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Brexit and the Trade and Cooperation Agreement: Endgame or Prolegomenon? 英国脱欧与《贸易与合作协定》:终局还是前瞻?
IF 0.6 Q3 LAW Pub Date : 2021-07-01 DOI: 10.54648/euro2021011
P. Birkinshaw
On 31 December 2020 at 11.00pm after forty-eight years the United Kingdom and European Union concluded the UK departure from the EU when the Transition Period (TP) following the Withdrawal Agreement (WA) came to an end and the Trade and Cooperation Agreement (TCA) between the UK and the EU was signed. From 11pm 31 December 2020, Britain was no longer bound by EU law and the jurisdiction of the EU Court of Justice (CJEU). It had left the single market and the customs union. The UK was set loose to find its way in the world. It is quite clear that while the treaty opens a new phase in relations between ourselves and Europe there is deep uncertainty as to what the future holds in our relations with the Union. Although the relationship had frequently been turbulent it was almost unthinkable until shortly over five years ago that the UK would depart from the Union. The purpose of this article is not to revisit past reflections on the indelible influence of EU law on UK law and its legacy (See P. Birkinshaw, European Public Law: The Achievement and the Brexit Challenge (3rd ed. 2020)). It will offer an account of the TCA and its provisions, future difficulties that the TCA is likely to present as it unfolds; what returning sovereignty, and sovereignty, mean; and to offer some thoughts on the future relationship and influence of EU law on our domestic law.Path to the Trade and Cooperation Agreement (TCA), the TCA, Contents, Consequences, Sovereignty, Future influence of EU law in UK
2020年12月31日晚上11点,经过48年的脱欧协议(WA)之后的过渡期(TP)结束,英国和欧盟之间的贸易与合作协议(TCA)签署,英国和欧盟结束了英国脱离欧盟。从2020年12月31日晚上11点起,英国不再受欧盟法律和欧盟法院(CJEU)管辖权的约束。英国退出了单一市场和关税同盟。英国被释放出来,在世界上寻找自己的道路。很明显,虽然该条约开启了我们与欧洲关系的新阶段,但我们与欧盟关系的未来仍存在很大的不确定性。尽管两国关系经常动荡不安,但直到5年前不久,英国将脱离欧盟的想法几乎是不可想象的。本文的目的不是回顾过去对欧盟法律对英国法律及其遗产的不可磨灭影响的反思(见P. Birkinshaw,欧洲公法:成就和英国脱欧挑战(2020年第3版))。它将提供TCA及其条款的说明,TCA在发展过程中可能出现的未来困难;回归主权和主权意味着什么?并就未来欧盟法与我国国内法的关系及影响提出一些思考。贸易与合作协定(TCA)之路,TCA,内容,后果,主权,欧盟法律对英国未来的影响
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引用次数: 0
Revisiting the EU Legal System: Substantive & Procedural Loyalty for the Judicial Enforcement of the Rule of Law 重新审视欧盟法律体系:法治司法执行的实体与程序忠诚
IF 0.6 Q3 LAW Pub Date : 2021-07-01 DOI: 10.54648/euro2021017
Panagiotis Zinonos
Aiming to foster reflection on the role of the EU regarding the enforcement of the rule of law, this essay revisits, in a normative fashion, the Union’s legal system with references to recent and established case law and literature. It understands the judicial enforcement of the rule of law as a synonym of effective judicial protection and analyses the pluralistic system of the Union as being overarched by loyalty. It then introduces three specific components of the rule of law related to its judicial enforcement. The first concerns its material aspect: the standards of protection of rights and principles. The contribution opines that the systemic analysis of the Union excludes conflicts of standards. The second component refers to judicial control. It is argued that the related structural obligations of the Member States are enforceable by individual claims grounded on a self-standing right. The last component is organic and relates to the judge. The contribution posits that the national judge is empowered by her European mandate to enforcing the rule of law. While the technique of exceptional circumstances as part of the mechanism of the European arrest warrant confirms this position, cases of constitutional conflicts suggest the procedural deficiency.EU legal system, rule of law, effective judicial protection, judicial enforcement of the rule of law, multidimensional legal system, substantive loyalty, standards of protection, procedural loyalty, duties of the Member States, individual claims, European mandate of the national judge, judicial cooperation, preliminary ruling, exceptional circumstances, constitutional conflicts
为了促进对欧盟在实施法治方面的作用的反思,本文参考了最近和现有的判例法和文献,以规范的方式重新审视了欧盟的法律体系。它将法治的司法执行理解为有效司法保护的同义词,并将联邦的多元化制度分析为被忠诚过度统治。然后介绍了与司法执行有关的法治的三个具体组成部分。第一个涉及其物质方面:保护权利和原则的标准。该贡献认为,对欧盟的系统分析排除了标准冲突。第二部分涉及司法控制。有人认为,会员国的相关结构义务可通过基于自立权利的个人索赔强制执行。最后一个组成部分是有机的,与法官有关。该贡献假设,国家法官根据其欧洲授权,有权执行法治。虽然作为欧洲逮捕令机制一部分的特殊情况技术证实了这一立场,但宪法冲突的案例表明了程序上的缺陷。欧盟法律体系、法治、有效的司法保护、法治的司法执行、多层面的法律体系、实质忠诚、保护标准、程序忠诚、成员国的义务、个人索赔、国家法官的欧洲授权、司法合作、初步裁决、特殊情况、宪法冲突
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引用次数: 0
The ‘Weakening’ of the Duty to Give Reasons in Italy: An Isolated Case or a European Trend? 意大利“弱化”理由义务:个案还是欧洲趋势?
