scholarly journals The Directive 2006/24 declaration of invalidity and the consequences of metadata retention in the EU Member States: A Fundamental Rights Standards Approach

2017 ◽  
Vol 9 (1) ◽  
pp. 47-68
Author(s):  
Alessandra Silveira ◽  
Pedro Miguel Freitas
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Electronic Communications ◽  
Member States ◽  
Eu Member States ◽  
National Courts ◽  
European Court ◽  
Legal Model ◽  
Legal Equality ◽  
The Eu

Purpose – The text deals with the recent case law of the European Court of Justice (ECJ) on the directive on the retention of data (metadata) by providers of electronic communications services for the purposes of investigation, detection and prosecution of serious crimes. The authors seek to clarify the implications of the declaration of invalidity of this European directive for the EU Member States, towards the protection of legal equality of European citizens. Methodology/approach/design – The text was drafted while there was a pending ECJ’s response to the questions referred by two national courts (one Swedish and one British) on the effects of that invalidity decision on the domestic legislation that transposed it. Thus, the authors sought to anticipate the Court's decision in the light of its settled case law and the reaction of the Member States’ authorities’ after the declaration of invalidity of the referred directive. Findings – In the light of the particularities of the protection of fundamental rights in the EU and the legal model of integration, the authors draw some guidelines as to the procedure to be followed in future cases in order to safeguard the effectiveness of the Union law, namely when it comes to the legal equality of European citizens.

scholarly journals Sudska zaštita prava potrošača 

2018 ◽  
Vol 39 (1) ◽  
pp. 535-570
Author(s):  
Paula Poretti
Keyword(s):  
Consumer Protection ◽  
Fundamental Rights ◽  
Member States ◽  
Protection Policy ◽  
Eu Member States ◽  
Consumer Law ◽  
National Courts ◽  
Consumer Rights ◽  
European Court ◽  
Judicial Protection

<span>At EU level, discussions on the future direction of development of consumer protection policy revolve around the open question of efficiency of mechanisms for protection and realisation of consumer rights in national legal systems of EU Member States. Measures and activities of the EU legislator resulted in ‘competing’ mechanisms, which objectively creates a need for examination of the extent to which their functions overlap as well as if it is possible to detect the (most) appropriate way for protection of consumer rights. The analysis in the paper starts from the presumption that the consumer protection policy was developed within the measures aimed at integration of the Single Market and harmonization of consumer laws, on the one side and the recognized need of consumer protection as a social and political goal, on the other side. In this sense, the main point discussed in the paper is whether the recent development in the field of consumer protection, including the recent judgments of the European court could be interpreted as a reflection of the notion that the efficient judicial protection of (individual) consumer rights is (yet) again a priority at EU level. In the first part of the paper the development and application of mechanisms which represent a certain kind of alternative to the judicial consumer protection will be presented. In the second part of the paper, we will consider if the all the more present focus on judicial protection of consumer rights at EU level is an indication of a ‘successful experiment which resulted in unexpected outcome’. The required argumentation will be provided through monitoring of the trend of ‘proceduralization’ or ‘europeanisation’ of the national consumer law in the jurisprudence of the European court. The effect of Article 47 EU Charter of Fundamental Rights and its requirement of efficient protection of procedural rights of individuals before national courts of EU Member States will be analysed in detail. At the same time, the recent activities of the European Commission directed at court proceedings before national courts and removal of barriers in their work in the field of consumer protection will be taken into account.</span>

scholarly journals Transformation of the European arrest warrant in light of protection of the rights of extradited individuals

2020 ◽  
pp. 42-48
Author(s):  
Kamila Danilovna Shaibakova
Keyword(s):  
European Court Of Justice ◽  
Foreign National ◽  
Member States ◽  
Arrest Warrant ◽  
Eu Member States ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
European Arrest Warrant ◽  
The Eu

The subject of this research is the norms of international legal acts, legislations of the EU member-states, decisions of foreign national courts, as well as decisions of the European Court on Human Rights and European Court of Justice. A hypothesis is advanced that within the framework of the European arrest warrant there are new trends associated namely with the desire to strengthen the system of protection of rights of the extradited individuals, which can negatively affect functionality of the procedure as a whole. Thus, a number of cases of the national courts (for example Artur Celmer case) and Court of the European Union (P&aacute;l Aranyosi and Robert C&#259;ld&#259;raru case), as well as provisions of the constitutional courts lead to the fact that the principle of mutual recognition of court decision is used with caution. The article examines the case law of national courts of the EU member-states, as well as practice of the European Court of Justice and European arrest warrant. The author compared the decisions of the aforementioned courts for confirming the hypothesis that the protection of extradited individuals plays a significant role in the context of operation of the European arrest warrant. The intention to provide legal guarantees to individuals extradited in the context of the European arrest warrant, which loses its main influence; particularly the procedure is interrupted due to absence of guarantees of protection of rights in case of extradition, as well as raises doubt towards judicial systems and their decisions of some EU member-states brought forth by political actions of these countries. Moreover, protection of rights and guarantee of fair trial increases.

