that the legal texts and practice firmly place the Advocate General at the same time within the CJEU and yet outside the Court. The institutional and functional rules governing the role of the Advocate General do have an impact on the judicial decision-making process. Some suggestions for reforming the role of the Advocate General in order to integrate the Advocate General more fully within the Court and to strengthen the role are also made.
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Fredriksen, Halvard Haukeland. "One Market, Two Courts: Legal Pluralism vs. Homogeneity in the European Economic Area." Nordic Journal of International Law 79, no. 4 (2010): 481–99. http://dx.doi.org/10.1163/157181010x531304.
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AbstractIn this article the apparent incompatibility between the judicial architecture of the European Economic Area (EEA) and the overall goal of uniform interpretation and application of the common rules in all EEA States is examined. In practice, homogeneity appears achievable only if the European Free Trade Association (EFTA) Court succumbs to the European Court of Justice (ECJ), granting the latter the final word on the interpretation of the EEA Agreement. It is argued that, as far as substantive EEA law is concerned, this is exactly what the EFTA Court has done over the past 17 years of the EEA's existence. The result is a well-functioning EEA Agreement. The price to pay for the EFTA States is the revelation of the perhaps inconvenient truth that the de facto supreme authority on the interpretation of EEA law rests with the ECJ.
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Shabalin, Andrii. "Some aspects of judicial protection of civil legal relations in Estonia." Theory and Practice of Intellectual Property, no. 6 (February 27, 2023): 64–71. http://dx.doi.org/10.33731/62022.274648.
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Keywords: intellectual property law, codification, EU, civil procedure, civil law,CPC of Estonia
The scientific article examines the peculiarities of the civil proceduralorder for the protection of law in Estonia. Attention is paid to the genesis of modernEstonian civil justice, the peculiarities of some civil legal procedures for considerationand resolution of civil cases are established. It is concluded that all civillegal disputes are resolved according to the rules of civil proceedings, includingdisputes about the protection of intellectual property rights and the protection ofownership rights to immovable property. Instead, there are exceptions — these aredisputes related to European patents, which are resolved in accordance with theAgreement on the Unified European Patent Court. This approach is fully in linewith the pan-European digitalization strategy. Attention is also paid to the implementationof European legal standards in civil justice in Estonia. Thus, it is indicatedthat Estonian courts must follow the relevant practice of the European Courtof Human Rights when deciding civil cases. In Estonia, the Supreme Court canturn to the European Court of Human Rights for an advisory decision on the application,interpretation, and interpretation of the law guaranteed by the Conventionon the Protection of Human Rights and Fundamental Freedoms. Moreover, theparticipants in the legal process, in case of disagreement with the decision of theEstonian courts, including the Supreme Court of Estonia, have the right to appealto the European Court of Human Rights and the Court of Justice of the EU. It is stated that in the Estonian civil process there is a special procedure for the collectionof evidence in accordance with the requests of the EU member states to Estonia.Based on the research, theoretical conclusions and recommendations of relativelyeffective ways of updating (unification, codification) Ukrainian legislationwere formulated, in particular in the aspect of its adaptation to EU legislation.
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Chayka, K. L. "The Genesis of International Justice." Rossijskoe pravosudie 2 (January 28, 2021): 13–19. http://dx.doi.org/10.37399/issn2072-909x.2021.2.13-19.
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The increasing number of international courts and their specialisation and the penetration of legal positions developed at the supranational level into the practice of domestic courts raise the question of the nature of international justice and its peculiarities. The concepts of national justice and the systemic nature of international courts are well developed in the doctrine, but the issue of international justice remains under-researched. Such an analysis is particularly important because of Russia's membership of the Eurasian Economic Union and the active use of supranational court positions in domestic law enforcement, including judicial enforcement. This article examines the current and historical approaches to the understanding of justice in Russian legal theory and the views of foreign scholarship on procedural justice, which is seen as equivalent to the category of «justice». The aim of this study is to formulate a concept of justice that is free from the peculiarities of national legal systems and able to explain the processes inherent in international courts. The question of the specific features of international justice will be answered, preceded by a reflection on the definition of «international judicial body» in the context of approaches of domestic as well as European. The method of induction has made it possible to identify the specific features inherent in universal international courts as well as in courts of integration associations and, on this basis, to provide a definition for «international judicial body». A comparison of the powers vested in the Court of Justice of the Eurasian Economic Union, the range of persons having the possibility to initiate dispute resolution, the binding and enforceable nature of its acts with similar rules in the activities of the UN International Court of Justice, the European Court of Human Rights and the Court of Justice of the European Union provides empirical material for analysis of the specific features of the Eurasian dispute resolution body justice. The study concludes that the modern concept of national and international justice has its philosophical basis in the genesis of ideas about human rights and fundamental freedoms. International justice, however, is defined as the legal and procedural activity of an independent judiciary to apply the law and resolve legal conflict.
