Ownership Unbundling and National Constitutional Law and EU Law: A Brief Summary of the Relevant Legal Issues

2018 ◽  
pp. 65-81
Author(s):  
Tilman Michael Dralle
Keyword(s):  
Constitutional Law ◽  
Legal Issues ◽  
Eu Law ◽  
Ownership Unbundling

Legal Issues Arising from the Brexit Referendum: A UK and EU Constitutional Analysis

2017 ◽  
Vol 45 (1) ◽  
pp. 14-23 ◽  
Author(s):  
Menelaos Markakis
Keyword(s):  
Constitutional Law ◽  
Final Section ◽  
Legal Issues ◽  
Eu Law ◽  
Substantive Content ◽  
Legal Nature ◽  
Article 50 ◽  
The Uk ◽  
Constitutional Analysis ◽  
The Eu

The dust has not yet settled after the referendum on Britain's relationship with the EU, which took place on 23 June 2016. UK voted to leave the EU by 51.9% to 48.1%, which is a winning margin of almost 1.3 million votes. However, it is not yet clear what ‘Brexit’ means or how it will come about – legally and constitutionally. This article seeks to answer the latter question from the standpoint of UK and EU law. The discussion begins with the domestic process before beginning the initial withdrawal negotiations, which is governed by UK constitutional law. The focus then shifts to the process of withdrawing from the EU, which is set out in Article 50 TEU. This article further examines whether ‘Brexit’ can be stopped once Article 50 has been triggered. The penultimate section of the article looks at the legal nature and substantive content of the agreements that might be concluded between the UK and the EU if ‘Brexit’ were to become a reality. The final section of the article examines the UK rules on ratification of such international agreements.

Public participation in the preparation of plans and programs: some reflections on the scope of obligations under Article 7 of the Aarhus Convention

2009 ◽  
Vol 6 (4) ◽  
pp. 495-515
Author(s):  
Jerzy Jendrośka
Keyword(s):  
Public Participation ◽  
Legal Issues ◽  
Eu Law ◽  
Legal Analysis ◽  
Aarhus Convention ◽  
Legal Nature ◽  
Scope Of Application

AbstractThe article aims to present the main legal issues related to implementation of the provisions of Article 7 of the Aarhus Convention regarding public participation in the preparations of plans and programs. The analysis is presented against the background of an overview of the legal nature and scope of obligations stemming from the second pillar of the Convention. The article attempts to identify the scope of application of Article 7 and the main elements of the framework for public participation included therein. The legal analysis is based, where appropriate, on the respective opinions of the Aarhus Convention Compliance Committee. The implementation of the Aarhus Convention in EU law will be addressed in this respect in a separate article in the forthcoming issue of the journal.

Finanzfolgen höchstrichterlicher Entscheidungen

2021 ◽  
Author(s):  
Julia Wiechmann
Keyword(s):  
Constitutional Law ◽  
Constitutional Court ◽  
Eu Law ◽  
German State ◽  
Tax State ◽  
Financial Interests ◽  
Federal Constitutional

The German state is a tax state and relies on current revenues. If a tax is declared incompatible with the constitutional law, the Federal Constitutional Court regularly orders its continued application until a new regulation is adopted. The taxpayer must then pay an unconstitutional tax without receiving any compensation for it. The order for continued application does not eliminate the constitutional infringement, but maintains it. The ECJ takes a much stricter approach to violations of EU law, since in its view the financial interests of a state are never suitable for maintaining an unconstitutional state. The work attempts to strike an appropriate balance between these two positions.

scholarly journals Aspectos relevantes del intento de reforma constitucional en Italia en la cuestión de procedimiento legislativo y fuentes primarias = Aspetti rilevanti della tentata riforma constituzionale in Italia in tema di procedimiento legislativo en fonti primarie = Relevant aspects of the constitutional reform attemp in Italy in the matter of legislative procedure and primary sources

2017 ◽  
pp. 67
Author(s):  
Tommaso Pensabene Lionti
Keyword(s):  
Constitutional Law ◽  
Legal Issues ◽  
Constitutional Reform ◽  
Primary Sources ◽  
Legislative Process ◽  
Parliamentary System ◽  
El Sistema ◽  
Legislative Procedure ◽  
Constitutional System ◽  
The Many

