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Journal articles on the topic 'Derogative rules'
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1
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).
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Bansal, Sharad. "The Dampening Effect of Foreign Mandatory Laws." Asian International Arbitration Journal 14, Issue 2 (December 1, 2018): 165–79. http://dx.doi.org/10.54648/aiaj2018009.
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Party autonomy – a foundational facet of international arbitration – is often at loggerheads with public policy elements. A recurrent debate in international arbitration has been the extent of limits imposed by public policy on party autonomy. One aspect of this debate is when parties expressly opt for a law governing the merits of the dispute, can an arbitral tribunal derogate from such law and apply a mandatory rule which it finds to be relevant to the dispute? This issue has repercussions on the enforceability of arbitration agreements as well as arbitral awards where mandatory rules are involved. In this article, the author argues that arbitrators are bound to apply mandatory laws notwithstanding the fact that such a measure constitutes a departure from the lex contractus, since parties inherently lack the capacity to contract out of mandatory rules. To the extent that mandatory rules reflect public policy they now cast a limit to parties’ lex contractus.
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Spaventa, Eleanor. "On Discrimination and the Theory of Mandatory Requirements." Cambridge Yearbook of European Legal Studies 3 (2000): 457–78. http://dx.doi.org/10.5235/152888712802859178.
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According to the traditional view, quantitative restrictions and discriminatory rules could be justified only according to the Treaty derogations contained in Article 30 of the EC Treaty. On the other hand, most indistinctly applicable measures, benefit also from other and broader grounds of justification: the mandatory (or imperative) requirements.This distinction has been in recent years occasionally disregarded by the Court: this has led to a certain degree of confusion as to the theoretical explanation of the mandatory requirements doctrine. In particular doubts have been raised as to whether the mandatory requirements should not in fact be considered as additional grounds of derogation to those listed in Article 30 EC.
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Cygan, Adam. "PUBLIC HEALTHCARE IN THE EUROPEAN UNION: STILL A SERVICE OF GENERAL INTEREST?" International and Comparative Law Quarterly 57, no. 3 (July 2008): 529–60. http://dx.doi.org/10.1017/s0020589308000535.
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AbstractThis article examines how recent judgments of the European Court of Justice have interpreted the concept of a service of general interest in Article 86(2) EC in the delivery of healthcare services. The article explores how and why the Court has afforded greater latitude to Member States in organizational matters by not applying competition rules. By contrast, the Court has actively promoted patient mobility and has not applied the derogation in Article 86(2) EC where it would restrict the free movement of services. Does the Court's policy of protecting individual rights undermine the ability of Member States to deliver a universal healthcare service within finite resources?
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Spaventa, Eleanor. "On Discrimination and the Theory of Mandatory Requirements." Cambridge Yearbook of European Legal Studies 3 (2000): 457–78. http://dx.doi.org/10.1017/s1528887000003888.
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According to the traditional view, quantitative restrictions and discriminatory rules could be justified only according to the Treaty derogations contained in Article 30 of the EC Treaty. On the other hand, most indistinctly applicable measures, benefit also from other and broader grounds of justification: the mandatory (or imperative) requirements. This distinction has been in recent years occasionally disregarded by the Court: this has led to a certain degree of confusion as to the theoretical explanation of the mandatory requirements doctrine. In particular doubts have been raised as to whether the mandatory requirements should not in fact be considered as additional grounds of derogation to those listed in Article 30 EC.
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CORACINI, ASTRID REISINGER. "‘Amended Most Serious Crimes’: A New Category of Core Crimes within the Jurisdiction but out of the Reach of the International Criminal Court?" Leiden Journal of International Law 21, no. 3 (September 2008): 699–718. http://dx.doi.org/10.1017/s0922156508005268.
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AbstractArticle 121(5) Rome Statute provides for a specific regime for amendments to Articles 5–8 of the Statute. Its final clause precludes the exercise of the jurisdiction of the International Criminal Court over a crime covered by an amendment when committed by a national or on the territory of a state party which has not accepted the amendment. This provision has been understood as derogating from the Statute's general rules on jurisdiction. The present article argues that a stringent reading of the clause as well as a systematic and teleological approach warrant an alternative interpretation in conformity with the jurisdictional system of the Statute.
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Shuibhne, Niamh Nic. "Derogating from the Free Movement of Persons: When can EU Citizens be Deported?" Cambridge Yearbook of European Legal Studies 8 (2006): 187–227. http://dx.doi.org/10.5235/152888712802731223.
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Ten years ago, the Bayerisches Landessozialgericht referred four questions to the Court of Justice for a preliminary ruling; the resulting judgment on María Martínez Sala’s entitlement to a child-raising allowance finally yanked the concept of Union citizenship from its sluggish hinterland in the EC Treaty and launched the Court and the Community legislature on a mission—to uncover the substantive content and scope of citizenship, and to realise its potential as an autonomous rights-giving force. The intervening decade has seen enthusiastic, if not always coherent, progression of this vocation, and thereby renewed animation of Community law on the free movement of persons. Much work in this field seeks to plot the evolving rights for EU citizens; but what about the position of the Member States? Their capacity to determine and manage their own immigration rules had already been eroded by ‘traditional’ Community law on workers, establishment and services.
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Shuibhne, Niamh Nic. "Derogating from the Free Movement of Persons: When can EU Citizens be Deported?" Cambridge Yearbook of European Legal Studies 8 (2006): 187–227. http://dx.doi.org/10.1017/s1528887000004717.
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Ten years ago, the Bayerisches Landessozialgericht referred four questions to the Court of Justice for a preliminary ruling; the resulting judgment on María Martínez Sala’s entitlement to a child-raising allowance finally yanked the concept of Union citizenship from its sluggish hinterland in the EC Treaty and launched the Court and the Community legislature on a mission—to uncover the substantive content and scope of citizenship, and to realise its potential as an autonomous rights-giving force. The intervening decade has seen enthusiastic, if not always coherent, progression of this vocation, and thereby renewed animation of Community law on the free movement of persons. Much work in this field seeks to plot the evolving rights for EU citizens; but what about the position of the Member States? Their capacity to determine and manage their own immigration rules had already been eroded by ‘traditional’ Community law on workers, establishment and services.
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Purnamaningrat, I. Gusti Ayu Intan, and I. Made Udiana. "GANTI RUGI DALAM PENERBANGAN INTERNASIONAL MENURUT KONVENSI MONTREAL 1999." Kertha Semaya : Journal Ilmu Hukum 10, no. 3 (January 29, 2022): 529. http://dx.doi.org/10.24843/ks.2022.v10.i03.p04.
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Tulisan ini bertujuan untuk mengkaji ketentuan penerbangan internasional dalam hukum nasional serta untuk menganalisis pemberlakuan ganti rugi menurut Konvensi Montreal 1999 dalam sistem hukum Indonesia. Metode penelitian yang digunakan dalam penulisan jurnal ilmiah ini yaitu metode penelitian normatif yang bertitik tumpu pada konflik norma yang diangkat pada penelitian ini. Bahan hukum yang dipergunakan adalah bahan hukum primer dan bahan hukum skunder. Berdasarkan penelitian ini, diketahui bahwa aturan pelaksana sebagai dampak meratifikasi Konvensi Montreal 1999 menyebabkan asas lex superior derogate legi inferiori menjadi sandungan untuk tidak memberlakuakan ketentuan ganti rugi Konvensi Montreal 1999 yang hanya melalui Perpres Nomor 95 Tahun 2016 Pengesahan Convention For The Unification Of Certain Rules For International Carriage By Air (Konvensi Unifikasi Aturan-Aturan Tertentu Tentang Angkutan Udara Internasional).
