Die Nacherfüllung aus Verkäufersicht

2022 ◽  
Author(s):  
Constantin Jungclaus
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Focal Points ◽  
European Union Law ◽  
Economic Interests ◽  
Court Of Justice ◽  
European Court ◽  
Specific Performance ◽  
Damage Claims ◽  
High Level

The thesis examines the question of which of the compared sales law systems is most likely to realize the (economic) interests of the seller in connection with the consumer’s claim for specific performance, which is characterized by a high level of consumer protection. In this respect, the thesis examines 7 different complexes - from the position of specific performance in the system of purchase warranty rights to the scope of specific performance owed and the objection of disproportionality. Dogmatic focal points are, for example, the problem of self-execution in the light of European Union law and the allocation of certain damage items to specific performance or to damage claims in the light of the case law of the European Court of Justice.

scholarly journals Recent Case Law of The Romanian Courts of Law And The European Court of Justice Related To The Objective Environmental Liability

2021 ◽  
Vol 15 ◽  
pp. 66-71
Author(s):  
Cristian Mares ◽  
Constanta Mătusescu
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Recent Period ◽  
Economic Interests ◽  
Political Role ◽  
Environmental Liability ◽  
Court Of Justice ◽  
European Court ◽  
Polluter Pays Principle ◽  
Court Of Appeal

Although the economic interests have played a major political role in the recent period, in a number of litigations the courts applied the “polluter pays” principle and rendered favorably judgments to the claimants which suffered a damage caused by pollution. In this respect, it is worth analyzing the case law of the European Court of Justice which has recently provided the presumption of liability for pollution of the operators which operates installations on land adjacent to a polluted area. As the Romanian case law is concerned, given the novelty of the framework of an objective environmental liability and the low number of cases related to this issue, it is to be developed a constant jurisprudence as the decision rendered by the Romanian Court of Appeal as of March 9, 2009, which forced a polluter to remedy totally and in kind the damage caused to an individual’s house.

scholarly journals Characteristics of Precedent: The Case Law of the European Court of Justice in Three Dimensions

2015 ◽  
Vol 16 (5) ◽  
pp. 1073-1098 ◽  
Author(s):  
Mattias Derlén ◽  
Johan Lindholm
Keyword(s):  
European Union ◽  
Case Law ◽  
Three Dimensions ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Court ◽  
Number Of Factors ◽  
The One

AbstractThe case law of the Court of Justice of the European Union (CJEU) is one of the most important sources of European Union law. However, case law's role in EU law is not uniform. By empirically studying how the Court uses its own case law as a source of law, we explore the correlation between, on the one hand, the characteristics of a CJEU case—type of action, actors involved, and area of law—and, on the other hand, the judgment's “embeddedness” in previous case law and value as a precedent in subsequent cases. Using this approach, we test, confirm, and debunk existing scholarship concerning the role of CJEU case law as a source of EU law. We offer the following conclusions: that CJEU case law cannot be treated as a single entity; that only a limited number of factors reliably affect a judgment's persuasive or precedential power; that the Court's use of its own case law as a source of law is particularly limited in successful infringement proceedings; that case law is particularly important in preliminary references—especially those concerning fundamental freedoms and competition law; and that initiating Member State and the number of observations affects the behavior of the Court.

Property and Expropriation: Two Concepts Revisited in the Light of the Case Law of the European Court of Human Rights and the European Court of Justice

2019 ◽  
Vol 8 (2) ◽  
pp. 172-191
Author(s):  
Sabrina Praduroux
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Economic Value ◽  
Case Law ◽  
European Court Of Justice ◽  
Property Law ◽  
Court Of Justice ◽  
European Court ◽  
Key Concepts ◽  
Domestic Law

Abstract In the late 1950 s René Savatier foretold that the qualification of economic value itself as property (bien) would have been the ultimate evolution of the theory of property rights. This prediction has come true with regard to the case law of the European Court of Human Rights (ECtHR) and the European Court of Justice (CJEU). This paper investigates the implications of the understanding of property developed by the two European Courts on the concept of expropriation itself as well as for the principles governing expropriation law. Hence, the paper illustrates the role played by both the ECtHR and the CJEU in laying down the parameters of legitimacy for national law, including property law. Within this context, the focus falls on cases in which the Courts characterize the facts as deprivation of property requiring for compensation, even though the relevant property could not be the object of expropriation under the domestic law of the defendant State. My contribution brings new insights into the current transformation of the traditional property categories and suggests the reinterpretation of some key concepts of expropriation law.

scholarly journals GUARANTEE OF THE RIGHT TO SILENCE AND OF THE RIGHT NOT TO CONTRIBUTE TO ONE’S OWN INCRIMINATION IN ROMANIAN CRIMINAL PROCEDURE LAW

2018 ◽  
Vol 2 (83) ◽  
pp. 25
Author(s):  
Carmen Adriana Domocos
Keyword(s):  
Freedom Of Expression ◽  
Case Law ◽  
Fair Trial ◽  
European Court Of Justice ◽  
European Convention ◽  
Criminal Offence ◽  
Court Of Justice ◽  
European Court ◽  
Right To Silence ◽  
The Right

The Romanian legislation establishes in the new penal procedure law the right to silence and the right of non-incrimination of the defendant in the criminal trial.The right to silence (to remain silent) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention on Human Rights, according to which judicial authorities cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect or a defendant to make statements, while having, however, a limited power to draw conclusions against them, from their refusal to make statements.Therefore, the right to silence involves not only the right not to testify against oneself, but also the right of the suspect or defendant not to incriminate oneself. The suspect or defendant cannot be compelled to assist in the production of evidence and cannot be sanctioned for failing to provide certain documents or other evidence. Obligation to testify against personal will, under the constraint of a fine or any other form of coercion constitutes an interference with the negative aspect of the right to freedom of expression which must be necessary in a democratic Romanian society.The right not to contribute to one’s own incrimination (the privilege against self-incrimination) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention, according to which judicial bodies or any other state authority cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect, a defendant or a witness to cooperate by providing evidence which might incriminate him or which could constitute the basis for a new criminal charge. It is essential to clarify certain issues as far as this right is concerned.

scholarly journals The European Court of Justice: What are the Limits of its Exclusive Jurisdiction?

2009 ◽  
Vol 16 (3) ◽  
pp. 291-314 ◽  
Author(s):  
Tobias Lock
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Member States ◽  
International Courts ◽  
Community Law ◽  
Exclusive Jurisdiction ◽  
Court Of Justice ◽  
European Court ◽  
Academic Discussion

The article explores the limits of the ECJ's exclusive jurisdiction by addressing two main issues: firstly, whether there are exceptions to that exclusivity, such as the application of the CILFIT case law or the exclusion of Community law from the dispute. Secondly, it asks whether other international courts must respect the ECJ's jurisdiction over a case. The article commences by briefly discussing the ECJ's exclusive jurisdiction as it was established in Opinion 1/91 and the Mox Plant-Case and draws conclusions from this case law. It then addresses the above-mentioned points and comes to the conclusion that there are generally no exceptions to the ECJ's exclusive jurisdiction and that the only option open to Member States is to exclude Community law from a dispute (and even that option is subject to limitations). Furthermore, after exploring several routes advanced in the academic discussion, the article comes to the conclusion that other courts must respect the ECJ's jurisdiction and as a consequence declare the case inadmissible.

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