Academic literature on the topic 'Derogative rules'
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Journal articles on the topic "Derogative rules"
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Bartha, Ildikó, and Tamás M. Horváth. "Does not it matter? Widening of the derogation for Services of General Interests." Maastricht Journal of European and Comparative Law 27, no. 1 (February 2020): 55–74. http://dx.doi.org/10.1177/1023263x19890211.
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The scope of derogation possibilities for Services of General Interests in the EU internal market has been widened by legislators for more than fifteen years. The process is also supported by the case law of the Court of Justice of the European Union. State aid and other influential instruments are allowed to derogate from internal market and competition rules while their roles are heavily discussed in the circumstances of free market economy. Are these solutions leading to new regimes in European integration? This study aims at reconstructing the sense of this process in its details. This analytical study is based on comparative legal investigations applying qualitative and quantitative methods.
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Navarro, Pablo E. "Promulgation and Derogation of Legal Rules." Law and Philosophy 12, no. 4 (November 1993): 385. http://dx.doi.org/10.2307/3504955.
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Navarro, Pablo E. "Promulgation and derogation of legal rules." Law and Philosophy 12, no. 4 (November 1993): 385–94. http://dx.doi.org/10.1007/bf01000638.
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Herlin-Karnell, Ester. "EU Data Protection Rules and the Lack of Compliance in Sweden." Nordic Journal of European Law 3, no. 2 (December 23, 2020): 95–103. http://dx.doi.org/10.36969/njel.v3i2.22395.
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In this short reflection paper, I will set out to explain how and why Sweden breaches EU data protection rules. I will start by providing a brief overview of the EU data protection framework to paint the background picture. Thereafter I will discuss the scope for derogating from the obligations set out in the GDPR and thereby test the Swedish exception and show that it is not proportionate and undermines the purpose of the GDPR. Subsequently, I will discuss why some core fundamental rights of EU law should not be possible to derogate from, when as in the Swedish case it seems to boil down to economic question of who gets to own the data. I will conclude by linking the question of the right to data protection and why licenses should not give companies a carte blanche to publish personal data about people in Sweden to the question of market access. There is an imbalanced relationship here, to use the internal market vocabulary, with Swedish people having all their private data published online while other EU states do not do that. Likewise, there is an external dimension here: the data is available on the internet globally and therefore third countries also access it.
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Anindyajati, Titis, Winda Wijayanti, and Intan Permata Putri. "Implementasi dan Akibat Hukum Penerapan Asas Lex Spesialis Derogat Legi Generalis terhadap Keistimewaan Aceh." Jurnal Konstitusi 18, no. 3 (February 15, 2022): 654. http://dx.doi.org/10.31078/jk1838.
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AbstrakKontestasi penerapan UU Pilkada secara nasional ataukah asas lex specialis derogat legi generalis sebagai permasalahan acuan aturan terkait syarat pengajuan permohonan sengketa Pilkada Aceh. Penelitian ini adalah penelitian hukum normatif terkait UU Pilkada dan Qanun Aceh tentang Pilkada. Permasalahan krusial dalam aturan khusus terkait keistimewaan Aceh yang tidak mengatur syarat ambang batas sehingga asas lex specialis derogate legi generali tidak dapat digunakan pada pengajuan permohonan sengketa pilkada akan bertentangan dengan UUD 1945. UU Pilkada tidak dapat dikesampingkan menjadi dasar permohonan sengketa Pilkada ke Mahkamah Konstitusi. Asas itu dapat diterapkan untuk kasus yang memenuhi persyaratan, maka penyusunan hukum yang harmonis menjadi urgensi terbentuknya badan peradilan khusus yang menyelesaikan sengketa pilkada.AbstractThe contestation to National Election Act’s implementation or principle of lex specialis derogat legi generalis as rule’s problem reference to regional dispute in Aceh. This research is a normative legal related to Aceh Election and Qanun on Election. The crucial problem with existence of special rules of Aceh’s privilege are not set by threshold conditions. Lex specialis derogate legi generali’s principle cannot be used in election dispute will contradict the 1945 Constitution. The Election Act cannot be ruled as dispute basis to Constitutional Court. The principle can be applied to cases that requirements, so harmonious legal drafting becomes urgency to formalize a special judicial body.