Befristete Arbeitsverhältnisse in Deutschland und in Polen

2019 ◽  
Author(s):  
Konrad Dabrowski
Keyword(s):  
Case Law ◽  
Transitional Period ◽  
Member States ◽  
Employment Contracts ◽  
Employment Relationships ◽  
Eu Member States ◽  
Court Of Justice ◽  
European Court ◽  
Atypical Employment ◽  
The Eu

This book offers a comparison between German and Polish regulations on fixed-term employment contracts against the background of the so-called “flexicurity” strategy of the EU. Despite the partly inverse political and societal circumstances under which these regulations were developed, the author uncovers many parallels, but also some grave differences. Since atypical employment relationships are to a large extent determined by regulations, it seems obvious to conclude that there must exist a similar level of flexibility and protection with respect to these relationships in the member states. One might therefore formulate the hypothesis that – at least after a certain transitional period encompassing the transposition period and corrections of national legislation according to the case law of the European Court of Justice – the aims of the regulations determining atypical employment relationships in the various member states can be achieved and thus, the respective national regulations should be comparable, at least with respect to their effects. The present work examines the validity of this hypothesis for the two EU member states Germany and Poland on the example of fixed-term employment contracts.

KILLING TWO BIRDS WITH ONE STONE? THE COURT OF JUSTICE'S OPINION ON THE EU'S ACCESSION TO THE ECHR

2015 ◽  
Vol 74 (2) ◽  
pp. 185-188 ◽  
Author(s):  
Eva Nanopoulos
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
Political Agenda ◽  
Eu Law ◽  
Member States ◽  
Eu Member States ◽  
European Court ◽  
The Eu

ACCESSION to the European Convention on Human Rights (ECHR) has long been on the EU's political agenda. The EU's membership of the ECHR is not only seen as symbolically significant, but is also aimed at filling an important gap in the enforceability of human rights across Europe. At present, the EU cannot be brought before the European Court of Human Rights (ECtHR) and, while all EU Member States are parties to the ECHR, as long as the EU protects fundamental rights to a standard equivalent to that required under the ECHR, Member States cannot be held responsible for alleged violations of the Convention resulting from EU law either (Bosphorus v Ireland (2006) 42 E.H.R.R. 1).

scholarly journals Law and Medicine: the Influence of Fundamental Rights on the Corona-crisis and the Influence of the Corona-crisis on Fundamental Rights in the EU

2021 ◽  
Vol 14 (2) ◽  
Author(s):  
Verica Trstenjak
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Health Protection ◽  
Constitutional Courts ◽  
Member States ◽  
Eu Member States ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
The Eu

The article deals with the intersection of law and medicine, especially in the time of the Corona-crisis. It analyses restrictions of human/fundamental rights in the time of the Corona-crisis at the EU level. Conditions for restrictions of fundamental rights are provided by Article 52(1) of the EU Charter of Fundamental Rights. The case-law of the Court of Justice of the EU concerning the restrictions of fundamental rights in connection with health protection is also analysed. The last part provides an overview of some decisions of constitutional courts of EU Member States concerning the justifications of restrictions of fundamental rights during the Corona-crisis.

Article 51 of the EU Charter of Fundamental Rights from the Perspective of the National Judge

2021 ◽  
Vol 13 (4) ◽  
pp. 53-85
Author(s):  
Petr Mádr
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
National Courts ◽  
Track Record ◽  
Court Of Justice ◽  
Relevant Case ◽  
Charter Of Fundamental Rights ◽  
Scope Of Application ◽  
The Eu ◽  
Academic Debate

This article contributes to the growing scholarship on the national application of the EU Charter of Fundamental Rights ('the Charter') by assessing what challenges national courts face when dealing with Article 51 of the Charter, which sets out the Charter's material scope of application. In keeping with this aim, the relevant case law of the Court of Justice of the EU (CJEU) – with its general formulas, abstract guidance and implementation categories – is discussed strictly from the perspective of the national judge. The article then presents the findings of a thorough study of the case law of the Czech Supreme Administrative Court (SAC) and evaluates this Court's track record when assessing the Charter's applicability. National empirical data of that kind can provide valuable input into the CJEU-centred academic debate on the Charter's scope of application.

