scholarly journals International Standards Regarding Protection of Children of Maltreatment

2021 ◽  
Vol 5 (2) ◽  
pp. 75-82
Author(s):  
Netkova BISTRA ◽  
Ismail ZEJNELI
Keyword(s):  
Child Abuse ◽  
International Law ◽  
Emotional Abuse ◽  
Health And Safety ◽  
Case Law ◽  
International Standards ◽  
The European Union ◽  
Global Problem ◽  
European Court ◽  
The Eu

Child abuse is protected by international law and acts and includes all types of physical, sexual and emotional abuse. Child abuse is a global problem with serious consequences throughout life, it is also a global problem with serious consequences for children and their families. In order to prevent this phenomenon, the awareness and consciousness of everyone (society, state) must be increased. Work on joint projects should include the UN, WHO, UNICEF, UNESCO, the EU and the CoE. Knowledge, legislation and ideas in protecting children's health belong to health and safety experts. The case law of the European Court of Human Rights and the Court of Justice of the European Union obliges states to include in their legislation the protection of children from all forms of ill-treatment.

Part III Observance and Application of Treaties, 16 The European Courts and the Law of Treaties: The Continuing Story

2011 ◽  
Author(s):  
Kuijper Pieter Jan
Keyword(s):  
International Law ◽  
Case Law ◽  
European Court Of Justice ◽  
Vienna Convention ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Treaty Interpretation ◽  
The Law ◽  
The Eu

This chapter presents a critical analysis of the case law of the European Court of Justice and of the General Court relating to the application of the international law of treaties. It covers the some forty cases in which the Courts have referred explicitly to the Vienna Convention on the Law of Treaties 1969, and a few more where this happened implicitly, during the period 1998–2010. Inevitably the emphasis falls on the application of the rules of treaty interpretation to the international agreements concluded by the European Union (EU), but also to the founding treaties of the EU itself. The Courts have been confronted with great regularity with questions relating to the law of treaties and thus have become increasingly sophisticated in their use of it. The recent accusation that the Court is adverse to international law seems to be based on a few dramatic cases, not on the steady stream of smaller cases in which the law of treaties plays a role.

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.

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 The European Court of Justice and the Policy Process

2018 ◽  
Author(s):  
Susanne K. Schmidt
Keyword(s):  
European Union ◽  
Member State ◽  
Case Law ◽  
European Court Of Justice ◽  
The European Union ◽  
Member States ◽  
Administrative Practices ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

The European Court of Justice is one of the most important actors in the process of European integration. Political science still struggles to understand its significance, with recent scholarship emphasizing how closely rulings reflect member states’ preferences. In this book, I argue that the implications of the supremacy and direct effect of the EU law have still been overlooked. As it constitutionalizes an intergovernmental treaty, the European Union has a detailed set of policies inscribed into its constitution that are extensively shaped by the Court’s case law. If rulings have constitutional status, their impact is considerable, even if the Court only occasionally diverts from member states’ preferences. By focusing on the four freedoms of goods, services, persons, and capital, as well as citizenship rights, the book analyses how the Court’s development of case law has ascribed a broad meaning to these freedoms. The constitutional status of this case law constrains policymaking at the European and member-state levels. Different case studies show how major pieces of EU legislation cannot move beyond case law but have to codify its principles. Judicialization is important in the EU. It also directly constrains member-state policies. Court rulings oriented towards individual disputes are difficult to translate into general policies, and into administrative practices. Policy options are thereby withdrawn from majoritarian decision-making. As the Court cannot be overruled, short of a Treaty change, its case law casts a long shadow over policymaking in the European Union and its member states, undermining the legitimacy of this political order.

