Journal articles on the topic 'Proportionality in law – European Union Countries'
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1
Martín, Adán Nieto. "Saudade of the constitution: The relationship between constitutional and criminal law in the European context." New Journal of European Criminal Law 10, no. 1 (March 2019): 28–33. http://dx.doi.org/10.1177/2032284419840438.
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This article examines the relationship between the constitution and criminal law. The relationship between criminal law and constitutional law has been the subject of much attention by doctrine in several European Union countries. However, in view of the jurisprudence of the Constitutional Courts and the European Courts, they have not served to constitute an effective limit for the legislator. In particular, the article examines the case law relating to the principle of proportionality.
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Basedow, Jürgen, Jan Dietze, Stefan Griller, Manuel Kellerbauer, Marcus Klamert, Luigi Malferrari, Tibor Scharf, Dominik Schnichels, Daniel Thym, and Jonathan Tomkin. "European integration: Quo vadis? A critical commentary on the PSPP judgment of the German Federal Constitutional Court of May 5, 2020." International Journal of Constitutional Law 19, no. 1 (January 1, 2021): 188–207. http://dx.doi.org/10.1093/icon/moab017.
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Abstract In its judgment of May 5, 2020, the Second Senate of the German Constitutional Court qualified for the first time a judgment of the Court of Justice of the European Union (CJEU)—C-493/17 Weiss—as “arbitrary from an objective perspective” and declared the underlying European Central Bank (ECB) decisions regarding the Public Sector Purchase Programme (PSPP) to be ultra vires. It requested the German Government and the German Parliament to take steps against the PSPP in its current form and to ensure that the ECB conducts a proportionality assessment of its PSPP. The judgment also prohibits the German Central Bank from participating, after a grace period of three months, in the implementation and execution of the ECB decisions at issue, unless the ECB assesses and substantiates that the measures provided for in its decisions satisfy the principle of proportionality. The present article, which was written by academics, lawyers, and civil servants from five countries, casts a critical eye on the judgment of the German Constitutional Court. It identifies significant shortcomings from both a German constitutional and a European Union perspective.
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López Insua, Belén. "LÍMITES AL DERECHO DE ASISTENCIA SANITARIA TRANSFRONTERIZA Y PRINCIPIO DE PROPORCIONALIDAD TRAS LA SENTENCIA DEL TJUE DE 23 DE SEPTIEMBRE DE 2020." E-REVISTA INTERNACIONAL DE LA PROTECCION SOCIAL 5, no. 2 (2020): 374–99. http://dx.doi.org/10.12795/e-rips.2020.i02.17.
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Health protection is one of the fundamental pillars of the European Union and of the process of social-democratic constitutionalism. The achievement of a Community health care system is now more than ever one of the great challenges for the European community. In spite of these objectives, the European Union has adopted a logic that relies more on an interventionist model than on simple coordination, rather than on a harmonised system for all Member States. Unfortunately, this particular cooperative pluralism has made each of the Community countries competent and responsible for the coordination rules laid down by the Union. In this sense, Directive 2011/24/EU is set as the reference standard to guarantee the right of all European citizens to receive safe and quality healthcare, both in the public sphere and in the private sphere of another Member State. The aim is to guarantee the freedom of movement and movement of persons without damaging health. Today, the right to health care is a fundamental social right of a primary nature, which is linked to the right to life and dignity.
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Huang, Xiaoqing. "Ensuring Taxpayer Rights in the Era of Automatic Exchange of Information: EU Data Protection Rules and Cases." Intertax 46, Issue 3 (March 1, 2018): 225–39. http://dx.doi.org/10.54648/taxi2018024.
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With the automatic exchange of information on tax matters (AEOI) developing into the new international standard, large quantities of information have been or will be subject to cross-border transfer. As a result, data play a significant role in the mechanism. Although the European Union is equipped with various legal sources in data protection, guarantees provided to taxpayers in AEOI legal instruments need to be further developed in order to be consistent with those provided by data protection rules in the European Union. This article analyses taxpayers’ right to data protection by studying the interrelationships between rules in EU Directives regarding administrative administration and those regarding data protection. Moreover, relevant Court of Justice of the European Union (CJEU) case law will be discussed in light of the afore-mentioned rules, highlighting the insufficiencies of prevailing AEOI legislation in ensuring proportionality and taxpayer protection in third countries. Finally, the newly adopted General Data Protection Regulation will be assessed.
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Fomina, S. "Constitutional justice as an element of the law protection function of the EU States." Uzhhorod National University Herald. Series: Law 1, no. 73 (December 9, 2022): 64–68. http://dx.doi.org/10.24144/2307-3322.2022.73.11.
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Traditionally, the main function of the body of constitutional jurisdiction is the function of constitutional control, but the human rights function, although not a classic one, is equally important.
The human rights protection function of the body of constitutional jurisdiction in practice is expressed in ensuring the possibility of turning to such a body of a natural or legal person whose rights have been violated, as is usually the case in the case of using all possible means of protection.
In this article, the experience of applying the human rights function by the bodies of constitutional jurisdiction is considered on the example of the activities of the constitutional courts of the countries of Central Europe and at the same time of the countries of the European Union - Poland, Hungary, Slovakia and the Czech Republic. This experience is valuable for Ukraine, since the constitutional crisis recently affected the Constitutional Court of Ukraine, as well as in view of the active European integration processes in Ukraine and the need for its post-war reconstruction, which is not possible without the coordinated functioning of all state authorities.
The article examines the experience of reforming the body of constitutional jurisdiction, the legislator's view on the powers of such a body, and vivid examples from human rights practice. A conclusion was made about the formation of transnational constitutionalism by such states, similar to the principles of the European Union, the application of unified, developed principles of proportionality when assessing the balance in the conflict of two or more fundamental human rights.
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Raganelli, Biancamaria, and Pierre de Gioia Carabellese. "From the pandemic to the recovery: a legal analysi." Estudios de Deusto 69, no. 2 (December 27, 2021): 185–227. http://dx.doi.org/10.18543/ed-69(2)-2021pp185-227.
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The Covid pandemic has raised various legal issues, fueling the scientific debate on the relationship between fundamental rights and freedoms in the global emergency context. Moreover, a case law has started developing within the different jurisdictions. Additionally, constitutional Courts, in different countries, have ruled over potential conflicts of interest among central powers and local ones, and even some decisa of the Court of Justice of the European Union have started “blossoming” in this area. Against the backdrop of this analysis, the paper discusses the main legal problems sparked off by the declaration of the state of emergency, with a focus on the main EU jurisdictions and with glimpses of non-EU countries. The aim of this is to discuss the balance between fundamental rights and liberties in decisa in different legal systems, as well as the interpretation given to principles of proportionality of the public health measures, adequacy, precaution and loyal collaboration and the relationship between freedom and limits to public power. Bearing this in mind, the purpose of the work is to demonstrate that, first and foremost, in Europe there is room for both a formal and a substantial recognition of common rights and liberties in terms of interpretation and application of constitutional traditions, shared by the different Member States. The relevant adherence to these principles is guaranteed by the European Court of Justice. Second, the recovery after the pandemic is an open challenge. An important opportunity for Europe and its Member States is materialising, and this is to take a step forward on the bumpy path toward a European Political Union capable of strengthening a structure weakened by several earthquakes. A path and a project still plenty of pitfalls that needs to regroup around a central core increasing unification among European peoples (art. 1 TEU), which has never meant to be an alternative to national identity.
