The right to be heard in European Union civil service law: by whom, when and on what? Answers from the recent case law of the General Court

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

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COLLECTIVE LABOUR RIGHTS AS THE PRINCIPLES OF THE EUROPEAN UNION LABOUR LAW

Actual problems of native jurisprudence ◽

10.15421/391954 ◽

2019 ◽

pp. 43-46

Author(s):

O. M. Rym

Keyword(s):

European Union ◽

Collective Bargaining ◽

Case Law ◽

Eu Law ◽

The European Union ◽

Labour Law ◽

Member States ◽

Labour Rights ◽

Social Partners ◽

The Right

The article deals with certain aspects of collective labour rights in the European Union. Prerequisites and procedure of this rights guaranting as general principles of EU law are analyzed and their content is characterized. It is emphasized that such legal establishing took place somewhat haphazardly, both at the level of the acts of primary and secondary law of the European Union and in the case law. As a result, there is no single position on the spectrum of collective labour rights as principles of EU labor law. The author focuses on significant changes in the understanding of the necessity of cooperation of social partners and the extension of their interaction at the supranational level. It is under the responsibility of the European Commission to promote cooperation between Member States and to facilitate coordination of their activities in the field of the right of association and collective bargaining between employers and employees. The article clarifies the content of collective labour rights as general principles of EU law on the basis of EU legal acts, the case law of the Court of Justice of the European Union, as well as the scientific works of domestic and foreign scholars. It is noted that the system of collective labour rights, as general principles of EU labour law, consists of the right of collective bargaining and collective action, the right of employees to information and consultation within the enterprise, as well as the freedom of assembly and association. It is concluded that the necessity of cooperation between the social partners is recognized as one of the foundations of EU labour law. Herewith appropriate interaction is ensured through the normative-legal consolidation of collective labour rights and procedures for their implementation. After all, European Union legal acts allow employees and employers’ representatives to play an active role in regulating labour legal relations. For example, Member States may instruct employers and employees, upon their joint request, to implement Council directives or decisions. In addition, many directives contain warnings about the possibility of derogating from their provisions through the adoption of a collective agreement.

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Protecting Freedom of and from Religion: Questioning the Law's Ability to Protect Against Unethical Conversions in Sri Lanka

Religion and Human Rights ◽

10.1163/187103206777493401 ◽

2006 ◽

Vol 1 (1) ◽

pp. 41-73 ◽

Cited By ~ 3

Author(s):

Alexandra Owens

Keyword(s):

Human Rights ◽

Sri Lanka ◽

Supreme Court ◽

Legal System ◽

Case Law ◽

Recent Case ◽

Religious Groups ◽

Minority Religions ◽

Unequal Treatment ◽

The Right

AbstractIn recent years, the issue of improper and unethical conversions has attracted much attention in Sri Lanka. The issue is a highly emotive one, with members of the majority Buddhist population calling for measures to protect their religion from 'threats' from other minority religions, and members of these other religious groups expressing growing feelings of discrimination and unequal treatment. This article examines recent case law in the field of unethical conversions in Sri Lanka. An analysis of the decisions of Sri Lanka's Supreme Court relating to the incorporation of Christian organizations suggests that the legal system in Sri Lanka has struggled in its attempt to secure the right to freedom of religion and the right to manifest a religion for all people. Moreover, it is argued that the law has ultimately fuelled the growing religious tensions across the island. This article questions the law's ability to protect against unethical conversions in Sri Lanka, and therefore seeks to add weight to the calls for a non-legislative approach to the issue in order to allow for respect for the human rights of all concerned.

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Victim Participation in the Criminal Justice System in the European Union through Private Prosecutions: Issues Emerging from the Jurisprudence of the European Court of Human Rights

European Journal of Crime Criminal Law and Criminal Justice ◽

10.1163/15718174-24032088 ◽

2016 ◽

Vol 24 (2-3) ◽

pp. 107-134 ◽

Cited By ~ 2

Author(s):

Jamil Ddamulira Mujuzi

Keyword(s):

European Union ◽

Human Rights ◽

Criminal Justice ◽

Criminal Justice System ◽

Justice System ◽

Case Law ◽

European Countries ◽

The European Union ◽

European Court ◽

The Right

Private prosecutions are one of the ways through which crime victims in many European countries participate in the criminal justice system. However, there seems to be a reluctance at the Council of Europe level to strengthen a victim’s right to institute a private prosecution. In a 1985 Recommendation, the Committee of Ministers stated that ‘[t]he victim should have the right to ask for a review by a competent authority of a decision not to prosecute, or the right to institute private proceeding.’ Later in 2000 in the Recommendation Rec (2000)19 on the role of public prosecution in the criminal justice system, the Committee of Ministers calls upon Member States to ‘authorise’ victims to institute private prosecutions. Directive 2012/29/eu of the European Parliament and of the Council of 25 October 2012 is silent on private prosecutions. The dg Justice Guidance Document related to the transposition and implementation of Directive 2012/29/eu of the European Parliament and of the Council of 25 October 2012 discourages private prosecutions. However, private prosecutions take part in many European countries. It is thus important to highlight some of the issues that have emerged from different European countries on the issue of private prosecutions. Case law from the European Court of Human Rights shows that private prosecutions take place in many European countries. This article, based on case law of the European Court of Human Rights, highlights the following issues with regards to private prosecutions: the right to institute a private prosecution; who may institute a private prosecution? private prosecution after state declines to prosecute; state intervention in a private prosecution; and private prosecution as a domestic remedy which has to be exhausted before a victim of crime approaches the European Court of Human Rights. The author argues that there is a need to recognise the right to private prosecution at the European Union level.