IF 0.6 Q3 LAW Pub Date : 2021-03-01 DOI: 10.54648/euro2021002
M. Delsignore, M. Ramajoli
Despite the importance formally attached to the principle, the Italian legal system is witnessing a progressive ‘weakening’ of the duty to give reasons. This weakening process seems problematic from the perspective of the respect of the rule of law and effective judicial protection of individuals vis-à-vis the administrative action. This phenomenon though is not specific of the only Italian legal system. The analysis of European Law and of the provisions in selected Member States have shown the weakening of the duty to give reasons can be considered a widespread issue.duty to give reasons, administrative measure, participation, administrative procedure
尽管该原则在形式上受到重视,但意大利法律体系正在逐渐“削弱”提供理由的义务。从尊重法治和针对行政行动对个人的有效司法保护的角度来看,这种削弱过程似乎存在问题。然而,这种现象并不是意大利唯一的法律体系所特有的。对欧洲法律和选定成员国条款的分析表明,削弱说明理由的义务可以被视为一个普遍的问题
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引用次数: 0
The Bundesverfassungsgericht’s Glaring and Deliberate Breaches of EU Law Based on ‘Unintelligible’ and ‘Arbitrary’ Grounds 德国联邦议院基于“难以理解的”和“武断的”理由公然和故意违反欧盟法律
IF 0.6 Q3 LAW Pub Date : 2021-03-01 DOI: 10.54648/euro2021004
J. Ziller, D. Galetta
The authors believe that the judgment of the German Federal Constitutional Court contains serious breaches of EU law and is manifestly erroneous. The German judges refuse to apply the CJEU’s judgment and arrogate the power to assess the legality of European Central Bank (ECB) decisions and to review the reasoning of the CJEU, which they qualify as being ‘unintelligible and arbitrary’ for the sole purpose of declaring it ‘ultra vires’. They use the principle of proportionality in a legally incorrect way, ignoring the difference in scope between the latter and the principle of conferral. They make highly questionable use of the principle of democracy and of economic analysis to assess the merits of ECB decisions. A careful analysis of the judgment leads us to wish for the initiation of an infringement procedure.Breach of EU law by the judiciary conferral, democratic principle, dialogue between courts, EU competences, infringement procedure, manifest error, primacy, proportionality, ultravires
作者认为,德国联邦宪法法院的判决严重违反了欧盟法律,显然是错误的。德国法官拒绝适用欧洲法院的判决,并滥用权力来评估欧洲中央银行(ECB)决定的合法性,并审查欧洲法院的推理,他们认为欧洲法院的推理是“难以理解和武断的”,唯一的目的是宣布其“越权”。他们在法律上错误地运用了比例原则,忽视了比例原则与授予原则在范围上的区别。他们利用民主原则和经济分析来评估欧洲央行决策的优点,这一点非常值得怀疑。对判决书的仔细分析使我们希望启动侵权程序。司法授予对欧盟法律的违反,民主原则,法院之间的对话,欧盟权限,侵权程序,明显错误,首要性,比例性,越权性
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引用次数: 0
Book Review: Le Futur Du Droit Administratif: The Future of Administrative Law, Jean-Bernard Auby, Émile Chevalier & Emmanuel Slautsky eds. Paris: SciencesPo & LexisNexis. 2019 书评:《未来的行政权利:行政法的未来》,让-伯纳德·奥比,Émile Chevalier & Emmanuel Slautsky编。巴黎:SciencesPo & LexisNexis。2019
IF 0.6 Q3 LAW Pub Date : 2021-03-01 DOI: 10.54648/euro2021010
J. Handrlica
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引用次数: 0
Challenging Administrative Sovereignty: Dimensions of Independence of National Regulatory Authorities Under the EU Law 挑战行政主权:欧盟法律下国家监管机构独立性的维度
IF 0.6 Q3 LAW Pub Date : 2021-03-01 DOI: 10.54648/euro2021008
Dawid Sześciło
The EU standards on independence of national regulatory authorities (NRAs) expanded significantly over the past two decades, including the most recent legislative developments relating to competition authorities and regulators in the sectors of audiovisual media and electronic communications. They appear to gradually challenge the principle of administrative sovereignty enabling the Member States to shape their administrative structures autonomously. The major aim of this article is to investigate the concept of independence, established in various acts of the EU law with regard to NRAs. In particular, the main attributes of ‘EU-made national independent authorities’ are explored, as well as the limitations of their autonomy deemed legitimate under the EU