scholarly journals Thoughts on the principle of ne bis in idem in the light of administrative and criminal sanctions for the legal protection of animals

2021 ◽  
Vol 16 (31) ◽  
pp. 7-22
Author(s):  
Krisztina Bányai
Keyword(s):  
Animal Welfare ◽  
Legal Protection ◽  
Constitutional Court ◽  
The European Union ◽  
Criminal Sanctions ◽  
European Court ◽  
Ne Bis In Idem ◽  
Unlawful Conduct ◽  
Administrative Sanctions ◽  
Cruelty To Animals

According to the well-developed interpretation of the principle of the ne bis in idem in the case law of the Court of Justice of the European Union and the European Court of Human Rights, the same conduct cannot be the subject of two proceedings or santions with similar functions and purposes. In Hungary the Constitutional Court has interpreted the rules of the ne bis in idem in administrative and criminal procedure for animal welfare fine and sanctions for cruelty to animals in Decision 8/2017. (IV.18) AB and the legislator settled its rules in Act on administrative sanctions which came into effect from the 1st of January, 2021. The recent study through practical issues approaches how principle prevails, its problems and possible solutions in the field of unlawful conduct in animal welfare, in particular regarding the role of the prosecutor.

Punitive Administrative Sanctions After the Treaty of Lisbon: Does Administrative Really Mean Administrative?

2021 ◽  
Vol 11 (2) ◽  
pp. 156-176
Author(s):  
Markus Kärner
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
The European Union ◽  
European Union Law ◽  
Criminal Sanctions ◽  
Court Of Justice ◽  
Policy Goals ◽  
European Court ◽  
Administrative Sanctions

This article analyses the dichotomy between administrative and criminal sanctions in European Union law and aims to establish which limits do the policy goals of the European Union set for the national transposition of administrative sanctions as opposed to criminal sanctions. The article discusses the difficulties in differentiating between administrative and criminal sanctions and gives an overview of the evolution of the European Union sanctioning system from the early competence disputes to the rationale behind the post-Lisbon parallel harmonisation of criminal and administrative sanctions. The final part of the article uses these findings along with the jurisprudence of the European Court of Justice to ascertain the key requirements for transposing European Union administrative sanctions into national law, namely whether the policy goals of the European Union require the formal non-criminal classification of the sanction as a way of negative harmonisation of criminal law.

A Constitutional Court for Europe?

2004 ◽  
Vol 6 ◽  
pp. 1-34
Author(s):  
Anthony Arnull
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
European Council ◽  
Constitutional Court ◽  
The European Union ◽  
Constitutional Order ◽  
Court Of Justice ◽  
European Court ◽  
The Future ◽  
Draft Constitution

The purpose of this article is to consider the effect of the draft Treaty establishing a Constitution for Europe on the European Court of Justice (ECJ). At the time of writing, the future of the draft Constitution is somewhat uncertain. Having been finalised by the Convention on the Future of Europe in the summer of 2003 and submitted to the then President of the European Council, it formed the basis for discussion at an intergovernmental conference (IGC) which opened in October 2003. Hopes that the text might be finalised by the end of the year were dashed when a meeting of the IGC in Brussels in December 2003 ended prematurely amid disagreement over the weighting of votes in the Council. However, it seems likely that a treaty equipping the European Union with a Constitution based on the Convention’s draft will in due course be adopted and that the provisions of the draft dealing with the ECJ will not be changed significantly. Even if either assumption proves misplaced, those provisions will remain of interest as reflecting one view of the position the ECJ might occupy in a constitutional order of the Union.

La fine del concetto di “pre-embrione” nella Convenzione di Oviedo / The end of the concept of “pre-embryo” in the Oviedo Convention

2018 ◽  
Vol 66 (6) ◽  
pp. 735-745
Author(s):  
Carlo Casini ◽  
Marina Casini
Keyword(s):  
Human Embryo ◽  
Legal Status ◽  
Human Embryos ◽  
Specific Reference ◽  
Constitutional Court ◽  
The European Union ◽  
Council Of Europe ◽  
European Court ◽  
The Moment