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Palme, Christoph. "Bans on the Use of Genetically Modified Organisms (GMOs) - the Case of Upper Austria." Journal for European Environmental & Planning Law 3, no. 1 (2006): 22–27. http://dx.doi.org/10.1163/187601006x00047.
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AbstractOn 5 October 2005 the Court of First Instance' ruled on the admissibility of the so called 'Upper Austrian Law banning genetic engineering' It was the the first decision of an EU-Court to deal with the issue of co-existence between the cultivation of GMO and GMO free plants, the establishment of GMO-free areas and securing biodiversity.2 There is a fierce battle going on between some EU Member States reluctant to use GMOs and the European Commission,3 which is responsible for ensuring the proper implementation of the Community acquis relating to GMOs. As the trade partners of the EU are pointing to their obligations under international trade law,4 the judgment tackles also a controversial issue of international trade law. The Court upheld the contested decision of the Commission which had rejected the notified Austrian rules.5 Apart from considerations on the GMO issue the ruling is also important as it sets out clear limits concerning the derogation from EU harmonisation measures generally. Both the Commission and the Court found that the conditions for derogation under Article 95(5) EC Treaty were not fulfilled. Even though the Commission and the Court under the current state of Community law6 did not have any other option than to reject the Upper Austrian draft Law, the reasoning behind this finding was in many respects not very convincing.
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Kanka, Kacper. "The standstill clause mechanism on the example of the tax on civil law transactions as applied to capital contributions." Financial Law Review 1, no. 3 (September 1, 2016): 61–78. http://dx.doi.org/10.1515/flr-2016-0018.
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Abstract This article contains general characteristics of both the standstill clause, in particular its objectives and functions regarding tax law, as well as a description of the mechanism of its application. At the end, the article contains proposals for both the direct subject of this work and the impact of the case law of the ECJ on the interpretation and application of the EU law and national legislation which implements this law. As stated in the article, proper application of the standstill clause should be preceded by a thorough analysis of the EU law, national provisions and case law of the ECJ. In the article, in order to ensure the transparency of the process, a test has been proposed the results of which should indicate whether the national provisions constitute the so-called permitted derogation. Current rules relating to Polish tax on civil law transactions are partially incompatible with EU rules - they do not constitute a permitted derogation and should not be used.
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Wittich, S. "Permissible Derogation from Mandatory Rules? The Problem of Party Status in the Genocide Case." European Journal of International Law 18, no. 4 (September 1, 2007): 591–618. http://dx.doi.org/10.1093/ejil/chm036.
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Jan, Benjamin. "Mutual Recognitions Failure in the Light of Free Movement of Food Supplements: Judgment of the CJEU, 27 April 2017, Noria Distribution SARL (Case C-672/15)." Legal Issues of Economic Integration 45, Issue 3 (August 1, 2018): 311–21. http://dx.doi.org/10.54648/leie2018018.
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The ECJ had to define the Member States’ room of manoeuvre on the delicate matter of non-harmonised technical rules, in the case at hand the maximum amounts of vitamins and minerals present in food supplements. Even though the EU legislator has developed a mutual recognition framework to avoid technical barriers to trade, businesses like Noria still faced them. In order to tackle the negative consequences of the different perceptions of appropriate standards and safety level between the Member States, the ECJ retained its well-established case law on administrative due process and human health derogation under Article 36 TFEU. Oddly, the Court did not exploit a useful legal tool – the Mutual Recognition Regulation – for disciplining Member States in their recourse of the ‘genuine risk to public health’ derogation. Is the omission of the Regulation unintentional or is it the proof of mutual recognition framework’s failure?