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Samovich, Yu V. "About International Sports Justice." Rossijskoe pravosudie 8 (July 20, 2020): 53–58. http://dx.doi.org/10.37399/issn2072-909x.2020.8.53-58.
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Justice, as a model of equity, is becoming an extremely demanded way of clarifying the relations of counterparties in most spheres of human life. This time, the question will be about sports disputes, whose appearance provoked first a «doping scandal» with Russian athletes, and then, no less scandalous proceedings of the Sports Arbitration Court. The purpose of this article is to conduct a review of sports disputes considered in international instances to analyze the objectivity and adequacy of the existing procedure for the consideration of sports disputes and the possibility of developing uniform rules and the existence of grounds for considering sports disputes in the European Court of Human Rights The author used for this such methods: – induction: based on an analysis of the consideration of sports disputes at the ECHR, it was concluded that the practice does not meet the requirements of the principle of respect for human rights, – deduction: a hypothesis of contradictions is formulated in the framework of the consideration of disputes by sports organizations and judicial institutions, statistical analysis: comparison and generalization of statistical data on the considered cases, – formal legal: analysis of the practice of judicial and quasi-judicial institutions for the consideration of sports cases. As a hypothesis, the thesis is put forward that the existing procedures of sports organizations violate the rights of the individual, justifying this fact with the specifics of such procedures as anti-doping checks, etc.
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Chetverikov, A. O. "Visa Refusals to Foreign Scientists Participants in Megascience Experiments, other Scientific Events and the Right to Appeal: New in the ECJ Practice." Actual Problems of Russian Law 16, no. 8 (September 4, 2021): 160–72. http://dx.doi.org/10.17803/1994-1471.2021.129.8.160-172.
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The paper analyzes the provisions of the legislation and the latest court practice of the European Court of Justice (ECJ) regulating the procedure for refusing to issue Schengen visas and other migration permits necessary for foreign scientists to participate in experiments using unique European mega-science facilities, as well as in other scientific events in the EU. The first section "Visa refusal and the right to appeal it in the EU: Historical and comparative legal aspects" examines the formation and initial content of the EU rules on the rationale and appeal of the refusal of Schengen visas, starting with the Schengen agreements of the 1980s and before the adoption of the 2009 EU Visa Code. The second section "Right to appeal against refusal of Schengen and equivalent visas" is devoted to the rules of the 2009 EU Visa Code regarding visas for short-term stays (up to 90 days within a period of 180 days), amended and supplemented by the 2017 EU Court of Justice prejudicial decision as in the case of "El Hassani" regarding the recognition of foreigners’ right to judicial appeal against a visa refusal and, in a broader context, "the right to a fair and adequate consideration of their application" for a visa. The subject of the third, final section "The right to appeal the refusal of visas for long-term stay and residence permits" are the provisions of the latest ECJ court practice (judgment in the case of "M.A." of 10.03.2021), which made it possible to challenge in the courts of the EU Member States refusals to issue even those migration permits that are issued in accordance with national law.
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Odermatt, Jed. "THE DEVELOPMENT OF CUSTOMARY INTERNATIONAL LAW BY INTERNATIONAL ORGANIZATIONS." International and Comparative Law Quarterly 66, no. 2 (March 14, 2017): 491–511. http://dx.doi.org/10.1017/s0020589317000112.
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AbstractIn his Fourth Report on the Identification of Customary International Law (2016), Special Rapporteur Sir Michael Wood confirmed that ‘[i]n certain cases, the practice of international organizations also contributes to the expression, or creation, of rules of customary international law’. That the practice of international organizations can be relevant when identifying customary international law is relatively uncontroversial. The issue that is more debated is the extent to which the practice of international organizations as such may contribute to the development of customary international law. Using examples from the European Union's treaty practice and from the Court of Justice of the European Union, this article argues that international organizations may contribute to such practice, not only by representing the collective will of States, but as autonomous actors in their own right.
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Ribeiro, João Sérgio, and José Calderón. "The complex situation of intermediary holding companies in the EU after the CJEU landmark decisions on the “Danish cases”." UNIO – EU Law Journal 6, no. 1 (July 5, 2020): 68–78. http://dx.doi.org/10.21814/unio.6.1.2706.
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In this article, we analyse the main implications for European intermediary holding companies in light of the Court of Justice of the EU landmark decisions on the Danish cases. Herein, the Court established a simultaneously relevant and complex doctrine on the interpretation of anti-abuse rules and principles, derived from Directives 2003/123/ EC “Parent-Subsidiary” and 2003/49/CE, “Interest and Royalties”. By carefully studying the Court’s decisions one has to acknowledge that the doctrine set forward by the CJEU in the Danish cases impacts significantly on the general concept of abusive tax practice and will also produce consequences on the use of “intermediary holding companies” located in EU Member States, in regard to the tax exemption entitlements provided by European Directives.