Il contributo si sofferma sulla questione riguardante la ricerca scientifica sugli embrioni generati in vitro. L’articolo 18 della Convenzione riguarda specificamente la sperimentazione sull’embrione in vitro e per questo esso è sottoposto ad una riflessione particolarmente approfondita. L’obiettivo è quello di capire se dalla Convenzione emergono linee idonee a definire lo statuto giuridico dell’embrione umano. Gli Autori concludono nel senso che nonostante il concetto di pre-embrione (formulato proprio per teorizzare l’insignificanza dell’embrione umano nei primi 14 giorni dalla fecondazione) sia stato accolto in alcune leggi e abbia implicitamente guidato l’interpretazione di alcuni aspetti relativi alla valutazione del valore dell’embrione, la Convenzione di bioetica lo ha definitivamente respinto con il massimo di autorevolezza. La conclusione è raggiunta attraverso l’esame dell’art. 18 considerandone anche la precedente formulazione contenuta in una bozza; mediante una interpretazione sistematica della Convenzione che esige il riconoscimento del concepito, fin dalla fecondazione, come un “essere umano”; esaminando i contributi preparatori elaborati dalla Assemblea Parlamentare del Consiglio d’Europa e del Parlamento Europeo; prendendo in considerazione gli sviluppi della Convenzione di Oviedo con specifico riferimento al tema del pre-embrione. L’indagine si avvale poi anche di ampi riferimenti alla giurisprudenza della Corte europea dei diritti dell’uomo del Consiglio d’Europa, alla giurisprudenza della Corte di Giustizia dell’Unione Europea, ad alcune recenti decisioni della Corte Costituzionale italiana. ---------- The paper focuses on the question concerning scientific research on human embryos generated in vitro. Article 18 of the Oviedo Convention specifically concerns the experimentation on the in vitro embryos and for this reason it is subject to a particularly in-depth reflection. The goal is to understand if the Convention shows suitable lines to define the legal status of the human embryo. The authors conclude that despite the concept of pre-embryo (formulated to theorize the insignificance of the human embryo in the first 14 days of fertilization) has been accepted in some laws and has implicitly guided the interpretation of some aspects related to the evaluation of the value of the embryo, the Bioethics Convention definitively rejected it with the utmost authority. The conclusion is reached through the examination of the art. 18 also considering the previous formulation contained in a draft; through a systematic interpretation of the Convention which requires the recognition of the conceived, from the moment of fertilization, as a “human being”; examining the preparatory contributions prepared by the Parliamentary Assembly of the Council of Europe and the European Parliament; taking into consideration the developments of the Oviedo Convention with specific reference to the theme of the pre-embryo. The investigation also makes use of extensive references to the jurisprudence of the European Court of Human Rights of the Council of Europe, to the jurisprudence of the Court of Justice of the European Union, to some recent decisions of the Italian Constitutional Court.

The German Constitutional Court and Preliminary References—Still a Match not Made in Heaven?

2015 ◽  
Vol 16 (6) ◽  
pp. 1491-1508
Author(s):  
Eva Julia Lohse
Keyword(s):  
European Union ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Court Of Justice ◽  
European Court ◽  
German Constitutional Court ◽  
In The Beginning ◽  
The Eu

So far, the German Constitutional Court (Bundesverfassungsgericht, henceforth:BVerfG) has only made a single preliminary reference to the (now) Court of Justice of the European Union (CJEU), despite frequent rulings on matters connected with European Union (EU) Law. Its apparent reluctance seemed odd considering the atmosphere of dialogue and cooperation which prevails between the non-constitutional courts and the EU courts. This situation might, however, have changed with the preliminary reference from January 2014, proving predictions on the perceived “most powerful constitutional court” and its relationship to the EU partly wrong. The legal effects of its preliminary reference on the interpretation of Articles 119, 123, 127 ff. of the Treaty on the Functioning of the European Union (TFEU) and the validity of Outright Monetary Transactions (OMT) by the European Central Bank (ECB) under EU Law are as yet unclear; although the Opinion of the Advocate General Cruz Villalón was delivered in the beginning of 2015, which did not confirm the doubts expressed by theBVerfGabout the conformity of the OMT programme with EU law. Nonetheless, the interpretative scheme and the normative questions as to the reluctance of theBVerfGremain the same after this single referral and offer explanations as to why theBVerfGhad for nearly sixty years not referred a question to the former European Court of Justice (ECJ).

The First Preliminary Reference of the French Constitutional Court to the CJEU:Révolution de Palaisor Revolution in French Constitutional Law?

2015 ◽  
Vol 16 (6) ◽  
pp. 1471-1490
Author(s):  
François-Xavier Millet ◽  
Nicoletta Perlo
Keyword(s):  
Constitutional Law ◽  
Major Change ◽  
Constitutional Court ◽  
The European Union ◽  
Constitutional Review ◽  
Court Of Justice ◽  
Ex Post ◽  
European Court ◽  
The Face ◽  
First Time