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Mancaleoni, Anna Maria. "The Obligation on Dutch and Italian Courts to Apply EU Law of Their Own Motion." European Review of Private Law 24, Issue 3/4 (June 1, 2016): 553–78. http://dx.doi.org/10.54648/erpl2016035.
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Abstract: The European Court of Justice (ECJ) case law relating to the power of and the obligation on national courts to assess, of their own motion, the unfairness of contractual terms in consumer contracts under Directive 93/13/EEC has had a remarkable impact on national legal systems by introducing rules which often derogate from ordinary procedural rules and from the principles of judicial restraint and party autonomy. They also derogate from the traditional rules on contractual invalidity. This article, drawing extensively on the work of Arthur Hartkamp, summarizes the relevant legal framework on the EU level and in the Dutch and Italian legal systems and then focuses on two recent and groundbreaking judgments of the Supreme Courts of the Netherlands and Italy in order to assess the impact of the relevant EU law and to compare these judgments. With regard to the ex officio assessment of the unfairness of terms in consumer contracts, the comparison shows that the impact of EU case law has been greater in the Netherlands than in Italy, as the Italian regulation implementing Directive 93/13/EEC, unlike its Dutch counterpart, already provided explicit rules on the ex officio assessment of unfair terms by courts, similar to the rules subsequently established by the ECJ. Furthermore it emerges that the approach adopted in the Netherlands is restrictive with regard to the power of the court to raise ex officio the question of nullity. In Italy, on the contrary, that power is the characteristic unifying all forms of nullity laid down in the legal system, with the caveat that when the nullity is ‘protective’, as in cases of nullity provided by consumer law, the consumer can oppose the nullity (Pannon).
Dissertations / Theses on the topic "Derogative rules"
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Aldestam, Mona. "EC State aid rules : An analysis of the selectivity criterion." Doctoral thesis, Uppsala universitet, Juridiska institutionen, 2005. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-4797.
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The application of Art. 87(1) EC to taxes above all is connected to the application of the derogation method, which appears to be part of the selectivity criterion. This dissertation examines the application of the derogation method and the assessment of the selectivity criterion applied to taxes, primarily de lege lata, but also de lege ferenda. It begins with an analysis of the relationship among the criteria of Article 87(1) EC and continues with an analysis of the relationship between the derogation method and the assessment of the selectivity criterion applied to taxes. Several scholars have criticised the application of the derogation method because of the difficulty of identifying a derogation and of establishing the benchmark against which the derogation should be assessed. In this dissertation both the benchmark and the establishment of a derogation is analysed, partly with reference to the tax expenditure debate that occurred in the subject area of international taxation during the 1970s and 1980s. The selectivity criterion applied to taxes contains an assessment of justification, whereby the selective nature of a measure can be justified on the basis of the nature or general scheme of the system: Therfore the meaning and implications of this assessment are also examined. After all these issues have been examined de lege lata, the extents to which the application of the derogation method and the assessment of the selectivity criterion follow a logical system are discussed and recommendations for eliminating the identified deficiences are put forward.
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Thebault, Déborah. "Les biens publics en droit anglais." Thesis, Université Paris Cité, 2019. http://www.theses.fr/2019UNIP5034.