Received: 24.11.2021Accepted: 13.12.2021
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Unterschütz, Joanna. "Strike and Remedies for Unlawful Strikes in the Legal Systems of Poland, Hungary, and Slovakia." International Journal of Comparative Labour Law and Industrial Relations 30, Issue 3 (September 1, 2014): 319–38. http://dx.doi.org/10.54648/ijcl2014018.
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Poland, Hungary, and Slovakia, like many other Central and Eastern European states, underwent profound economic and legal reform in 1989 and early 1990s with the harmonization of their legal system with the EU acquis along with democratic reform of the political system. In this period international conventions, especially ILO standards, were the main source of inspiration. In all three countries strikes are regarded as a last resort, and certain procedures must be implemented to call a lawful strike. The first formal requirement in Polish and Slovak law concerns the reason for a collective dispute: work and employment conditions as well as trade union freedoms and rights or conclusion of a collective agreement. The next requirement concerns the parties to the dispute: workers must be represented by trade unions (except in Hungary). They cannot initiate a collective dispute individually (even if the outcome would subsequently concern all the employees) or through another representative body such as works councils or employee representatives. The proportionality principle must be respected with regard to the demands of strikers and those organizing the strike may be liable for damages. Workers taking part in unlawful strikes may be subject to the sanctions laid down in labour law, such as disciplinary sanctions, dismissal or pecuniary sanctions if damage is caused. Provision for criminal liability is made only in the Polish legal system. They are construed so that many acts of employers or trade unionists representing workers in the course of collective disputes can be subject to sanctions. As far as illegal strikes are concerned, those leading an illegal strike or other protest action can be criminally liable.
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Rojszczak, Marcin. "Compliance of Automatic Tax Fraud Detection Systems with the Right to Privacy Standards Based on the Polish Experience of the STIR System." Intertax 49, Issue 1 (January 1, 2021): 39–52. http://dx.doi.org/10.54648/taxi2021005.
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According to the EC estimates presented in November 2018, the so-called VAT gap amounted to approximately EUR 150 billion with organized crime groups largely responsible for its creation. Therefore, it is not surprising that states, while protecting their economic interests, are implementing new measures aimed at detecting and preventing tax crime. Poland is also pursuing this type of activity, and a number of innovative measures in the field of tax law have been introduced over the last few years. One such solution is the automatic system of analysing transaction data from financial institutions (System Teleinformatyczny Izby Rozliczeniowej, STIR). The way this system works – combining the collection of enormous sets of personal data including sensitive information with confidential analytics and composing reports for tax authorities and law enforcement purposes – must raise doubts as to its compliance with human rights standards. In terms of its operation, STIR resembles electronic surveillance systems in other EU Member States; the difference is that, instead of capturing telecommunications data, it aggregates bulk amounts of information on financial transactions. The purpose of this article is to discuss the regulations that establish the legal framework of STIR and to present recommendations on how to ensure its compliance with the privacy and data protection model functioning in the EU. Special attention will be paid to assessing the proportionality and quality of legal safeguards implemented to limit the risk of abuse of power according to standards established in the case law of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU). Conclusions drawn from this analysis are not only important from the perspective of the Polish legislature but are also relevant to other countries and EU institutions implementing systems similar to STIR that are interested in developing cooperation between Member States in the area of combatting tax fraud. Right to privacy, tax fraud, transaction network analysis, automated decision-making, VAT gap.
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Borovska, I. A., and A. V. Petrovskyi. "Implementation features of the court case management in the civil proceedings of Ukraine." Analytical and Comparative Jurisprudence, no. 6 (February 18, 2023): 68–74. http://dx.doi.org/10.24144/2788-6018.2022.06.13.
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The article is devoted to research of fundamental principles of the court case management, it’s entity and place in the civil justice principle system, interrelations with other principles of civil justice, as well as specific of implementation during the course of individual procedural procedures in civil proceedings.
The article considers doctrinal scientific approaches regarding the legal nature of principles of the court case management, as well as certain aspects of principle of the court case management understanding as one of the fundamental principles associated with the effectiveness of justice through compliance with standards of civil proceedings, developed for the European Union countries.
In the context of conducted research about legal nature understanding of court’s procedural activity during civil proceedings in the doctrine of civil procedural law regarding to assigning ability of attributing it to an independent principle of civil proceedings, the statement was defined: the principle of judicial leadership is a separate functional principle of civil proceedings, which is integrated with the norms of procedural law and in connection with other general principles, such as the principles of access to justice, the rule of law, as well as the sectoral principles of civil proceedings - adversarial, dispositivity, proportionality; their implementation with the goal of discretionary powers by the court within separate differentiated procedural procedures and, at the same time, in combination with other principles, to fulfill the goal of civil justice. To substantiate the above, the norms of the civil procedural legislation of Ukraine were analysed, in which the principle of judicial leadership finds its direct and indirect embodiment.
On the basic of theoretical research and national civil procedural legislation review, the scientific position regarding nature of principle of the court case management have been formulated by a following feature extraction. It has been determined that the principle of the court case management is characterised by the following features: 1) it’s in a inextricable interconnection with other principles of civil proceedings, such as proportionality, dispositiveness, adversarial; 2)it’s used as a implementation of principles of civil justice during the execution judicial discretion within the limits of certain differentiated procedural procedures; 3) regarding to functional principles of civil proceedings it reflects legislation realisation as the norm of direct regulatory action by defining the role of the court as civil procedural legal relations member during the civil proceedings - a combination of powers and procedural actions of the chairman in the court session and indirect realisation through the prism of combination with other principles of civil justice.
According to the results of the conducted research, respective conclusions have been formulated.
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Harvey, Darren. "Towards Process-Oriented Proportionality Review In The European Union." European Public Law 23, Issue 1 (February 1, 2017): 93–121. http://dx.doi.org/10.54648/euro2017006.
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This article provides an analysis of contemporary case law and subsequent academic commentary which suggests that a more process-oriented approach to proportionality review has recently been taken by the Court of Justice of the European Union. It argues that the manner in which process-oriented review has been utilized gives rise to a fundamental reconceptualization of the nature of the proportionality test at the EU level; moving away from a substantive, merits based concept of review towards something more akin to a procedural obligation to state the reasons which underpin a contested measure. The article highlights some of the problems that have arisen from this shift in approach from both a doctrinal and a theoretical perspective, whilst demonstrating the inconsistent way in which the Court has formulated and applied process-oriented proportionality review to date.
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HARBO, TOR-INGE. "Introducing Procedural Proportionality Review in European Law." Leiden Journal of International Law 30, no. 1 (December 13, 2016): 25–47. http://dx.doi.org/10.1017/s0922156516000662.
