The Effects of the Preliminary Ruling

2021 ◽  
pp. 399-424
Author(s):  
Morten Broberg ◽  
Niels Fenger
Keyword(s):  
Preliminary Ruling ◽  
Binding Effect ◽  
Temporal Effect ◽  
The One

Chapter 12 considers the binding effect of a preliminary ruling. The chapter deals with the effects of a preliminary ruling on the main proceedings, it examines the effect of the ruling on cases other than the one that has given rise to the preliminary reference. It also discusses the legal significance of the Advocate General’s Opinion, and it analyses the temporal effect of a preliminary ruling. Finally, the question of the interpretation and revision of a preliminary ruling is dealt with.

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.”

Non-Judicial, Advisory, Yet Impactful? The Aarhus Convention Compliance Committee as a Gateway to Environmental Justice

2020 ◽  
Vol 9 (2) ◽  
pp. 211-238
Author(s):  
Gor Samvel
Keyword(s):  
Quantitative Assessment ◽  
Soft Law ◽  
Binding Effect ◽  
Systematic Assessment ◽  
Aarhus Convention ◽  
Legal Effect ◽  
Domestic Practice ◽  
The One ◽  
The Impact ◽  
Auxiliary Role

AbstractIn accordance with Article 15 of the Aarhus Convention, the first meeting of the parties to this Convention established a non-judicial and consultative Compliance Committee to consider, among other matters, individual cases concerning compliance by parties with their obligations. The Committee is traditionally viewed as a non-judicial, soft mechanism and its rulings as non-binding, soft law. In recent years, however, to support the claim that rulings of the Committee have an impact and legal effects, some scholars have departed from the traditional perspective and characterized the Committee as a more judicialized mechanism, which issues legally binding rulings.This characterization assumes a correlation between judicialization and binding effect on the one hand, and legal effect on the other. The latter claim, however, has not been supported by a systematic assessment of the impact of the Committee's rulings on domestic practice. Against this background, the article assesses the impact of Article 9-related rulings of the Committee, issued between 2004 and 2012, on national legal orders. The assessment reveals that in fewer than 41% of the cases parties recorded some degree of compliance with the rulings of the Committee, whereas in 59% they recorded no progress. The quantitative assessment and respective qualitative insights, among other factors, suggest that the normative character of the Committee and its rulings play an auxiliary role in the process of ensuring compliance with the provisions of the Aarhus Convention. The decision of parties to comply is determined typically by the substance of the rulings as they stand in relation to domestic circumstances rather than by the institutional features of the Committee and binding effect of its rulings.

When Can a Reference for a Preliminary Ruling be Made?

2021 ◽  
pp. 141-200
Author(s):  
Morten Broberg ◽  
Niels Fenger
Keyword(s):  
Direct Action ◽  
The Other ◽  
Preliminary Ruling ◽  
Court Of Justice ◽  
Other Hand ◽  
The One ◽  
The Relationship

Chapter 5 discusses the requirement that an answer to the preliminary question must be relevant for the resolution of the main proceedings. It analyses when a preliminary ruling must be assumed to be irrelevant to the decision in the main proceedings, and it discusses the so-called Foglia principle according to which the Court declines jurisdiction to reply to questions of interpretation which are submitted to it within the framework of a contrived case. Chapter 5 also examines when a preliminary reference is precluded because the same issue is, has been, or could be subject to a direct action before the Court of Justice. Here it first examines the relationship between, on the one hand, the preliminary procedure and, on the other hand, Articles 258 and 259 TFEU concerning infringement proceedings. Next, it analyses the relationship between the preliminary procedure and Article 263 TFEU concerning actions for annulment before the Court of Justice (TWD-doctrine).

scholarly journals A question of procedural law: the principle of the inalterable nature of a tried case and the violation of EU law

2014 ◽  
pp. 101-112
Author(s):  
João Ramos Lopes
Keyword(s):  
Time Limit ◽  
The Other ◽  
Preliminary Ruling ◽  
Eu Law ◽  
Legal Certainty ◽  
Procedural Law ◽  
Other Hand ◽  
The Moment ◽  
The One

The reform operated in the regime of civil appeals by the Decree-law 303/2007, from 24 August 2007, introduced a new basis for an extraordinary appeal for review. This paper states our views on the (in)conformity with EU law of the solution put forward by the Portuguese legislator in order to ensure, on the one hand, the legal certainty and, on the other hand, the validity (here entailed in the jurisprudence of the CJEU), by establishing for the extraordinary appeal for review a maximum preclusion time limit of five years from the moment the ruling under review is passed, in cases in which the decision was made by a court of last resort, that failed to fulfill its obligation to ask for a preliminary ruling.