This article aims to examine the provisions of international aviation in national law and to analyze the application of compensation according to the 1999 Montreal Convention in the Indonesian legal system. research method used in this scientific journal research is normative research which focuses on the conflict of norms raised in this study. The legal materials used are primary and secondary legal materials. Based on this research, it is known that the implementing regulations as the impact of ratifying the 1999 Montreal Convention have caused the lex superior derogate legi inferiori principle to become an obstacle for not enforcing the provisions for compensation for the 1999 Montreal Convention which only through Presidential Decree Number 95 of 2016 concerning ratification Convention For The Unification Of Certain Rules For International Carriage By Air.
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Afdholina, Alia Nur, and Dahrul Muftadin. "Tinjauan Siyasah Dusturiyah Terhadap Proses Pembentukan Peraturan Desa Menurut Permendagri Nomor 111 Tahun 2014." Manabia: Journal of Constitutional Law 1, no. 1 (January 4, 2021): 123–42. http://dx.doi.org/10.28918/manabia.v1i1.4505.
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Village regulations are a manifestation of Indonesia as a state of law. Its existence in the world of regional legal products is arguably still new and its existence is the answer to the challenges of the social conditions of society which always change from time to time. As a result of the issuance of Law number 12 of 2011 concerning the Formation of Legislation (UU PPPU), it shifted the hierarchy of the position of village regulations. This has an impact on the uncertainty of the juridical basis of village regulations. This has led to the neglect of this type of regional legal product, especially since it is still relatively new, often in the process of formation it is not in sync with the procedures contained in Minister of Home Affairs Regulation (Permendagri) Number 111 of 2014 and does not pay attention to the rules and principles of the formation of laws and regulations. From these problems, two problem formulations emerged, namely: 1) What is the Process of Formation of Village Regulations according to Permendagri Number 111 of 2014?, 2) How is Siyasah Duturiyah's Review of the Process of Formation of Village Regulations according to Permendagri Number 111 of 2014?. This research is library research in a qualitative form. To explore the data and analyze the data using a juridical-normative approach and Siyasah fiqh (Siyasah Duturiyah). The first results of this study are; the formation of village regulations must pay attention to 3 very fundamental and absolute rules or principles, namely the principle of lex superior derogate lex inferiori, principle of lex specialis derogate lex generalis, and principle of lex posterior derogate lex priori. The formation of village regulations according to Permendagri Number 111 of 2014 must go through 6 (six) stages, namely planning, preparation, discussion, determination and promulgation, dissemination, as well as evaluation and clarification. Second; based on the review of the dusturiyah siyasa on the substance of the process of forming village regulations, the principles of Islamic law have been realized, such as the application of the principles of deliberation and democracy. Because each stage does not leave the principle of amar ma'ruf nahi munkar. Even though in practice there are often legal defects and are used for personal and group interests only.
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COX, ANDREW. "Derogation, Subsidiarity and the Single Market: The Case of Energy Exploration and Extraction under the EC Utilities Procurement Rules." JCMS: Journal of Common Market Studies 32, no. 2 (June 1994): 127–48. http://dx.doi.org/10.1111/j.1468-5965.1994.tb00490.x.
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Zhou, Weihuan, and Stéphanie Noël. "Replacing the Non-Market Economy Methodology: Is the European Unions Alternative Approach Justified Under the World Trade Organization Anti-Dumping Agreement?" Global Trade and Customs Journal 11, Issue 11/12 (December 1, 2016): 559–67. http://dx.doi.org/10.54648/gtcj2016071.
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The European Commission has announced that it would issue a proposal to amend the European Union (EU) anti-dumping regulation to tackle the forthcoming expiry of the provision in China’s Protocol of Accession to the World Trade Organization (WTO) which allows WTO Members to derogate from the WTO rules on dumping determinations against imports from China. The proposal will include the removal of the ‘non-market economies’ (NME) list, which justifies the use of the ‘analogue country’ methodology, and the adoption of a new, country-neutral methodology to ‘capture distortions linked to State intervention’. This article analyses the consistency of this alternative approach to NME conditions with the WTO anti-dumping rules. It argues that the EU’s approach may amount to a continuous treatment of China as a NME for anti-dumping purposes. Such an approach, however, finds no legal basis under the WTO Antidumping Agreement which does not concern any government intervention per se but concerns a proper comparison between export price and normal value. Moreover, should normal value be constructed, the investigating authority shall take into account costs actually incurred by exporters. It follows that an investigating authority cannot use the WTO anti-dumping rules to sanction all forms of State intervention that results in lower export prices.
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براهيم, عبدالامير. "القواعد الاّمرة في المواثيق والعهود الدولية وهدف حماية حقوق الأنسان." Al-Kitab Journal for Human Sciences 1, no. 1 (October 3, 2020): 133–56. http://dx.doi.org/10.32441/kjhs.01.01.p11.
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The notion of jus cogens in international law encompasses the notion of peremptory norms in international law. In this regard, a view has been formed that certain overriding principles of international law exist which form “a body of jus cogens ”.These principles are those from which it is accepted that no State may derogate by way of treaty.As a result they are generally interpreted as restricting the freedom of States to contract while ‘voiding’ treaties treaties whose object conflicts with norms which have been identified as peremptory. Not only are the rules of the United Nations Charter contained, but they are also enshrined in other international conventions and covenants whose purposes are the rule of international legality and the implementation of the fundamental human rights and political and economic rights guaranteed by the 1966 International Covenant on Civil and Political Rights, And the Convention against Torture, as well as the provisions and advisory opinions of the international judiciary, which confirmed the existence of rules of origin from their customary and customary sources.
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Golubović, Srđan. "The application of the European Union fiscal rules in the COVID-19 pandemic crisis." Zbornik radova Pravnog fakulteta Nis 61, no. 96 (2022): 15–28. http://dx.doi.org/10.5937/zrpfn1-40633.
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The paper examines the application of the European Union fiscal rules in the conditions of disturbances caused by the COVID-19 pandemic. Faced with a severe economic crisis, the European Union (EU) institutions for the first time activated a "general escape clause", which allows for temporary deviation from the budgetary requirements set by the Stability and Growth Pact in March 2020. The clause was introduced as part of the 2011 fiscal rules reform (six-pack) and it allows member states to temporarily derogate from fiscal constraints due to severe economic disruptions. By activating the clause, the member states have been left with sufficient room for maneuver to take expansive fiscal policy measures, which mitigate the consequences of the crisis but also negatively affect the budget balance. Although conceived as a temporary deviation of fiscal indicators from the set values, in practice there was an extensive application of the general clause, which de facto led to the suspension of EU fiscal rules. This was also influenced by the decision of the European Commission and the Council of the EU to withdraw from initiating proceedings against member states with excessive budget deficits, due to the seriousness of the crisis and uncertainty regarding the recovery. The experience with the application of fiscal rules during the Coronavirus pandemic crisis imposes the need to redefine the institutional framework of fiscal governance in the EU, which will ensure a stronger link between numerical constraints and fiscal policy objectives but also provide enough space and resources for intervention during severe economic downturn.
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Setiawan, Ivandi, and Rasji . "ANALISIS PENERAPAN WILAYAH KERJA PPAT BERDASARKAN PERATURAN PEMERINTAH NOMOR 24 TAHUN 2016 TENTANG PERUBAHAN ATAS PERATURAN PEMERINTAH NOMOR 37 TAHUN 1998 DI PROVINSI DKI JAKARTA." Jurnal Hukum Adigama 1, no. 1 (July 18, 2018): 267. http://dx.doi.org/10.24912/adigama.v1i1.2145.
