scholarly journals Primjena načela razmjernosti u praksi Suda Europske unije

2017 ◽  
Vol 38 (1) ◽  
pp. 673-685
Author(s):  
Inga Vezmar Barlek
Keyword(s):  
General Principle ◽  
Case Law ◽  
Legal Basis ◽  
Margin Of Appreciation ◽  
Principle Of Proportionality

The article emphasizes the principle of proportionality as a general principle of law. Analysis of some CJEU case law is introduced, regarding interpretative role of the principle of proportionality and its legal basis for annulment of individual and general acts. The distinction between the infringement of margin of appreciation and the principle of proportionality is given. The specificity of the Croatian administrative dispute law regarding the control of legality of the acts issued within margin of appreciation is emphasized. The principle of proportionality role as a legal basis for annulment of general acts in Croatian administrative dispute law is opened for discussion.

scholarly journals Court Decision Contra Legem or an Application of the Principle of Proportionality in Concreto?

Teisė ◽  
2021 ◽  
Vol 121 ◽  
pp. 27-44
Author(s):  
Asta Dambrauskaitė
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
National Court ◽  
Case Law ◽  
Legal Rule ◽  
Court Decision ◽  
European Convention ◽  
Court Decisions ◽  
Principle Of Proportionality

The article analyses cases of non-application of a national legal rule by cassation court judges hearing civil cases where, based on the analysis of concrete circumstances, the application of such a rule, in the opinion of judges, would lead to an infringement of the principle of proportionality and the European Convention on Human Rights. Decisions of two courts of cassation belonging to the continental law tradition (the Lithuanian Supreme Court and the French Court of Cassation) illustrate such a control of the application of the principle of proportionality in concreto. While national law is subject to an increasing impact of the case law of supranational courts, the legitimacy of such national court decisions is discussed also in the context of the transformations taking place in regard to the role of a judge.

scholarly journals The Contemporary Significance of the Principle of Proportionality in Tax Law

2021 ◽  
Vol 26 (4) ◽  
pp. 37-51
Author(s):  
Artur Mudrecki
Keyword(s):  
General Principle ◽  
Case Law ◽  
Daily Basis ◽  
Tax Law ◽  
Constitutional Interpretation ◽  
Law System ◽  
Constitutional Tribunal ◽  
Administrative Courts ◽  
Principle Of Proportionality ◽  
Limited Scope

Abstract The principle of proportionality plays a key role in shaping the principles of the tax law system, as it is an important element in the protection of taxpayer’s rights. The interpretation directive related to the principle of proportionality has a doctrinal, normative, and jurisprudential character. It is an EU and constitutional standard and should become a rule used on a daily basis in the practice of tax authorities. As a general principle of tax law, it is addressed to the legislative, executive, and judicial authorities. The article analyses the case law of the CJEU, the Constitutional Tribunal and the Supreme Administrative Court, which leads to the following conclusions. The CJEU quite often refers to the principle of proportionality in its jurisprudence and has developed a jurisprudence doctrine based on the doctrine of law. The Constitutional Tribunal, although in a limited scope, also employs the principle of proportionality. In disputes between tax authorities and taxpayers, Polish administrative courts apply the principle of proportionality using a pro-EU and pro-constitutional interpretation.

scholarly journals papel del artículo 8 CEDH en la construcción del margen de apreciación nacional y la doctrina de las obligaciones positivas del Estado

2020 ◽  
Author(s):  
Lara Redondo Saceda
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Case Law ◽  
European Convention ◽  
Derechos Humanos ◽  
European Court ◽  
Margin Of Appreciation ◽  
The Right

El artículo 8 del Convenio Europeo de Derechos Humanos –que protege los derechos al respeto la vida privada y familiar, el domicilio y la correspondencia– se ha configurado en estos setenta años de Convenio como uno de los escenarios habituales del desarrollo del margen de apreciación nacional y la doctrina de las obligaciones positivas del Estado. Esto parece justificarse en el contenido y estructura de este artículo y en las restricciones y limitaciones al ejercicio de estos derechos establecidas por su párrafo segundo. En este marco, el objetivo de este artículo es analizar cuál ha sido el papel del artículo 8 CEDH en el desarrollo de estos estándares interpretativos y cómo ha influido en la jurisprudencia del Tribunal Europeo de Derechos Humanos. Article 8 of the European Convention on Human Rights –which protects the right to respect for private and family life, home and correspondence– has been configured as a traditional place for the development of the margin of appreciation and the doctrine of State’s positive obligations. The scope and structure of this article and its limitation clause in the second paragraph seem to justify these developments. In this context, the objective of this article is to analyse the role of Article 8 ECHR in the development of these interpretative standards and its influence in the European Court of Human Rights case-law.