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Le droit anglais ne connaît ni propriété publique ni service public, personnalité morale de droit public ou dualisme juridictionnel. À défaut, le droit anglais met en œuvre une "échelle" de publicisation des biens. Pour identifier les biens publics, cette étude s'appuie sur l'existence d'un droit public substantiel, qui n'a pas encore fait l'objet d'une reconnaissance formelle en droit anglais. Ce droit public substantiel doit être distingué du judicial review, qualifié par les juristes anglais d'administrative law, mais qui ne constitue qu'un droit public processuel. La substantialité du droit public anglais réside dans l'exorbitance diffuse de règles par rapport au droit commun, lequel comprend les règles de common law et d'equity, mais aussi les règles issues du corpus législatif. Grâce à ce régime exorbitant, nous identifions deux catégories de biens publics sur le fondement des critères organique et fonctionnel. D'abord, les biens sont publics sur le fondement du critère organique, en raison du caractère public de la qualité de leur propriétaire. En droit anglais, il existe, selon nous, deux catégories de propriétaires publics : la Couronne, propriétaire public par les privilèges dont elle bénéficie par la logique organique inhérente au souverain ; et, en raison de l'acception anglaise de la propriété, le public lui-même. Ensuite, les biens sont publics sur le fondement du critère fonctionnel en raison de l'intérêt public poursuivi par leur affectation. C'est le cas des entités ayant un objet charitable, ou bien encore des sociétés privatisées - étant précisé qu'en l'absence de personnalité morale de droit public, la privatisation ne peut être conçue dans son sens continentalAgainst the backdrop of French public law with its separate administrative and ordinary courts, French lawyers often assume that English law does not have a system of public law. This is inaccurate. This thesis aims to demonstrate the existence of a substantive public law in the English legal system. It does so by identifying a number of public assets. Substantive public law should be distinguished from judicial review, which is not substantive but procedural public law. The substance of English public law lies in a multitude of rules that deviate from the rest of the legal system. These rules are found not only in common law and equity, but also in statute and in delegated legislation. From the analysis of these derogative rules, it appears that public assets enjoy privileged legal treatment. This is triggered either by the "publicness" of the asset, such as the Crown or the public itself, or by the pursuit of the public interest, regardless of the public nature of the owner. My research reveals two sets of substantive public law rules applying to public assets. The first comprise adverse possession when applied to Crown lands and town or village greens. The second set encompasses charities, and assets owned by privatised services
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Touillier, Marc. "Procédure pénale de droit commun et procédures pénales spéciales." Thesis, Montpellier 1, 2012. http://www.theses.fr/2012MON10031.
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La procédure pénale est le théâtre de réformes législatives incessantes qui aboutissent à une multiplication sans précédent des régimes spécifiques à certaines catégories de délinquants ou d'infractions. Il en résulte un éclatement du système procédural pénal qui accroît la complexité de la matière et fait perdre de vue le sens même de l'adaptation des règles. L'analyse de la procédure pénale sous l'angle de la dialectique du droit commun et du droit spécial permet de prendre conscience de l'importance qu'il convient d'attacher, d'une part, à la distinction entre un régime applicable à toutes les affaires pénales et des régimes applicables à certaines d'entre elles, d'autre part, à la gestion des rapports entre ces différents types de régimes. Mise à l'épreuve de la procédure pénale, la distinction entre droit commun et droit spécial souffre d'une méconnaissance profonde en l'état actuel du droit. Celle-ci est traduite par la difficulté à situer les frontières du droit commun et du droit spécial, mais surtout attestée par la marginalisation progressive du droit commun face à l'expansion continue du droit spécial. La reconnaissance de la distinction entre droit commun et droit spécial n'en apparaît que plus nécessaire tant elle est, en réalité, consubstantielle à l'organisation de la procédure pénale. Mise à l'épreuve des rapports entre droit commun et droit spécial, la procédure pénale souffre, quant à elle, du désordre qui règne en ce domaine. Le désintérêt du législateur pour les rapports entre procédure pénale de droit commun et procédures pénales spéciales impose, dès lors, de chercher les moyens propres à assurer la maîtrise des relations entre ces ensemblesIncessant legislative reforms in criminal procedural law produce an astonishing multiplication of specific procedures for certain categories of offenders or offences. Criminal procedural system is torn apart, increasing the complexity of law and clouding the very meaning of rules' adaptation. The dialectic of ordinary and special rules of law casts a new light on the evolution of criminal procedural law. On the one hand it is important to make a distinction between a common procedural framework that is applicable to every criminal case and specific procedures only applicable to some of them. On the other hand it becomes vital to manage the connections between these two types of law. Regarding the first point, there is a profound misunderstanding of the distinction in contemporary law. Indeed, it is difficult to determinate the frontiers of ordinary and special rules of criminal procedural law. Moreover, it is obviously attested by a progressive marginalization of ordinary criminal procedure facing an ever-expansion of special criminal procedures. A new understanding of the distinction appears even more necessary because the distinction between ordinary and special rules of law is essential to organize the criminal procedural system. Regarding the second point, criminal procedural law suffers from the resulting disorder from the mismanagement of the connections between ordinary and special rules. While the lawmakers seem not to pay much attention, the actual disorder cries out for appropriate means to control the connections between ordinary criminal procedure and special criminal procedures
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Erbili, Darin. "Tredjelandsöverföring av personuppgifter: en jämförelse mellan artikel 45, artikel 46 och artikel 49 GDPR." Thesis, Stockholms universitet, Juridiska institutionen, 2019. http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-171015.
