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

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.

The Ne Bis in Idem Principle in the Interpretation of European Courts: Towards Uniform Interpretation

2012 ◽  
Vol 25 (4) ◽  
pp. 955-977 ◽  
Author(s):  
NOREL NEAGU
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
The United States ◽  
The European Union ◽  
Judicial Cooperation ◽  
Court Of Justice ◽  
European Court ◽  
Ne Bis In Idem ◽  
Criminal Matters

AbstractAs a result of the extension of the jurisdiction of the Court of Justice of the European Union over the former third pillar (Police and Judicial Cooperation in Criminal Matters), several cases were referred to the Court for interpretation, inter alia, of the dispositions of the Schengen Convention dealing with criminal matters, especially the ne bis in idem principle. This principle was also addressed in the case law of the European Court of Human Rights, the Inter-American Court of Human Rights, and the Supreme Court of the United States. While addressing the problem at international level, this article focuses principally on the case law of the Court of Justice of the European Union and the European Court of Human Rights in the field of the ne bis in idem principle, concisely presenting the legal framework, findings of the Courts, and some conclusions on the interpretation of the principle. The study also analyses the absence of uniformity in interpretation and the use of different criteria in addressing identical situations by different courts, or even by the same court, concluding on a (seemingly) fortunate approximation in interpretation at European level.

scholarly journals The European arrest warrant in the case law of the Court of Justice

2014 ◽  
pp. 61-80
Author(s):  
Helena Patricio
Keyword(s):  
European Union ◽  
Mutual Recognition ◽  
Case Law ◽  
The European Union ◽  
Judicial Cooperation ◽  
Framework Decision ◽  
European Area ◽  
Court Of Justice ◽  
The Creation ◽  
The Impact

A key factor in the creation of a European area of freedom, security and justice is the principle of mutual recognition, which the Framework Decision 2002/584/JHA of 13 June 2002, for the first time, comprehensively implemented in the field of judicial cooperation in criminal matters. The Court of Justice of the European Union has greatly contributed to the understanding of the Framework Decision, accentuating its goals and enhancing its guiding principles, which are the mutual recognition of judgments in the different Member States of the European Union and mutual trust that should settle among them, for the creation of the said area. The West judgment of 28 June 2012, C-192/12 PPU, on urgent preliminary ruling procedure, aptly illustrates the impact of this case law, highlighting the role of this procedure, implemented on 1 March 2008.

scholarly journals The Right to Liberty in European Union Law and Mutual Recognition in Criminal Matters

2016 ◽  
Vol 18 ◽  
pp. 215-238 ◽  
Author(s):  
Leandro MANCANO
Keyword(s):  
European Union ◽  
Mutual Recognition ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Judicial Cooperation ◽  
European Arrest Warrant ◽  
Current Content ◽  
The Right ◽  
Criminal Matters

AbstractThis article analyses the interaction between the application of mutual recognition in criminal matters and the right to liberty. The main argument is that the current content of the right to liberty in EU law is unsuitable for mutual recognition procedures. As for the structure of this article, firstly, the main features of mutual recognition as a method of inter-state cooperation in criminal matters are outlined. Secondly, the approach of the European Union (especially the Court of Justice) to the right to liberty is clarified. Thirdly, four mutual recognition instruments are analysed in light of the right to liberty: namely, the Framework Decisions on the European Arrest Warrant; the Transfer of Prisoners; the Probation Measures; and the European Supervision Order (ESO). The assessment confirms that the higher level of automaticity in judicial cooperation introduced by mutual recognition requires a rethink of the existing understanding of the right to liberty in EU law.

scholarly journals Art. 22(4) Brussels i regulation and its successoronly only apply to cases concerned with the actual registration or validityof the listed ip rights. Commentary on the Judgment of the Court of Justice of the European Union of 5 october 2017, c-341/16 = Artículo 22.4 del Reglamento Bruselas I y su sucesor solo se aplican a los casos relacionados con el registro efectivo o la validez de los derechos de propiedad intelectual enumerados. Comentario de la Sentencia del Tribunal de Justicia de la Unión Europea de 5 de octubre de 2017, c-341/16

2019 ◽  
Vol 11 (1) ◽  
pp. 937
Author(s):  
Kilian Sendlmeier
Keyword(s):  
European Union ◽  
Member State ◽  
Case Law ◽  
The European Union ◽  
Judicial Cooperation ◽  
Member States ◽  
Trade Marks ◽  
Court Of Justice ◽  
General Provision