<p>El 4 de diciembre de 2016 los italianos fueron llamados a participar, a través de la votación, en el <em>referéndum</em> concerniente una ley constitucional que (en caso de resultado positivo), habría modificado de manera radical el ordenamiento constitucional italiano. Entre las múltiples modificaciones que la reforma quería introducir, se enfocan lo significativos cambios que la misma habría producido en materia de procedimiento legislativo. En efecto, al final de la reforma, el sistema parlamentario italiano habría cambiado, transitando desde el llamado “bicameralismo paritario” hasta un sistema monocameral “asimétrico o diferenciado”. En consecuencia, habría cambiado el procedimiento legislativo, estructurándose en múltiples procedimientos, o variantes procedimentales, de los cuales se describe la disciplina, haciendo hincapié sobre algunos relevantes aspectos problemáticos. Se subraya, también, que la reforma, a través de la modificación del procedimiento legislativo, junto con la nueva disciplina constitucional de los decretos-leyes y de la nueva repartición de las competencias normativas entre el Estado y las Regiones, habría producido cambios importantes sobre las mismas características de las leyes y de los actos con fuerza de ley. En conclusión, se plantean las posibles razones, políticas y jurídicas, que han llevado al resultado negativo del <em>referendum</em> constitucional.</p><p>On December 4, 2016, Italians were called upon a <em>referendum</em> to approve a constitutional law that would (if successful) radically change the Italian constitutional system. Among the many changes that the reform intended to pursue, we are focusing on the significant changes it would bring in the legislative procedure. As a result of the reform, in fact, the Italian parliamentary system would be changed, passing from "bicameralism equal" to a "asymmetric or differentiated" monocameral system. Consequently, the legislative process would have changed, articulating into multiple procedures or procedural variants, of which the discipline is described, focusing on some relevant problematic profiles. It should also be noted that the reform, with the modification of the legislative procedure, together with the new constitutional discipline of the decree-law and the new division of normative competences between the State and the Regions, would have produced important changes in the features of laws and acts with force of law. Finally, we are questioning about the possible reasons, policies and legal issues, that have led to the negative outcome of the constitutional <em>referendum</em><em>.</em></p>

22. Free Movement of Workers

EU Law ◽  
2020 ◽  
pp. 809-860
Author(s):  
Paul Craig ◽  
Gráinne de Búrca
Keyword(s):  
Family Members ◽  
Legal Issues ◽  
Free Movement ◽  
Eu Law ◽  
Central Importance ◽  
European Court ◽  
Free Movement Of Workers ◽  
The Uk ◽  
The Eu ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. The free movement of workers is of central importance to the EU, in both economic and social terms. This is reflected in the legislation that fleshes out the basic rights contained in Article 45 and in the European Court of Justice’s consistently purposive interpretation of the Treaty Articles and legislation to achieve the EU’s objectives in this area. This chapter considers several central legal issues that arise in the context of the free movement of workers. These include the scope of Article 45, the meaning accorded to ‘worker’, the rights of intermediate categories such as ‘job-seeker’, the kinds of restrictions that states may justifiably impose on workers and their families; and the rights which family members enjoy under EU law. The UK version contains a further section analysing issues concerning free movement of workers between the EU and the UK post-Brexit.

22. Free Movement of Workers

EU Law ◽  
2020 ◽  
pp. 781-831
Author(s):  
Paul Craig ◽  
Gráinne de Búrca
Keyword(s):  
Family Members ◽  
Legal Issues ◽  
Free Movement ◽  
Eu Law ◽  
Central Importance ◽  
European Court ◽  
Free Movement Of Workers ◽  
The Uk ◽  
The Eu ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. The free movement of workers is of central importance to the EU, in both economic and social terms. This is reflected in the legislation that fleshes out the basic rights contained in Article 45 and in the European Court of Justice’s consistently purposive interpretation of the Treaty Articles and legislation to achieve the EU’s objectives in this area. This chapter considers several central legal issues that arise in the context of the free movement of workers. These include the scope of Article 45, the meaning accorded to ‘worker’, the rights of intermediate categories such as ‘job-seeker’, the kinds of restrictions that states may justifiably impose on workers and their families; and the rights which family members enjoy under EU law. The UK version contains a further section analysing issues concerning free movement of workers between the EU and the UK post-Brexit.

The “Polemical” Spirit of European Constitutional Law: On the Importance of Conflicts in EU Law

2015 ◽  
Vol 16 (6) ◽  
pp. 1343-1374 ◽  
Author(s):  
Giuseppe Martinico
Keyword(s):  
Constitutional Law ◽  
The Other ◽  
Preliminary Ruling ◽  
Eu Law ◽  
Constitutional Courts ◽  
Cautious Approach ◽  
Court Of Justice ◽  
The One ◽  
The Eu

Recently, scholars have argued of the necessity of going beyond “judicial dialogues” and “conflict-and-power” approaches to the analysis of the role of national Constitutional Courts in the Union. On the one hand, there are risks connected to a “too welcoming an approach by national constitutional courts to EU law”; on the other hand, it is possible to criticize both the Court of Justice of the EU (CJEU) and some national Constitutional Courts for other, less cooperative, decisions. I share this cautious approach for many reasons, and primarily because the preliminary ruling mechanism does not exhaust all the possible means of communication between constitutional courts and the CJEU. For instance, what Komárek calls “parallel references” can serve, in some circumstances, as a technique of alternative (or hidden) dialogue, that has favored a sort of “remote dialogue” over the years. My sole point of disagreement with this scholarly position is over the role of conflicts in this scenario. Whilst Komárek seems to confine conflicts to phenomena of mere resistance or to “‘cold’ strategic considerations,” in this work I am going to adopt a much broader idea of conflict, which goes beyond mere “conflicts and power games.”