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Zavhorodnii, Vitalii. "APPLICATION OF THE LEGAL POSITIONS OF THE EUROPEAN COURT OF HUMAN RIGHTS IN THE JUSTICE OF UKRAINE." Slovo of the National School of Judges of Ukraine, no. 4(37) (July 7, 2022): 21–32. http://dx.doi.org/10.37566/2707-6849-2021-4(37)-2.
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The article examines the peculiarities of the application of the legal positions of the European Court of Human Rights in the national justice. According to the results of the study, the proposed algorithm of application legal positions of the Council of Europe Court: 1) in order to comply with current legislation to take into account the practice of the Strasbourg court. 2) first of all, it is necessary to single out those of them that were adopted against Ukraine; 3) in the absence of such judgments of the Council of Europe Court, it is necessary to determine those which have recently been adopted against other States Parties to the Convention which are closest in the circumstances of the case to the case before the judge; 4) in the presence of a pilot and ordinary decision of the European Court of Human Rights with similar circumstances of the case, national judicial authorities should take into account the legal position of the decision that is closest in its context to Ukraine. The criteria of relevance of taking into account the legal positions of the Strasbourg court in the administration of national justice are proposed, namely: a) similarity of the subject of regulation (relations related to violation of convention rights and / or human freedoms), b) similarity of conflict situations, ways of committing violations of convention norms by public authorities; c) the similarity of the current national legislation (both substantive and procedural law) and the practice of its interpretation and application by the authorized subjects of the respondent state; d) similarity of procedures that provide for the possibility of restoration of the violated right at the national level (possibility to appeal, appeal against actions or decisions, appeal, etc.). Key words: application, legal positions, European Court of Human Rights, relevance, established case law, interpretation of convention rules.
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Wolf, Redmar. "Dutch Turnover Tax or EU VAT? On the Permeation of EU VAT Rules in the Dutch Turnover Tax Practise." Intertax 42, Issue 8/9 (August 1, 2014): 525–37. http://dx.doi.org/10.54648/taxi2014048.
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In this article, the author describes the permeation of EU law in the Dutch turnover tax practice. In the Netherlands, the EU VAT directives have been implemented in the Turnover Tax Act 1968. Through the years, the relevance of these national provisions and their national legislative history seems to have diminished while the case law of the European Court of Justice (ECJ) has become more and more decisive in settling matters of turnover tax.
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BOERGER-DE SMEDT, ANNE. "Negotiating the Foundations of European Law, 1950–57: The Legal History of the Treaties of Paris and Rome." Contemporary European History 21, no. 3 (June 13, 2012): 339–56. http://dx.doi.org/10.1017/s0960777312000239.
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AbstractThis article analyses how the seeds for the development of European law from the 1960s onwards were sown in the foundational treaties. It argues that despite the fact that both European treaties embodied a conscious choice by the majority of the governments not to establish the European Communities on a constitutional basis, a small number of politicians and jurists managed nonetheless to insert the potential for the constitutional practice. Following a chronological account of each set of negotiations, the article untangles the complex ideas and decisions, which crafted both the legal shape of the treaties and the jurisdiction of the new European Court of Justice.
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Brazdeikis, Aurimas. "Piktnaudžiavimas jurisdikcija: quo vadis Europos Sąjunga?" Teisė 71 (January 1, 2009): 88–105. http://dx.doi.org/10.15388/teise.2009.0.295.
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Straipsnyje autorius analizuoja galimybes piktnaudžiauti jurisdikcijos taisyklių, įtvirtintų Tarybos reglamente (EB) Nr. 44/2001, sistema bei su tuo susijusią Europos Bendrijų Teisingumo Teismo praktiką. Autorius mano, kad Europos Bendrijų Teisingumo Teismo praktika kai kuriose paskutinėse šio teismo išnagrinėtose bylose sudaro prielaidas piktnaudžiavimui Europos teisminėje erdvėje plisti, todėl argumentuotai siūlo sprendžiant jurisdikcijos klausimus taikyti bendrąjį draudimo piktnaudžiauti teisėmis principą. In this article the author analyzes the opportunities of abusing jurisdiction rules set forth in the Council Regulation No 44/2001 and related practice of the European Court of Justice. The author considers that recent practice of the ECJ gives a positive background for the abuse in the European Judicial Area to spread, therefore suggests to apply general principle prohibiting abuse of rights when dealing with the jurisdiction issues.
