scholarly journals The interplay between jurisdictional rules established in the EU legal instruments in the field of family law: testing functionality through simultaneous application with domestic law = L’interazione tra le regole di giurisdizione all’interno degli strumenti giuridici dell’UE nell’ambito del diritto di famiglia: la prova del funzionamento attraverso l’applicazione simultanea del diritto nazionale

2017 ◽  
Vol 9 (2) ◽  
pp. 551
Author(s):  
Lenka Válková
Keyword(s):  
Family Law ◽  
Case Law ◽  
State Courts ◽  
Parental Responsibility ◽  
Simultaneous Application ◽  
Sono Stati ◽  
Domestic Law ◽  
Property Regimes ◽  
Property Regime ◽  
The Eu

Abstract: The following article aims at testing the interrelations between the rules on: jurisdiction in divorce and parental responsibility laid down in the Brussels IIa Regulation, maintenance laid down in the Maintenance Regulation, and property regime laid down in the Regulation on Matrimonial Property Regimes and on Property Consequences of Registered Partnerships, considering a number of potentially seised Member State courts and their interactions with domestic law. For the testing, the national legal system and case law of Slovakia and Czech Republic, which require hearing of a dispute in unique proceedings (with certain differences), has been selected in order to tackle problems connected with the simultaneous application of rules established by the EU regulations and domestic procedural rules.Keywords: Multiplicity of Regulations in Family Matters, Interplay between Jurisdictional Rules, Divorce, Parental Responsibility, Maintenance, Matrimonial Property Regimes, Czech and Slovak Legislation.Riassunto: Il presente contributo mira a verificare l’interazione tra le norme sulla competenza in materia di divorzio e responsabilità genitoriale stabilite dal Regolamento Bruxelles IIa, in materia di obbligazioni alimentari previste nel Regolamento sulle Obbligazioni Alimentari, e in materia di regimi patrimoniali previsti dai Regolamenti in Materia di Regimi Patrimoniali fra Coniugi e di Effetti Patrimoniali delle Unioni Registrate, prendendo in considerazione le Corti degli Stati Membri potenzialmente adite e la loro interazione con il diritto interno. Al fine di testare il funzionamento e affrontare i problema legati all’applicazione simultanea delle norme stabilite dal diritto dell’UE e delle norme procedurali nazionali, sono stati scelti i sistemi giuridici della Slovacchia e della Repubblica ceca, che richiedono, con alcune differenze, l’audizione di una controversia in un unico processo.Parole chiave: molteplicità dei regolamenti in diritto di familia, interazione tra le norme sulla competenza, divorzio, responsabilità genitoriale, obbligazioni alimentari, regime patrimoniale, legislazione ceca e slovacca.

scholarly journals The other side of tax discrimination

2019 ◽  
Vol 40 (2) ◽  
pp. 929-956
Author(s):  
Mateusz Wąsik
Keyword(s):  
Sexual Orientation ◽  
Case Law ◽  
The European Union ◽  
Eu Member States ◽  
Legal Provisions ◽  
Long Run ◽  
European Court ◽  
Domestic Law ◽  
Personal Taxation ◽  
The Eu

The purpose of the paper is to present the tax consequences resulting from the lack of recognition of registered partnerships and same-sex marriages in certain EU member states, taking the example of Poland. These aspects are usually perceived as discrimination of citizens based on their sexual orientation. The author of this paper has focused on various aspects of possible discrimination, mainly concerning discrimination on the grounds of personal taxation, including inheritance and gift taxes. For these purposes, the author analysed the domestic tax rules differentiating couples living in a marriage and couples without that possibility. These legal provisions have been analysed together with the most recent domestic jurisprudence. Furthermore, the paper presents comparative analyses of domestic rules with EU law. Due to the lack of case-law oriented towards fiscal discrimination due to sexual orientation, the relevant CJEU (the Court of Justice of the European Union, hereinafter: the CJEU) and ECHR (the European Court of Human Rights, hereinafter: the ECHR) case-law have been recalled to reveal possible violations of fundamental freedoms and tax discrimination. The author makes a connection between the lack of proper regulations implemented in the domestic law with the unjustified differentiation of cross-border families on tax grounds. In the long run, only the harmonisation of personal taxation at the EU level can lead to a resolution to this situation. Alternatively, as an interim solution, the relevant ECHR judgment may be of assistance.

scholarly journals Goods in Transit and Intellectual Property Under the EU Law and Caselaw of the Court of Justice