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AbstractProportionality review has emerged as a multi-purpose, best-practice standard for conflict resolution, and has for this reason been embraced by most constitutional systems worldwide. It is, however, difficult to escape the fact that proportionality review opens up room for judicial discretion. In European Union law, as well as European Convention on Human Rights law, this discretion has provided an activist judiciary with a most powerful tool for facilitating European integration through judicial adjudication. In a number of recent cases, this approach has been criticized. The critique raised reaches beyond the application of the proportionality principle in concrete cases. It also encompasses a critique of the proportionality principle as such, at least the conventional interpretation of the proportionality principle. This, in turn, raises questions concerning the concept of European law, its constitutional quest and even its very legitimacy. In this article the author discusses the legal and political implications of these challenges and proposes a revival of political power at the expense of judicial power. To this effect, the author introduces procedural proportionality review. Procedural proportionality review secures judicial deference, although not judicial abdication, in politically controversial and democratically legitimate cases.
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de Londras, Fiona, and Jasmin Tregidga. "Rights, proportionality, and process in EU counterterrorism lawmaking." International Journal of Constitutional Law 19, no. 2 (April 1, 2021): 665–93. http://dx.doi.org/10.1093/icon/moab047.
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Abstract Proportionality is a key principle of EU law. However, in spite of procedural requirements intended to ensure the full integration of proportionality as a design principle in EU law, the European Union continues to pass disproportionate counterterrorism laws. If proportionality is a fundamental constitutional principle of the European Union, and if lawmaking processes at EU level have been designed expressly with this in mind, then why do the EU’s counterterrorism laws consistently raise issues of disproportionate interference with rights? Taking as a case study the passage of the EU Directive on Combating Terrorism, this article argues that at least part of the answer lies in the curtailment and adjustment, in the counterterrorism field, of lawmaking processes that are designed to be participatory, evidence-based, and informed by proportionality.
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Mudrecki, Artur. "Impact of the Principle of Proportionality in Tax Law on the Jurisprudence of the Court of Justice of the European Union and the Supreme Administrative Court in Poland." Public Governance, Administration and Finances Law Review 3, no. 1 (June 30, 2018): 46–56. http://dx.doi.org/10.53116/pgaflr.2018.1.5.
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The principle of proportionality in tax law as an EU and constitutional standard may play an important role in the interpretation of tax law. The principle of proportionality is associated with moderation of the activities of public authorities and minimization of their interference in the sphere of rights and freedoms. The principle of proportionality is also called the principle of commensurability, moderation, and adequacy. The article analyses the impact of the proportionality principle in tax law on the case law of the Court of Justice of the European Union. The case law of the Polish Supreme Administrative Court uses the principle of proportionality when interpreting tax law, and the judgments of the Court of Justice of the European Union and the Polish Constitutional Tribunal have a significant impact on the jurisprudence of administrative courts in Poland.
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Plošinjak, Jelko, and Mejra Festić. "Empirical Testing of Purchasing Power Parity Validity in Selected European Union Countries." Naše gospodarstvo/Our economy 67, no. 4 (December 1, 2021): 13–32. http://dx.doi.org/10.2478/ngoe-2021-0019.
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Abstract In this article, the authors carried out an empirical analysis of the validity of purchasing power parity (PPP) in Slovenia, Croatia, the Czech Republic, Slovakia and Austria. The results provide mixed support for PPP, which is typical for extransition economies. In the first phase of the empirical part of the research, the authors tested the stationarity of the real exchange rate in a logarithm, while in the second phase, the cointegration of nominal exchange rate, domestic and foreign price levels was tested.The Vector Error Correction Model (VECM) was used in the third phase to test if the signs of variables are in accordance with economics and econometrics theories, while in the final phase, restrictions were imposed for the symmetry and proportionality of coefficients. Slovenia is subject to limitations on the symmetry and proportionality of coefficients, which means the validity of both the absolute and relative versions of the PPP theory. Croatia is subject to a limitation on symmetry, but not to a limit on the proportionality of coefficients, which means the validity of the relative version of the PPP theory. In the case of the Czech Republic, Slovakia and Austria, restrictions on the symmetry and proportionality of the coefficients do not apply, which consequently constitutes an invalidity of both versions. However, to the authors’ knowledge, and taking into account Liu (1992), who states that it is more important to check the presence of co-integration than to check the symmetry and proportionality of the coefficients, since there is a cointegratation between the nominal exchange rate, foreign prices and domestic prices, the theory of PPP is valid for all the selected countries. The empirical results suggest that all the real exchange rate time series are stationary, additionally, cointegration exists among all the variables for all countries, and the signs of coefficients are statistically significant for all variables in all countries, however, the coefficient restrictions are only statistically significant in Slovenia and Croatia.
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Panara, Carlo. "Subsidiarity v. Autonomy in the EU." European Public Law 28, Issue 2 (May 1, 2022): 269–96. http://dx.doi.org/10.54648/euro2022014.
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The principle of subsidiarity as construed by the Court of Justice and the Advocates General (AG) is not an autonomy clause. Article 5(3) Treaty on the European Union (TEU) aims to promote the efficiency of governance rather than the autonomy of the Member States (MSs) and of the subnational governments. Although a number of scholars emphasize the potential role of federal proportionality for the protection of the autonomy, the effectiveness of this principle is limited in practice due to the Court’s judicial self-restraint. In the EU the autonomy of national and subnational governments is protected primarily by the legal bases in the Treaty. The reasoning of the Court to delimit these legal bases largely overlaps with and absorbs considerations of subsidiarity that acquire a merely ancillary role. Subsidiarity, Court of Justice of the European Union, legislative competences of the European Union, legislative autonomy of the Member States, legal bases for the actions of the European Union, regions and local authorities in the European Union, efficiency of governance, federal proportionality
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Chiti, Mario P., Marco Macchia, and Andrea Magliari. "The Principle of Proportionality and the European Central Bank." European Public Law 26, Issue 3 (December 1, 2020): 643–78. http://dx.doi.org/10.54648/euro2020059.
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The principle of proportionality is a general principle of EU law which applies to the European Central Bank (ECB) in the fields both of monetary policy and banking supervision. In recent years, the issue of the proportionality of the ECB’s action has been at the centre of extensive debate in European legal doctrine and jurisprudence. This article aims to contribute to this debate by providing a comprehensive analysis of the meaning and implications of the principle of proportionality in the field of banking supervision and monetary policy. The article is divided into four parts. Parts I gives a general overview of the origin of the principle and its subsequent developments in light of the case-law of the European Court of Justice. It also reflects on the different meanings of proportionality as a flexible and multi-faceted principle. Part II investigates the principle of proportionality according to an ex ante perspective, i.e. as a principle capable of governing and orienting legislative and administrative action. Under this perspective, the article analyses the way proportionality impacts banking regulation, banking supervision and monetary policy. Part III deals with the ex post perspective, i.e. the way proportionality is assessed and scrutinized by EU courts. Part IV concludes. Part III and IV will be published in the next issue. National courts, Court of Justice of the European Union, Preliminary reference procedure, national procedural autonomy, Appeals, Appellate courts
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Długosz, Joanna. "The Principle of Proportionality in European Union Law as a Prerequisite for Penalization." Przegląd Prawniczy Uniwersytetu im. Adama Mickiewicza 7 (September 15, 2017): 283–300. http://dx.doi.org/10.14746/ppuam.2017.7.17.