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Peers, Steve. "Mission accomplished? EU Justice and Home Affairs law after the Treaty of Lisbon." Common Market Law Review 48, Issue 3 (June 1, 2011): 661–93. http://dx.doi.org/10.54648/cola2011029.
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The legal framework regarding EU Justice and Home Affairs Law was changed fundamentally by the Treaty of Lisbon, so that the usual rules on decision-making, jurisdiction of the Court of Justice, legal instruments and legal effect are now largely applied to this area of law. The various issues falling within the scope of JHA law are now set out in Title V of Part Three of the Treaty on the Functioning of the European Union, which is divided into five chapters, beginning with general provisions, followed by chapters on immigration and asylum, civil law, criminal law and policing law. This paper examines the application of the new rules in practice, in particular the impact of extending QMV; the extended legislative powers of the European Parliament; the role of the Commission as compared to the Member States; and the role of national parliaments. It concludes that this area of EU law is now fully part of the mainstream, with the exception of the special opt-outs for three Member States. However, it now follows that some of the general problems of EU law apply to JHA legislation, and there are emergent problems ensuring that JHA legislation is applied in practice by Member States, in particular from the perspective of the ECHR.
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Kersting, Christian, and Clemens Philipp Schindler. "The ECJ's Inspire Art Decision of 30 September 2003 and its Effects on Practice." German Law Journal 4, no. 12 (December 1, 2003): 1277–91. http://dx.doi.org/10.1017/s2071832200012128.
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In its most recent judicature the European Court of Justice (ECJ) continued its tendency of deciding in favor of the freedom of establishment by holding that rules submitting pseudo-foreign companies to the company law of the host state were inadmissible. It clarified that a foreign company is not only to be respected as a legal entity having the right to be a party to legal proceedings, but rather has to be respected as such, i.e. as a foreign company that is subject to the company law of its state of incorporation. Any adjustment to the company law of the host state is, hence, not compatible with European law. In addition to commenting on the decision and its effects, this article points out potential for corporate restructuring in the field of codetermination.
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Harmathy, Attila. "The Impact of the Practice of the European Court of Justice on the Civil and Commercial Law of the Member States of the European Union." European Review of Private Law 18, Issue 3 (June 1, 2010): 429–41. http://dx.doi.org/10.54648/erpl2010035.
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Abstract: The decisions of the European Court of Justice have a great effect on the development of the civil law at the level of the Union and in the Member States of the European Union, too. Questions concerning the effect have been discussed at the 5th European Jurists’ Forum held in Budapest in October 2009. The paper gives a short overview of important questions of the reports presented in civil law section of the Forum, published in the present issue of the Review. Some remarks are also made on the role of the Court, problems of interpretation of the rules to be applied and on policy questions. Résumé: La jurisprudence de la Cour de Justice de l’Union Européenne a un effet considérable sur le développement du droit privé à l’échelle de l’Union Européenne et des pays membres également. Des questions, concernant cet effet, ont été discutées dans la section du droit privé lors de la 5e journeé des juristes européens à Budapest au mois d’octobre 2009. L’auteur de l’article donne un court compte rendu des questions importantes traitées par certains des rapports présentés à la section de droit privé, publiés dans cette revue. Puis, il fait quelques remarques sur le rôle de la Cour, des problèmes de l’interprétation du droit et des conflits d’intérêts. Zusammenfassung: Die Rechtsprechung des Europäischen Gerichtshofs hat einen großen Einfluss auf die Entwicklung des Privatrechts sowohl auf der Ebene der Europäischen Union als auch in den Mitgliedstaaten. Die Fragen dieses Einflusses wurden in der Privatrechtssektion der Tagung des 5. Europäischen Juristentages in Budapest im Oktober 2009 erörtert. Der Verfasser gibt eine kurze Zusammenfassung einiger wichtigen Fragen, zu den in dieser Zeitschrift veröffentlichten Referaten, die in der Privatrechtssektion vorgelegt wurden und macht kurze Bemerkungen über die Rolle des Gerichts, die Probleme der Rechtsauslegung und der Interessenkonflikte.
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Beretta, Laura Carola, and Agnieszka Smiatacz. "The Court of Justice of the European Union Judgment in the Hamamatsu Case: Defending EU Customs Valuation Law from the Transfer Pricing Folly in Customs Matters." Global Trade and Customs Journal 13, Issue 5 (May 1, 2018): 187–90. http://dx.doi.org/10.54648/gtcj2018021.