scholarly journals La jurisprudencia federalizante y humanizadora del Tribunal de Justicia : un cuento desde el país de las hadas = The federalizing and humanistic case law of the ECJ : a tale from fairyland

2013 ◽  
pp. 429
Author(s):  
Luis I. Gordillo Pérez ◽  
Giuseppe Martinico
Keyword(s):  
Constitutional Law ◽  
State Of The Art ◽  
50Th Anniversary ◽  
Case Law ◽  
The State ◽  
Constitutional Theory ◽  
Eu Law ◽  
The Eu

El objetivo de este artículo es ofrecer una reflexión sobre el estado del Derecho constitucional europeo en el año del quincuagésimo aniversario de Van Gend en Loos, la histórica decisión del Tribunal de Justicia (TJ) que ha puesto las bases para la constitucionalización del Derecho de la Unión Europea. Para ello, y tras profundizar en la teoría del constitucionalismo comunitario, se analiza el proceso de constitucionalización de la UE a través de la jurisprudencia del Tribunal de Luxemburgo desde dos puntos de vista: constitucionalización como «federalización» y constitucionalización como «humanización».This article reflects on the state of the art of the EU Constitutional Law on the 50th anniversary of Van Gend en Loos, the founding constitutional decision of the ECJ. After analyzing the fundamentals of EU constitutional theory, the authors move towards the constitutionalization process of the EU through the case law of the ECJ from a double perspective: constitutionalization as federalization and constitutionalization as «humanization of EU Law».

German Constitutional Law and Doctrine on State of Emergency – Paradigms and Dilemmas of a Traditional (Continental) Discourse

2006 ◽  
Vol 7 (5) ◽  
pp. 453-477 ◽  
Author(s):  
András Jakab
Keyword(s):  
Constitutional Law ◽  
Current Issue ◽  
German Literature ◽  
Legal Discourse ◽  
The State ◽  
Legal Issues ◽  
State Of Emergency ◽  
The Law ◽  
German Constitutional Law ◽  
Academic Debate

A foreign jurist, on looking into the German literature on constitutional law, will soon and suddenly be struck by a peculiarity of this scholarship: the unusually strong emphasis on a marginal area of constitutional law, namely, the state of emergency. The inquiry is, of course, well-known in other countries, but the passion for, and the theoretical effort expended on, this marginal area is unique to Germany.However, this disinterest on the part of other constitutional lawyers, and the recent decline in interest on Germany's part, could yet change, turning the marginal area into a highly current issue. Combating terrorism raises questions for which the German patterns of argumentation, fine-tuned in the academic debate on the law of state of emergency, may provide a useful framework for discussion. The questions arising in the context of the struggle against terrorism test the limits of positive regulations in extreme situations, leading ultimately to the same underlying dilemma as the law on state of emergency, though with different terminology. In this sense, the constellation of legal issues involved in combating terrorism could be considered as the law on state of emergency “incognito.” However, the various argumentative patterns for law on state of emergency have not yet been directly transferred into the very timely legal discourse on counterterrorism (and no such attempt is made here), but such a transfer of argumentation suggests itself. As such, the topic has a “potential currency,” even if traditional issues of state of emergency themselves no longer count among the most current issues.

Legal Issues in Gamete and Embryo Cryopreservation: An Overview

2018 ◽  
Vol 36 (05) ◽  
pp. 299-310
Author(s):  
Susan Crockin ◽  
Kathryn Gottschalk
Keyword(s):  
Informed Consent ◽  
Constitutional Law ◽  
Reproductive Potential ◽  
Legal Issues ◽  
Patient Choice ◽  
Embryo Cryopreservation ◽  
Art Practice ◽  
Legal Principles ◽  
The Impact ◽  
Cryopreserved Embryos

AbstractThis article provides an overview of existing and developing law surrounding IVF embryos and those who handle them. It discusses what law and legal theories of liability may apply to embryology labs, and gamete and embryo banks in the context of embryo loss, abandonment, shipping and implantation. It explores how often intertwined theories of law have been applied to this unique field, including contract, informed consent, health, tort and Constitutional law. Recent so-called “Personhood” initiatives are reviewed for their impact on ART practice. The article also explores how legal principles related to patient choice, autonomy, informed consent, and the various rights and responsibilities of providers and patients have been applied to this area of medicine which is unique both because it involves at least two patients and due to the singular nature and reproductive potential of ex-utero and cryopreserved embryos and gametes. Through an examination of largely US judicial and statutory perspectives and trends, the article assesses the complexities of the impact of the law on, and attempts to offers guidance to, those involved in this continually evolving and challenging field of medicine.

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