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The introduction of algorithms has for companies led to new ways of marketing themselves. However, access to personal data is needed for a company to successfully use an algorithm, which means companies can trade with our personal data. Personal data is therefore no longer used solely for nonprofit purposes but has rather acquired a financial value. This has led to new challenges in terms of third country transfer of personal data, which requires legislation that can effectively protect personal data. Within the EU, the General Data Protection Legislation (GDPR) regulates how personal data can be transferred to a third country. Article 45 GDPR, which contains the first requirement for third country transfers, states that transfers are only permitted based on an adequacy decision issued by the Commission. On the basis, inter alia, of the annulment of the Safe Harbor decision, by the European Court of Justice, and the criticism that has been addressed towards the Privacy Shield decision, questions are raised if there are reason for companies to make third country transfers based on the alternative provisions in article 46 and article 49 GDPR. The aim of this thesis is to examine the possibilities of making third country transfers according to articles 45, 46 and 49 GDPR by making a comparison that has been made from an individual- and company perspective. The research questions have been focused on the content of the adequacy decisions concerning USA, Switzerland, Canada, Israel and Japan, a review of the legal basis for third country transfers stated in articles 46 and 49 GDPR, as well as benefits and drawbacks with applying the grounds set forth in articles 46 and 49 GDPR rather than applying an adequacy decision pursuant to article 45 GDPR. In conclusion, it may be noted that the adequacy decisions that have been discussed leave room for doubt in relation to the level of protection that is guaranteed in the GDPR. This gives reason for companies to consider application of article 46 and article 49 GDPR. There are several benefits and drawbacks with such considerations including the size of the company and its financial recourses affecting which appropriate safeguard in article 46 GDPR is the most suitable safeguard to use. Furthermore, the derogations in article 49 GDPR may, in theory and in practice, be very difficult to apply instead of article 45 and article 46 GDPR since the derogations focuses on specific situations and must be used restrictively. The findings in this thesis however leads to the conclusion that there are several reasons for companies to consider application of article 46 GDPR instead of article 45 GDPR.
Books on the topic "Derogative rules"
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Gilles, Cuniberti. Ch.1 General Provisions, General Provisions II: Arts 1.4–1.5—Mandatory rules, Art.1.5. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0009.
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This commentary focuses on Article 1.5, which recognizes that the UNIDROIT Principles of International Commercial Contracts (PICC) are, with some exceptions, default rules that may be modified and, indeed, excluded, by the parties. In other words, the parties may exclude the application of the PICC or derogate from or vary the effect of any of their provisions, except as otherwise provided in the Principles. Art 1.5 does not mention any formal requirements for excluding or modifying the PICC. Thus, in accordance with Art 1.2 PICC, it must be concluded that exclusion or modification of the PICC may be either express or implied. Art 1.5 covers complete exclusion of the application of the PICC, derogation from or variation of particular provisions of the PICC, providing for the application of several legal regimes, and mandatory provisions of the PICC.
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Shaw, Kate. Court of Justice of the European Union: Rule of Law Guardian for the Public Health Derogation. BRILL, 2022.