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PPAT is a public official authorized to make authentic deeds concerning certain legal acts concerning the right to land or the Property Right of the Flats Unit. Government Regulation No. 24 of 2016 is the latest regulation made by the government to regulate provisions on PPAT. in Government Regulation No. 24 of 2016 in Article 12 paragraph one explained that the scope of work area of PPAT is expanded into one province where in the previous regulation that is government regulation number 37 year 1998 explained that the scope of work of PPAT is only limited to district only. but the fact is now the government regulation number 24 of 2016 has not been applied efficiently, especially in terms of the scope of work of PPAT, it happens because of several factors that hamper causing the loss of effectiveness in Article 12 Paragraph one of Government Regulation No. 24 of 2016 . it is of course also contrary to the legal certainty that the public should have legal certainty with the enactment of the government regulation number 24 of 2016 by the government then the regulation should be applicable in the scope of the working area of PPAT should be applicable in practice in the community. contrary to lex posterior derogate legi priori principle which explains that in the same rules the new rules can replace the old rules. the approach used in this study using the approach of law.
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Yeung, Joshua, and Alex CH Yeung. "The neglected nexus between competition law and human rights: standard of proof for pecuniary penalties." Legal Studies 41, no. 2 (March 18, 2021): 336–54. http://dx.doi.org/10.1017/lst.2021.8.
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AbstractThis paper examines the standard of proof applicable in proceedings for imposing pecuniary penalties for violation of competition rules. Australia, New Zealand and the UK have chosen the civil standard. This unfortunately overlooks the safeguards required by the relevant human rights treaties in proceedings that involve the determination of a ‘criminal charge’. Conversely, Hong Kong has adopted the criminal standard, which may prove unworkable in these proceedings in which economic analysis is key. After analysing whether one may set this quagmire aside by asserting that these proceedings do not involve the determination of a criminal charge, it will be argued that the more plausible solution is to accept the criminal charge characterisation, limit the civil standard to the effects-based elements of the charge and apply the criminal standard to other elements. This will achieve a permissible proportionate derogation from the human rights safeguards. Similar bifurcated models have been adopted for charges such as public nuisance and harassment, and have successfully withstood human rights challenges.
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Stoian, Alexandru. "Particularities of the Exercise of the Public Service by the Military." International conference KNOWLEDGE-BASED ORGANIZATION 27, no. 1 (June 1, 2021): 131–35. http://dx.doi.org/10.2478/kbo-2021-0021.
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Abstract The achievement of the public interest by the state implies the enduing with public prerogatives of certain persons, who, in the exercise of the public function and by fulfilling the conditions provided by law, acquire the quality of civil servants. The regulation of the public office in Romania offers both a general perspective, through the Statute of the Civil Servants, which since the adoption of the Administrative Code in 2019 is an integral part of it, and a particular perspective, embodied by the special statutes of certain professional categories that exercise the public office in a specific regime, derogating from the general rules. Law no. 80/1995 regulates the Statute of Military Personnel and, through the conditions of exercising the stipulated duties and rights, confers a special indisputable status to military personnel. However, the provisions of the same law do not establish the quality of civil servants of the military, this quality being established by juridical interpretation.
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Maurer, Heidi, and Nicholas Wright. "A New Paradigm for EU Diplomacy? EU Council Negotiations in a Time of Physical Restrictions." Hague Journal of Diplomacy 15, no. 4 (October 15, 2020): 556–68. http://dx.doi.org/10.1163/1871191x-bja10039.
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Summary Can diplomacy work without physical presence? International relations scholars consider the European Union (EU) the most institutionalised case of international co-operation amongst sovereign states, with the highest density of repeated diplomatic exchange. In a year, the Council of Ministers hosts on average 143 ministerial and 200 ambassadorial meetings, along with hundreds of working group meetings. These intense diplomatic interactions came to an abrupt halt in mid-March 2020, when the spread of COVID-19 forced the Council to approve — in a manner unprecedented in European integration history — the temporary derogation from its rules of procedures to allow votes in written form, preceded by informal videoconferences between ministers or ambassadors. This argumentative essay reflects on how we can use these extraordinary months of intra-European diplomacy to assess the viability of virtual diplomacy in the EU context and what lessons it provides as we seek more sustainable means of international engagement.
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Tang, Zheng Sophia. "EFFECTIVENESS OF EXCLUSIVE JURISDICTION CLAUSES IN THE CHINESE COURTS—A PRAGMATIC STUDY." International and Comparative Law Quarterly 61, no. 2 (April 2012): 459–84. http://dx.doi.org/10.1017/s0020589312000097.
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AbstractChinese judicial practice demonstrates great diversity in enforcing exclusive jurisdiction clauses. In practice, the derogation effect of a valid foreign jurisdiction clause is frequently ignored by some Chinese courts. It may be argued that these Chinese courts fail to respect party autonomy and international comity. However, a close scrutiny shows that the effectiveness of an exclusive jurisdiction clause has close connections with the recognition and enforcement of judgments. If the judgment of the chosen court cannot be recognized and enforced in the request court by any means, the request court may take jurisdiction in breach of the jurisdiction clause in order to achieve justice. Chinese judicial practice demonstrates the inevitable influence of the narrow scope of the Chinese law in recognition and enforcement of foreign judgments. It is submitted that the Chinese courts do not zealously guard Chinese jurisdiction, or deliberately ignore party autonomy and international comity. Instead, the Chinese courts have considered the possibility of enforcement of judgments and the goal of justice. Applying the prima facie unreasonable decision test is the best the courts can do in the specific context of the Chinese law. The status quo cannot be improved simply by reforming Chinese jurisdiction rules in choice of court agreements. A comprehensive improvement of civil procedure law in both jurisdiction rules and recognition and enforcement of foreign judgments is needed.
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Psychogiopoulou, Evangelia. "The ‘Cultural’ Criterion in the European Commission’s Assessment of State Aids to the Audio-Visual Sector." Legal Issues of Economic Integration 37, Issue 4 (November 1, 2010): 273–91. http://dx.doi.org/10.54648/leie2010021.
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According to the 2001 Cinema Communication, in order to benefit from the cultural state aid derogation of Article 107(3)(d) of the Treaty on the Functioning of the European Union (TFEU), state aid schemes for audio-visual creation must target content that qualifies as ‘cultural’ on the basis of ‘verifiable’ national criteria. The purpose of this article is to examine the Commission’s practice with respect to the enforcement of the cultural criterion of the Cinema Communication and to explore its effects for Member States’ cultural policies. This article argues that despite rhetoric assertions that definitional matters are for the Member States to deal with, a more restrictive control of the cultural criteria Member States are required to devise in order to authenticate audiovisual works as cultural products takes place from the mid-2000s onwards, curtailing national cultural autonomy. This is mainly due to a constrained interpretation of the concept of culture under the European Union (EU) state aid rules, which leads to inconsistent EU intervention in the audio-visual field.
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Nola, Luthvi Febryka. "Kedudukan Sita Umum Terhadap Sita Lainnya Dalam Proses Kepailitan (The Position Of General Seizure Towards Others In The Process Of Bankrupcy)." Negara Hukum: Membangun Hukum untuk Keadilan dan Kesejahteraan 9, no. 2 (January 2, 2019): 217–34. http://dx.doi.org/10.22212/jnh.v9i2.1047.