Abstract: The CJEU reaffirms its established case law on Art. 22(4) Brussels I Regulation (No. 44/2001) and interprets the provision narrowly. Courts in member states in which patents, trade marks, designs, or similar rights that are required to be deposited or registered, have jurisdiction only in cases that are actually concerned with the registration or validity of these IP rights. A case concerned with the potential ownership of such rights falls within the general provision of Art. 2(1) Brussels I and, therefore, is to be brought before courts in the member state where the defendant is domiciled.Keywords: Judicial cooperation in civil and commercial matters, Brussels I Regulation (No. 44/2001), Jurisdiction under Art. 2(1) and Art. 22(4) Brussels I Regulation, jurisdiction in proceedings concerned with IP rights, registration of property of a trade markResumen: El Tribunal de Justicia de la Unión Europea mantiene su jurisprudencia establecida sobre el Art. 22.4 del Reglamento (CE) nº 44/2001 de Bruselas I e interpreta este artículo en sentido estricto. Los tribunales de los Estados miembros en los que se exige el depósito o el registro de patentes, marcas, dibujos y modelos u otros derechos similares solo son competentes en los casos en que se la posible titularidad de ese derecho entra en el ámbito de la disposición general del Art. 2.1 del Reglamento Bruselas I y, por lo tanto, debe ser llevado ante los tribunales de aquel estado miembro en el que el demandado esté domiciliado.Palabras clave: Procedimiento prejudicial, Cooperación judicial en materia civil y mercantil, Reglamento (CE) n° 44/2001, Competencia judicial, Artículo 2, apartado 1, Competencia de los órganos jurisdiccionales del domicilio del demandado, Artículo 22, punto 4, Competencia exclusiva en materia detítulos de propiedad intelectual, inscripción como titular de una marca.

scholarly journals The evolution of standards for the creation and extension of jurisdiction of the Court of Justice of the European Union in the founding instruments of the European Communities and the European Union in the pre-Lisbon period

2020 ◽  
pp. 422-426
Author(s):  
Petro Rudyk
Keyword(s):  
European Union ◽  
European Economic Community ◽  
The European Union ◽  
Judicial Cooperation ◽  
Amsterdam Treaty ◽  
Court Of Justice ◽  
Gradual Evolution ◽  
Energy Community ◽  
Criminal Matters ◽  
Court Of First Instance

The gradual evolution of the standards of the founding instruments of the European Communities and then the European Unionin the field of their judicial systems, which is subject to the integration processes in Europe, is comprehensively analyzed. Thoroughscientific works of both foreign and domestic scientists cover the problems of various spheres of development of the European Union,its institutions, in particular, its Court of Justice. However, the study of this topic was not given enough attention. Therefore, the purposeof the article is a comprehensive analysis of the evolution of the standards of the constituent instruments of these associations inrelation to the establishment and expansion of the jurisdiction of their Court of Justice in the pre-Lisbon period. It is established thatthe origins of the standards of the Court of Justice were enshrined in the founding treaties of the European Communities, and were furtherdeveloped in the founding instruments of the European Union, which were constantly being transformed. The jurisdiction of theCourt of Justice of the Coal and Steel Community was limited to a narrow sphere of economy, and with the entry into force of theTreaties establishing the European Economic Community and the European Atomic Energy Community (1958), the Court became ajoint institution for the three communities, with the powers of ensuring respect for the law in the interpretation and application of eachof the treaties.The peculiarities of the amendments made to the provisions of the following constituent instruments are discovered. The SingleEuropean Act (1986) provided for a certain unification of the legislation of Western European countries, supplementing the foundingtreaties of the Communities with new provisions on the establishment of the Court of First Instance to hear certain claims of individualsand legal entities to relieve the Court of Justice. The Maastricht Treaty (1992) formally proclaimed the establishment of the EuropeanUnion and defined the new structure of the Court of Justice (Court, Tribunal and Specialized Tribunals), its composition and powers,and powers of the Member States in the judicial field. The Amsterdam Treaty (1997) expanded the jurisdiction of the Court of Justiceof the European Union, namely certain areas of activity of courts, their cooperation with other competent authorities of the MemberStates, joint actions of judicial cooperation in criminal matters, etc. The Treaty of Nice significantly deepened the standards of thefounding instruments of the Court of Justice, expanded the powers of its judicial bodies and modernized its structure (including theCourt of Justice and the Court of First Instance), defined high requirements for judges and advocates general, the periods of theirreplacement, extended the jurisdiction of the Court of First Instance, etc. Further transformation of the standards of the Court of Justicehas been carried out under the Lisbon Treaty, which requires a separate study.

scholarly journals Public policy: united in diversity... within the marriage?

2021 ◽  
Vol 13 (2) ◽  
pp. 1022-1031
Author(s):  
Silvia Marino
Keyword(s):  
Public Policy ◽  
Case Law ◽  
The European Union ◽  
Judicial Cooperation ◽  
The Public ◽  
Court Of Justice ◽  
European Court ◽  
Definition Of ◽  
The Right ◽  
The Impact

The present paper tackles the development of the notion of public policy in the definition of the concept of marriage. It starts from brief remarks on the case law of the Court of Justice of the European Union in the field of the right to free movement of people and of the European Court of Human Rights on the right to private and family life. Then, it analyses the uncertainties stemming from the national divergences. Further, the impact of the Coman case on the applicability of EU measures on civil judicial cooperation and on the notion of public policy is examined. Conclusively, the paper submits some considerations on the modern function of the public policy.