A preliminary reference on the part of the Constitutional Council was, in several respects, not to be expected. It was debatable whether it would consider itself as a “court or tribunal” within the meaning of Article 267 of the Treaty on the Functioning of the European Union (TFEU) and, therefore, whether it would refer a case to the European Court of Justice (CJEU) at all. The French constitutional court could also have resorted to theacte clairdoctrine so as to escape from their obligation to ask for the interpretive guidance of the CJEU. However, the main reason why a reference was not awaited by legal actors lies in the limited jurisdiction of the Constitutional Council. Until the introduction in 2008 of the so-called QPC, that is,question prioritaire de constitutionnalité(the Priority Preliminary Reference mechanism on issues of constitutionality), theConseil constitutionnelhad a very limited jurisdiction compared to its European counterparts. Its main mission was to assess the conformity of parliamentary bills and treaties with the Constitution and only with the Constitution. Its review could only take placeex ante, between the adoption and the promulgation of a text. By opening the way to anex postreview of statutes with regard to the rights and freedoms guaranteed by the Constitution, the QPC brought about a major change in the French adjudication system: statutes are no longer immune from constitutional challenge once they are in force. However, treaties and other international or European commitments are no parameters of constitutional review. TheConseil constitutionnelmade this clear in 1975 and never seriously changed track, despite minor qualifications to the rule. In their seminalIVGruling on the Voluntary Interruption of Pregnancy Act, they held that it was not up to them to review the compatibility of bills with treaties, in spite of Article 55 of the Constitution. Consequently, the task of the constitutional judges does not go beyond the assessment of laws with regard to the Constitution. This is the main reason that explains why, on the face of it, theConseil constitutionnelwas unlikely to refer a case to the CJEU. Why would it seek the interpretation or ask for the review of a European text if this text is immaterial for it and if the yardstick of its examination is the Constitution and only the Constitution? Yet, it happened. For the first time, theConseilreferred a case to the CJEU on 4 April 2013. Although this is undoubtedly a major legal breakthrough, we will see in due course that this is probably more arévolution de palaisthan a true revolution in French constitutional law.

Genesis and Development of Legal Protection before Community Courts: A review of Eva Drewes, Entstehen und Entwicklung des Rechtsschutzes vor den Gerichten der Europäischen Gemeinschaften, Duncker & Humblot, Berlin 2000.

2004 ◽  
Vol 5 (6) ◽  
pp. 741-745
Author(s):  
Timo Tohidipur
Keyword(s):  
European Union ◽  
Legal Protection ◽  
European Court Of Justice ◽  
Brute Force ◽  
The European Union ◽  
Community Based ◽  
Court Of Justice ◽  
European Court ◽  
Sectoral Approach ◽  
Community Courts

The emerging of an early idea, – the idea of a united Europe in peace replacing the destructive force of nationalism – could not have been a proper blueprint for the formation of a European Society until the brute force of the two World Wars prepared the ground for the awareness of political, economical, and social necessities. The first chapter in the book of the European Union regarding this founding idea was written back in 1951/52 by establishing the European Coal and Steel Community (ECSC) as a Community based upon law. At first, following Jean Monnet's sectoral approach toward integration in connection with the idea of supranationalism, unifying element should have been the supranational administrative body called “High Authority” (former name of the Commission in the first ESCS-Treaty). Given that the ECSC arose on the basis of law, one of the first and most important questions seemed to be the need of legal protection framing and balancing the power of the nearly almighty High Authority. This need should be satisfied by the establishment of a European Court of Justice (ECJ) as a permanent Court in the ECSC-Treaty. Although the shape of the former European Community has been immensely changed and extended through the years of integrational process, the once established ECJ still remains the judicial core in the institutional structure. But how did the system of legal protection react on the defiances of the integrational process?

Ne Bis Interpretatio In Idem?The Two Faces of theNe Bis In IdemPrinciple in the Case Law of the European Court of Justice

2017 ◽  
Vol 18 (1) ◽  
pp. 39-58 ◽  
Author(s):  
Alessandro Rosanò
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
European Court Of Justice ◽  
Antitrust Law ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Ne Bis In Idem ◽  
Regional Custom

The meaning ofidemin thene bis in idemprinciple is controversial in the case law of the Court of Justice of the European Union. In interpreting the provision of Article 54 of the Convention Implementing the Schengen Agreement, the court has emphasized the necessary requirement in the identity of the material acts while in antitrust law three requirements have been deemed necessary: (1) Identity of the facts, (2) unity of offender, and (3) unity of the legal interest protected. Despite the opinions of some Advocates General, the court has confirmed different interpretations of the same principle, depending on differences of the legal scope in question. A few years ago, however, the European Court of Human Rights proclaimed the criterion based on the identity of the material acts as the most suitable. This might push the Court of Justice of the European Union to correct its position in the antitrust field. Should this happen, this adjustment might serve as grounds to recognize the existence of a regional custom concerning thene bis in idemprinciple.