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Article 31 paragraph (1) and paragraph (2) of the Indonesian Bankruptcy Law stipulate that all seizures that have been determined on the debtor's assets are null and void since the bankruptcy verdict is pronounced and since then the only validity is general seizure. However, in its practice various seizures are still stipulated on bankrupt assets ranging from civil, criminal and tax seizures. This paper discusses the forms of seizure in the bankruptcy process, the position of general seizure of other seizures in bankruptcy and the impact of the position of general seizure on debt payments to creditors. The research method used is normative legal research using secondary data collected through library studies and document studies. The various data were then analyzed descriptively and qualitatively. This writing found that there are rules in other laws such as Article 39 paragraph (2) KUHAP and Article 6 paragraph (1) Law No. 19 of 2000 that have ruled out the position of general seizure. The experts in each field of science also have different views regarding the position of general seizure. This condition has resulted in the emergence of friction between law enforcement, inconsistency of judges’ decisions, length of bankruptcy proceedings, injustice, unclear data on bankruptcy assets and reduced bankruptcy assets. Therefore, the understanding of law enforcement regarding legal principles, especially the principle of lex specialis derogate legi generalis, needs to be improved. The use of prejudgment seizure in the bankruptcy process must be socialized to maximize control over bankrupt assets. To avoid prolonged process of bankruptcy, the bankruptcy law should limit the time period for the settlement of assets to the curator.AbstrakPasal 31 ayat (1) dan ayat (2) UU Kepailitan mengatur bahwa segala sita yang telah ditetapkan atas harta kekayaan debitor menjadi hapus semenjak putusan pailit diucapkan dan semenjak itu satu-satunya yang berlaku adalah sita umum. Akan tetapi pada praktiknya berbagai sita tetap ditetapkan atas harta pailit mulai dari sita perdata, pidana dan pajak. Tulisan ini membahas tentang bentuk-bentuk sita dalam proses kepailitan, kedudukan sita umum terhadap sita lainnya dalam kepailitan dan dampak dari kedudukan sita umum terhadap pembayaran utang kepada para kreditor. Adapun metode penelitian yang digunakan adalah penelitian hukum normatif dengan menggunakan data sekunder yang dikumpulkan melalui kegiatan studi perpustakaan maupun studi dokumen. Berbagai data tersebut kemudian dianalisis secara deskriptif-kualitatif. Penulisan ini menemukan bahwa adanya aturan dalam UU lain seperti Pasal 39 ayat (2) KUHAP dan Pasal 6 ayat (1) UU No. 19 Tahun 2000 telah mengesampingkan kedudukan sita umum. Ahli masing-masing bidang ilmu juga memiliki pandangan yang berbeda terkait kedudukan sita umum. Kondisi ini berdampak pada munculnya pergesekan antara penegak hukum, inkonsistensi putusan hakim, lamanya proses kepailitan, terjadi ketidakadilan, ketidakjelasan data harta pailit, berkurang bahkan hilangnya harta pailit. Oleh sebab itu, pemahaman penegak hukum tentang asas hukum terutama asas lex specialis derogate legi generalis perlu ditingkatkan. Penggunaan lembaga sita jaminan dalam proses kepailitan harus disosialisasikan untuk memaksimalkan penguasaan terhadap harta pailit. Supaya proses kepailitan tidak berlarut-larut, UU kepailitan harusnya membatasi jangka waktu penyelesaian aset kepada kurator.
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Suardana, I. Made Bagus, and I. Wayan Wiryawan. "Kepastian Hukum Usaha Mikro Kecil dan Menengah Dalam Pola Kemitraan Sebagai Penerima Waralaba." Jurnal Magister Hukum Udayana (Udayana Master Law Journal) 9, no. 3 (September 29, 2020): 547. http://dx.doi.org/10.24843/jmhu.2020.v09.i03.p07.
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The legal certainty for micro, small and medium enterprises in a partnership scheme is as a franchisee. Economic growth is so fast and advanced that many regulations by the central government and regional governments issue policies that cannot be implemented and result in no guarantee of legal certainty for the community. The purpose of this paper is to review the regulation of the minister of trade regarding franchising in 2019 related to legal certainty for micro, small and medium enterprises in the framework of a franchise business. The method used in this paper is a normative legal research method by analyzing the provisions of statutory regulations. The results of this study explain that based on the principle of lex superior derogate legi inferiori, the law with a higher position removes the laws that are under it, namely in the MSME partnership pattern in the franchise business, it should still use the rules in Government Regulation No. 17 of 2013 concerning the Implementation of Law Number 20 of 2008 concerning Micro, Small and Medium Enterprises.
Kepastian hukum usaha mikro, kecil dan menengah dalam pola kemitraan adalah sebagai penerima waralaba. Pertumbuhan ekonomi yang demikian cepat dan maju, menyebabkan banyak regulasi oleh pemerintah pusat maupun pemerintah daerah menerbitkan kebijakan–kebijakan yang belum dapat dilaksanakan dan berakibat tidak adanya jaminan kepastian hukum yang berkeadilan bagi masyarakat. Tujuan dari penulisan ini, untuk mengkaji peraturan menteri perdagangan tentang waralaba tahun 2019 terkait kepastian hukum bagi usaha mikro, kecil dan menengah dalam rangka bisnis waralaba. Metode yang digunakan dalam tulisan ini metode penelitian hukum normatif dengan menganalisa dari ketentuan peraturan perundang–undangan. Hasil penelitian ini menjelaskan bahwa berdasarkan asas lex superior derogate legi inferiori mengakibatkan hukum yang kedudukannya lebih tinggi menghapus hukum yang ada di bawahnya yaitu dalam pola kemitraan UMKM dalam bisnis waralaba sudah seharusnya tetap menggunakan aturan dalam Peraturan Pemerintah No. 17 Tahun 2013 Tentang Pelaksanaan Undang-Undang Nomor 20 Tahun 2008 Tentang Usaha Mikro, Kecil dan Menengah.
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Popov, Evgenii Aleksandrovich. "The role of research culture in publications on social sciences." Социодинамика, no. 12 (December 2020): 70–76. http://dx.doi.org/10.25136/2409-7144.2020.12.34527.
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This work is dedicated to the role of research culture in promotion of scientific articles. Analysis is conducted on the most common errors or inaccuracies in writing the scientific articles. Definition is given to the research culture; the variants of derogation from research culture are described. At the same time, in comprehension of the role of research culture in scientific publications on social sciences, of particular importance is the experience of researchers, peculiarities of their social mentality, and engagement in the scientific context on the subject matter, as well as consonance of their scientific approach to one or another research school or direction. Maintenance of gnoseological status of the research is also of holds much significance. The following conclusions were formulated: 1) research culture is associated with the type of social mentality, which is of prime importance for the works on social sciences, thus, the articles dedicated to the topical social problems should reflect the specificity of social mentality; 2) command of the norms and rules of the Russian literary language also indicates the research culture, the authors of the article often do not pay due attention to this factor, and thus it affects the fate of their publication, necessitating revision; 3) research culture correlates with the questions of ethics in the research.
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Blanco, Ester. "Torture In Emergency Situations." Leiden Journal of International Law 2, no. 2 (November 1989): 209–28. http://dx.doi.org/10.1017/s0922156500001278.
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As is well known, states may take measures derogating from their obligations under the human rights treaties during proclaimed states of emergency. They remain, however, bound to respect certain inalienable human rights, the ‘hard core’, at all times and in all circumstances. The right to life, the prohibition of torture, slavery and retroactive penal measures are thus considered as being a ‘minimum safeguard’ against human rights violations. They are generally accepted as being customary international law, one may even speak of jus cogens. Moreover, one may argue that common Article 3 of the Geneva Conventions, which contains a larger list of human rights than the abovementioned four, should also be respected in situations which are below the threshold of an armed conflict. In the important Case of Military and Paramilitary Activities in and against Nicaragua in 1986 the International Court of Justice held that the rules in common Article 3 are fundamental principles of Humanitarian Law, which are customary law and constitute a minimum, applicable in all circumstances. Even so state practice seems to indicate the opposite; experience has shown that it is during emergency situations that flagrant abuses of human rights are most common, especially in the treatment of persons who have been detained or deprived of their liberty.
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Papaconstantinou, George A. "The GATS and Financial Regulation: Time to Clear-House?" World Trade Review 19, no. 3 (August 19, 2019): 379–401. http://dx.doi.org/10.1017/s1474745619000181.
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AbstractIn the aftermath of the 2008 global financial crisis, European Union regulators introduced the mechanism of ‘third-country equivalence’ for non-European financial institutions to access the EU internal market. This article evaluates for the first time the GATS-consistency of the European rules on third-country clearinghouses. Through this exercise, the article sheds light on the tension between financial regulation and WTO law, exploring how these two different disciplines can be reconciled. Building on the international economic law principles of non-discrimination and transparency, the analysis reveals that the European financial regulation could negatively impact the access of smaller countries to the EU market. The regulation in question is assessed under the GATS Article VI (Domestic Regulation), Article II (MFN), Article VII (Recognition), and the Annex on Financial Services prudential carve-out. The findings of the European case study indicate that the vast flexibility that trade law has delegated to national regulators possibly has adverse effects on the liberalization of financial services. The article concludes that if WTO Members do not derogate from their GATS obligations and commitments, the stability of the financial system would not be jeopardized, while the prospect of international integration would be increased.
