Mutual Recognition, Transnational Legal Relationships and Regulatory Models

2020 ◽  
Vol 13 (1) ◽  
pp. 7-40
Author(s):  
Jorge Agudo
Keyword(s):  
Mutual Recognition ◽  
Mutual Trust ◽  
Eu Law ◽  
Conflict Of Laws ◽  
Recognition Phase ◽  
The Subject ◽  
The One ◽  
Regulatory Model ◽  
Regulatory Models ◽  
The Eu

The evolution of the EU legal system reveals a generalisation of mutual recognition variations. On the one hand, these variations are always based on the same structuring elements: mutual trust, equivalence and country-of-origin. Depending on the subject (e.g.taking into account whether harmonisation exists and the EU freedom concerned), each of these structuring elements acquires greater or lesser significance, ultimately determining the degree of conditionality or automaticity at recognition phase. On the other hand, the function of any of those variations creates the legal conditions to establish transnational legal relationships subject to different national legal orders. All these consequences are the result of two fundamental aspects: 1) The EU option by relational regulatory model which ensures the connection between equivalent national rules, using conflict of laws with special techniques. 2) The conferral of transnational effectiveness to national rules and administrative actions to allow the exercise of freedoms granted by EU law.

scholarly journals Mutual recognition in criminal matters, deprivation of liberty and the principle of proportionality

2018 ◽  
Vol 25 (6) ◽  
pp. 718-732
Author(s):  
Leandro Mancano
Keyword(s):  
Mutual Recognition ◽  
Eu Law ◽  
The European Union ◽  
Judicial Cooperation ◽  
European Arrest Warrant ◽  
Principle Of Proportionality ◽  
The One ◽  
The Right ◽  
Criminal Matters ◽  
The Eu

This paper argues that the application of mutual recognition to judicial cooperation in criminal matters within the European Union (EU) imposes a redefinition of the right to liberty to adjust the latter to the peculiarities of the Union legal order. The article emphasizes the important role that the principle of proportionality in EU law can have for improving the protection of the right to liberty. The two main scenarios of this research are analysed against the different understandings of proportionality: on the one hand, the European Arrest Warrant Framework Decision and the interpretation of the EU Court of Justice; on the other, the three Framework Decisions on transfer of prisoners, probation measures and pre trial measures alternative to detention. The conclusions reveal that, despite the increasing attention paid to proportionality in relation to the right to liberty in mutual recognition, the potential offered by EU law to better protect the right to liberty is still underexploited.

scholarly journals Trust in the Law? Mutual Recognition as a Justification to Domestic Criminal Procedure

2020 ◽  
Vol 16 (1) ◽  
pp. 33-62
Author(s):  
Jacob Öberg
Keyword(s):  
Judicial Review ◽  
Mutual Recognition ◽  
Criminal Procedure ◽  
Evidence Based ◽  
Mutual Trust ◽  
Eu Law ◽  
National Courts ◽  
Division Of Powers ◽  
European Arrest Warrant ◽  
The Eu

EU law – Mutual recognition as a justification for EU competence – EU competence in domestic criminal procedure – Test and intensity of judicial review of EU criminal law legislation – Relationship between mutual trust and mutual recognition – Federalism and division of powers between the member states and the EU – Mutual recognition as a constraint to EU action – Presumption of Innocence Directive – Victims’ Rights Directive – Exercise of EU competence in domestic criminal procedure – Justifications for EU action in criminal procedure – Evidence-based legislation in the field of criminal procedure – Mutual trust as a legal and sociological concept – National courts’ compliance with EU law – European arrest warrant

scholarly journals Territoriality Beyond the State: The EU’s Territorial Claims and the Search for Their Legitimacy

2021 ◽  
Vol 22 (4) ◽  
pp. 650-672
Author(s):  
Josef Weinzierl
Keyword(s):  
The State ◽  
Political Community ◽  
The Other ◽  
Main Question ◽  
Eu Law ◽  
European Level ◽  
Territorial Claims ◽  
The One ◽  
The Individual ◽  
The Eu

AbstractQuite a few recent ECJ judgments touch on various elements of territorial rule. Thereby, they raise the profile of the main question this Article asks: Which territorial claims does the EU make? To provide an answer, the present Article discusses and categorizes the individual elements of territoriality in the EU’s architecture. The influence of EU law on national territorial rule on the one hand and the emergence of territorial governance elements at the European level on the other provide the main pillars of the inquiry. Once combined, these features not only help to improve our understanding of the EU’s distinctly supranational conception of territoriality. What is more, the discussion raises several important legitimacy questions. As a consequence, the Article calls for the development of a theoretical model to evaluate and justify territoriality in a political community beyond the state.