Treaty-making Procedures

2021 ◽  
pp. 57-100
Author(s):  
Jan Wouters ◽  
Frank Hoffmeister ◽  
Geert De Baere ◽  
Thomas Ramopoulos
Keyword(s):  
European Union ◽  
Case Law ◽  
European Court Of Justice ◽  
Historical Evolution ◽  
The European Union ◽  
Provisional Application ◽  
Court Of Justice ◽  
European Court ◽  
Important System ◽  
The Eu

This chapter provides an overview of the treaty-making procedures in the European Union. It explains the historical evolution of primary law in the field and gives examples for each step under Article 218 TFEU (negotiation, signature, provisional application, and conclusion). Excerpts of European Court of Justice (ECJ) case law illustrate how these provisions are interpreted and applied in practice. The chapter also discusses the principles covering suspension and termination of EU agreements, and the ever more important system that allows the EU to contribute to the adoption of international secondary law under Article 218, paragraph 9 Treaty on the Functioning of the European Union (TFEU). A final section describes EU practice for adopting non-legally binding instruments and reproduces the new guidance of December 2017 issued by the Council and the Commission in this respect after the ECJ’s judgment in the case relating to the EU–Swiss Memorandum of Understanding.

Changing balances of PIL theories in a Europeanized Private International Law

2018 ◽  
Vol 25 (5) ◽  
pp. 533-550
Author(s):  
Klea Vyshka
Keyword(s):  
Member State ◽  
International Law ◽  
Mutual Recognition ◽  
Case Law ◽  
Company Law ◽  
Private International Law ◽  
The European Union ◽  
International Laws ◽  
Methods Of Application ◽  
The Eu

This article offers a reading of the case law of the Court of Justice of the European Union (CJEU) from a private international law perspective (PIL). The developments that the CJEU thus gave start to in the field of company law, and especially in EU citizenship, invites for a reshaping of the balances between Union law and Member State private international laws, especially in the field of methods of application. This article aims to shed light into the question ‘To what extent has the EU citizenship as a connecting factor in the context of a Europeanized PIL changed the PIL traditional methods of application?’ The host Member State is obliged to recognize the duly created rights in the original Member State, with respect to the mutual recognition principle. The return of the vested rights theory as opposed to the use of the traditional conflict-of-law approach seems on its way.

scholarly journals Article 3(5) TEU a decade on: Revisiting ‘strict observance of international law’ in the text and context of other EU values

2021 ◽  
pp. 1023263X2110151
Author(s):  
Rupert Dunbar
Keyword(s):  
European Union ◽  
International Law ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
Balanced Approach ◽  
Court Of Justice ◽  
External Relations ◽  
Domestic Courts ◽  
The Eu

Article 3(5) of the Treaty on the European Union concerns EU external relations and was a new provision of the Lisbon Treaty. It has been seized upon by scholars for its reference to ‘strict observance of international law’ by the EU in its relations with the wider world. However, recent case law in the Court of Justice of the European Union has demonstrated little movement towards this supposed ideal. This article supports the fact that rigid and unquestioning adherence to international law has not emerged in case law, particularly as Article 3(5) TEU also mandates that the Union ‘uphold and promote its values and interests’. By taking a broader view of both the text and context of Article 3(5) TEU in EU law as a whole, and through consideration of the limited demands international law places on domestic courts, the article argues that – contrary to current literature – a more expressly balanced approach towards respect for international law is required and should be nurtured in the case law.

scholarly journals Ne bis in idem: a separation of acts in transnational cases?

2015 ◽  
Vol 7 (2) ◽  
pp. 85-115
Author(s):  
Márk Némedi
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Ne Bis In Idem ◽  
Charter Of Fundamental Rights ◽  
Criminal Matters ◽  
The Eu

Abstract This paper analyses the case-law of the European Court of Justice on the substantive scope of ne bis in idem in transnational cases and evaluates the findings in light of the different concepts of legal interests inherent in the concept of crime as a material notion. I argue that the application of the interpretation of the ECJ to crimes against collective interests is insufficiently justified. As a result, the interpretation of ne bis in idem based on material facts appears only partially correct and a sense of distrust seems to be cemented between member states creating obstacles to a successful reform of the principle. Part one attempts to defend that the reasoning put forward by the court lacks relevance and evaluates how this affects mutual trust. Part two analyses this interpretation in the light of different forms of legal interest. Part three examines how later case-law has tried to explain the problematic interpretation of early cases and its relationship with the Charter of Fundamental Rights of the European Union. The article will conclude by summarising the findings which may put into perspective the more general challenges of cooperation in criminal matters within the EU.

