Analysing European investment protection law, Matthias Leeb focuses on the resulting legal protection deficits for investors and provides concrete recommendations for dealing with them. In ...particular, he examines recent decisions of the ECJ on intra-EU investment protection agreements - Achmea, Komstroy, PL-Holdings and European Food SA, among others - and takes a critical look at them and their effects. Furthermore, the author addresses the EU's intended reform of investment protection in relation to third countries, taking into account current developments in the context of the Energy Charter Treaty (ECT).
Ultra vires review is first and foremost a structural question of the division of competences between the European Union and the Member States. The doctrine developed around this control takes into ...account both the case law of the Court of Justice of the European Union and the case law of the national Constitutional Courts in relation to the direct effect and priority of the European Union law, the subsequent extensions of the Court of Justice as positive legislator, general principles of law, as well as the rule of law and judicial independence, and the principle of loyal cooperation of the institutions. On the basis of these aspects we will be able to assess to what extent the exercise of this ultra vires review is constructive or destructive. In this study, we started from the assumption that the analysis of this ultra vires review represents a constructive way in the discourse of the European Union construction. The ultra vires argument, in an outdated reading of the integration process, based on a hierarchical view of normative interactions, could be considered as limiting and challenging the primacy of EU law, but in a constructivist reading of the relationship between legal systems, these limits are reinforced and allow a renewed form of integration, induced by constitutional equivalence.
El reconocimiento y alcance del derecho de acceso a la información pública ha seguido sendas distintas en el contexto del Consejo de Europa y en el ámbito de la Unión Europea, si bien, en ambos ...casos, su interpretación se encuentra inevitablemente vinculada a la jurisprudencia del Tribunal Europeo de Derechos Humanos y del Tribunal de Justicia de la Unión Europea, respectivamente. En este artículo se analizan las sentencias más significativas —incluyendo algunas muy recientes— en las que ambos órganos judiciales han tenido la oportunidad de pronunciarse delimitando la configuración y los límites al ejercicio del derecho, así como su carácter iusfundamental. El resultado es un derecho de acceso a la información pública cuyo régimen jurídico presenta singularidades propias según se trate del sistema del CEDH o del Derecho de la Unión Europea, pero también ciertas similitudes que, analizadas de forma conjunta, permiten constatar una tendencia jurisprudencial compartida orientada a ampliar el alcance de este derecho.
O viver em estado constante de crise e a ausência do poder resolutivo estatal podem ser compreendidos como consequências diretas do enfraquecimento do Estado Social e da dissociação entre as ...tradicionais características estatais de poder e política. O judiciário surge como último refugio da coerção e como aquele capaz de delimitar os efeitos sociais das crises contemporâneas. Este trabalho objetiva analisar a experiência portuguesa de jurisprudência da crise, identificar críticas ao Tribunal Constitucional português e compreender possibilidades da utilização da crise na fundamentação decisoria pela justiça constitucional brasileira. Foram utilizadas as metodologías bibliográfica e documental (jurisprudência) e o método dedutivo.
Article 69 (1) of the Labour Code transposing the provisions of Article 2 (1) of Council Directive 98/59/CE of 20 July 1998 on the approximation of the laws of the Member States relating to ...collective redundancies provides that the employer has the obligation to initiate, in due time and with the aim of reaching an agreement, under the conditions provided by law, consultations with the trade union or, as the case may be, with the representatives of the employees. In the absence of union or non-union workers' representatives within the unit, the Romanian law does not impose on the employer the obligation to carry out the information and individual consultation of the workers affected by the envisaged collective dismissal. The recent case law of the Court of Justice of the European Union reveals that Directive 98/59/EC does not oppose to such a national regulation which does not provide an obligation for the employer to individually consult the workers affected by an envisaged collective dismissal, when these workers have not designated workers' representatives, and which does not compel the mentioned workers to make such a designation. According to Directive 98/59/EC, the Member States have, nevertheless, the obligation to adopt all the measures useful for the appointment of representatives of the workers and to ensure that the workers are not in a situation where, for reasons independent of their will, they are prevented from appointing these representatives. The study highlights that the national legislation that regulates the appointment of the workers' representatives does not guarantee the full effect of the Directive 98/59/EC, on the one hand, because it places the initiative of appointing the representatives exclusively on the workers, who are the vulnerable part of the employment relationship, and, on the other hand, because mandatory, permanent forms of workers' representation are not established at unit level, as it is the case in other European legal systems. De lege ferenda, it is proposed either to impose on the employer the legal obligation to inform the workers about the need to appoint their representatives, giving them a reasonable term in this regard, depending on the circumstances, or to regulate a mandatory form of representation of workers within the unit, which should allow the unitary support of the interests of all workers affected by the collective dismissal.