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Orakhelashvili, Alexander. Changing Jus Cogens Through State Practice? The Case of the Prohibition of the Use of Force and its Exceptions. Edited by Marc Weller. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199673049.003.0008.
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This chapter examines how international law treats state practice on the actual or claimed exceptions to and derogations from the peremptory prohibition of the use of force. It looks at attempts to fragment or alter the content of Article 2(4) of the UN Charter which prohibits the use of force, from the Cold War period to the post-Cold-War period. The discussion begins by assessing the nature and relevance of state practice before turning to the rules of jus cogens and the way in which they interact with state practice. More specifically, the chapter analyses the question of whether the conflict between state practice and jus cogens goes to derogation from, or modification of, jus cogens norms. Finally, it considers the argument against the jus cogens status of the prohibition of the use of force and the implications of the strict requirement of uniformity inherent in jus cogens and its non-derogability.
Book chapters on the topic "Derogative rules"
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de Hoogh, André. "The Compelling Law of Jus Cogens and Exceptions to Peremptory Norms." In Exceptions in International Law, 127–49. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198789321.003.0008.
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In this chapter, the problematic of exceptions to peremptory norms is investigated in view of the defining feature of jus cogens rules as not admitting of derogation. This problematic appears singularly concerned with exceptions to the prohibition of the use of armed force, since that prohibition is regularly claimed to constitute a peremptory norm but admits of exceptions. Different legal constructions have been proposed to explain why exceptions would not amount to derogation. One construction, logically coherent but not (fully) borne out by positive law, is to see exceptions as limiting and lying outside of the substantive scope of a general rule and thus not amounting to derogation. Another construction concerns the claim that the prohibition of the use of armed force is not a jus cogens rule but rather the prohibition of aggression. As such, exceptions such as self-defence, force pursuant to a Security Council authorization, and consent would not amount to derogation, since they would not entail the commission of aggression. This construction would allow for the conclusion that peremptory prohibitions are absolute in character and not subject to exception or justification. Circumstances precluding wrongfulness, as general exceptions, appear to qualify as derogation, since Article 26 of the Articles on the Responsibility of States bars their invocation when conduct would be contrary to a peremptory norm. Finally, a narrow interpretation of the word derogation, as being involved only when states attempt to legalize or justify conduct in relation to already existing, concrete circumstances, could also explain why exceptions to peremptory prohibitions may be considered admissible.
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Hage, Jaap, Antonia Waltermann, and Gustavo Arosemena. "Exceptions in International Law." In Exceptions in International Law, 11–34. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198789321.003.0002.
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In order to understand the role of exceptions in international law, this chapter distinguishes between applicability and application of rules. An exception to a rule in a case is defined as the situation in which a rule is applicable to, but nevertheless not applied to, the case. This is possible because the applicability of a rule is merely considered to be a reason for applying the rule, which can be outweighed by reasons against application. This chapter argues that exceptions to rules are made mainly for two purposes: to create a division in the burden of proof, or because the legal consequences of the rule in the case are undesirable. The chapter also discusses techniques used by law to avoid rule conflicts and the need for making exceptions, including subscripting, scope limitations, interpretation, derogation, incorporation and reference, and limitations on rule-creating powers.
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"CISG rules on exclusion and derogation: Article 6." In The Draft UNCITRAL Digest and Beyond. Berlin, New York: Sellier de Gruyter, 2009. http://dx.doi.org/10.1515/9783866537309.2.114.
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Lendermann, Nathalie. "Chapter 3: Opting-out aspect - derogation from institutional rules." In Procedure Shopping Through Hybrid Arbitration Agreements, 209–70. Nomos Verlagsgesellschaft mbH & Co. KG, 2018. http://dx.doi.org/10.5771/9783845289441-209.
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Woods, Lorna, Philippa Watson, and Marios Costa. "19. Derogation from the free movement of goods." In Steiner & Woods EU Law. Oxford University Press, 2017. http://dx.doi.org/10.1093/he/9780198795612.003.0019.