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The paper analysis the principle of proportionality, which is widely applied in the EU legal order and is therefore one of the fundamental principles of the system of the European Union. It is one of the legal principles that govern decision-making processes and common strategic objectives, and which are applicable when establishing European Union legislation and transposing it into national law, including in the area of criminal law, although the current analyses do not often focus on discussing this aspect. Due to its complexity and significance for the processes of establishing and applying the law, the principle of proportionality requires detailed and separate discussion, especially in the context of European criminal law.
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Harvey, Darren. "Federal Proportionality Review in EU Law: Whose Rights are they Anyway?" Nordic Journal of International Law 89, no. 3-4 (November 12, 2020): 303–26. http://dx.doi.org/10.1163/15718107-89030003.
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Abstract The principle of proportionality has always operated as a means of protecting individuals from excessive uses of public power. When situated alongside the principles of conferral and subsidiarity, proportionality also possesses a federal dimension. In this guise, the principle limits the intensity of EU intervention in order to protect national regulatory autonomy. This federal element of proportionality has featured in recent Court of Justice of the European Union (cjeu) cases. For example, Member States have challenged European Union (EU) legislation for imposing disproportionate social and economic costs in their particular States. This article considers whether individuals can similarly challenge EU legislation for disproportionately interfering with the regulatory autonomy of the Member States? Having considered this question from the perspective of US federalism, it is argued that individuals are actually articulating “Member States’ rights” in such cases. In so doing, attention is drawn to the question of whose rights and interests are really being articulated and balanced in these disputes.
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Dunbar, Rupert. "The Application of International Law in the Court of Justice of the European Union: Proportionality Rising." German Law Journal 22, no. 4 (June 2021): 557–92. http://dx.doi.org/10.1017/glj.2021.25.
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AbstractApplication of international treaty and customary international law at the Court of Justice of the European Union (CJEU) is increasingly recognized by scholars as problematic regarding legal certainty. This Article seeks to illustrate why this is and to propose reform. Through comparing judicial approaches in the application of international law at the CJEU to its approach in internal case law, it is argued that in the frequent absence of proportionality in external case law the Court has utilized, redeployed, or varied other judicial devices in an effort to retain the discretion which proportionality affords. These are argued to effect legal certainty and established concepts of justice within the EU legal system. Accordingly, it is submitted that proportionality should be transplanted fully and openly to external relations case law and that support for this can be extrapolated from existing literature.
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Mengozzi, Paolo. "The Judicial Protection of Individual Rights and the Principle of Proportionality after the Lisbon Treaty." Cambridge Yearbook of European Legal Studies 16 (2014): 335–45. http://dx.doi.org/10.1017/s1528887000002652.
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AbstractThe aim of this chapter is to illustrate how the principle of proportionality as derived from the legal orders of the Member States has been incorporated in the legal order of the European Union as well as codified in the Treaties. The chapter revolves around two key arguments. It emphasises, first, that the principle of proportionality has been used as a criterion for controlling the legality of the acts of the Union and of those of the Member States when implementing Union law. Secondly, it is argued that, more recently, the same principle has been used by the Court of Justice of the European Union as a useful instrument towards ensuring an even stronger coordination with national judges.
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Economou, Athina, and Iacovos N. Psarianos. "Revisiting Okun’s Law in European Union countries." Journal of Economic Studies 43, no. 2 (May 9, 2016): 275–87. http://dx.doi.org/10.1108/jes-05-2013-0063.
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Purpose – The purpose of this paper is to examine Okun’s Law in European countries by distinguishing between the transitory and the permanent effects of output changes upon unemployment and by examining the effect of labor market protection policies upon Okun’s coefficients. Design/methodology/approach – Quarterly data for 13 European Union countries, from the second quarter of 1993 until the first quarter of 2014, are used. Panel data techniques and Mundlak decomposition models are estimated. Findings – Okun’s Law is robust to alternative specifications. The effect of output changes to unemployment rates is weaker for countries with increased labor market protection expenditures and it is more persistent for countries with low labor market protection. Originality/value – The paper provides evidence that the permanent effect of output changes upon unemployment rates is quantitatively larger than the transitory impact. In addition, it provides evidence that increased labor market protection mitigates the adverse effects of a decrease in output growth rate upon unemployment.
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Rodrigues, Anabela Miranda. "Fundamental rights and punishment: Is there an EU perspective?" New Journal of European Criminal Law 10, no. 1 (March 2019): 17–27. http://dx.doi.org/10.1177/2032284419837377.
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Taking fundamental rights into account means a limitation of repression, as an instance of the principle of proportionality or principle of necessity, of criminal intervention. The need to design European Union (EU) criminal law in compliance with the principle of proportionality is especially clear in the post-Lisbon stage, in view of the strengthening and expansion of the EU’s competence to legislate on criminal matters, enshrined in Article 83 of the Treaty on the Functioning of the EU. This article aims at analysing the terms in which European criminal law respects the aforementioned principle of proportionality of punishment and translates an EU perspective in the field of criminal sanctions.
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Tomuschat, Christian. "Inconsistencies – The German Federal Constitutional Court on the European Arrest Warrant." European Constitutional Law Review 2, no. 2 (June 2006): 209–26. http://dx.doi.org/10.1017/s1574019606002094.
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Features European Arrest Warrant – Article 16(2) German Basic Law, which allows exceptionally for the extradition of German nationals, not read in the light of the European Union integration clause in Article 23(1) Basic Law – Complaint of violation of the democratic principle put in perspective – Preservation of the statehood of Germany – Lack of proportionality in and procedural defects of the implementing Act
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Wimmer, Michael. "The Dinghys Rudder: General Principles of European Union Law through the Lens of Proportionality." European Public Law 20, Issue 2 (June 1, 2014): 331–53. http://dx.doi.org/10.54648/euro2014022.
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The article aims at circumscribing the role of general principles of EU law within the Union's legal order, by using the principle of proportionality as an illustration of major developments and challenges and of how general principles interact with other sources of law. A narrow definition of general principles is advocated: only principles identified by the CJEU as such, i.e., as principles having the status of primary law, should be considered as general principles within the Union's legal order. This definition excludes principles of secondary law and mere policy principles. Still, general principles of EU law can be given expression in both primary and secondary law and are heavily dependent for their interpretation on the broader legislative and constitutional framework. The principle of proportionality maintains in this respect its central role in finding the proper equilibrium between various principles and objectives.
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Piantavigna, Paolo. "Tax Abuse in European Union Law: A Theory." EC Tax Review 20, Issue 3 (June 1, 2011): 134–47. http://dx.doi.org/10.54648/ecta2011015.
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Tax abuse is a legal principle developed by the European Court of Justice (ECJ) that prevents a person from relying on a right in law where such reliance would constitute an abuse of that right. The case law demonstrates two circumstances when the principle has been applied or its potential applicability has been recognized: a person seeks to rely on a European legal right to circumvent or displace national law, and a person seeks to take advantage of a right in European law, but in a manner running contrary to its spirit. The ECJ is recognizing the full and proper construction of the European right upon which a person wishes to rely but prevents its use in any event. This principle of abuse sits alongside other developed principles of law that maintain fundamental rights already accepted in the legal systems of the Member States and in internationally recognized treaties. These general principles are not closed and include equality, proportionality, neutrality, and legal certainty. The main thrust of the application of fraus legis has been in relation to tax avoidance, but one might consider that this abuse of law or fraus legis principle has a potentially vast application in Community Law, both in tax harmonized and in tax non-harmonized areas.