scholarly journals Wightman and the Perils of Britain’s Withdrawal

2020 ◽  
Vol 21 (5) ◽  
pp. 799-814
Author(s):  
Giuseppe Martinico ◽  
Marta Simoncini
Keyword(s):  
The Political ◽  
Preliminary Ruling ◽  
Advocate General ◽  
Political Risks ◽  
Eu Membership ◽  
Court Of Justice ◽  
Legal Questions ◽  
The One ◽  
The Eu ◽  
Critical Aspects

AbstractOn 10 December 2018, the Court of Justice (CJEU) delivered the Wightman judgment and recognized the unilateral revocability of the notification ex Art. 50 Treaty on European Union (TEU). This article offers a critical analysis of the decision by insisting above all on the national background of the ruling and the political risks stemming from the decision. The article is structured as follows. Firstly, it analyses the legal questions of the Scottish case, which constituted the ground for the admissibility of the preliminary ruling and showed the perils for the exercise of national sovereign rights embedded in the lack of clarity on revocation options. It thus reconstructs the critical aspects of the preliminary ruling of the CJEU. Subsequently, the article examines the implications of the ruling for the EU legal order. On the one hand, the analysis considers the conception of the EU membership by comparing the approach of the CJEU and that of Advocate General Campos Sánchez Bordona in Wightman.

Features of the Selectivity for Contrast Polarity in Contour Integration Revealed by a Novel Tilt Illusion

Perception ◽  
10.1068/p6897 ◽  
2011 ◽  
Vol 40 (11) ◽  
pp. 1357-1375 ◽  
Author(s):  
Stefano Guidi ◽  
Oronzo Parlangeli ◽  
Sandro Bettella ◽  
Sergio Roncato
Keyword(s):  
Luminance Contrast ◽  
Opposite Polarity ◽  
Contour Integration ◽  
Good Continuation ◽  
Distance Threshold ◽  
Binding Effect ◽  
Tilt Illusion ◽  
Contrast Polarity ◽  
The One

We studied a novel illusion of tilt inside checkerboards due to the role of contrast polarity in contour integration. The preference for binding of oriented contours having same contrast polarity, over binding of opposite polarity ones (CP rule), has been used to explain several visual illusions. In three experiments we investigated how the binding effect is influenced by luminance contrast value, relatability of contour elements, and distance among them. Experiment 1 showed that the effect was indeed present only when the CP rule was satisfied, and found it to be stronger when the luminance contrast values of the elements are more similar. In experiment 2 the illusion was reported only with relatable edges, and its strength was modulated by the degree of relatability. The CP-rule effectiveness, thus, seems to depend on good continuation. The intensity of contrast polarity signals propagating from an oriented contour might be the less intense, the more its direction deviates from linearity. In experiment 3 we estimated the distance threshold and found it to be smaller than the one found for other illusions, arising with collinear fragments. This seems to show that the reach of the contrast polarity signal inside the association field of a contour unit is shorter along non-collinear orientations than along collinear ones.

scholarly journals The Boundaries of EU Copyright Law: Cheese, Jeans and a Military Report in the Court of Justice

2019 ◽  
Vol 3 (1) ◽  
pp. 133-156
Author(s):  
Nuno Sousa e Silva
Keyword(s):  
Copyright Protection ◽  
Case Law ◽  
Copyright Law ◽  
Preliminary Ruling ◽  
Main Criterion ◽  
Court Of Justice ◽  
Eu Copyright Law ◽  
The One ◽  
Definition Of ◽  
The Eu

Copyright is a centrepiece in the ongoing construction of the digital single market. Evidently, copyright only applies to works. Thus, the definition of its scope lies in knowing what a work is. Although that was not envisioned nor intended by the lawmaker, the Court of Justice has adopted a European notion of work in its controversial decision C-5/08, Infopaq, conflating it with the one of originality. Such an approach has been confirmed and expanded by subsequent case law. The Court has already fleshed out the main criterion for a creation to enjoy copyright – it must be original in the sense of being the author’s own creation – and seems to reject any additional criteria. However, the boundaries of the European notion of work are still unknown. Some recent preliminary ruling requests will allow some clarification. One asks about the possibility of copyright protection for the taste of a specific cheese (C-310/17, Levola Hengelo). Another one deals with the protection of a fashion design for jeans (C-683/17, Cofemel) and yet another concerns a military report (C-469/17, Funke Medien). After describing the evolution of the law on the EU notion of copyright, this article frames and critically analyses the questions surrounding these cases, proposes answers thereto and makes a prediction of the outcome, i.e. the Court’s decision, in each of them.