Case Law of the European Court on Human Rights Concerning Ethnic, Religious and Linguistic Minorities during 2014: About Differential Margins of Appreciation and the Role of the Prohibition of Discrimination

2016 ◽  
Vol 13 (1) ◽  
pp. 248-282
Author(s):  
Kristin Henrard
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Linguistic Minorities ◽  
Way Of Life ◽  
Wide Margin ◽  
European Consensus ◽  
European Court ◽  
Margin Of Appreciation ◽  
State Obligations

The Court’s case law regarding ethnic, religious and linguistic minorities during 2014 reveals that in several respects it leaves (de facto) less margin of appreciation to states, focusing on the effective protection of minorities’ fundamental rights. In other respects, the Court seemingly prefers to not take a clear stance, and rather grants states a wide margin of appreciation. Overall, the Court is adamant about state obligations to tolerate ethnic and religious minorities and to protect them against private violence. Positive state obligations to accommodate minorities and their special needs and special “way of life” appear still too controversial and devoid of European consensus for the Court to take a stance. Nevertheless, the developments pertaining to the Court’s scrutiny of models of state–church relations demonstrate that the “lack of European consensus” is subject to a relative and evolutive assessment.

The Application of the Margin of Appreciation Doctrine in Freedom of Expression and Public Morality Cases

2007 ◽  
Vol 8 (7) ◽  
pp. 711-733 ◽  
Author(s):  
Onder Bakircioglu
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Case Law ◽  
Judicial Discretion ◽  
Public Morality ◽  
International Human Rights ◽  
National Interests ◽  
Margin Of Appreciation ◽  
International Human

“Margin of appreciation” refers to the power of a Contracting State in assessing the factual circumstances, and in applying the provisions envisaged in international human rights instruments. Margin of appreciation is based on the notion that each society is entitled to certain latitude in balancing individual rights and national interests, as well as in resolving conflicts that emerge as a result of diverse moral convictions. In this regard, the doctrine is analogous to the concept of judicial discretion, where a judge, in line with certain constraints prescribed by legislation, precedent or custom, could decide a case within a range of possible solutions. The role of discretion is indispensable not only for bridging the gap between the law and changing realities of dynamic social organisms, but also for answering the particular questions of a given case in the absence of overall enacted or case law. In other words, judges are entitled to exercise discretion to make fair decisions in a specific case, without being locked into a formula that might not be applicable to every scenario.

scholarly journals Abuse of Law Doctrine in Tax Law

2020 ◽  
Vol 7 (3) ◽  
pp. 156
Author(s):  
Viola Tanto
Keyword(s):  
Tax Evasion ◽  
General Principle ◽  
Tax Avoidance ◽  
Case Law ◽  
European Court Of Justice ◽  
Court Of Justice ◽  
European Court ◽  
The Right ◽  
Abuse Of Law

This paper was written in order of the reforming of the tax system’s framework. Analysing phenomena such as tax evasion, tax avoidance, the use of legal loopholes to reduce tax liability in Italy was very challenged. The purpose of this paper is to verify, in the light of most interventions the latest case law of the European Court of Justice, if it exists in the field of direct and indirect taxes, a general principle of abuse of law. The existence of this provision will be analyzed in the context of the principle of legal certainty. We should analyse the concept of abuse of law as a normative problem and historical-evolutionary phenomenon. In this paper a special place is taken by the genesis of the concept of abuse of Community law and the general principle of prohibition of abuse of the right in function of a general anti-avoidance norm, its meaning, effects and role as a corrector of the system. We have addressed the role of jurisprudence of the European Court of Justice, dividing it into two parts: Abuse in field of harmonized taxation- Halifax Doctrine and Abuse in the field of disharmonized taxation -The leading case-Cadbury Schweppes.

scholarly journals Abuse of Rights in International Arbitration

2020 ◽  
Author(s):  
El Far Ahmed
Keyword(s):  
General Principle ◽  
Case Law ◽  
Wide Scope ◽  
Legal Basis ◽  
International Arbitration ◽  
Legal Rules ◽  
Investment Arbitration ◽  
Core Elements ◽  
General Principles Of Law ◽  
Gain Access