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Mancano, Leandro. "Mutual recognition in criminal matters, deprivation of liberty and the principle of proportionality." Maastricht Journal of European and Comparative Law 25, no. 6 (December 2018): 718–32. http://dx.doi.org/10.1177/1023263x18818654.
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This paper argues that the application of mutual recognition to judicial cooperation in criminal matters within the European Union (EU) imposes a redefinition of the right to liberty to adjust the latter to the peculiarities of the Union legal order. The article emphasizes the important role that the principle of proportionality in EU law can have for improving the protection of the right to liberty. The two main scenarios of this research are analysed against the different understandings of proportionality: on the one hand, the European Arrest Warrant Framework Decision and the interpretation of the EU Court of Justice; on the other, the three Framework Decisions on transfer of prisoners, probation measures and pre trial measures alternative to detention. The conclusions reveal that, despite the increasing attention paid to proportionality in relation to the right to liberty in mutual recognition, the potential offered by EU law to better protect the right to liberty is still underexploited.
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Alter, Karen J. "When and how to legally challenge economic globalization: A comment on the German Constitutional Court’s false promise." International Journal of Constitutional Law 19, no. 1 (January 1, 2021): 269–84. http://dx.doi.org/10.1093/icon/moab014.
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Abstract The German Constitutional Court’s recent challenge to European law supremacy, and European lawyers’ strident critique of it, divert us from the conversation we need to have. The German Federal Constitutional Court wants us to focus on a surplus of European Union power, the European Court of Justice’s refusal to constrain it, the legal strategy of proportionality, and the goal of protecting national democracy. I defend national judicial pushback that is used to protect individual rights, democracy, and the national constitutional order. But demanding a German right to proportionality review of European Central Bank (ECB) monetary policy does not further these goals. Judicial review of monetary policy, especially in a context of radical uncertainty, makes little sense. Nor is the German Court’s doctrinal focus helpful as a way to address globalization. We need a new and different conversation focused on when and how constitutional review can effectively and helpfully push back against the adverse impacts that economic globalization is creating.
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Trouillard, Pauline. "Financing the public service broadcasting under European Union law." Comunicação e Sociedade 30 (December 29, 2016): 451–63. http://dx.doi.org/10.17231/comsoc.30(2016).2508.
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A protocol annexed to the Amsterdam Treaty, regarding public broadcasting in Member States, provides that Member States are free to fund public service broadcasting as far as it does not affect competition in the European Union to an extent which would be contrary to the common interest. As a result of this condition, the European Commission carries out a proportionality test to check if there is no overcompensation or disproportionate effects of public funding. It nonetheless does so by adopting a global control which considers all public broadcaster programmes as part of the public service remit. Such control is problematic because it does not take into account the distinction between commercial and public service programmes nor the actual quality of programmes. The Commission indeed focuses its control on the advertisement market, making sure that public broadcasters do not take advantage of public funding to lower the price of advertisement rates. The freedom enjoyed by public broadcasters to provide any types of programmes as far as they respect the advertisement market comes out to be contrary to citizen welfare.
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Wenander, Henrik. "Europeanisation of the Proportionality Principle in Denmark, Finland and Sweden." Review of European Administrative Law 13, no. 2 (July 24, 2020): 133–53. http://dx.doi.org/10.7590/187479820x15930701852283.
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Under the influence of EU law and the ECHR, proportionality has developed into a central feature of contemporary European administrative law, at both national and Union level. The article examines this development with respect to the three EU Member States, namely Denmark, Finland, and Sweden. These Nordic legal systems share certain fundamental conceptions of law, such as: the limited importance of legal formalities and the associated 'pragmatism'; the more limited role of all-embracing legal principles; and the central role of and trust in the legislator. These Nordic experiences may therefore differ from both continental ('civil law') and Anglo-Saxon ('common law') attitudes to proportionality, and may contribute to the bigger picture of some features of the Europeanisation phenomenon. The main question for the article is how the principle of proportionality in administrative law has developed and responded to this European influence in the three states.
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Kavelaars, Peter. "The foreign countries of the European Union." EC Tax Review 16, Issue 6 (December 1, 2007): 268–73. http://dx.doi.org/10.54648/ecta2007044.
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Vosa, Giuliano. "‘Loose’ Proportionality Review in the European Monetary Union’s ‘Law of the Crisis’: A Sign of Decline of the ‘Culture of Justification’?" European Public Law 26, Issue 3 (December 1, 2020): 769–94. http://dx.doi.org/10.54648/euro2020065.
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In reviewing legal acts adopted in the context of the economic-financial crisis, proportionality finds frequent application. However, case-law at both national and Union’s level displays elements of a loose proportionality review, as Courts hardly dare to challenge the substance of the decisions negotiated by law-makers. The article argues that loose proportionality is tied to a departure from the juridical roots of the referring concept, which lie in a ‘culture of justification’ as alternative to a ‘culture of authority’ in the exercise of public power. In this light, it provides analysis of the case-law concerned to show that the decisions taken at the political level do not seek their legitimacy in dialogical justification, but find it in the alleged assumption that they represent the optimal ‘reasonable solution’ for all Member States, despite the painful inequalities they entail. As they prove somehow alien to the cultural-juridical roots of the concept, they cannot undergo a fully-fledged proportionality scrutiny. Yet, this may signpost the gradual comeback of a ‘culture of authority’ requiring careful reflection, as it would touch upon the very conception of the human person as capable of self-determination – arguably, the cornerstone of contemporary constitutional arrangements. Proportionality, Economic-Monetary Union, Judicial Review, Sovereignty, Crisis, Reasonableness, Fundamental Rights, Self-Determination.
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Galushko, Dmitriy Viacheslavovich, Natalya Valerievna Oganova, Andrey Leonidovich Belousov, Elena Valerievna Grigorovich, and Aleksey Valerievich Sereda. "The EU law and the law of third countries: problems of interaction." SHS Web of Conferences 118 (2021): 02003. http://dx.doi.org/10.1051/shsconf/202111802003.
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The article discusses the problems of the interaction process of legal systems of international integration organizations with law of states that are not members of those entities. The research has been conducted on the example of the European Union. The authors conclude that the degree of influence of the international treaties between the EU and third countries on the legal orders of these states differs depending on the level of cooperation between the parties, which is precisely determined by such agreements. The European Union law is the main means of spreading the influence of the European Union on the legal systems of non-member states. Approximation of national legislation with the European Union’s acquis is a consistent process of approximation of the legal system of the state, including legislation, lawmaking, legal technique, law enforcement practice in accordance with the criteria set by the Union. Peculiarities of the legal approximation of law of particular states with law of the European Union are determined by the nature of the relationship between those subjects, by the goals set for such cooperation and fixed in mutual international treaties, as well as by the peculiarities of the state mechanism and the legal system of the respective state. Consequently, regarding European Union – Russia interaction in the field, regulatory engagement can be hardly called as efficient, smooth, and cloudless.