JUDICIAL AND NON-JUDICIAL PROTECTION IN THE CONTEXT OF THE MULTI-LEVEL ADMINISTRATIVE SPACE OF THE EUROPEAN UNION

2021 ◽  
pp. 69-80
Author(s):  
A.V. Chetvernina
Keyword(s):  
Mutual Recognition ◽  
German Law ◽  
The European Union ◽  
Special Issue ◽  
Eu Legislation ◽  
Recognition Systems ◽  
Multi Level ◽  
Judicial Protection ◽  
Regulatory Models ◽  
The Eu

The review is based on the publications of a series of articles in a special issue of the German Law Journal (German law journal. 2021. Vol. 22, N 3). It examines the complex of judicial and non-judicial problems that arise in the complex multi-level administrative structure of the EU. The main focus is on mechanisms of horizontal and vertical administrative cooperation, as well as new regulatory models that «generate» transnational administrative acts and mutual recognition systems, as well as multi-level inspection activities carried out to ensure compliance with EU legislation.

The “Polemical” Spirit of European Constitutional Law: On the Importance of Conflicts in EU Law

2015 ◽  
Vol 16 (6) ◽  
pp. 1343-1374 ◽  
Author(s):  
Giuseppe Martinico
Keyword(s):  
Constitutional Law ◽  
The Other ◽  
Preliminary Ruling ◽  
Eu Law ◽  
Constitutional Courts ◽  
Cautious Approach ◽  
Court Of Justice ◽  
The One ◽  
The Eu

Recently, scholars have argued of the necessity of going beyond “judicial dialogues” and “conflict-and-power” approaches to the analysis of the role of national Constitutional Courts in the Union. On the one hand, there are risks connected to a “too welcoming an approach by national constitutional courts to EU law”; on the other hand, it is possible to criticize both the Court of Justice of the EU (CJEU) and some national Constitutional Courts for other, less cooperative, decisions. I share this cautious approach for many reasons, and primarily because the preliminary ruling mechanism does not exhaust all the possible means of communication between constitutional courts and the CJEU. For instance, what Komárek calls “parallel references” can serve, in some circumstances, as a technique of alternative (or hidden) dialogue, that has favored a sort of “remote dialogue” over the years. My sole point of disagreement with this scholarly position is over the role of conflicts in this scenario. Whilst Komárek seems to confine conflicts to phenomena of mere resistance or to “‘cold’ strategic considerations,” in this work I am going to adopt a much broader idea of conflict, which goes beyond mere “conflicts and power games.”

Approaches to the law applicable to proprietary effects of transactions in securities taken in uniform law: a lesson for the EU

2019 ◽  
Vol 24 (4) ◽  
pp. 711-723
Author(s):  
Michael F Müller
Keyword(s):  
Status Quo ◽  
Eu Law ◽  
The European Union ◽  
Conflict Of Laws ◽  
The Status ◽  
Uniform Solution ◽  
Uniform Law ◽  
The Hague ◽  
Securities Trading ◽  
The Eu

Abstract The modern practice of securities trading has led to almost insurmountable tensions with classical conflict-of-laws doctrine. The Hague Securities Convention set out to provide for a new and uniform solution. In a recent communication from the Commission, the topic has resurfaced on the European agenda. Against this background, this article poses the question of whether the discussion around the Convention can serve as a lesson for the European Union (EU). It is submitted that neither the status quo of EU law is satisfactory nor does the adoption of the Convention offer a fully convincing solution but that the problem should be targeted at its root: the outdated concept of some national substantive laws in intermediated securities.

Article 197 TFEU

2019 ◽  
Author(s):  
Sacha Garben
Keyword(s):  
Mutual Recognition ◽  
Legal Framework ◽  
Direct Application ◽  
Free Movement ◽  
Eu Law ◽  
Specific Mechanism ◽  
Public Authorities ◽  
Free Movement Of Goods ◽  
The Many ◽  
The Eu

The effectiveness of the many rights and obligations under EU law rests on a legal framework consisting of direct application of Treaty rules, harmonized European rules, national rules, and mutual recognition, and the task of implementing and ensuring compliance with these rules lies, in practice, with a large number of public authorities in the twenty-eight MS. In order to carry out this task, MS’ authorities need to cooperate closely, meaning that administrative cooperation is not only desirable but is required by the very nature of the EU. In the context of the free movement of goods, many circulation regimes are accompanied by their own specific mechanism of administrative cooperation.