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Parkchomenko, Nataliia. "The cohesion of trial practice as a component of legislation." Law Review of Kyiv University of Law, no. 3 (November 10, 2020): 26–30. http://dx.doi.org/10.36695/2219-5521.3.2020.02.
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The effectiveness and stability of legal regulation is ensured and conditioned by many factors and tools. The sustainability andcohesion of trial practice are one of the main. The analysis of the base of sources of mentioned questions has been conducted. For thismoment in national and foreign literature the problem of Supreme courts conclusions’ binding nature has been studied partially.
The highest judicial body in the general-jurisdiction court system is the Supreme Court of Ukraine. It provides the trial practice’sunity; implements the analysis of judicial statistics and synthesis of trial practice; ensures the same application of rule of law by thecourts in different specialization according to the procedural law.According to the results of judicial statistics’ analysis and trial practice’ synthesis, The Plenary of the Supreme Court providesthe guidelines on how to implement the legislation in legal proceedings that have only recommendatory nature. In order to exercise ofthe powers conferred by article 13 of the same Act, the legal effect of the Supreme Court’s acts and their degree of obligatory naturehave been defined.The binding nature of The Supreme Court’s conclusions was distributed not only at the disputing parties, but also the other subjects.This has strengthened the position of the highest judicial instance. In doing so, there is an hierarchy of the Supreme Court’s conclusions,namely, conclusions of panel; conclusions of chamber; conclusions of the consolidated chamber; conclusions of the GrandChamber. If there are differences in addressing a specific issue in the conclusions of panel, consolidated chamber or the Grand chamber,the court applies the Supreme Court’s conclusion.Therefore, the conclusions of the Supreme Court of Ukraine are mandatory, because before go around them, the matter questionhas to be reviewed by the Supreme Court.Thus, by the interpretation of the rules of law in the specific cases and in addressing the specific issues, the Supreme Court formulatedthe legal positions which govern the public relations in conjunction with the other legal regulators.The meaningful analysis of the Supreme Court’s orders demonstrates their regulatory impact. All of its components, such as:explanations, recommendations and definitions, are not personified, but comprise general and abstract rules. They are addressed to allthe judicial system; are aimed at not one-time application; are in force until they will be replaced or cancelled. The Supreme Court’sorders establish the regulatory legal tools as principles of existing legislation’s implementation and rules-explanations, rules-recommendations,rules-definitions. These rules set the direction in interpretation and implementation of legislation for the judicial authorities.The legal provisions in this situation are unambiguous: the necessity of position’s “binding nature” is expressly foreseen, abo -lishing the derogation from the Supreme Court’s positions, for the lower courts and the regulation of derogatory procedure at the levelof cassation.In the future, all the above mentioned would positively influence on the cohesion of the judicial system. It would contribute tothe restoration and building of citizens’ confidence in the judicial system. It would further facilitate the foreseeability and predictabilityof judicial decisions. It would enhance the independence of the judicial power and increase the efficacy of courts’ activities.
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van Hees, Sander. "Large-scale Water-related Innovative Renewable Energy Projects and the Habitats and Birds Directives: Legal Issues and Solutions." European Energy and Environmental Law Review 27, Issue 1 (February 1, 2018): 15–36. http://dx.doi.org/10.54648/eelr2018002.
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This article discusses two legal issues that relate to the conflict between the interest of protecting habitats and species under the Habitats and Birds Directives, versus the interest of promoting the use of innovative water-related renewable energy, with regard to the quota in the Renewable Energy Directive. These legal issues are: first, the possible conflict between the protection rules of the Habitats and Birds Directive on the one hand and the Renewable Energy Directive on the other hand, and second, the lack of integration between the Renewable Energy Directive and the derogation clauses of the Habitats and Birds Directives. Tidal stream energy is used as a case study to show the practical relevance of the legal issues for the large-scale deployment of innovative water-related renewable energy techniques. The final sections discuss solutions to the legal issues. These are first, the application of adaptive management in combination with mitigation or phased deployment, in order to deal with uncertainty, and second, the introduction of detailed renewable energy plans per Member State in order to increase integration between the Habitats and Birds Directives and the Renewable Energy Directive. The final sections also discuss the applicability of the findings of this article to other innovative water-related renewable energy sources such as wave energy and salinity gradient energy (blue energy).
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Saenko, M. I., V. V. Goloborodko, and V. S. Pleskachova. "Current challenges in the field of human rights protection during the covid-19 pandemic." Uzhhorod National University Herald. Series: Law, no. 64 (August 14, 2021): 61–64. http://dx.doi.org/10.24144/2307-3322.2021.64.11.
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In the articles on the problems of quarantine restrictions during the coronavirus pandemic, ambiguities are identified against epidemiological measures in the legislation of Ukraine. Emphasis is also placed on the violation of international acts ratified by Ukraine and the inconsistency of norms in national and international law.
The normative legal acts of Ukraine are considered, which propose to allow restriction of certain rights and freedoms of man and citizen. The fundamental aspects of the right to protection from pressure on a person, enshrined in the European Convention on Human Rights during an emergency, have been identified.
The key cases that provide an opportunity to derogate from an emergency situation under Article 15 of the European Convention on Human Rights are listed.
Emphasis is placed on the ambiguity of the wording of the terms «public buildings», «public transport» in terms of violation of the rules on human quarantine, sanitary and hygienic, sanitary and anti-epidemic rules and regulations provided by the Law of Ukraine «On Protection of Infectious Diseases» and stay in public buildings, structures, public transport during quarantine without wearing personal protective equipment.
An example from case law on the prescribed restrictions is given based on both interpretations of European and all-Ukrainian law.
It was emphasized that the main act, which has the highest legal force on the territory of Ukraine, was violated in terms of freedom of movement, the right to hold rallies, the right to education and work.
The normative legal act concerning restrictions within Ukraine in connection with the pandemic was analyzed, namely the Resolution of the Cabinet of Ministers of March 11, 2020 №211 “On prevention of the spread of acute respiratory disease COVID-19 caused by the coronavirus SARS-CoV- 2 ”, as well as international experience in the protection of human rights during the COVID-19 pandemic.
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Pratama Sukma, Putu Angga. "DINAMIKA PLURALISME PENGGOLONGAN PENDUDUK DALAM CAPAIAN KEADILAN MENGENAI SURAT KETERANGAN WARIS." Kertha Semaya : Journal Ilmu Hukum 8, no. 9 (August 28, 2020): 1344. http://dx.doi.org/10.24843/ks.2020.v08.i09.p05.
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Tujuan penelitian ini mengenai capaian keadilan terhadap pluralisme penggolongan penduduk, dan bentuk keadilan dalam surat keterangan waris terhadap pluralisme penggolongan penduduk. Saat ini bangsa Indonesia sangat terstigma dengan adanya penggolongan kependudukan yang tentunya tidak mencerminkan keadilan dan dapat memecah belah persatuan dan perpecahan ini tentunya mengakar dari adanya inkonsistensi norma yang bertentangan dengan keadilan sosial. Penelitian hukum ini tergolong jenis penelitian hukum normatif karena terfokus pada peraturan yang tertulis terkait dengan konflik norma antara UU Kewarganegaraan dengan Permen Agraria Tentang Pendaftaran Tanah serta kekosongan norma mengenai kewenangan pejabat dalam pembuatan atau pengesahan atau penguatan surat keterangan waris. Permen Agraria Tentang Pendaftaran Tanah tentunya harus dikesampingkan berdasarkan asas lex superior derogate legi inferiori, serta kedudukan camat tidak sah dalam penguatan surat keterangan waris. Untuk meluruskan dan menegakan aturan surat keterangan waris diperlukan dua upaya yang tujuannya berdasarkan landasan yuridis sosiologis filosofis dalam mewujudkan kepastian hukum nilai keadilan sosial serta memberikan kemanfaatan dalam pembuktian yang sempurna.