In recent years, international arbitration has become plagued by different forms of substantive and procedural abuse. For example, we have witnessed a rise in cases where parties restructure their investments in an abusive manner by altering one of its features purely to gain access to ICSID arbitration. Similarly, the increasingly common practice of initiating parallel arbitral proceedings in order to maximise a party’s chances of success, and the possibility of inconsistent decisions pose a risk to standards of fairness. Abusive practices designed by parties to prejudice their opponents may undermine the fair resolution of disputes and frustrate the administration of arbitral justice. There are pre-existing tools and legal rules that can be utilised to prevent abuse. However, these tools are inherently rigid in their application and fail to remedy all forms of abuse. Abuse of Rights in International Arbitration introduces the principle of abuse of rights and considers its application as a general principle of law to prevent different forms of substantive and procedural abuse in international arbitration. The virtue of a single theory with a wide scope and an overarching premise is that it is a principle, which involves equity considerations, enjoys the flexibility of general principles of law, and can address different abusive behaviours. The author carefully examines the legal basis and core elements of abuse of rights and analyses the relevant case law to address how the principle may affect administration of arbitral justice. Arguing for the application of abuse of rights as a general principle of law, the author expertly examines how it could apply in both international commercial and investment arbitration to tackle procedural misconduct and different abusive practices.

Religious Symbols and Garments in Public Places – a Theory for the Understanding of S.A.S. v France

ICL Journal ◽  
2015 ◽  
Vol 9 (2) ◽  
Author(s):  
Teresa Sanader
Keyword(s):  
Case Law ◽  
Public Places ◽  
Member States ◽  
Wide Margin ◽  
Religious Symbols ◽  
Theory Of Religion ◽  
Margin Of Appreciation ◽  
Depth Analysis ◽  
Role Of Religion

AbstractThis article analyses the ECtHR’s case law on Article 9 ECHR, with an emphasis on displaying religious symbols and garments in public places. It provides a theory for the better understanding of the ECtHR’s poor protection of individual believers and its defer­ence to the member states in the light of a wide margin of appreciation, the lack of a Eu­ropean consensus regarding the role of religion in society in the member states and the absence of an in-depth analysis of proportionality in these cases. With the exception of Ahmet Arslan v Turkey no violation was ever found in the context of religious dresses in public places. Therefore, the article offers an explanation for the Grand Chamber’s judg­ment of S.A.S. v France according to the theory of religion as an ‘adjudication stopper’ for the ECtHR and it argues that this latest judgment was not surprising but in line with the Court’s rather cautious approach.

The AMA Guides in Pennsylvania “Post-Protz”: Act 111 and Case Law Update

2020 ◽  
Vol 25 (3) ◽  
pp. 12-19
Author(s):  
Justin D. Beck ◽  
Judge David B. Torrey
Keyword(s):  
Case Law ◽  
General Assembly ◽  
Disability Benefits ◽  
Permanent Disability ◽  
Sixth Edition ◽  
Legal Questions ◽  
The Supreme Court ◽  
Recent Edition ◽  
Impairment Ratings

Abstract Medical evaluators must understand the context for the impairment assessments they perform. This article exemplifies issues that arise based on the role of impairment ratings and what edition of the AMA Guides to the Impairment of Permanent Impairment (AMA Guides) is used. This discussion also raises interesting legal questions related to retroactivity, applicability of prior precedent, and delegation. On June 20, 2017, the Supreme Court of Pennsylvania handed down its decision, Protz v. WCAB (Derry Area Sch. Dist.), which disallows use of the “most recent edition” of the AMA Guides when determining partial disability entitlement under the Pennsylvania Workers’ Compensation Act. An attempted solution was passed by the Pennsylvania General Assembly and was signed into law Act 111 on October 24, 2018. Although it affirms that the AMA Guides, Sixth Edition, must be used for impairment ratings, the law reduces the threshold for total disability benefits from 50% to 35% impairment. This legislative adjustment benefited injured workers but sparked additional litigation about whether, when, and how the adjustment should be applied (excerpts from the laws and decisions discussed by the authors are included at the end of the article). In using impairment as a threshold for permanent disability benefits, evaluators must distinguish between impairment and disability and determine an appropriate threshold; they also must be aware of the compensation and adjudication process and of the jurisdictions in which they practice.

PLACE OF JUDICIAL PRECEDENT IN THE LEGAL SYSTEM OF THE RUSSIAN FEDERATION

Globus ◽  
2020 ◽  
Author(s):  
Marina Sharifovna Kiyan ◽  
Viktoriya Valerevna Klimentenko
Keyword(s):  
Russian Federation ◽  
Legal System ◽  
Case Law ◽  
Major Focus ◽  
Legal Study ◽  
Theoretical Approaches ◽  
The Russian Federation

This article discusses a comprehensive theoretical and legal study of the place of case law in the system of sources of law of the Russian Federation. The major focus is devoted to the analysis of various theoretical approaches and court acts that allow to determine the role of case law in the Russian legal system. The conclusion is made that it is necessary to define legally the role of case law and determine its place in the Russian legal system

Sign in / Sign up

Export Citation Format

Share Document