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In the last few years there has been a tendency by most of the companies in the European Union and elsewhere to indiscernibly rely on the so-called transfer pricing agreements together with related to them studies, which are tax law matters, also for the determination of the customs value for customs valuation purposes. This practice seems to be highly questionable taking into account the different natures and objectives of tax and customs law. With the Hamamatsu judgment, the Court of Justice of the European Union restores the order in such matter by reaffirming the primacy of pure customs valuation rules and providing for a clear refusal for the automatic application of the transfer pricing agreements to the customs valuation of goods. This judgment is fully in line with previous case law on the nature of the customs valuation rules and objectives. As a result, the Hamamatsu judgment created justified concerns to those companies that have unjustifiably relied on transfer pricing methodologies also to adjust a posteriori the customs value of goods. However, the Court of Justice has done nothing more than reaffirm the obvious. Following the ruling, companies will have to set up a proper customs valuation assessment system, which are separate from the transfer pricing one. Nevertheless, this does not mean that transfer pricing studies are not to be taken into account as ‘context’ for such customs valuation purposes.
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Alekseevskaya, E., and L. Treskina. "THE “JUSTICE INDEX” IS A STEP TOWARDS THE IMPLEMENTATION OF THE GLOBAL GOAL 16 OF THE U.N. AGENDA." BRICS Law Journal 5, no. 3 (October 13, 2018): 64–85. http://dx.doi.org/10.21684/2412-2343-2018-5-3-64-85.
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This paper proposes a method for measuring sustainable development as a means of the implementation of the Global Goal 16 of the United Nations Agenda. This method is the primary attempt to quantify the quality of the rules of the judiciary and access to a court in order to monitor sustainable development in the area of justice. In the recent years, the U.N. drew attention to the fact that qualitative changes should be evaluated through quantitative indicators.The authors’ methodology is based on the fair trial standard formulated by the European Court of Human Rights based on the interpretation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the public services standard of the Russian Federation. This indexing method helps to assess the current level of legal guarantees in the rules of legal proceedings and draft legislation, and to establish their compliance with the fair trial principles. Indexing the access to justice has another positive effect – it helps to monitor the local situations and every level of the judicial system.Putting this method into practice will encourage avoidance of the adoption of bills that might reduce the level of legal guarantees and will assist attempts to monitor its dynamics. It could promote the introduction of effective procedures and better access to court, ensure the improved accountability of all public justice institutions at all levels and support overall societal wellbeing.
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Bokoch, M. "Problems of interaction between the constitutional order and international law." Uzhhorod National University Herald. Series: Law, no. 65 (October 25, 2021): 51–56. http://dx.doi.org/10.24144/2307-3322.2021.65.8.
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The article analyzes the problem of the relationship between the provisions of constitutions and international treaties in constitutional law. Its solution often depends on the prevailing doctrine and case law of the constitutional courts regarding the application of the latter in the light of constitutional principles and rules. This is important for substantiation and decision-making by constitutional justice bodies. In this case, the problem is to decide whether the provisions of international treaties comply with the constitutional order and whether the constitutional justice authorities will use the provisions of international treaties in their activities and borrow elements of argumentation of international jurisdictions. This is the subject of heated debate, especially with the establishment of the European Economic Communities, although there is a specific relationship between international and national law, between supranational and national legal orders, as the nature of the EU is supranational and multilevel.Based on the experience of the constitutional justice bodies, arguments are presented that despite quite contradictory approaches, such can be unified by the Constitutional Court of Ukraine. This can be achieved provided that he solves these problems through the prism of fundamental principles of law, thus ensuring the supremacy of the Constitution of Ukraine and the national identity of Ukraine in the legal geography of the world. The components of such a process are the application by the ССU of the principle of friendly attitude to international law and taking into account national interests, constitutional principles of territorial integrity and independence of Ukraine, human rights guarantees and compliance with due process. The study of Ukraine’s European integration in the light of constitutional principles should be based on the protection of the above values and the effectiveness of human rights, the balance of private and public interests. In the light of harmonization of legislation under the EU-Ukraine Association Agreement, the acquis commumautaires of the European Communities should also be taken into account, in particular the case law of the Court of Justice of EU, which can be used as a basis for reasoning public administration and judicial decisions.
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Fišer-Šobot, Sandra. "Abuse of dominant position by margin squeeze in competition law of the European Union." Zbornik radova Pravnog fakulteta, Novi Sad 55, no. 4 (2021): 913–30. http://dx.doi.org/10.5937/zrpfns55-35087.
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Margin squeeze occurs when vertically integrated undertaking, which is dominant on the upstream market, charges a price for the product on the upstream market which, compared to the price it charges on the downstream market, does not allow even an equally efficient competitor to trade profitably in the downstream market on a lasting basis. The subject of the analysis in the paper is the abuse of a dominant position by margin squeeze in the competition law of the European Union. The author will present and analyze relevant competition rules in the European Union, the practice of the Court of Justice of the European Union and the European Commission, as well as views expressed in the doctrine, in order to answer whether margin squeeze is an independent type of abuse of dominant position and what conditions are relevant for legal analysis of margin squeeze.