Note on Selection of Coordinate Systems for Geodynamics

1975 ◽  
Vol 26 ◽  
pp. 395-407
Author(s):  
S. Henriksen
Keyword(s):  
Sea Level ◽  
The Other ◽  
Coordinate Systems ◽  
Mean Sea Level ◽  
The Earth ◽  
The One ◽  
Static Systems ◽  
Selection Of

The first question to be answered, in seeking coordinate systems for geodynamics, is: what is geodynamics? The answer is, of course, that geodynamics is that part of geophysics which is concerned with movements of the Earth, as opposed to geostatics which is the physics of the stationary Earth. But as far as we know, there is no stationary Earth – epur sic monere. So geodynamics is actually coextensive with geophysics, and coordinate systems suitable for the one should be suitable for the other. At the present time, there are not many coordinate systems, if any, that can be identified with a static Earth. Certainly the only coordinate of aeronomic (atmospheric) interest is the height, and this is usually either as geodynamic height or as pressure. In oceanology, the most important coordinate is depth, and this, like heights in the atmosphere, is expressed as metric depth from mean sea level, as geodynamic depth, or as pressure. Only for the earth do we find “static” systems in use, ana even here there is real question as to whether the systems are dynamic or static. So it would seem that our answer to the question, of what kind, of coordinate systems are we seeking, must be that we are looking for the same systems as are used in geophysics, and these systems are dynamic in nature already – that is, their definition involvestime.

Nucleation of Disorder in Fe3Al Alloys

1967 ◽  
Vol 25 ◽  
pp. 312-313
Author(s):  
P. R. Swann ◽  
W. R. Duff ◽  
R. M. Fisher
Keyword(s):  
Electron Microscopy ◽  
Transmission Electron Microscopy ◽  
Annealing Temperature ◽  
Antiphase Domain ◽  
Effect Of Temperature ◽  
Domain Structures ◽  
Transmission Electron ◽  
Domain Boundaries ◽  
Higher Temperature ◽  
The One

Recently we have investigated the phase equilibria and antiphase domain structures of Fe-Al alloys containing from 18 to 50 at.% Al by transmission electron microscopy and Mössbauer techniques. This study has revealed that none of the published phase diagrams are correct, although the one proposed by Rimlinger agrees most closely with our results to be published separately. In this paper observations by transmission electron microscopy relating to the nucleation of disorder in Fe-24% Al will be described. Figure 1 shows the structure after heating this alloy to 776.6°C and quenching. The white areas are B2 micro-domains corresponding to regions of disorder which form at the annealing temperature and re-order during the quench. By examining specimens heated in a temperature gradient of 2°C/cm it is possible to determine the effect of temperature on the disordering reaction very precisely. It was found that disorder begins at existing antiphase domain boundaries but that at a slightly higher temperature (1°C) it also occurs by homogeneous nucleation within the domains. A small (∼ .01°C) further increase in temperature caused these micro-domains to completely fill the specimen.

Fundamental Research into Thin Films in a Developing Country

1972 ◽  
Vol 30 ◽  
pp. 500-501
Author(s):  
J.A. Eades ◽  
E. Grünbaum
Keyword(s):  
Thin Films ◽  
Growth Process ◽  
Empirical Process ◽  
Nucleation And Growth ◽  
Research Groups ◽  
Film Research ◽  
Fundamental Research ◽  
Controlled Deposition ◽  
The One ◽  
The University

In the last decade and a half, thin film research, particularly research into problems associated with epitaxy, has developed from a simple empirical process of determining the conditions for epitaxy into a complex analytical and experimental study of the nucleation and growth process on the one hand and a technology of very great importance on the other. During this period the thin films group of the University of Chile has studied the epitaxy of metals on metal and insulating substrates. The development of the group, one of the first research groups in physics to be established in the country, has parallelled the increasing complexity of the field.The elaborate techniques and equipment now needed for research into thin films may be illustrated by considering the plant and facilities of this group as characteristic of a good system for the controlled deposition and study of thin films.

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