The purpose of this research is about the achievement of justice against pluralism of classification of Indonesian citizens, and the form of justice in a certificate of inheritance against pluralism of classification of Indonesian citizens. Currently the Indonesian nation is very stigmatized by the existence of population classifications which certainly do not reflect justice and can divide unity and divisions, of course, stem from the inconsistency of norms that are contrary to social justice. This legal research is classified as a type of normative legal research because it focuses on written regulations related to the conflict of norms between the Citizenship Law and the Agrarian Ministerial Regulation on Land Registration as well as the vacuum of norms regarding the authority of officials in making or ratifying or strengthening inheritance certificates. The Agrarian Regulation on Land Registration must of course be set aside based on the principle of lex superior derogate legi inferiori, and the position of the camat is not valid in strengthening the certificate of inheritance. To straighten and enforce the rules of the certificate of inheritance, two efforts are needed whose objectives are based on juridical sociological philosophical foundations in realizing legal certainty in the value of social justice and providing benefits in perfect proof.
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Sieburgh, Carla. "Principles in Private Law: From Luxury to Necessity Multi-layered Legal Systems and the Generative Force of Principles." European Review of Private Law 20, Issue 2 (April 1, 2012): 295–312. http://dx.doi.org/10.54648/erpl2012019.
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Abstract: 'Iustitia est constans et perpetua voluntas ius suum cuique tribuens.' One of the ways to make 'iustitia' (justice) substantial is by using principles. Studying the role of principles in cases governed by various fields of law (e.g., private law and European Union law) makes clear that principles can play a role in two ways. The first is the role recognized in modern private law: principles functioning within a system with detailed rules and bringing as an extra to that system an interpreting, supplementing or derogating function. The second way can be discovered in European Union Law: the generative function of principles used out of necessity to build up a young system and to generate and develop rules in more detail. Cases governed by more layers of law, for example Angonese and Mangold, show that principles indeed may play a role different from the one they play in regular private law cases and that the landscape for the private law lawyer has been reshaped slightly and will be reshaped even more intensely. That being a fact, the question is how a private law lawyer is supposed to define his reaction to these developments, these facts? It is a question that is hardly stressed in the broad debate about multi layered law. The aims of a private law contribution to European Union law in my view are (a) that private law gets integrated in European Union law by adjusting to the aims and principles of European Union law; (b) that it takes part in the process of development, refinement and sophistication of European Union law; (c) that it remains a smoothly functioning part of multi layered law; (d) that private law preserves its ability to give each one his due in a more or less predictable way; (e) that private law for that reason develops its function in supporting the effectiveness of European Union law and (f) that actors in European Union law (e.g., ECJ, legislator) be more aware of the impact of European Union law on private law and for that reason (g) take this impact into due consideration in judgments and provisions. To achieve these aims a two-way traffic between European Union law and private law must be established. The question is: how can private law lawyers, judges and scholars become involved? Which approaches should be chosen in case of confrontation of a field of law, private law, containing refined rules, with a field of law, European Union Law, containing less detailed rules and more concrete policies that do not specifically aim at private law relationships? In other words, which approaches should be taken when confronting a system that has developed into utmost refinement with a system that has started to be built up only a few decades ago. How can these parts of the law be bridged?
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de Cecco, Francesco. "The Many Meanings of ‘Competition’ in EC State Aid Law." Cambridge Yearbook of European Legal Studies 9 (2007): 111–31. http://dx.doi.org/10.5235/152888712802746876.
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In 2001, the Irish carrier Ryanair and the Walloon regional government reached an agreement the terms of which appeared to be attractive for both sides. Ryanair would commit towards operating a number of its flights from Charleroi airport. In return it would receive a 50 per cent reduction in the amount of landing charges charged by the Walloon regional government, the owner of Charleroi airport. As a result, Ryanair would decrease its operating costs and gain an advantage vis-à-vis its competitors, while the airport and its owner would benefit directly and indirectly from the effects of an increase in passenger traffic. When the agreement was examined by the Commission, the Walloon Region sought to defend the measure by arguing that it had acted in its capacity as owner of the airport and that, viewed in this light, the agreement was not an infringement of the state aid rules, but an economically sound transaction. The Commission rejected this point, holding instead that, in entering into the agreement, the regional government had ‘placed itself in a situation of confusion of powers’, as the commercial need to attract Ryanair to its jurisdiction had caused it to derogate from the generally applicable regulatory framework. Given that the regional government had exercised a power of a regulatory nature, it could not invoke commercial rationality to justify its actions.
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Putra, Hendra Catur, Ulya Kencana, and Duski Duski. "Kedudukan Hukum Sema No. 3/2015 terhadap Putusan UU No. 35/2009 Tentang Narkotika Berdasarkan Hierarkis Perundang-Undangan di dalam Memutus Perkara Narkotika." Wajah Hukum 6, no. 1 (May 1, 2022): 143. http://dx.doi.org/10.33087/wjh.v6i1.876.
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Study on the juridical analysis of SEMA No. 3 of 2015 on the Decision of the Narcotics Law Number 35/2009 based on a hierarchical law with legal certainty is very necessary. The number of narcotics cases was decided as a crime of drug abuse, example of the decision of the narcotics case in the Lahat District Court, where the Panel of Judges sentenced based on Article 112 paragraph (1) of Law 3/2009 and the demands of the Public Prosecutor. His sentence was only ten months. far above the minimum sentence stated in Article 112 paragraph (1), which is four years according to SEMA 3/2015, where the judge may decide narcotics cases below the minimum. This violates the principle of "lex superior derogate legi inferiori", If there is a conflict between high and low laws and regulations, then the high one must take precedence. This type of research is normative, with analytical descriptive method. Research shows that SEMA is classified as a policy regulation (bleidsregel), and because it is intended specifically for court officials. The legal position of SEMA No.3/2015 on the Decision of Law No.35/2009 based on the hierarchical legislation in deciding narcotics cases deviates from the criminal rules stipulated in Law No.35/2009, and deviates from existing legal principles.
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de Cecco, Francesco. "The Many Meanings of ‘Competition’ in EC State Aid Law." Cambridge Yearbook of European Legal Studies 9 (2007): 111–31. http://dx.doi.org/10.1017/s1528887000002779.
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In 2001, the Irish carrier Ryanair and the Walloon regional government reached an agreement the terms of which appeared to be attractive for both sides. Ryanair would commit towards operating a number of its flights from Charleroi airport. In return it would receive a 50 per cent reduction in the amount of landing charges charged by the Walloon regional government, the owner of Charleroi airport. As a result, Ryanair would decrease its operating costs and gain an advantage vis-à-vis its competitors, while the airport and its owner would benefit directly and indirectly from the effects of an increase in passenger traffic. When the agreement was examined by the Commission, the Walloon Region sought to defend the measure by arguing that it had acted in its capacity as owner of the airport and that, viewed in this light, the agreement was not an infringement of the state aid rules, but an economically sound transaction. The Commission rejected this point, holding instead that, in entering into the agreement, the regional government had ‘placed itself in a situation of confusion of powers’, as the commercial need to attract Ryanair to its jurisdiction had caused it to derogate from the generally applicable regulatory framework. Given that the regional government had exercised a power of a regulatory nature, it could not invoke commercial rationality to justify its actions.