European Union Plant Variety Protection

2021 ◽  
Author(s):  
Gert Würtenberger ◽  
Martin Ekvad ◽  
Paul van der Kooij ◽  
Bart Kiewiet
Keyword(s):  
European Union ◽  
Case Law ◽  
Patent Infringement ◽  
Practical Relevance ◽  
Member States ◽  
Plant Variety Protection ◽  
Eu Member States ◽  
Plant Variety ◽  
Variety Protection ◽  
The Eu

This book explains how the Community plant variety rights system works and provides guidance regarding the field of law relating to the Basic Regulation and other implementing regulations. It gives an idea of how the grant system works, the advantages of Community plant variety rights, and the aspects to be considered in exploiting and defending. It also explains the mechanisms in the Basic Regulation on how infringements of Community plant variety rights should be dealt with, including certain enforcement systems of the EU Member States. This book analyses major aspects that are considered of practical relevance in infringement proceedings under the applicable national law. It elaborates how the case law is limited in comparison with patent infringement proceedings throughout the EU Member States.

European Union Rights and Values in Human Health

2019 ◽  
pp. 16-51
Author(s):  
Anniek de Ruijter
Keyword(s):  
Public Health ◽  
European Union ◽  
National Policy ◽  
Fundamental Rights ◽  
The European Union ◽  
Member States ◽  
Eu Member States ◽  
Eu Fundamental Rights ◽  
The Eu

This book looks at the impact of the expanding power of the EU in terms of fundamental rights and values. The current chapter lays down the framework for this analysis. Law did not always have a central role to play in the context of medicine and health. The role of law grew after the Second Word War and the Nuremberg Doctors Trials (1947), in which preventing the repetition of atrocities that were committed in the name of medicine became a guidepost for future law regarding patients’ rights and bioethics. In the period after the War, across the EU Member States, health law developed as a legal discipline in which a balance was struck in medicine and public health between law, bioethics, and fundamental rights. The role of EU fundamental rights protections in the context of public health and health care developed in relation with the growth of multilevel governance and litigation (national, international, Council of Europe, and European Union). For the analysis here, this chapter develops an EU rights and values framework that goes beyond the strictly legal and allows for a ‘normative language’ that takes into consideration fundamental rights as an expression of important shared values in the context of the European Union. The perspective of EU fundamental rights and values can demonstrate possible tensions caused by EU health policy: implications in terms of fundamental rights can show how highly sensitive national policy issues may be affected by the Member States’ participation in EU policymaking activities.

Higher Education, Equal Access, and Residence Conditions: Does EU Law Allow Member States to Charge Higher Fees to Students Not Previously Resident?

2005 ◽  
Vol 12 (3) ◽  
pp. 227-240 ◽  
Author(s):  
Gareth Davies
Keyword(s):  
Higher Education ◽  
Case Law ◽  
Social Effects ◽  
Eu Law ◽  
Financial Benefit ◽  
Member States ◽  
Policy Issues ◽  
Eu Member States ◽  
Law And Policy ◽  
The Eu

This article looks at the law and policy issues surrounding the practice of charging uniform fees for higher education to home students and students coming from other EU Member States. It begins with the observation that within the EU such fees are heavily subsidised by governments and therefore amount to a financial benefit (or a disguised grant) to students. In the light of this, this article suggests that restricting that subsidy to students resident prior to their studies would be not only compatible with recent case law on non-discrimination but would also fit better with the underlying logic of free movement, which denies any right to benefits for non-economic recent migrants. Secondly, it looks at the policy, and finds that while equal fees have a number of very positive social effects, they also carry moral and economic risks. A better approach, less distorting of the market for higher education and more consistent with the wider EU approach to welfare migration, might be to require exportability of subsidies from the student's state of origin.

scholarly journals The Limits of Agencification in the European Union

2014 ◽  
Vol 15 (7) ◽  
pp. 1223-1255 ◽  
Author(s):  
Miroslava Scholten ◽  
Marloes van Rijsbergen
Keyword(s):  
European Union ◽  
Case Law ◽  
Lisbon Treaty ◽  
Democratic Legitimacy ◽  
The European Union ◽  
Member States ◽  
The Road ◽  
European Court ◽  
On The Road ◽  
The Eu

Although not explicitly regulated by the EU treaties, EU agencies not only exist but also have increased in number and power. In addition, while EU agencies may exercise very similar functions to those of the Commission, Articles 290 and 291 of the Treaty on the Functioning of the European Union (TFEU) do not list agencies among the possible authors of non-legislative acts. The existing situation raises the questions of the extent to which the ongoing agencification in the EU is legitimate and what its limits are. This article addresses these questions in the light of the old and new Treaties and case law, including the just releasedESMA-shortsellingcase. It shows that while the Lisbon Treaty made a few steps forward on the road of legitimizing EU agencies and delegating important powers to them, the scope of powers that EU agencies can have remains unclear. In this respect, the European Court of Justice's lenient approach in theESMA-shortsellingcase is unfortunate because it neither clarifies the issue nor pushes the Union Legislator and the Member States to address it. Consequently, in the absence of clear limits, further agencification is likely to persist at the risk of increasing the democratic legitimacy deficit and remaining accountability gaps.

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