legislation. After reconstruction of the phenomenon of independent regulatory authorities, the paper reviews the EU standards on their independence. It then discusses similarities, differences and inconsistencies in interpreting the overarching principle of independence across various areas of the EU legislation, considering also additional guidelines stemming from the CJEU’s case law. Finally, the paper provides a summary of the main attributes of administrative independence guaranteed by the EU law to national regulators and analyses to what extent they pose a challenge to the principle of administrative sovereignty of the Member States.national regulatory authorities, administrative independence, administrative sovereignty
欧盟关于国家监管机构(NRAs)独立性的标准在过去二十年中得到了显著扩展,包括与视听媒体和电子通信部门的竞争当局和监管机构有关的最新立法发展。它们似乎逐渐挑战使会员国能够自主地形成其行政结构的行政主权原则。本文的主要目的是探讨独立性的概念,建立在欧盟法律的各种行为有关nra。特别是,“欧盟制造的国家独立当局”的主要属性进行了探讨,以及他们的自治被认为是合法的欧盟立法的限制。在对监管机构独立现象进行重构后,本文对欧盟标准的独立性进行了回顾。然后讨论在解释欧盟立法的各个领域的总体独立原则时的相似、差异和不一致之处,并考虑来自欧洲法院判例法的额外指导方针。最后,本文总结了欧盟法律保障的国家监管机构行政独立的主要属性,并分析了它们在多大程度上对成员国行政主权原则构成了挑战。国家监管机构,行政独立,行政主权
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引用次数: 0
Book Review: Member State Interests And European Union Law: Revisiting The Foundations Of Member State Obligations, By Márton Varju Ed. London And New York: Routledge. 2019 书评:《成员国利益与欧盟法律:重新审视成员国义务的基础》,Márton Varju Ed.伦敦和纽约:劳特利奇。2019
IF 0.6 Q3 LAW Pub Date : 2021-03-01 DOI: 10.54648/euro2021009
Viktor Szép
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引用次数: 0
The Role of the Constitutional Courts in the European Judicial Network 宪法法院在欧洲司法网络中的作用
IF 0.6 Q3 LAW Pub Date : 2021-03-01 DOI: 10.54648/euro2021003
P. Huber, Christoph Grabenwarter, R. Knez, Ineta Ziemele
The constitutional courts play a paramount role within the European judicial area and form a specific branch of the judicial network, including the Court of Justice of the European Union (CJEU) and the European Court of Human Rights. Within the European Union (EU) with its specific compound structure, in which national legal orders and Union law reciprocally influence, complement, determine and affect each other, national constitutional courts and the CJEU are not only assigned with the common task to enforce EU law, but also to preserve its limits, first and foremost the principle of conferral and the constitutional identities of the Member States. The respect for these limits is an essential prerequisite for the Member State’s participation in the EU and repeatedly enshrined in the Treaties. In order to be able to fulfil this common tasks all sides need to engage in sincere cooperation and a dialectic process, the potential of which must not be curtailed by hierarchical perceptions.Whereas the national (constitutional) courts are obliged to respect the CJEU’s authority to ultimately decide on the interpretation of EU law in principle, it is the CJEU’s obligation to take their referrals seriously and thoroughly adress concerns brought forward. The constitutional courts of the Member States are assigned with the constitutional responsibility to accompany the process of European integration in order to ensure that sovereign rights are only transferred in line with the respective provisions as well as that the excercise of competences respects the limits laid down in the Treaties and does not interfere with the constitutional identities of theMember States. It is of course again for the CJEU to review whether EU institutions, bodies, offices, and agencies act within their mandate in the first place including a quite large tolerance for different interpretations. To the extend the CJEU, however, fails to assume this responsibility, it is for the constitutional courts of the Member States to step in. The desirable success of the European integration largely depends on an orderly, sustainable and generally accepted process in the long run to which the network of constitutional courts can make a decisive contribution, provided it is designed and lived as a true cooperation among equals. In this regard it is not only necessary to intensify the joint efforts, but also to evaluate possibilities to enhance the involvement of the national courts, in particular the establishment of a reverse preliminary ruling procedure.duty to give reasons, administrative measure, participation, administrative procedure