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Sikorski, Rafał. "Towards a More Orderly Application of Proportionality to Patent Injunctions in the European Union." IIC - International Review of Intellectual Property and Competition Law 53, no. 1 (January 2022): 31–61. http://dx.doi.org/10.1007/s40319-021-01139-6.
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AbstractThe intensity of IP protection has traditionally been determined by assessing the criteria that need to be satisfied for the protection to be granted, as well as the scope of rights and limitations of those rights. The enforcement stage and the remedies available to right holders have for long been, if not neglected, then certainly treated with lesser attention. The rise of aggressive litigation strategies, especially in the field of patents, has brought the enforcement stage to the forefront of the discussion about the proper level of IP protection in general and patent law in particular. Injunctions provide particularly strong leverage at the enforcement stage, allowing patentees in some cases to obtain royalties that exceed the value of the protected inventions. The principle of proportionality can play an important role as a check on excessive litigation strategies by patentees. Flexibility, however, comes at the price of uncertainty and unpredictability as to the outcome of patent disputes. Therefore, it is crucial to apply proportionality in an orderly and structured manner. For that purpose, the article identifies a set of factors that may be helpful in applying proportionality in patent disputes. That set of factors is well grounded in the traditions of the laws of the EU Member States.
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Feshti, Marsida, and Jurgen Golemi. "The impact of the European Court of Justice on the principle of proportionality." SEER 23, no. 1 (2020): 127–36. http://dx.doi.org/10.5771/1435-2869-2020-1-127.
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One of the most important principles of EU administrative law is that of proportionality. The principle of proportionality is defined in Article 5 of the Treaty on European Union (TEU), but the legal concept has been recognised by the European Court of Justice since the 1950s as one of the general principles of EU law. Proportionality regulates the exercise of authority in terms of adjudicating whether the actions undertaken by EU institutions are within set limits. According to this rule, the action of institutions should be limited to that which is necessary to achieve the objectives of the treaties. In other words, the degree of action by the institutions must be in line with the goal being pursued. This article starts with an analysis of the meaning of proportionality, drawn from the approaches in practice of EU judges, and proceeds to an examination of the three types of issues that can be detected from their judgments: cases involving discretionary political choice, or which are of a social, political or economic nature; those related to the violation of rights under EU law; and those involving a disproportionate fine or imposition.
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Herlin-Karnell, Ester. "The Power of Comparative Constitutional Law Reasoning in European Criminal Law Procedure." ICL Journal 13, no. 1 (May 27, 2019): 1–27. http://dx.doi.org/10.1515/icl-2018-0047.
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Abstract This paper explores the constitutional dimension of comparative criminal law procedure in a European context. It does so by focusing on the European civil law traditions and by explaining how the impact of constitutional law reasoning has changed the criminal law landscape. The paper argues that the influence of European Union law and the European Convention on Human Rights regime together with other comparative law effects have led to an adapted version of the comparative law project, where the orthodox distinction between civil law and common law is largely erased. Specifically, the paper focuses on the question of fairness and justification in the criminal law process, the principle of proportionality and the notion of dignity in a comparative perspective. The paper draws on both doctrinal and theoretical examples.
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Lubis, Syaravina. "Transformation Of The EU Law Related To The Etabilishment Of National Law In The England In The Law Perspective Of International Organizations." Journal of Law Science 4, no. 1 (January 30, 2022): 46–37. http://dx.doi.org/10.35335/jls.v4i1.1699.
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The economic upheaval of a country is one of the reasons for the formation of an international organization, namely the European Union. The goal of the European Union itself is to promote through the community the harmonious, sustainable development of economic activity, steady improvement, rapid improvement of living standards, quality of life and closer relations between member states. This research has a problem formulation consisting of the transformation of EU law into law in the member states of the European Union, the transformation of EU law in the UK, and a challenge as a legal effort related to the transformation of EU law in the UK according to International Organization Law. This study uses a normative juridical research method. The results of the research on the transformation of European Union Law into National Law of member countries, namely by establishing Regulations, Directives, Decisions that must be applied in member countries. EU law has the supremacy of overriding the National Laws of member states. The transformation of European Union Law in the UK began with the agreement of the European Communities Act 1972 which was the UK's ratification of EU Law. Challenge as a legal remedy related to the transformation of European Union Law in the UK is permitted under Articles 230 and 232 of the European Union Agreement, namely by submitting a complaint to the national court in accordance with the time specified to carry out the challenge, this challenge action can end with an amendment. The conclusion of the research is the transformation of European Union Law in member countries in the form of Regulations, Directives, and Decisions. The European Union Law Transformation in the UK is regulated through the European Communities Act 1972. Challenge as a legal remedy related to the transformation of EU Law in the UK is allowed in order to create a good implementation. Suggestions related to research is that it is better to ensure that the transformation of European Union Law has been implemented as intended. The transformation of EU Law in the UK should ensure that UK National Law can be waived in the event of a conflict with EU Law which is immediately effective. Conduct in-depth negotiations, ask for opinions from representatives of each member country so that unity is achieved to facilitate the implementation of European Union Law in member countries and minimize challenges to European Union Law.
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Louis, Jean-Victor. "The Lisbon Treaty: The Irish ‘No’.: National Parliaments and the Principle of Subsidiarity – Legal Options and Practical Limits." European Constitutional Law Review 4, no. 3 (October 2008): 429–52. http://dx.doi.org/10.1017/s157401960800429x.
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Winner: national parliaments or European Parliament? – Differences between Lisbon Treaty and Constitutional Treaty – Latent rivalry – Lisbon innovation – National parliaments now actors in the Union? – Early warning mechanism as solution of compromise – Dual system of the two protocols: yellow and orange cards – Review – Compliance – Interparliamentary co-operation – Complexity of COSAC's involvement – Link between proportionality and subsidiarity – Conception of representative democracy – Position of the Court of Justice
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Dumitru, Ovidiu Ioan. "The Role of Subsidiarity and Proportionality Principles in the Development of a Future Digital Single Market and a Common European Contract Law." Proceedings of the International Conference on Business Excellence 14, no. 1 (July 1, 2020): 1178–86. http://dx.doi.org/10.2478/picbe-2020-0110.