When drafting the Principles of European Tort Law (PETL), the members of the European Group on Tort Law decided to omit wrongfulness as a specific requirement for civil liability, considering it as a ...concept underlying the notions of interference with legally protected interests and the standard of conduct. This paper tends to demonstrate that this terminological and conceptual choice is still valid eighteen years after the publication of the PETL. On the basis of two case studies examined under German and French law, it is suggested that national traditions are too disparate to adopt a common understanding of what wrongfulness exactly means to a tort lawyer in Europe. The irreconcilability of the different interpretations becomes particularly apparent in mixed tort law systems, such as Japan or Belgium, where the French and the German approach struggle to coexist.
The European Tort Law Yearbooks of the European Centre of Tort and Insurance Law (ECTIL) and the Institute for European Tort Law (ETL) provide some references to the impact of the PETL on European ...national legislation and case law, but, on the one hand, national reporters, carried away by enthusiasm, may make some comparisons with the PETL that legislators and courts did not even think of, and on the other, bored by sheer repetition, may oversee references to the PETL when they start to become usual or common.With all these caveats, this paper will refer first to some cases where the impact of the PETL on legislation seems clear and will deal afterwards with the impact of the PETL in the case law of the European Court of Human Rights (ECtHR) and national courts.
Abstract
It is rather trendy to talk about the ‘horizontal effect’ of fundamental rights in a society where the dividing line between public and private power is increasingly blurred. However, as ...soon as one tries to define the exact meaning of horizontal effect and its conditions, several issues swiftly arise. This article explores the past, the present, and the future of the horizontal direct effect in the European Union (EU) legal order, by focusing on the application of this doctrine to the fundamental labour rights today protected in the Charter of fundamental rights. Most notably, with the approaching of the fifth birthday of Bauer and Max-Planck, by looking at the case of the fundamental right to paid annual leave under Article 31(2) of the Charter, this article aims at unravelling the actual meaning of the conditions for the horizontal direct effect of the EU fundamental rights and the actual perimeter of this direct effect. Although the effectiveness of minimum labour rights mandatorily enhanced by this case law should be welcomed, it is argued that the doctrine of the horizontal direct effect of EU fundamental rights seems still stuck between being a proper constitutional doctrine and a mere type of direct effect. It is also claimed, first, that horizontal direct effect is not a unitary phenomenon in EU law. In spite of the continuity in the ECJ’s technical reasoning, there is indeed a striking contrast between the language of ‘perfect equalisation’ of the Charter to the treaties and its actual approach to the assessment of the horizontal direct effect of fundamental (labour) rights. The ECJ’s case law analysis on the fundamental right to paid annual leave will prove this point. Secondly, it is suggested that horizontal direct effect can be defined as a sui generis, on-call, subsidiary, corollary, and ‘amputee’ doctrine, and we will offer some considerations on each of these features by reference to the Court’s practice under investigation. Thirdly, we suggest that the horizontal direct effect of fundamental (labour) rights relies more on the history and trajectory of the EU regulation of that specific right in the EU legal order rather than on the wording of the Charter’s provision or other technicalities.
Discrimination by association is a concept that, while not expressly regulated by the European Union law, has been enshrined in the case law of the Court of Justice of the European Union. It allows ...the extension of the legal protection provided by the antidiscrimination legislation of the European Union to persons who, although they do not belong to the protected categories due to the reasons of discrimination envisaged (racial and ethnic origin, religion or belief, disability, age and sexual orientation), undergo less favorable treatment or certain disadvantages as a result of the links ("association") with a protected category. In Romania, discrimination by association is not consecrated at the legislative level, but in recent years two legislative initiatives (still unfinished) have been promoted in order to regulate it. In this context, the article aims to analyze the scope of discrimination by association, starting from the European legal framework in the field of non-discrimination and from the interpretative case law of the Court of Justice of the European Union. The main landmarks of the Court's case law and its possible implications at national level are identified. At the same time, by making a brief inroad into domestic law in combating discrimination, the paper concludes that, although there are certain obstacles, national law can be interpreted to include discrimination by association. Therefore, although a legislative consecration of discrimination by association is preferable, it should be done with a degree of caution given the possible implications and persistence of certain ambiguities in the relevant European case law.
The number of cases concerning the abusive clauses inserted in banking contracts, trialed in front of the national courts, is a considerable one. It seems like the compliance of the national ...regulations with the provisions of Directive 93/13 / EEC on 5 April 1993 on unfair terms in consumer contracts, is a difficult process. The purpose of the present study is to observe the current state of the alignment of the national legislation and jurisprudence to the European tendencies in the matter. In particular, we are interested in the admissibility of invoking abusive clauses in the process of a contestation of an execution, since the national case law is not unitary in this regard. Even in theory, opinions are divided. On June 26, 2019, the European Court of Justice expressed its opinion on this matter, in the cause C407/18, the case of Aleş Kuhar, Jožef Kuhar v Addiko Bank d.d. At the end of the study, we aim to point out the main directions set at European level that must be followed by the national legislation and case law of a Member State.