2014 ◽  
Vol 14 (2) ◽  
pp. 93-104
Author(s):  
Radim Charvát
Keyword(s):  
Intellectual Property ◽  
Member State ◽  
Case Law ◽  
Trade Mark ◽  
State Courts ◽  
Eu Law ◽  
Member States ◽  
Court Of Justice ◽  
In Transit ◽  
The Eu

Abstract The paper addresses the issue whether customs authorities of Member States are entitled to suspend or detain goods in transit (i.e., products directing from one non- Member State to another non-Member State through the EU) and the evolving case-law of the Court of Justice related to this matter. Prior to the judgment in Philips and Nokia cases, a so-called manufacturing fiction theory was applied by some Member State courts (especially Dutch courts). According to this theory, goods suspended or detained by customs authorities within the EU were considered to be manufactured in the Member State where the custom action took place. In the Philips and Nokia judgments, the Court of Justice rejected this manufacturing fiction theory. But the proposal for amendment to the Regulation on Community trade mark and the proposal of the new Trademark directive, as a part of the trademark reform within the EU, go directly against the ruling in the Philips and Nokia cases and against the Understanding between the EU and India.

Standards und Abgrenzungen im internationalen Familienrecht

2019 ◽  
Keyword(s):  
Family Law ◽  
Case Law ◽  
Federal Court ◽  
Property Law ◽  
Cross Border ◽  
Procedural Law ◽  
Personality Rights ◽  
Matrimonial Property Law ◽  
Property Regimes ◽  
Legal Consequences

The second ‘Dialog Internationales Familienrecht’, a conference on international family law, was held in Marburg in May 2019. Under the heading ‘Standards and Delimitations in International Family Law’, academics and practitioners dealt with benchmarks and classification issues that are currently under discussion in international family law. The conference focused on international family procedural law and international matrimonial property law. This publication is a collection of the lectures held at the conference. The contributions deal, inter alia, with the interests of children in family proceedings, situations of conflict in proceedings dealing with the legal consequences of divorce, the amendment of the Brussels IIbis Regulation as well as the new EU regulations on matrimonial property regimes. The publication is rounded off by an overview of the Federal Court of Justice's case law on international family law, as well as with deliberations on the violation of the personality rights of children on social networks and on the protection of adults in cross-border constellations.

Hayes & Williams' Family Law

2018 ◽  
Author(s):  
Stephen Gilmore ◽  
Lisa Glennon
Keyword(s):  
Supreme Court ◽  
Child Support ◽  
Family Law ◽  
Supreme Court Decision ◽  
Case Law ◽  
Court Decision ◽  
Parental Responsibility ◽  
Secretary Of State ◽  
The Supreme Court ◽  
The Law