The Past, Present and Future of the Ne Bis In Idem Dialogue between the Court of Justice of the European Union and the European Court of Human Rights: The Cases of Menci, Garlsson and Di Puma

2018 ◽  
Vol 11 (2) ◽  
pp. 55-84
Author(s):  
Max Vetzo
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Market Abuse ◽  
The Past ◽  
Court Of Justice ◽  
European Court ◽  
Ne Bis In Idem

The cases of Menci (C-524/15), Garlsson (C-537/16) and Di Puma (C-596/16 and C-597/16) deal with the duplication of criminal and punitive administrative proceedings for the same conduct in the area of VAT and market abuse. The Court of Justice of the European Union (CJEU) held that this duplication of proceedings constitutes a limitation of the ne bis in idem principle of Article 50 of the Charter of Fundamental Rights (Charter). This infringement is only justified if the requirements of the limitation clause of Article 52(1) of the Charter are met. The judgments were highly anticipated as they constitute the response of the CJEU to the judgment in A and B v Norway delivered by the European Court of Human Rights (ECtHR), in which the ECtHR lowered the level of protection afforded by the ne bis in idem principle of Article 4 of Protocol No. 7 to the European Convention of Human Rights (A4P7 ECHR). While there are differences between the approaches taken by both courts, it appears that the reasoning of the CJEU in the judgments largely mirrors that of the ECtHR in A and B v Norway. This article frames the judgments in terms of the dialogue between the CJEU and ECtHR on the ne bis in idem principle. It does so chronologically, by focusing on the past, present and future of the ne bis in idem dialogue between both European courts.

scholarly journals The series of trademarks: theory, legislation, law enforcement

2021 ◽  
pp. 45-53
Author(s):  
Nataliia Myronenko
Keyword(s):  
Law Enforcement ◽  
Intellectual Property ◽  
Legal Protection ◽  
Property Law ◽  
The European Union ◽  
Association Agreement ◽  
Intellectual Property Law ◽  
Goods And Services ◽  
European Court ◽  
Ip Law

Key words: trademark, series of signs, dominant element, originality, resolution The article, based on the analysis of the doctrine of intellectual property law,legislation of Ukraine, law enforcement practice, examines the state and prospects ofproviding legal protection of a series of trademarks. To overcome the existing gap inthe legislation of Ukraine, the need to amend the Law of Ukraine «On Protection ofRights to Marks for Goods and Services» is justified. It is proposed to define «a seriesof marks as a set of trademarks belonging to one owner of interdependent rights, interconnected by the presence of the same dominant verbal, figurative or combined element,having phonetic and semantic similarity, and may also bear minor graphic differencesthat do not change the essence of the trademarks. The lack of definition ofthe term «dominant element» in the legislation is emphasized. Based on the provisionsof the philosophy and doctrine of intellectual property law, the dominant elementmeans the smallest indivisible component of the trademark, which is originaland not descriptive. Based on this, its main features are distinguished: originalityand indivisibility.It is proved that the same position of the dominant element in the structure of allsigns is necessary to create a stable image of consumers in relation to a particularproduct and its manufacturer. Examples of court decisions on recognition or refusal toprovide legal protection to trademarks are given.In the context of reforming the legislation of Ukraine in terms of its approximation toEU legislation and the development of relevant case law, which must meet Europeanstandards, the expediency of using the legal positions of such a leading democratic courtas the European Court of Justice is justified. Attention is drawn to the fact that the decisionof the ECJ is not a source of law for resolving disputes of this category by the courtsof Ukraine. At the same time, they are a source of harmonious interpretation of the nationallegislation of Ukraine in accordance with the established standards of the legalsystem of the European Union. It is proved that this conclusion is consistent with thepurpose and objectives to be solved in the country in the process of implementing the provisionsof the Association Agreement in the legislation of Ukraine. Proposals are formulatedto improve the quality of legislation in the field of IP law.

scholarly journals The Future of Criminal Law within the European Union - Union Law or Community Law Competence?

2007 ◽  
Vol 38 (1) ◽  
pp. 145
Author(s):  
Verena Murshetz
Keyword(s):  
European Union ◽  
Criminal Law ◽  
The European Union ◽  
European Constitution ◽  
Criminal Sanctions ◽  
Court Of Justice ◽  
European Court ◽  
Recent Developments ◽  
Criminal Matters ◽  
The Eu

Recent developments regarding criminal matters within the European Union (EU) show a trend towards a supranational criminal competence, which could be realised before the entry into force of the European Constitution whose future is uncertain. The strongest indicators in this development are two judgments of the European Court of Justice (ECJ), one that extends the powers of the European Community (EC) over the protection of the environment through criminal sanctions  and the other applying the principle of conforming interpretation to framework decisions . This trend is questionable though, as the Treaty of the European Union (TEU) does not confer a criminal competence upon the EC. The third pillar containing criminal matters is intergovernmental in nature. This article critically discusses the recent trend and presents arguments against an implied supranational criminal law within the EU.

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