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This chapter examines the provisions of Article 36 of the Treaty on the Functioning of the European Union (TFEU) containing the derogation from the free movement of goods. It identifies the grounds for derogation under Article 36 TFEU, and considers proportionality and disguised restriction on trade. It also discusses the Court of Justice's (CJ) jurisprudence on the rule of reason.
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Shuibhne, Niamh Nic. "16. Exceptions to the free movement rules." In European Union Law, 510–43. Oxford University Press, 2020. http://dx.doi.org/10.1093/he/9780198855750.003.0016.
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This chapter examines when Member States can lawfully displace the obligations placed on them by free movement law. Free movement rights can be restricted under EU law in two ways. For discriminatory or distinctly applicable restrictive measures, a derogation ground expressly provided for in the TFEU must be engaged. For indirectly or non-discriminatory measures, that is, indistinctly applicable restrictive measures, if an overriding requirement relating to the public interest can be demonstrated the measure will be lawful. In both cases, the restriction also has to satisfy a proportionality test, that is, it is both appropriate and necessary for achieving the relevant public interest objective.
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Shuibhne, Niamh Nic. "16. Exceptions to the free movement rules." In European Union Law. Oxford University Press, 2017. http://dx.doi.org/10.1093/he/9780198789130.003.0016.
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This chapter examines when Member States can lawfully displace the obligations placed on them by free movement law. Free movement rights can be restricted under EU law in two ways. For discriminatory or distinctly applicable restrictive measures, if a derogation ground expressly provided for in the TFEU can be engaged. For indirectly or non-discriminatory, that is, indistinctly applicable restrictive measures, if an overriding requirement relating to the public interest that is capable of justifying a restriction of the fundamental freedoms established by the Treaty can be demonstratedIn both cases, the restriction also has to satisfy a proportionality test, that is, it is both appropriate and necessary for achieving the relevant public interest objective.
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Ramopoulos, Thomas. "Article 39 TEU." In The EU Treaties and the Charter of Fundamental Rights. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780198759393.003.49.
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In accordance with Article 16 of the Treaty on the Functioning of the European Union and by way of derogation from paragraph 2 thereof, the Council shall adopt a decision laying down the rules relating to the protection of individuals with regard to the processing of personal data by the Member States when carrying out activities which fall within the scope of this Chapter, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.
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"Article 61 Derogation from rules on acquisition of own shares Jan P. Brosius." In European Corporate Law, edited by Peter Kindler and Jan Lieder, 297–301. Nomos Verlagsgesellschaft mbH & Co. KG, 2021. http://dx.doi.org/10.5771/9783845279909-297.
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Nicholson, Rowan. "States." In Statehood and the State-Like in International Law, 146–92. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780198851219.003.0005.
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The purpose of this chapter is to identify exceptions to the general rules discussed in the previous chapter (the effectiveness and recognition norms). Among the exceptions that are identified is an exception to the recognition norm that partly aligns it with the effectiveness norm: a unilateral secessionist entity cannot be recognized in derogation from an existing state’s territorial integrity. There are other exceptions based on the principle that no law arises from unlawfulness (ex iniuria ius non oritur). The chapter also discusses the role of self-determination and postulates an exception to the exceptions: a right to external self-determination may enable states to emerge in circumstances that would otherwise render their creation invalid.
Conference papers on the topic "Derogative rules"
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Čučković, Bojana. "EU ASYLUM SYSTEM IN AND AFTER THE COVID-19 PANDEMIC: DISCLOSING THE WEAKNESSES OF THE CURRENT RULES AND ASSESSING THE PROSPECTS OF THE NEW PACT ON MIGRATION AND ASYLUM." In EU 2021 – The future of the EU in and after the pandemic. Faculty of Law, Josip Juraj Strossmayer University of Osijek, 2021. http://dx.doi.org/10.25234/eclic/18297.