scholarly journals Interpretation of Art. 54 of the Convention Implementing the Schengen Agreement

2020 ◽  
Vol 9 ◽  
Author(s):  
Oskar Losy
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
Preliminary Ruling ◽  
The European Union ◽  
Judicial Cooperation ◽  
Court Of Justice ◽  
Ne Bis In Idem ◽  
Charter Of Fundamental Rights ◽  
Criminal Matters ◽  
The Eu

The paper discusses the problem of the ne bis in idem principle stipulated in the Convention Implementing the Schengen Agreement (CISA) and the Charter of Fundamental Rights of the European Union. Article 54 of the CISA makes the application of the principle ne bis in idem subject to the condition of execution of the penalty. An analogous condition is not provided for in the Charter. These differences caused doubts regardingthe application of the ne bis in idem principle and were subject of the question for preliminary ruling in the Spasic case (C-129/14 PPU). The paper contains a critical review of the reasoning of the Court of Justice of the European Union in this judgment. In addition, the article also contains an analysis of the CJEU’s decision in Case C-398/12 M. in which the CJEU has analysed the meaning of “final disposal” of the judgment in the context of the ne bis in idem principle. Based on the above judgments, the article presents arguments indicating that the reasoning of the CJEU on the conditions for the application of the ne bis in idem principle in judicial cooperation in criminal matters in the EU is not consistent.

scholarly journals Unregistered industrial design: protection in the European Union and the problem of trolling in Ukraine

2021 ◽  
pp. 60-71
Author(s):  
Yurii Kapitsa
Keyword(s):  
European Union ◽  
Industrial Design ◽  
Case Law ◽  
Third Party ◽  
The European Union ◽  
Association Agreement ◽  
Court Of Justice ◽  
The Law ◽  
The Right ◽  
Design Protection

Kapitsa Y. Unregistered industrial design: protection in the European Union and the problem of trolling in Ukraine. The article considers a new provisions concerning unregistered industrial design (hereinafter — UD), introduced by the Law of Ukraine № 815-IX of 21.07.2020.There is an incomplete reflection in the Association Agreement between the EU and Ukraine and in the adopted Law of the provisions of Council Regulation (EC) No 6/2002 on Community designs, in particular the lack of implementation of Art. 85 (2) of the Regulation concerning the conditions under which courts consider UD to be valid; and the rulings of the Court of Justice that the right holder must provide evidence that the UD was copied by a third party, Case C-345/13 etc.This may result in trolling in Ukraine with the use of UD to prohibit the use of known products or products created independently, bypassing trademarks.It is actual to:• provide amendments to the Law of Ukraine «On protection of rights to industrial designs» concerning the provisions of Art. 85 (2) of Regulation № 6/2002 and the case law of the Court of Justice;• extend the competence of the Appeals Chamber to cases concerning the recognition of UD as invalid;• amend the Law as well Art. 139, 140 of the Code of Civil Procedure of Ukraine and Art. 151, 153 of the Economic and Procedural Code of Ukraine regarding the provisions of Art. 50 TRIPS which stipulates that judicial authorities shall have the authority to require the applicant to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant is the right holder and that the applicant’s right is being infringed or that such infringement is imminent.There is a danger of partial approximation not to the whole EU acquis governing the protection of relevant IP rights which may result in the difficulty of applying implemented provisions of EU acts and developing national case law which could contradict EU case law.Key words: unregistered industrial design, protection of intellectual property rights, approximation of legislation, trolling

scholarly journals UNION REGULATIONS ON PASSENGER RIGHTS IN CASE OF FLIGHT CANCELLATION, REFUSAL AT BOARDING OR LONG DELAY OF FLIGHTS

2019 ◽  
Vol 13 (1) ◽  
pp. 31-36
Author(s):  
ELISE NICOLETA VÂLCU
Keyword(s):  
European Union ◽  
Member State ◽  
State Level ◽  
The European Union ◽  
Judicial Cooperation ◽  
Law System ◽  
Freedom Of Movement ◽  
Goods And Services ◽  
The Right ◽  
Criminal Matters

The European Union is a "supranational governance" structured by its well-defined institutions. The decision-making triangle formed by the Commission, the Parliament and the Council legislate in agreement or consultation, covering the whole picture of policies developed at EU level and implemented at Member State level. Among the most important developed policies, it is necessary to mention the freedom of movement of the Union nationals, freedom of movement of goods and services, judicial cooperation in criminal matters, etc. Freedom of movement implies a series of segmental rights, such as the right to temporary or permanent residence, the right to work, to travel and study, etc. The Union law system identifies legal instruments to regulate the rights of passengers traveling within the Union, from the Union to a third country, or arriving in the territory of a Member State irrespective of the type of transport, air, rail, water or road.At present, in the field of air transport we identify Regulation no. 261/2004 on the right to compensation and assistance to passengers in the event of refusal of boarding and cancellation or long delay of flights, which is part of a comprehensive package of legislation aimed at protecting consumers in general across the European Union.

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