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AbstractFrom the far beginning of the European Communities, with broader objective of creating a perfect unique market for the member states, it must be underlined the importance of the results of the harmonisation process of the contract law and the single market and that, in time, the institutions struggled in their tumultuous work for fulfilling the indicated objectives to overcome the interventions from each Member State, interested, also, in shaping a great and prosperous common market, but trying, subsequently, to reason with their traditions, culture, ideological and political choices. The legislation on single market and European contract law is a subjected to the three guiding principles of the European Union: the principle of conferral, which empowers the European Union in terms of competence, the principle of subsidiarity, which underlines the European Union’s competence in a certain field that is shared with a Member State and the principle of proportionality, which applies if the first two principles are validated, dealing with the how the European Union should legislate. However, there are some critics who express their worries in that there are insufficient empirical proofs for redefining the harmonisation process. Taking into account the criticism, the European Court of Justice has ruled in numerous occasions that the authorisation to harmonise laws, with the scope of safeguarding the proper functioning of the European internal market does not grant the European Union a carte blanche in order to interfere with the sake of harmonisation any law it wishes. The way the above indicated principles maintained their roles provided by the treaties or they were subject of modification, by enrichment or limitation, by the caselaw provided by the European Court of Justice, we must investigate in order to picture a possible “finale” of our Single Market and this paper will concentrate of the influence of subsidiarity and proportionality on the fields most dynamic in the past years, the Digital Single Market and its contract law. This paper wishes to clarify how the two fundamental principles, of subsidiarity and proportionality, provided in time by the modifying treaties and consolidated by the European Court of Justice, influenced the evolution of the legislation regarding the Single Market and how those two may help or block the future evolution in the context of a continuous pressure coming from the development of the digital framework and online contracts.
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van Os, Pieter. "Interest Limitation under the Adopted Anti-Tax Avoidance Directive and Proportionality." EC Tax Review 25, Issue 4 (August 1, 2016): 184–98. http://dx.doi.org/10.54648/ecta2016020.
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This article scrutinizes the compatibility of the interest limitation rule the European Union (EU) legislature included in its anti-tax avoidance directive adopted on 12 July 2016 with the proportionality principle. Under its settled case law concerning domestic interest limitation rules restricting a fundamental freedom for purposes of combating tax avoidance practices, the European Court of Justice (ECJ) holds that such measures do not comply with the principle of proportionality if they, amongst others, either do not provide the taxpayer with an opportunity to substantiate the commercial reasons for not entering into an arm’s length loan arrangement, or restrict the deductibility of more interest than an arm’s length interest. As the rule does neither adhere to the counterevidence rule nor to the arm’s length principle, it is questionable whether its status as secondary EU law suffices for purposes of disregarding the aforementioned limitations set by the ECJ. Amongst others, the author takes the view that on the basis of ECJ case law, the interest limitation rule may be considered incompatible with the proportionality principle.
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des Places, Ségolène Barbou. "Revisiting Proportionality in Internal Market Law: Looking at the Unnamed Actors in the cjeu’s Reasoning." Nordic Journal of International Law 89, no. 3-4 (November 12, 2020): 286–302. http://dx.doi.org/10.1163/15718107-89030002.
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Abstract To understand how the Court of Justice of the European Union (cjeu) assesses the proportionality of restrictive national measures, one has to depart from the canonical reading of internal market law cases. An alternative reading of the cjeu case law, focusing on the “who” rather than on the “how”, is possible. This article argues that the control of proportionality should not be viewed as an abstract reasoning aiming at comparing the respective importance and value of the norms in conflict, but rather as an evaluation based upon the thorough description of the social reality of the persons whose life and interests are either affected or protected by the challenged restrictive measure. Because it analyses the control of proportionality as a social narrative elaborated by the judge, the article can demonstrate that among the roles conferred by the proportionality narrative to different characters, the most determinant ones are played by persons standing behind the scene: the “archetypal characters”.
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Papucharova, Georgia. "Short Profiles of Different European Investigation Order Domestic Regulations in the European Union." International conference KNOWLEDGE-BASED ORGANIZATION 25, no. 2 (June 1, 2019): 169–75. http://dx.doi.org/10.2478/kbo-2019-0075.
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Abstract Тhe regulatory fragmentation and the excessive administrative formalities in the area of international legal assistance in investigation have created the need for a unitary mechanism. This article is focused on the relatively new instrument for international judicial cooperation in criminal matters – The European Investigation Order (EIO). Specifically, it examines the reflection of Directive 2014/41/EU in several Member States of the EU and provides an overview of the separate national systems. The analysis contained in this paper seeks to identify the issuing, the receiving and the executing authorities in each of the considered countries. Main aspects of the EIO’s regulation such as, for an example, its form and content, its transmission, proportionality assessment, deadlines and refusal grounds are seen from the perspective of different national legislations. Although the present study is not intended to be exhaustive, it could clarify to some extent whether an“one-size-fits all” solution in the area of evidence-gathering is an appropriate approach. Special attention is paid to the protection of the right to defence provided by the examined domestic regulations concerning the EIO.
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Rodríguez-Gulías, María Jesús, Vítor Manuel de Sousa Gabriel, and David Rodeiro-Pazos. "Effects of governance on entrepreneurship: European Union vs non-European Union." Competitiveness Review: An International Business Journal 28, no. 1 (January 15, 2018): 43–57. http://dx.doi.org/10.1108/cr-06-2016-0035.
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Purpose The purpose of this paper is to analyse the effect of six governance indicators on the rate of creation of new companies between countries that are members of the European Union (EU) and those that are not. H1 states that the various dimensions of governance help to explain the immediate creation of new businesses in European and non-European countries. H2 states that the various dimensions of governance help to explain the deferred creation of new businesses in European and non-European countries. Design/methodology/approach The paper uses two types of analyses: firstly, univariate analysis, which is a descriptive statistics of the dependent, independent and control variables, and the results of a t-test; and secondly, multivariate analysis, which estimates using the fixed-effects estimator under the specifications previously raised for the subsample of 28 EU countries and for the subsample of 103 non-EU countries during the period 2004-2014. Findings The results show that the variables of governance are not significantly higher in the EU, although the density of the enterprises is. Within the governance indicators, government effectiveness is significant in the EU. The results obtained for the EU confirmed H1and H2, with a significant positive effect of government effectiveness on entrepreneurship, while the other governance variables were not significant in the EU subsample. The results obtained for non-EU countries suggest no significant immediate effects (H1) and a slightly significant delayed effect of rule of law on the entrepreneurship (H2) concerned. Research limitations/implications Future research in this area could consider introducing another regional division or other types of methodology as variables affect models. Practical implications Governance can be defined as the ability of a government and its public institutions to provide services and design, and implement rules, which is a factor that affects the creation of new companies. However, the effect of governance could differ depending on the country and its economic environment. This paper analyses the effect of six governance indicators on the rate of creation of new companies considering two different geographic regions as countries are presumably heterogeneous. Therefore, these results indicate that the effect of governance variables on entrepreneurship differs according to the region. Social implications The effect of governance variables on entrepreneurship according to the region is also known. Originality/value This study applied panel data analysis to two samples of countries during the period 2004-2014, one formed by 28 countries of the EU and the other by 103 non-EU countries. No other paper considers this number of countries for this period. To assess the impact of governance on the creation of new companies, this paper considered the existence of immediate and deferred effects of governance on entrepreneurship.
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Perkins, Andrew James. "The Legal and Economic Questions posed by the German Constitutional Court’s decision in the Public Sector Purchase Programme (PSPP) Case." ATHENS JOURNAL OF LAW 7, no. 3 (July 1, 2021): 399–412. http://dx.doi.org/10.30958/ajl.7-3-7.