What We Talk About When We Talk About Harmonisation

2015 ◽  
Vol 17 ◽  
pp. 360-379 ◽  
Author(s):  
Marcus KLAMERT
Keyword(s):  
Mutual Recognition ◽  
Case Law ◽  
The Other ◽  
The European Union ◽  
Tobacco Products ◽  
Court Of Justice ◽  
Full Harmonisation ◽  
Origin Principle ◽  
The One ◽  
Regulatory Models

AbstractWhen we talk about harmonisation, we may mean quite different things. There is a close, yet often unclear, relationship between minimum harmonisation and mutual recognition on the one hand, and between full harmonisation and the country of origin principle on the other hand. This paper will discuss harmonisation in relation to these other regulatory models with, among others, the Tobacco Products and Services Directives as illustrations. Moreover, many years after Tobbaco Advertising I and II it remains entirely unclear how minimum harmonisation instruments must be designed in order to be lawful. This paper proposes a consistent reading of the case law on what is called legislative minimum harmonisation based on Article 114 TFEU. It is also shown that the Court of Justice of the European Union applies a lenient standard to more stringent national measures under what is called constitutional minimum harmonisation based on competences for social policy and the environment.

Must EU Borders have Doors for Refugees? On the Compatibility of Schengen Visas and Carriers' Sanctions with EU Member States' Obligations to Provide International Protection to Refugees

2008 ◽  
Vol 10 (3) ◽  
pp. 315-364 ◽  
Author(s):  
Violeta Moreno Lax
Keyword(s):  
Geneva Convention ◽  
Eu Law ◽  
International Protection ◽  
Eu Member States ◽  
Common European Asylum System ◽  
The One ◽  
Teleological Interpretation ◽  
Physical Access ◽  
The Eu ◽  
Special Protection

AbstractWhereas the EU is developing a highly protective Common European Asylum System in purported compliance with the Geneva Convention, it is also displaying growing reluctance to provide unhindered access to it to those in need. The question of physical access to protection is ambiguously dealt with within EU law. On the one hand, it appears that entry to the Schengen zone has been designed disregarding refugees' entitlement 'to special protection'. Prior to admission, refugees seem to have been assimilated to the broader class of (potentially illegal) immigrants and thus required to submit to general immigration conditions, including visa. On the other hand, some isolated EU law rules give the impression that refugees are to be exonerated from normal admittance requirements.This article intends to show how, 'in the light of present day conditions,' a contextual, dynamic and teleological interpretation of Articles 31 and 33 of the Geneva Convention as well as of Articles 3 ECHR and 2(2) of Protocol 4 ECHR require that the second set of EU rules be appropriately furthered.

scholarly journals The Principle of Mutual Trust in EU Law and Policy

2021 ◽  
Vol 106 (6) ◽  
pp. 144-154
Author(s):  
Vadim Voynikov ◽  
Keyword(s):  
Member State ◽  
Internal Market ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
Mutual Trust ◽  
Eu Law ◽  
Law And Policy ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

Mutual trust is one of the central principles of the area of freedom, security and justice and the whole EU. Despite the fact, that mutual trust is not stipulated in founding treaties, this principle has been widely developed by the European Court of Justice. The purpose of this article is to identify the legal and political components of mutual trust in the EU, as well as the approaches to its implementation. The author comes to the conclusion that the principle of mutual trust originated from the internal market, however its development is mostly associated with the area of freedom, security and justice. Mutual trust in the EU presupposes that a member state does not need additional verification that another member state respects Union law and fundamental rights. Initially, the principle of mutual trust was given the absolute character, but in the post-Lisbon period, “blind trust” was replaced by the “earned trust”, which implies the possibility, in exceptional cases, to refuse mutual trust to another member state if the latter violates fundamental rights. Despite the development of the concept of mutual trust by the European Court of Justice and other EU institutions, recently there has been a serious deficit of interstate trust within the Union. In this regard, the principle of mutual trust is becoming declarative.

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