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Tylec, Grzegorz. "Derogation from Copyright Protection Based on the Implementation of Freedom of Information and of Media. Notes on the Judgement of the European Court of Justice of 29 July 2019 in the Proceedings between Funke Medien NRW GmbH and Bundesrepublik Deutschland." Studia Iuridica Lublinensia 28, no. 3 (December 21, 2019): 117. http://dx.doi.org/10.17951/sil.2019.28.3.117-134.
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<p class="c02alineaalta">Public discussion in 2018, concerning the European Parliament, passing the Directive on copyright and related rights in the Digital Single Market, in the public discourse referred to as ACTA 2, evoked huge social emotions. The source of the conflict were two colliding values: the need to protect copyright and to ensure economic interest of authors and freedom of expression (freedom of the Internet), particularly important for users of works and Internet users. The decisions of the European Court of Justice, given on 29 July 2019 in the proceedings between Funke Medien NRW GmbH and Bundesrepublik Deutschland and the coincident decision in the case <em>Spiegel Online GmbH vs Volker Beckow</em>, deals with the above-given conflict of values. This article provides a description of the main arguments of the above-mentioned judgements of the ECJ and points at their consequences in the scope of changing the current interpretation of the provisions of copyright. The article also contains remarks on the influence of these decisions and their consequences for the disabling of content by providers of content-sharing service providers which violates freedom of expression considering the new Directive of 17 April 2019. The author presented arguments confirming that the Directive (EU) 2019/790 of 17 April 2019 on copyright and related rights in the Digital Single Market and the new way of interpreting copyright rules provided by the judgements of the ECJ has significantly changed the hitherto may of perceiving the rules of permissible use of works.</p>
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Chen, Xidi, Qi Xu, and Lun Li. "Illegal, Unreported, and Unregulated Fishing Governance in Disputed Maritime Areas: Reflections on the International Legal Obligations of States." Fishes 8, no. 1 (January 3, 2023): 36. http://dx.doi.org/10.3390/fishes8010036.
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Illegal, unreported, and unregulated (IUU) fishing in the disputed maritime areas causes significant damage to the marine ecology and authorized fisheries, increases the risk of conflicts among disputed states, and violates human rights at sea. Both unilateral measures and cooperative governance for IUU fishing are often inadequate in these areas. In light, this study aims to clarify the regulatory obligations of relevant states and explore feasible solutions based on international cooperation to promote IUU governance in disputed areas worldwide. The rapidly evolving international fisheries legal framework requires that states, such as coastal states, flag states, port states, or market states, fulfill their respective obligations to prevent and deter IUU and that the presence of disputes in a specific maritime area does not typically constitute grounds for derogation from these obligations or exemption from possible state responsibility. However, the implications of the conflicting claims in disputed maritime areas should be taken into consideration while interpreting and applying international legal rules. Therefore, this study suggests that regional and inter-regional cooperation is necessary for states to fulfill their obligations to regulate IUU fishing and prevent state responsibilities under international law. Parties to the dispute, as well as third parties, are encouraged to participate in the cooperative mechanism in order to coordinate legislative and enforcement measures and advance the institutionalization of IUU fishing regulation in the disputed maritime areas, which will not only advances the effective governance of IUU fishing but also reduces tensions among the disputing states and contributes to the peaceful settlement of the dispute.
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Zheng, Chenjun, and Otto Spijkers. "Priority of Uses in International Water Law." Sustainability 13, no. 3 (February 2, 2021): 1567. http://dx.doi.org/10.3390/su13031567.
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The raison d’être of international water law is that it provides States with a toolkit to equip them to deal with complex problems relating to the joint use and sustainable management of transboundary freshwater resources. The principle of equitable and reasonable utilization is one such tool in this toolkit. When applying the equitable and reasonable utilization principle to a specific transboundary watercourse, States sharing that watercourse must decide which water uses are more important than others. But the general rule is that no water use takes a priori priority over others (this is the so-called no-inherent-priority rule). This paper examines three ways in which this no-inherent-priority rule can be relativized, by recognizing a certain degree of priority to certain categories of water uses. Based on an assessment of previous State practice, it is suggested that (1) existing uses enjoy a certain degree of priority over new uses; that water uses that are (2) more beneficial to a greater number of people and are less damaging to other uses and the freshwater ecosystems, enjoy priority; and that water uses that (3) immediately satisfy vital human water needs enjoy priority. States need some general guidance in identifying which water uses normally take priority in defined circumstances, and this paper provides such guidance, thereby making the tool more effective. States can decide to derogate from these general rules if the circumstances so require; they are, of course, not legally binding on them.
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Usfunan, Maria Virginia. "PENGATURAN TENTANG PENYELESAIAN KONFLIK NORMA ANTARA PERATURAN MENTERI TERHADAP UNDANG-UNDANG." Kertha Semaya : Journal Ilmu Hukum 8, no. 8 (August 2, 2020): 1191. http://dx.doi.org/10.24843/ks.2020.v08.i08.p07.
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Tujuan penelitian ini untuk mengetahui bagaimana pengaturan tentang penyelesaian tentang konflik norma antara peraturan menteri terhadap undang-undang dan unruk mengetahui bagaimana sifat putusan mahkamah agung dalam hak uji material. Metode yang digunakan adalah metode penelitian hukum normatif dengan pendekatan perundang-undangan dan pendekatan konsep. Pengaturan tentang penyelesaian konflik norma antara Peraturan Menteri Terhadap Undang-Undang, metode penyelesaian konflik norma itu dengan digunakannya asas lex superior derogate lex inferior ini, yang digunakan dengan terjadinya konflik norma antara UU Peraturan Perundang-Undangan dengan Permenkumham Nomor 2 Tahun 2019 terkait pengaturan penyelesaian konflik norma antara peraturan menteri dengan Undang-Undang, maka berdasarkan asas tersebut yang digunakan adalah UU Peraturan Perundang-Undangan, sehingga Permenkumham Nomor 2 Tahun 2019 harus dikesampingkan. Maka, Pengaturan mengenai Penyelesaian Konflik Norma Antara Peraturan Menteri Terhadap Undang-Undang, menjadi kewenangan Mahkamah Agung berdasarkan Pasal 9 UU Peraturan Perundang-Undangan. Dan Sifat Putusan Mahkamah Agung dalam Hak Uji Materiil dalam memberikan putusannya yang pada prinsipnya yang memiliki konsekuensi hukum aturan tersebut apabila terbukti secara sah dan meyakinkan bertentangan dengan aturan di atasnya maka aturan tersebut akan menjadi tidak sah serta tidak berlaku, dan menjadi tanggungjawab instansi terkait untuk mencabutnya.
The purpose of the study is to find how adjustment of the settlement of norm conflicts between Ministerial Regulations toward the Constitution and to find out how the nature of the Supreme Court decision in the right of judicial review. The method used was normative legal research method with the legislation approach and concept approach. Adjustment on resolving norms of conflict between Ministerial Regulations toward the Constitution, the method of resolving norms conflicts by using the principle of lex superior derogate lex inferior, which was used in the norm conflicts between the Constitution on Laws and Regulations with Minister of Law and Human Rights Regulation Number 2 of 2019 in relation to conflict resolution arrangements the norm between Ministerial Regulations and the Constitution, then based on the principle used was the Constitution on Laws and Regulations, so Minister of Law and Human Rights Regulation Number 2 of 2019 must be set aside. Thus, the adjustment on resolving norms of conflict between Ministerial Regulations toward the Constitution became authority of the Supreme Court based on Article 9 of the Constitution on Laws and Regulations. And the nature of the Supreme Court's Decision in the Right to Judge Material in providing its decision which in principle had legal consequences of the rule if it was proven legally and convincingly contrary to the rules above, the rule would be invalid and not applicable, and it was the responsibility of related agencies to revoke it.
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Assumpção, Everson Alexandre de. "The Case Fontevecchia and D’amico Against Argentina." REVISTA INTERNACIONAL CONSINTER DE DIREITO 12, no. 12 (June 30, 2021): 179–90. http://dx.doi.org/10.19135/revista.consinter.00012.07.