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Janssens, Thomas. "Court of Justice of the European Communities, Case C-89/91, Shearson Lehman Hutton Inc. v TVB Treuhandgesellschaft für Vermögensverwaltung und Beteiligungen GmbH, judgment of." European Review of Private Law 3, Issue 4 (December 1, 1995): 605–12. http://dx.doi.org/10.54648/erpl1995045.
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Abstract. In Shearson Lehman Hutton v TVB (hereinafter “Shearson”), the Court of Justice has clarified the field of application ratione personae of Art. 13 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 27 September 1968. The Court held that the special rules of jurisdiction on consumer contracts (Section IV of the Brussels Convention) are not applicable to a plaintiff who acts in pursuance of his trade or profession and therefore is not a consumer party to one of the consumer contracts mentioned in Art. 13, par. 1. Résumé. Dans Shearson Lehman Hutton c./ TVB la Cour de Justice précise le champ d’application ratione personae de l’article 13 de la Convention de Bruxelles sur le compétence et l’exéution des jugements étrangers en matière civile et commercialle du 27 septembre 1968. La Cour juge que les règles spéciales de compétence concernant les contrats conclus par un consommateur (section IV de la Convention de Bruxelles) ne sont pas applicables au demandeur qui agit dans le cadre de son commerce ou de sa profession et n’a donc pas la qualité de consommateur partie au contrat visée par l’article 13, par, 1, même si la créance lui a été cédée par un consommateur.
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Anthony, Gordon. "EC Law, UK Public Law and The Human Rights Act 1998: A New Integrative Dynamic?" Cambridge Yearbook of European Legal Studies 2 (1999): 417–37. http://dx.doi.org/10.5235/152888712802815707.
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The process of European legal integration has long been understood to engage the workings of domestic legal orders, EC law and, to a lesser extent, the law of the ECHR. In general terms, the relationship between these bodies of law has been characterised as involving the direct and indirect interchange of principle and practice across jurisdictions. An example of direct interchange is found in the EC law requirement that national courts give effect to rules emanating from the EC legal order in all cases raising EC law issues. The indirect form occurs in disputes which do not raise EC law issues but which see national courts voluntarily borrow from their experience within the EC legal order by way of developing the domestic legal system. Likewise, national courts and the European Court of Justice have relied upon the law of the ECHR, a “foreign” body of rules, in developing their respective legal orders.
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Anthony, Gordon. "EC Law, UK Public Law and The Human Rights Act 1998: A New Integrative Dynamic?" Cambridge Yearbook of European Legal Studies 2 (1999): 417–37. http://dx.doi.org/10.1017/s1528887000003451.
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The process of European legal integration has long been understood to engage the workings of domestic legal orders, EC law and, to a lesser extent, the law of the ECHR. In general terms, the relationship between these bodies of law has been characterised as involving the direct and indirect interchange of principle and practice across jurisdictions. An example of direct interchange is found in the EC law requirement that national courts give effect to rules emanating from the EC legal order in all cases raising EC law issues. The indirect form occurs in disputes which do not raise EC law issues but which see national courts voluntarily borrow from their experience within the EC legal order by way of developing the domestic legal system. Likewise, national courts and the European Court of Justice have relied upon the law of the ECHR, a “foreign” body of rules, in developing their respective legal orders.
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Rincón, Alfonso. "EC Competition and Internal Market Law: On the Existence of a Sporting Exemption and its Withdrawal." Journal of Contemporary European Research 3, no. 3 (November 30, 2007): 224–37. http://dx.doi.org/10.30950/jcer.v3i3.51.
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Some authors argue that there is no such a thing as a sporting exemption under EC law. However, an in-depth analysis of the case law reveals that thirty years ago the European Court of Justice (“ECJ”, or “Court”) created an exemption specifically relating to sport. The judgment of the ECJ in Walrave established the basis for this exemption, which was confirmed and extended in Donà. Since then the exemption has been subject to the vicissitudes of legal interpretation. First of all, the Court endeavoured to contain its use, although the consequence of this was the expansion of the exemption from internal market to competition rules. This led to uncertainty and inaccuracy in the assessment of sporting practices. The ECJ reacted to the atmosphere of confusion created by the interpretation of the Walrave case and withdrew the exemption in Meca Medina. The correct test for assessing whether a sporting practice is contrary to EC law is now the proportionality test; however, further clarification is required.
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Antić, Dinka. "Primjena načela fiskalne neutralnosti u presudama suda pravde Evropske unije / Application of Fiscal Neutrality Principle in the Case Law of the Court of Justice of the European Union." Годишњак факултета правних наука - АПЕИРОН 6, no. 6 (July 11, 2016): 120. http://dx.doi.org/10.7251/gfp1606120a.