Hayes and Williams’ Family Law, now in its sixth edition, provides critical and case-focused discussion of the key legislation and debates affecting adults and children. The volume takes a critical approach to the subject and includes ‘talking points’ and focused ‘discussion questions’ throughout each chapter which highlight areas of debate or controversy. The introductory chapter within this edition provides a discussion of the law’s understanding of ‘family’ and the extent to which this has changed over time, a detailed overview of the meaning of private and family life within Article 8 of the ECHR, and a discussion of the Family Justice Review and subsequent developments. Part 1 of this edition, supplemented by the ‘Latest Developments’ section, outlines the most up-to-date statistics on the incidence of marriage, civil partnerships and divorce, discusses recent case law on the validity of marriage such as Hayatleh v Mofdy [2017] EWCA Civ 70 and K v K (Nullity: Bigamous Marriage) [2016] EWHC 3380 (Fam), and highlights the recent Supreme Court decision (In the Matter of an Application by Denise Brewster for Judicial Review (Northern Ireland) [2017] 1 WLR 519) on the pension rights of unmarried cohabitants. It also considers the litigation concerning the prohibition of opposite-sex civil partnership registration from the judgment of the Court of Appeal in Steinfeld and Keidan v Secretary of State for Education [2017] EWCA Civ 81 to the important decision of the Supreme Court in R (on the application of Steinfeld and Keidan) (Application) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32. This edition also provides an in-depth discussion of the recent Supreme Court decision in Owens v Owens [2018] UKSC 41 regarding the grounds for divorce and includes discussion of Thakkar v Thakkar [2016] EWHC 2488 (Fam) on the divorce procedure. Further, this edition also considers the flurry of cases in the area of financial provision on divorce such as Waggott v Waggott [2018] EWCA Civ 722; TAB v FC (Short Marriage: Needs: Stockpiling) [2016] EWHC 3285; FF v KF [2017] EWHC 1903 (Fam); BD v FD (Financial Remedies: Needs) [2016] EWHC 594 (Fam); Juffali v Juffali [2016] EWHC 1684 (Fam); AAZ v BBZ [2016] EWHC 3234 (Fam); Scatliffe v Scatliffe [2016] UKPC 36; WM v HM [2017] EWFC 25; Hart v Hart [2017] EWCA Civ 1306; Sharp v Sharp [2017] EWCA Civ 408; Work v Gray [2017] EWCA Civ 270, and Birch v Birch [2017] UKSC 53. It also considers the recent decision of the Supreme Court in Mills v Mills [2018] UKSC 38 concerning post-divorce maintenance obligations between former partners, and the Privy Council decision in Marr v Collie [2017] UKPC 17 relating to the joint name purchase by a cohabiting couple of investment property.Part 2 focuses on child law, examining the law on parenthood and parental responsibility, including the parental child support obligation. This edition includes discussion of new case law on provision of child maintenance by way of global financial orders (AB v CD (Jurisdiction: Global Maintenance Orders)[2017] EWHC 3164), new case law and legislative/policy developments on section 54 of the Human Fertilisation and Embryology Act 2008 (parental orders transferring legal parenthood in surrogacy arrangements), and new cases on removing and restricting parental responsibility (Re A and B (Children: Restrictions on Parental Responsibility: Radicalisation and Extremism) [2016] EWFC 40 and Re B and C (Change of Names: Parental Responsibility: Evidence) [2017] EWHC 3250 (Fam)). Orders regulating the exercise of parental responsibility are also examined, and this edition updates the discussion with an account of the new Practice Direction 12J (on contact and domestic abuse), and controversial case law addressing the tension between the paramountcy of the child’s welfare and the protected interests of a parent in the context of a transgender father’s application for contact with his children (Re M (Children) [2017] EWCA Civ 2164). Part 2 also examines the issue of international child abduction, including in this edition the Supreme Court’s latest decision, on the issue of repudiatory retention (Re C (Children) [2018] UKSC 8). In the public law, this edition discusses the Supreme Court’s clarification of the nature and scope of local authority accommodation under section 20 of the Children Act 1989 (Williams v London Borough of Hackney [2018] UKSC 37). In the law of adoption, several new cases involving children who have been relinquished by parents for adoption are examined (Re JL & AO (Babies Relinquished for Adoption),[2016] EWHC 440 (Fam) and see also Re M and N (Twins: Relinquished Babies: Parentage) [2017] EWFC 31, Re TJ (Relinquished Baby: Sibling Contact) [2017] EWFC 6, and Re RA (Baby Relinquished for Adoption: Final Hearing)) [2016] EWFC 47).

Cross-border Family Issues in the EU: Multiplicity of Instruments, Inconsistencies and Problems of Coordination

2019 ◽  
pp. 65-82
Author(s):  
Rosario Espinosa Calabuig
Keyword(s):  
International Law ◽  
Family Law ◽  
Case Law ◽  
Private International Law ◽  
Legal Professionals ◽  
Cross Border ◽  
National Courts ◽  
Family Issues ◽  
The Family ◽  
The Eu

This chapter analyses challenges in the family law sphere, examining EU case law to assess the success of EU private international law regulations in the fields of divorce, matrimonial property, maintenance obligations and cross-border rights of access to children. It points to the difficulties facing judges, national courts and legal professionals in the application of EU regulations in this sphere.

scholarly journals Dysfunctionality from the Sovereignty Conflict in the ATAD GAAR

2020 ◽  
Vol 10 (1) ◽  
pp. 97-122
Author(s):  
Kaido Künnapas
Keyword(s):  
Internal Structure ◽  
Tax Avoidance ◽  
Case Law ◽  
Tax Planning ◽  
Tax Law ◽  
Member States ◽  
Economic Reality ◽  
Two Stages ◽  
Domestic Law ◽  
The Eu

Abstract Deriving from the internal structure of Article 6 of the EU Anti-Tax Avoidance Directive, the abuse of tax law is overcome in two stages—elimination and requalification. While the elimination stage (addressing how not to tax) is harmonized by the EU for the purpose of fighting against aggressive tax planning, the requalification stage (addressing how to tax then) remains under the sovereignty of Member States. Applying such a two-level mechanism becomes problematic if there is a mismatch between these two stages so that the harmonized GAAR requires elimination of an arrangement, but the domestic law does not provide an alternative basis for taxation of it. This raises a question of whether Article 6 of the ATAD requires the Member States to impose new taxable objects regardless of the literal interpretation of Article 6(3) which recognizes the full sovereignty of Member States to decide what to tax. By applying interpretation methods used by the CJEU in its case-law—i.e., literal, contextual, teleological and comparative—the author argues that the answer to this question is “no”. This is supported by all the interpretations under the above method, while the dysfunctionality of these two stages could be overcome by treating the economic reality test as an objective test regardless of the notion of “commercial reasons” used in Article 6(2).