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Powództwo przeciw dyskryminacji w Ustawie z dnia 3 grudnia 2010 r. o wdrożeniu niektórych przepisów Unii Europejskiej w zakresie równego traktowania

Studia Prawa Publicznego ◽

10.14746/spp.2017.4.20.6 ◽

2019 ◽

Cited By ~ 1

Author(s):

Paweł Śmiałek

Keyword(s):

European Union ◽

Case Law ◽

Equal Treatment ◽

The European Union ◽

Provision Of Services ◽

Legal Position ◽

The Subject ◽

Legislative Activity ◽

The Right ◽

Legal Grounds

Discrimination is a phenomenon that has been existing in our society for many years. The main cause of increased legislative activity in European countries is the action of the European Union, which has issued a number of directives dealing with the problem of discrimination. Poland, as a member of the European Union, was obliged to implement anti-discrimination directives. The legislator did this by enacting the Act of 3 December 2010 on the implementation of certain European Union regulations on equal treatment (hereafter: the equality statute). The equality statue was a good step towards combating discrimination in areas such as the provision of services or capital ﬂ ow. The legislator has also pointed to discriminatory features, including race, age, disability, sex, or sexual orientation. These features cannot serve as a basis for diff erentiating the legal position of legal entities. In carrying out a comprehensive analysis of the subject matter, the study presented in this article covered: the normative grounds of an anti-discrimination lawsuit, the right to compensation, which deviates signiﬁ cantly from the deﬁ nition set out in Article 361 of the Civ il Code, the substantive and legal grounds for action, the principles and the procedure for claiming compensation. The article also deals with the eff ectiveness of the application of the measure in the jurisprudence. To that end, the study examined the case law of common courts dealing with the facts related to the equality law. The Ombudsman and other anti-discrimination aut horities have also been contacted for information on the use of this measure. The paper identiﬁ es as well, the potential solutions aimed at increasing the eff ectiveness and frequency of the use of anti-discrimination lawsuits before Polish common courts.

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Las insolvencias transfronterizas en la Unión Europea: perspectivas jurisprudenciales y retos = Cross-border insolvencies in the European Union: recent case law and new challenges

CUADERNOS DE DERECHO TRANSNACIONAL ◽

10.20318/cdt.2019.4963 ◽

2019 ◽

Vol 11 (2) ◽

pp. 360

Author(s):

Elisa Torralba Mendiola

Keyword(s):

European Union ◽

International Law ◽

Case Law ◽

Recent Case ◽

Private International Law ◽

The European Union ◽

Cross Border ◽

New Challenges ◽

Insolvency Proceedings

Resumen: El Reglamento 848/2015, sobre procedimientos de insolvencia regula los problemas de Derecho internacional privado que suscitan las situaciones concursales en el ámbito de la Unión Europea. En este trabajo se analiza la más reciente jurisprudencia del TJUE en materia concursal y los retos que se plantean a día de hoy en el tratamiento de la materia, que ponen de relieve la necesidad de adaptar la aplicación de los textos legales a situaciones políticas –y jurídicas– cambiantes.Palabras clave: insolvencia, cooperación, competencia.Abstract: Regulation 2015/848 on Insolvency Proceedings rules the private international law matters regarding insolvencies within the European Union. This paper analyses the most recent case law of the EUCJ and the challenges actually existing in this area, that evidence the need to adapt the application of the rules to the changing legal and political context.Keywords: insolvency, cooperation, jurisdiction.

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THE NON BIS IN IDEM PRINCIPLE IN THE CASE LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION - CONSISTENCY OR INCONSISTENCY?

Agora International Journal of Juridical Sciences ◽

10.15837/aijjs.v12i1.3413 ◽

2018 ◽

Vol 12 (1) ◽

pp. 25-34

Author(s):

Darius-Dennis Pătrăuș

Keyword(s):

European Union ◽

Case Law ◽

The European Union ◽

Judicial Cooperation ◽

Widespread Application ◽

Criminal Offense ◽

Res Judicata ◽

Court Of Justice ◽

The Right ◽

Criminal Matters

The non bis in idem principle was first established in the Hammurabi Code (2,500 BC), under the name of res judicata pro veritate habetur.According to the non bis in idem principle, "no one is allowed to be summoned again in court or punished in another criminal case for the same criminal offense for which he has already been convicted or acquitted under the law of a state". The non bis in idem principle has a broad field of application in the field of international judicial cooperation in criminal matters.The harmonization of Member States' laws and the abolition of borders at EU level created the premises for the widespread application of the non bis in idem principle.For this reason, the Court of Justice of the European Union has been charged with interpreting the rule, namely the non bis in idem principle, as regulated in art. 54 CISA.At the present stage of regulation, an interpretation contrary to the non bis in idem principle would be likely to erode the right and affect international judicial cooperation in criminal matters.

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