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Neutrality of value added tax (VAT) is not only a theoretical issue and unattainable myth but also a need for all modern economies. Higher degree of neutrality brings to a reduction of distortions on micro, macro and global economic system caused by selective taxation, with positive consequences on capital allocation efficiency at the national, regional and global level. The European Union, as a supranational integration, has mobilised all available legal mechanisms for elimination of harmful practice and policies that jeopardise VAT neutrality in the Member States and at the EU level as well. The EU is aiming at increasing the efficiency of the VAT system and coherence with the global VAT system promoted by OECD. By activities on reforming the EU legal framework in the field of VAT taxation taxpayers in the EU are brought to the level playing field at the EU Single Market and the world market as well. Legal framework at the EU level has been updated directly by amendments to the Council Directive 2006/112/EC and other related Council directives, and indirectly, via comprehensive case law of the Court of Justice of the EU. The practice of the Court and mandatory implementation of its case law indirectly contribute to uniformity of application of the VAT rules, its efficiency and neutrality in relation to position of taxpayers at the EU level. The Court decisions have become a powerful mechanism of supranational intervention in the EU VAT system aiming at achieving a higher degree of harmonisation of VAT system at the EU level. Due to the attitude of the Court that a principle of VAT neutrality has a supremacy over national VAT legislation and rules, the decisions have produced systematic implications for national tax systems as well.
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Przyborowska-Klimczak, Anna. "A Quarter-Century Activity of the Committee of the Regions of the European Union." Barometr Regionalny. Analizy i Prognozy 16, no. 5(S) (August 26, 2019): 7–14. http://dx.doi.org/10.56583/br.57.
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The Committee of the Regions was established on the basis of the Maastricht Treaty of 7 February 1992, and began operating in March 1994. It consists of representatives of regional and local authorities who have obtained electoral mandates from the communities they represent. The number of members of the Committee was set for individual Member States and it was assumed that its composition should not exceed 350 members. The organizational structure and principles of the Committee’s operation are set out in its Rules of Procedure. The Committee is an advisory body consulted by the European Parliament, the Council and the Commission. It prepares opinions as part of obligatory, optional and own-initiative procedures. It can also adopt resolutions and prepare reports, analyses and outlook opinions. The Committee has the right to bring cases before the Court of Justice of the European Union in order to protect its prerogatives and to apply the principles of subsidiarity and proportionality.
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Giuffrida, Fabio. "Taricco principles beyond Taricco." New Journal of European Criminal Law 9, no. 1 (March 2018): 31–37. http://dx.doi.org/10.1177/2032284418761068.
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This contribution examines whether the principles laid down in M.A.S., M.B. (‘ Taricco II’) may play a role in some forthcoming decisions of the Court of Justice of the European Union (CJEU). In Scialdone, the Court will be asked to strike a balance between the effectiveness of national legislation on VAT offences and the principle of lex mitior. The key difference between Taricco and Scialdone lies in the fact that the lex mitior principle, unlike the regulation of the statute of limitation, falls within the scope of the principle of legality at the European level. Kolev concerns instead an alleged incompatibility between Article 325 TFEU and the Bulgarian Code of Criminal Procedure. Unlike Taricco, therefore, the CJEU will have to deal with national rules that form part of procedural criminal law. Nevertheless, it cannot be excluded that the Court may reach a Taricco II-like conclusion (i.e. disapplication in theory, exception to the disapplication in practice), especially if the reasoning of the CJEU will rely on the importance of foreseeability and legal certainty in criminal matters. These same principles could lead the CJEU, in Menci, not to endorse the partial revirement of the European Court of Human Rights in the A. and B v. Norway ruling and, as a consequence, not to lower the EU standard of protection of the right not to be tried or punished twice for the same offence.
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Timchenko, G. P., and Yu A. Kotvyakovsky. "On the issue of judicial law-making in civil proceedings." Analytical and Comparative Jurisprudence, no. 2 (July 24, 2022): 101–5. http://dx.doi.org/10.24144/2788-6018.2022.02.18.