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This paper seeks to explore the PSPP decision of the German Constitutional Court and its effect on the monetary policy decisions taken by central banks. It begins by exploring the decision and its effect in Germany, together with its wider implications for the European Monetary Union before moving onto consider the standard of review that should be applied by the Courts when they are required to review central banks actions. Conclusions are reached to show that any standard of review should be limited because of the unique economic and political circumstances in which central bank decision making takes place. Keywords: Central Banking; Judicial Review; Proportionality; European Law; European Monetary Union.
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Schutte, Camilo B. "Spain Tribunal Constitucional on the European Constitution. Declaration of 13 December 2004." European Constitutional Law Review 1, no. 2 (May 19, 2005): 281–92. http://dx.doi.org/10.1017/s1574019605002816.
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When thinking about the integration of the European sovereign states in the European Union, one does not need to be a euro-sceptic to perceive a big fish devouring little fish. Of course, the individuality of the different countries is assured in the European Union. Article I-5(1) of the European Constitution establishes that the Union shall respect their national identities inherent in their fundamental structures, political and constitutional, and their essential state functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. Europe is to be ‘United in diversity’. Yet, however considerate the Union may be of the various European countries, unity can exist only by the grace of all member states' loyally fulfilling their European obligations.
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Danėlienė, Ingrida. "Proporcingumo principo taikymas administracinėje ir aplinkos teisėje." Teisė 72 (January 1, 2009): 110–28. http://dx.doi.org/10.15388/teise.2009.0.280.
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Straipsnyje nagrinėjami klausimai, susiję su proporcingumo principo samprata, šio principo reikšme ir vieta administracinėje teisėje bei konkrečioje valstybės valdymo srityje – aplinkos apsaugos teisiniuose santykiuose. Siekiama nustatyti, kokia proporcingumo principo taikymo praktika Europos Sąjungos bei vienos iš Europos Sąjungos narių – Lietuvos Respublikos – aplinkos teisėje ir šią teisę taikančioje teismų praktikoje. Ieškoma atsakymo į klausimą, kokie teisiniai gėriai, vadovaujantis proporcingumo principu, turi būti sveriami administracinėje ir aplinkos teisėje bei kuo šiuo aspektu svarbus proporcingumo ir atsargumoprincipo santykis.The article analyses issues relating to the principle of proportinality, the importance and the place of this principle in administrative law and, specifically, in one of the spheres of state administration – in the legal relations of environmental protection. The aim of the article is to establish the patterns of the application of the principle in the environmental law and the court practice of the European Union and in the Republicof Lithuania, which is a member state of the European Union. The article seeks to answer the question, which legal values are to be weighed on the proportionality scale in administrative and environmental law, also identify the relation of the proportionality and precautionary principles in this context.
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Pavillon, Charlotte. "Private Enforcement as a Deterrence Tool: A Blind Spot in the Omnibus-Directive." European Review of Private Law 27, Issue 6 (December 1, 2019): 1297–328. http://dx.doi.org/10.54648/erpl2019072.
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The Directive on better enforcement and modernization of EU consumer protection rules or Omnibus-directive does not acknowledge the deterrence function of private enforcement of EU consumer law. The article demonstrates that the balancing of the principles of effectiveness, proportionality and dissuasiveness requires more attention when it comes to ‘civil remedies’. Indeed, the Court of Justice of the European Union (CJEU) has in recent years put a clear emphasis on the deterrence function of the nonbinding effect of unfair contract terms, a civil sanction imposed by civil courts. These courts, however, are struggling with the implications of this function. They are actively searching for direction by referring new preliminary questions to the CJEU. Empirical research conducted in the Netherlands shows that Dutch district courts largely recognize their role as enforcer of EU consumer law. It also reveals that these courts consider the proportionality and the dissuasiveness of the sanction to be at odds when the gap left after the removal of an unfair contract term is not filled with national law. European consumer law, sanctions, civil law, unfair contract terms, civil courts
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Laursen, Anders Nørgaard. "The Nordea Bank Denmark Case (C-48/13)." Nordic Tax Journal 2014, no. 2 (November 1, 2014): 231–42. http://dx.doi.org/10.1515/ntaxj-2014-0028.
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Abstract This paper reports on an investigation of a recent decision by the European Court of Justice (ECJ) in case C-48/13, Nordea Bank Denmark, concerning the Danish rules for reincorporation of losses from permanent establishments situated in European Union/ European Economic Area (EU/EEA) member states other than Denmark. The article includes comments on various EU tax law aspects of the case - namely the restriction test applied by the ECJ, the justifications brought forward by the intervening governments and the question of proportionality - and examines the consequences of the Danish tax law going forward.
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Křepelka, Filip. "Dominance of English in the European Union and in European Law." Studies in Logic, Grammar and Rhetoric 38, no. 1 (September 1, 2014): 137–50. http://dx.doi.org/10.2478/slgr-2014-0036.
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Abstract English has become the first global language of international com- munication during the last decades. It is dominant in many fields as science, technology, transportation, business and tourism and diplomacy. The European Union with law applicable directly on individuals is officially multilingual. English is, however, preferred in internal communication and in communication with national experts. National laws are closely related with particular states. Related discourse is therefore realized mostly in national language. Legal education and research are thus less anglicized than other university education and research. Nevertheless, increasing importance of international and supranational rules for harmonization and coordination, growing demand for comparison, pres- sure to publish in internationally recognized journals, Europe-wide research projects and rising numbers of exchange of students cause widespread resort to English also at schools of law. Unfortunately, English is language of countries with Anglo-American law (common law) which differs significantly from continental law (civil law) existing in most European and other countries. Therefore, it is difficult to find adequate English words for phenomena of civil law and to stabilize their use in international discourse.
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Bianco, Giuseppe. "European Unions Investment Agreements and Public Debt." European Business Law Review 28, Issue 2 (April 1, 2017): 119–33. http://dx.doi.org/10.54648/eulr2017010.
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The on-going global financial crisis has hit Europe in an especially significant manner. With the legal vacuum surrounding sovereign debt restructurings, Bilateral Investment Treaties (BITs) and Free Trade Agreements (FTAs) signed by European countries can provide grounds for litigation in future debt crises. The sovereign debt crisis in the heart of the Eurozone has materialized such dangers, and has had an impact on the European Union’s strategy as an actor in international investment. The problems experienced by Argentina before the ICSID have made European countries more aware of the potential hidden in their BITs. This has in turn led to a careful drafting of the CETA and the TTIP, and potentially of all the other major FTAs to follow.
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de Wilde, Maarten F. "On X Holding and the ECJ’s Ambiguous Approach towards the Proportionality Test." EC Tax Review 19, Issue 4 (August 1, 2010): 170–82. http://dx.doi.org/10.54648/ecta2010022.
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On 25 February 2010, the Court of Justice rendered its decision in the X Holding case. The Court ruled that the Dutch tax consolidation regime is compatible with the freedom of establishment. The territoriality principle justifies the limitations on the regime’s scope of application in an intra-European Union (EU) context. Accordingly, today, it seems clear that the Dutch tax consolidation regime in its current design may be kept in place. However, the Court of Justice did not provide a clear answer to the underlying question of how the proportionality test should be interpreted under primary EU law where EU Member States raise the territoriality principle as a justification for an obstacle imposed. In this article, I address the question of how the proportionality test should be interpreted in this respect.