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The paper analyses the influence that the Covid-19 pandemic has had on the functioning of the European asylum system. The analysis is divided into three parts and addresses problematic issues associated with different stages of the pandemic. In the first part of the paper, the author outlines the asylum practices of EU Member States in the initial stage of the Covid-19 pandemic during which the pandemic was perceived as a state of emergency. By exploring the legal possibilities to derogate both from the EU asylum rules and international human rights standards, the author offers conclusions as regards limits of derogations and the legality of Member States’ practices, especially their failure to differentiate between rules that are susceptive of being derogated in emergency situations and those that are not. The second part of the paper analyses the current phase of the pandemic in which it is perceived as a 'new normal' and focuses on making the EU asylum system immune to Covid-19 influence to the greatest extent possible and in line with relevant EU and human rights rules. The author insists on the vulnerability as an inherent feature of persons in need of international protection and researches upon the relationship between the two competing interests involved – protection of asylum seekers and ensuring public health as a legitimate reason for restricting certain asylum seekers’ rights. The final part of the paper analyses the prospects of the future EU asylum system, as announced by the New Pact on Migration and Asylum in September 2020, to adapt to the exigencies of both the current Covid-19 crisis and pandemics that are yet to come. With an exclusive focus on referral to Covid-19 and provisions relevant for the current and future pandemics, the author criticizes several solutions included in the instruments that make up the Pact. It is concluded that the Pact failed to offer solutions for problems experienced during the Covid-19 pandemic and that, under the pretext of public health, it prioritizes the interests of Member States over the interests of applicants for international protection.
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Matić Bošković, Marina, and Milica Kolaković Bojović. "NEW APPROACH TO THE EU ENLARGAMENT PROCESS – WHETHER COVID-19 AFFECTED CHAPTER 23 REQUIREMENTS?" In The recovery of the EU and strengthening the ability to respond to new challenges – legal and economic aspects. Faculty of Law, Josip Juraj Strossmayer University of Osijek, 2022. http://dx.doi.org/10.25234/eclic/22433.
Full textAbstract:
The EU enlargement policy requires creation of the new institutional organization, alignment of legal acts, increasing capacities of administration in the candidate countries. In relation to the Western Balkans the conditionality has an increased focus on good governance criteria, particularly maintenance of the rule of law, an independent judiciary, and an efficient public administration. To address raised concerns of the EU accession process in the Western Balkans as a box-ticking exercise, the European Commission in February 2018, adopted the Credible Enlargement Perspective for an Enhanced EU Engagement with the Western Balkans’ strategy, which introduced some renewed policy objective on the future enlargement of the EU including fundamental democratic, rule of law and economic reforms. In March 2020 the Council of the EU officially endorsed Commission proposal for a new enlargement methodology that is based on grouping the negotiation chapters in clusters, based on their interconnection, which requires tangible progress in all chapters merged to a cluster. The above-mentioned introduction of a new methodology and the decisions of the WesternBalkans candidate countries to apply it, correspond in time with the ongoing Europe and worldwide struggle to overcome challenges imposed by COVID-19 outbreak. The response to the pandemic influenced on the functioning of judiciary across the world and the rule of law in general. To respond to pandemic EU members states accepted new standards in relation to judiciary which tend to be threat or suspension for fundamental rights protection and right to fair trial. Outbreak of COVID-19 revealed new trends in rule of law like limited access to the lawyer in criminal cases, use of IT tools for trials, and cancelation or limitation of public hearings. The scope and modalities of such rule of law exemptions differ across the EU member states. Introduced measures and responses shed a completely new light on the issues of relevant standards in the accession process and modality to be addressed and implemented in the candidate countries. Finally, this also triggers the issue of evaluation and assessment of the reform achievements in candidate countries by EC when measuring the progress. In the analysis of the abovementioned issues the authors assessed whether derogation of the well-established rule of law principles influenced on EU accession requirements towards candidate countries and whether they temporary changed understanding and implementation of the fundamental rights or made permanent transformations in understanding of rule of law requirements.