Full textAbstract:
The article studies the institution of judicial law-making and its connection with the institution of legislative gaps in the historical and legal context of the development of civil justice. Along with this, the grounds for the emergence of legislative gaps, their types and ways to overcome them during the law enforcement practice of general courts are determined. The authors conduct a comparative analysis of the features of continental and common law in the field of both legislative gaps and their overcoming through judicial lawmaking. At the same time, attention is drawn to the fact that the courts do not have the right to deny a person justice on the grounds of the absence, incompleteness, vagueness or inconsistency of the rules of law, which is a key provision directed towards judicial lawmaking. In this part, the authors pay attention to the judicial law-making of the Grand Chamber of the Supreme Court and the imperativeness of its legal positions, which develop law in our state. At the same time, the paper notes that European countries, including Ukraine, are gradually approaching convergence justice, where the rules of law are widely applied, but along with this, the courts are not deprived of the right to judicial lawmaking. In particular, in countries such as Germany, the courts are even obliged to legislate when necessary. Therefore, judicial law-making is not an unlimited concept. It can always take place only where there are legislative gaps on the one hand, and on the other, where there is a dispute about the law, since it is precisely when such a dispute is settled by the rules of law that all the shortcomings of the legislation appear, such as vagueness, inconsistency or incompleteness, otherwise and the lack of rules by which the court could resolve disputed relations.
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Tatham, Allan F. "Off the Bench but Not off Duty: The Judicial Diplomacy of the Court of Justice." European Foreign Affairs Review 22, Issue 3 (October 1, 2017): 303–21. http://dx.doi.org/10.54648/eerr2017027.
Full textAbstract:
The evolution of the EU diplomatic system has allowed for a broader understanding of the role of networks and different stakeholders in diplomacy. So far, scant attention has been paid to the pivotal position of the Court of Justice of the European Union (CJEU) in judicial diplomacy. The aim of this article is to chart the various strategies employed by the CJEU in conducting its diplomacy, with a particular focus on its relations with apex courts of regional economic communities and complex federal states. Taking a practice-based approach to the study of diplomatic actions, the article seeks to examine the networks created or enhanced by the CJEU; how different sites for diplomacy impact on the success of the Court’s extra-forum activities; and how the CJEU might use new technologies to build on those strategies to bolster its own role in the development of the EU diplomatic system.
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Sorokina, Elena A. "References for a Preliminary Ruling to the European Union Court of Justice: The Substantive Criteria of Admissibility." Proceedings of the Institute of State and Law of the RAS 14, no. 4 (October 9, 2019): 131–56. http://dx.doi.org/10.35427/2073-4522-2019-14-4-sorokina.
Full textAbstract:
The preliminary ruling procedure as stipulated by Article 276 of the Treaty on the functioning of the European Union had a significant impact on the de-ve lop ment of EU law and became a collaborative tool as part of the dialogue bet-ween supranational and national judges.The mechanism of preliminary ruling enables to ensure a uniform interpretation and application of the provisions of EU law with all member states and consti tutes an instrumental element for preserving the uniformity of the European legal system.When developing the mechanism of preliminary ruling at EU level one consi-dered constitutional & legal traditions of member states, however, for long periods, the EU was perceived as "exotic" one and its impact on the national law was often underesti mated. Initially there were no any clear concepts how the mechanism of preliminary ruling would work. The EU court encouraged national judges of member states to use this mechanism; however, gradually it started introducing certain acceptability criteria in respect of such requests.The practice of the EU Court was summarized in the updated Rules of Procedure of 25 September 2012. During the period from 2014 to 2018, the number of cases sub mitted for preliminary ruling procedure was increasingly growing. Consequently, natio nal courts had started using this procedure relatively intensively and the con so-li dation of acceptability criteria created no serious problems for them.The imposition by the EU Court of minimal requirements towards the substance of requests does not reduce their number, since the acknowledgement of a re quest as inadmissible does not prevent a national court from sending a repeated re quest. However, it contributes to the improvement of quality and efficiency of the pre li mi-nary ruling procedure. The establishment of the respective requirements is necessary to ensure that the EU Court could provide national courts with an interpretation of EU law useful for resolution of a specific dispute and ensure constructiveness of the dialogue.
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Shtefan, Olena. "Reform of Civil Procedural Legislation of Ukraine and Problems of its Implementation." Teisė 124 (September 28, 2022): 183–94. http://dx.doi.org/10.15388/teise.2022.124.16.
Full textAbstract:
New rules for transferring the case from one court to another are being investigated, the conclusion on expanding the competence of the court on this issue is substantiated. The most problematic requirements for the content of the claim, which are not provided with legal and organizational mechanisms, are considered.Particular attention was paid to the problem of implementing “cassation filters”, which have undergone additional changes since the main reform strengthens them. It is proved that this problem is closely related to another one – the problem of defining a certain legal concepts, substantiates a significant expansion of the scope of judicial discretion in determining the grounds for cassation appeal in a particular case.The article considers the possibility of referring to the decisions of the European Court of Human Rights as the sources of civil procedural law of Ukraine. The problem of administering justice under martial law received separate consideration.It is concluded that the evaluation of the effectiveness of judicial reform involves its critical consideration by both science and practice, generalization and analysis of law enforcement practice will provide grounds for a final assessment of the quality of reform.