scholarly journals Validity of choice of court agreements, abusive terms in air carriage contracts, assignments and compensation, is there room for anyone else? (Comments on CJEU Judgment Delayfix, c-519/19)

2021 ◽  
Vol 13 (2) ◽  
pp. 882-895
Author(s):  
Anna María Ruiz Martín
Keyword(s):  
International Law ◽  
Case Law ◽  
Third Parties ◽  
Private International Law ◽  
The European Union ◽  
Consumer Contracts ◽  
Business To Consumer ◽  
Substantive Law ◽  
First Time ◽  
The Eu

In Delayfix case, the Court of Justice of the European Union (CJEU) has interpreted the formal and substantive validity of a “choice of court agreement” included in an air carriage of passenger’s contract. But, for the first time, the CJEU has openly declared the unfair nature of these choice of court agreements, not only for the passengers, but also for third parties assigned by them. In opposition with former case law on the effects of a choice of court agreement for assignees. In carriage of passengers’ contracts, third parties are usually agencies devoted to the defense of air passenger rights and collection of credits who claim for the compensation rights in accordance with the rights conferred by Regulation 261/2004. From the EU Private International Law approach, the preliminary ruling is of interest, being the Brussels I bis regulation the instrument for clarifying whether this choice of court agreement should be deemed as enforceable or not, regarding the requirements of Article 25 Brussels I bis due to these contracts are not considered as consumer contracts. To the analysis of the merits and substantive law, contrarily than under EU Private International law rules these contracts are considered as Business to consumer (B2C) contracts, and Directive 93/13/CEE and other EU Consumer rules must be applied so as to determine the unfair nature of these clauses in these contracts.

THE PRINCIPLE OF DEMOCRACY IN THE CASE LAW OF THE EUROPEAN COURT OF JUSTICE

2013 ◽  
Vol 62 (2) ◽  
pp. 271-315 ◽  
Author(s):  
Koen Lenaerts
Keyword(s):  
Case Law ◽  
European Parliament ◽  
Democratic Legitimacy ◽  
Legislative Process ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Universal Suffrage ◽  
Societal Changes ◽  
The Eu

AbstractThis article seeks to explore the way in which the Court of Justice of the European Union (‘CJEU’) has interpreted and applied the principle of democracy. It examines first the democratization process upon which the EU has embarked since the adoption of the Treaty of Maastricht and how that transformation was a positive reaction to those voices arguing that the EU suffers from a ‘democratic deficit’. Next, it is argued that the CJEU has understood the principle of democracy in a way which is respectful of the two sources of democratic legitimacy at EU level, namely the Member States and the peoples of Europe. Accordingly, that understanding of the principle of democracy is illustrated by some relevant examples taken from the case law of the CJEU and the European General Court (‘EGC’). Those examples show that the CJEU has strived to protect the prerogatives of the European Parliament, the only political institution of the EU whose members have, since 1979, been elected for a term of five years by direct universal suffrage in a free and secret ballot. Yet, they also show that the principle of democracy is not limited to protecting parliamentary prerogatives. That principle, like all EU constitutional principles, pervades the whole of EU law and, as such, must be read in light of societal changes. As democracy within the EU is not limited to the participation by the European Parliament in the legislative process but also encompasses other forms of governance, in particular rule-making by administrative agencies and the achievement of consensus by social partners, it is for the EU judiciary to make sure that those other forms of governance remain as democratic as possible. This can be achieved, inter alia, by making sure that they enjoy sufficient representation or are subject to parliamentary control. Furthermore, the CJEU and the EGC also take into account new mechanisms which seek to strengthen the principle of democracy, such as the principle of transparency. In so doing, they aim to enhance the democratic legitimacy of the EU by providing sufficient means for EU citizens to hold their representatives accountable. Finally, it is contended that the principle of democracy, as interpreted by the CJEU, draws inspiration from national democracies. In so doing, the CJEU strives to place national and supranational democracies in a mutually reinforcing relationship.

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