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This scientific article was based on a case study, judged by the Argentine Supreme Court. In this process, the author filed a civil action in the civil court to compensate the damage against the authors, understanding that the right to privacy, privacy, honor and image rights were violated. The article sought to analyze the collision of principles, rules, rights and jurisprudence that led the Inter-American Court of Human Rights to rule in favor of Jorge Fontevecchia and Heitor D’amico. These were condemned by the Argentine State for understanding that there was a violation of the Right to Privacy. However, the international court decided to revoke the judgment passed and judged by the Supreme Court of the Argentine Nation, understanding that Fontevechia and D’amigo did not violate the Right to Freedom of Expression, making the action illegal and, therefore, forcing the Argentine State to withdraw the action and also to promote the due reparation of the damages caused to the. On February 14, 2017, the Argentine State rejected the decision of the Inter-American Court, transforming this case into one of the most famous “leading cases” of Argentine international public law. Finally, on October 18, 2017, the International Court issued another resolution to render the sentence in the Fontevecchia y D’Amico case ineffective. It was concluded, therefore, that even with the Argentine constitutional reform of 1994 and the granting of a constitutional hierarchy to international human rights standards, it was defined that the rules of international treaties “do not derogate from the provisions of the first part of the Argentine Constitution” under the terms of article 75, item 22, but attributed to the international treaties a character of complementarity, in addition to the prohibition, provided for in article 27 of the Vienna Convention on the Law of Treaties, to invoke reasons of domestic law for non-compliance in order to comply with international obligations. For the preparation of this scientific article, the deductive method and qualitative and descriptive research were used. As bibliographic references were used published materials, scientific literature, Law and Jurisprudence that were relevant to the purposes discussed here.
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Saveski, Dejan. "Procedural unconstitutionality and illegality of Prespa Agreement." Zbornik radova Pravnog fakulteta u Splitu 57, no. 4 (October 29, 2020): 1193–225. http://dx.doi.org/10.31141/zrpfs.2020.57.138.1193.
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The Prespa Agreement signed on June 17, 2018, which changed the constitutional name of the Republic of Macedonia, is a precedent on international law. In the procedure of his conclusion, ratification, and execution were committed serious violations of procedural rules. Although the violations that this agreement produces are numerous, and with different nature, the focus of this paper is on procedural violations. The Prespa Agreement also has a lot of substantial mistakes which is in confrontation with the Constitutional, and the international law because the Prespa Agreements provisions derogate some essentially fundamental rights as a right of self-determination. But this paper is focused only on fundamental violations of legal norms that prescribes the procedure for promulgation of the Prespa Agreement - the process of negotiation, conclusion, ratification, and publishing. The process of negotiating, signing and ratifying the Prespa Agreement is followed by flagrant violations of the constitutional norms, statute norms, and the norms of the Vienna Convention on the Law of Treaties in the part that regulates the issue of persons who was competence for adopting an authenticating the text of a treaty. Besides the introductory part and historical introduction to the genesis of the problem, the focus of this paper is the procedure of negotiating, concluding, and ratifying the Prespa Agreement. The procedural aspects of the referendum on the Prespa Agreement will be elaborate in the part called “negotiation and conclusion of international agreement” because, by the time being, this referendum was issue notice after the conclusion phase and before ratification.
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Handoko, Rais Firdaus, and Budi Santosa. "Role of Notary in Capital Market: Making GMS Minutes Online During Covid-19." Jurnal Akta 7, no. 4 (December 25, 2020): 365. http://dx.doi.org/10.30659/akta.v7i4.12893.
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In early 2020, the world was shocked by the rapid spread of the novel coronavirus disease known as the corona virus disease which came out at the end of 2019 (COVID-19), so that the whole world took many policies with online system, including lectures and notary activities. The purpose of this paper is to explain controversy over the principle of lex specialis derogate legi generalis in the capital market notary and legality of making the deed of the minutes of the GMS online by a capital market notary can provide justice for notaries. This research used a normative juridical research with the specification of the research was carried out descriptively and analytically. Normative research uses secondary data types. The data collection method used by conducting Library Research and the techniques used in describing and processing the collected data are qualitative descriptions. This writing can be concluded that the deed of the minutes of the GMS of capital market companies in accordance with Article 5 paragraph (1) of the Electronic Information and Transaction Law includes the so-called electronic documents which are valid evidence, while in Article 16 letter m of the Law on Notary Position, it is stated in the explanation of this Article. "That the notary must be physically present and sign the deed before the audience and witnesses". The author's suggestion is to revise the Law on the Position of Notary Public, legalize the formation of GMS minutes online both during the corona virus pandemic and after the end of the virus, so that these rules can adapt to the needs of today's life which are completely electronic, internet, digitization, and computerized.
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GARCÍA URETA, Agustín. "Jurisprudencia del Tribunal de Justicia de la Unión Europea sobre los sacrificios religiosos de animales." RVAP 114, no. 114 (August 30, 2019): 273–98. http://dx.doi.org/10.47623/ivap-rvap.114.2019.07.
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LABURPENA: Iruzkin honek Europar Batasuneko Justizia Auzitegiaren (Sala Nagusia) bi epai aztertzen ditu, gaiari buruzko europar araudiaren arabera, animalien erritu sakrifizioei jarritako murrizketa, hiltegiek bete behar dituzten betekizun eta sakrifizio horietatik lortutako produktu ekologikoen etiketeei buruzkoak. Auzitegiak dioenez, erritu sakrifizioak baztertzeagatik, europar araudiak ez du erlijio askatasuna murrizten. Ezta Europar Batasuneko Oinarrizko Eskubideen 10. Artikuluaren harira, erritu sakrifizioak galarazten duten hiltegiei jarritako betekizun teknikoek ere. Bestetik, aldiz, erritu sakrifizioen ondorioz lortutako produktuek ezin dezakete etiketa ekologikoa izan. Edonola ere, Auzitegiak azpimarratzen du erritu sakrifizioa zilegi dela Europar Batasunean salbuespen gisa soilik eta erlijio askatasunaren begirunea bermatzea duenean helburu. ABSTRACT: This comment examines two judgments of the Court of Justice of the European Union (CJEU) (Grand Chamber) regarding the restrictions for the ritual slaughter of animals, in the light of the EU regulations on this matter, the requirements to meet by slaughterhouses and the application of EU rules on organic production and labelling of organic products. According to the Court, EU legislation on the killing of animals does not represent a restriction on religious freedom in so far as it contemplates it. The technical requirements applicable to slaughterhouses do not necessarily impede the ritual slaughter in the light of Article 10 of the Charter of Fundamental Rights of the European Union. However, products obtained after the ritual sacrifice of animals could not benefit from the rules on organic production and labelling. The Court has reaffirmed that the ritual slaughter is authorised only by way of derogation in the EU and solely in order to ensure observance of the freedom of religion. RESUMEN: El presente comentario examina dos sentencias del Tribunal de Justicia de la Unión Europea (TJUE) (Gran Sala) respecto de las restricciones para el sacrificio ritual de animales a la luz de la normativa europea sobre esta materia, los requisitos que deben cumplir los mataderos y la imposibilidad de aplicar la normativa sobre producción y etiquetado de los productos ecológicos a los obtenidos a partir de tal sacrificio. Según el TJUE, la normativa europea no implica una restricción a la libertad religiosa, al exceptuar el caso de los sacrificios rituales. Tampoco los requisitos técnicos de los mataderos impiden el sacrificio ritual a la luz del artículo 10 de la Carta de Derechos Fundamentales de la Unión Europea. Por otra parte, si embargo, los productos obtenidos a partir del sacrificio ritual no se pueden beneficiar de la etiqueta ecológica. En todo caso, el Tribunal recalca que el sacrifico ritual se autoriza en la UE solo con carácter excepcional y con el único fin de garantizar el respeto de la libertad de religión.