宪法法院在欧洲司法领域内发挥着最重要的作用,并形成司法网络的一个具体分支,包括欧洲联盟法院(欧洲法院)和欧洲人权法院。在国家法律秩序和联盟法律相互影响、补充、决定和影响的特殊复合结构的欧洲联盟(EU)内,国家宪法法院和欧洲法院不仅被赋予执行欧盟法律的共同任务,而且还要维护其局限性,首先是授予原则和成员国的宪法身份。尊重这些限制是成员国参加欧盟的基本先决条件,并一再载入条约。为了能够完成这一共同任务,所有各方都需要进行真诚的合作和辩证法进程,其潜力绝不能因等级观念而受到限制。虽然国家(宪法)法院有义务尊重欧洲法院在原则上最终决定欧盟法律解释的权力,但欧洲法院有义务认真对待他们的移交,并彻底解决提出的关切。成员国的宪法法院被赋予伴随欧洲一体化进程的宪法责任,以确保主权权利仅在符合各自规定的情况下转移,以及行使权限尊重条约规定的限制,不干涉成员国的宪法身份。当然,CJEU首先要审查欧盟机构、机构、办公室和机构是否在其授权范围内行事,包括对不同解释的相当大的容忍。然而,如果欧洲法院未能承担这一责任,则应由各成员国的宪法法院介入。欧洲一体化的理想成功在很大程度上取决于一个有序、可持续和普遍接受的长期进程,宪法法院网络可以对此作出决定性的贡献,只要它是作为平等之间的真正合作来设计和运作的。在这方面,不仅需要加强联合努力,而且还需要评估加强国家法院参与的可能性,特别是建立反向初步裁决程序。说明理由的义务、行政措施、参与、行政程序
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引用次数: 2
European Court of Human Rights: May 2019-April 2020 欧洲人权法院:2019年5月至2020年4月
IF 0.6 Q3 LAW Pub Date : 2021-03-01 DOI: 10.54648/euro2021001
A. Mowbray
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引用次数: 0
The GDPR and Processing of Personal Data for Research Purposes: What About Case Law? GDPR和出于研究目的的个人数据处理:判例法如何?
IF 0.6 Q3 LAW Pub Date : 2021-03-01 DOI: 10.54648/euro2021007
J. Reichel
Case law regularly includes personal data on identifiable persons, often of a rather sensitive nature. This makes the EU General Data Protection Regulation (GDPR) relevant. However, the processing of personal data in case law has until recently not been questioned from the point of view of data protection of the individuals concerned. The Court of Justice of the European Union has taken steps ensure such protection for individuals appearing before the courts. Sweden has chosen another path. As transparency is a highly treasured in Sweden, including transparency in the judiciary, restricting access to the full verdict is sensitive. Instead, the processing of personal data has been restricted in a certain areas, such as research. In order to fulfill the requirements for an ‘appropriate safeguard’ under Article 89 GDPR, an ethical approval is needed for all research on specific categories of sensitive personal data, with no exception for publicly-available official documents like case law. The question posed is how the interest in protection of personal data retrieved from case law can be reconciled with the interest in transparency of the judicial process. It is concluded that even though requirements for an ethical approval of legal research hardly can be seen as a relevant ‘appropriate safeguard’, it cannot be denied that there is a legitimate interest of identifiable persons in case law to have their rights in personal data at least considered. Courts should therefore be stronger in elucidating when and why transparency is of overriding importance, and when and why data protection and the interest of secrecy should prevail.Data protection, transparency, case law, official documents, secrecy, sensitive data, research exception, appropriate safeguard, ethical approval
判例法经常包括可识别人员的个人数据,这些数据往往具有相当敏感的性质。这使得《欧盟通用数据保护条例》(GDPR)具有相关性。然而,直到最近,从保护有关个人数据的角度来看,判例法中对个人数据的处理一直没有受到质疑。欧洲联盟法院已采取措施,确保对出庭的个人提供这种保护。瑞典选择了另一条道路。由于透明度在瑞典备受珍视,包括司法部门的透明度,限制获得完整判决是敏感的。相反,个人数据的处理在某些领域受到了限制,比如研究。为了满足《通用数据保护条例》第89条规定的“适当保障”要求,对特定类别的敏感个人数据的所有研究都需要获得道德批准,判例法等公开的官方文件也不例外。提出的问题是,如何将保护从判例法中检索到的个人数据的利益与司法程序透明度的利益相协调。结论是,尽管法律研究的伦理批准要求很难被视为相关的“适当保障”,但不能否认,在判例法中,至少考虑到可识别人员在个人数据方面的权利是符合其合法利益的。因此,法院应更有力地阐明何时以及为什么透明度具有压倒一切的重要性,以及何时以及为什么数据保护和保密利益应占上风。数据保护、透明度、判例法、官方文件、保密、敏感数据、研究例外、适当保障、道德审批
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引用次数: 0
期刊
European Public Law
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