Hungarian Case Law Relating to European Private Law (2013-2014)

2014 ◽  
Vol 11 (4) ◽  
Author(s):  
Viktória Harsági
Keyword(s):  
Present Article ◽  
Family Law ◽  
Case Law ◽  
Court Decisions ◽  
Private Law ◽  
Parental Responsibility ◽  
Present Writing ◽  
Hungarian Case

AbstractThe present writing is the fifth part of a series entitled “Hungarian Case Law Relating to European Private Law”, which presents the essence of court decisions made since last summer. Similarly to the earlier years, the majority of the cases concern questions of family law, more specifically, questions relating to parental responsibility. Besides three decisions of the Curia (Kúria) relating to this topic, the Curia has delivered its first decision on the European order for payment procedure, which decision will be presented in the present article as the first in order.

scholarly journals Party Autonomy in the Context of Jurisdictional and Choice of Law Rules of Matrimonial Property Regulation

2020 ◽  
Vol 13 (2) ◽  
pp. 135-158
Author(s):  
Agnė Limantė ◽  
Neža Pogorelčnik Vogrinc
Keyword(s):  
Member State ◽  
Party Autonomy ◽  
Eu Member States ◽  
Track Record ◽  
International Marriages ◽  
Depth Analysis ◽  
High Degree ◽  
Property Regimes ◽  
Property Regime ◽  
The Eu

Abstract In 2019, the EU Member States started applying the Matrimonial Property Regulation, which concerns the property regimes of international marriages. This regulation is aimed at helping couples manage their property and divide it in case of divorce or the death of one spouse. One of the main features of this regulation is its openness to the parties’ choice. The parties are enabled – in cases foreseen in the regulation – to grant jurisdiction to the court of a Member State of their choice, as well as to choose the law applicable to their matrimonial property regime. Since this regulation is new and the track record of its application is rather short, the limits of party autonomy allowed under the regulation and its advantages still involve a high degree of uncertainty. This article provides an in-depth analysis of party autonomy as provided for in the Matrimonial Property Regulation. In addition, it scrutinises the issue of party autonomy in the Succession Regulation, which often directly interacts with the Matrimonial Property Regulation.

The Interaction of Judicial and Legislative Policymaking

2018 ◽  
Author(s):  
Susanne K. Schmidt
Keyword(s):  
Mutual Recognition ◽  
Case Law ◽  
Legislative Process ◽  
European Legislation ◽  
Eu Legislation ◽  
Political Preferences ◽  
General Rules ◽  
Judicial Policymaking ◽  
The Impact ◽  
The Eu

Chapter 4 systematizes the different ways that judicial policymaking can have an impact on European legislation. Identifying the codification of case-law principles in secondary law contributes to research on the EU in two important ways: it shows how EU legislation is embedded in case-law development, and that the impact of case law cannot be reduced to the question of compliance with single rulings. A differentiation is made between several types of judicial ‘shadow’ over the legislative process. Then the Services Directive and the regulation on the mutual recognition of goods are analysed. The principles of case law that were motivated by the specific circumstances of individual cases constrain the design of general rules. Secondary law cannot modify constitutional principles. At best, the legislature can hope to signal its political preferences to the Court.

The Domestication of the Convention on the Rights of Persons with Disabilities

2018 ◽  
Author(s):  
Lisa Waddington
Keyword(s):  
Direct Effect ◽  
Legal Status ◽  
Case Law ◽  
Legal Systems ◽  
Persons With Disabilities ◽  
International Treaty ◽  
Four Dimensions ◽  
Relevant Case ◽  
Similarities And Differences ◽  
Domestic Law

This chapter reflects on jurisdiction-specific approaches to the domestication of the Convention on the Rights of Persons with Disabilities (CRPD), considering in particular the domestic legal status of the CRPD and the relevance of that legal status for case law. The chapter explores four dimensions of the CRPD’s legal status: direct effect; indirect interpretative effect (where the CRPD influences the interpretation given to domestic law); use of the CRPD because of commitments to another international treaty; and absence of domestic legal status. With the exception of the first category, all dimensions can potentially present themselves in legal systems which tend towards the monist approach as well as in those which tend towards the dualist approach. The chapter discusses examples of relevant case law and reflects on similarities and differences emerging from a comparison of that case law.

Sign in / Sign up

Export Citation Format

Share Document