Annotation of Case C-56/13 Ersekcsanadi Mezőgazdasagi Zrt v Bacs-Kiskun Megyei Kormanyhivatal (Court of Justice, 22 May 2014) In May 2014, the Court of Justice delivered a judgment in which a Hungarian concern unsuccessfully sought damages from the Hungarian authorities for economic loss caused to it by an EU ban, prompted by an outbreak of avian flu. In this annotation, the author submits that the decision is important for two reasons. Firstly, it is important in the way that it sheds light on the interpretation to be given to Article 51(1) of the Charter, and reveals more of the Court’s jurisdictional teething problems where the Charter is concerned. However, secondly, it is important in its problematic reading, or possible misreading, of Article 17 of the Charter on the right to property, and particularly the issue of fair compensation, guaranteed by that provision. The author contends that there is a right to compensation, at EU level, where property is controlled by a Member State in implementation of EU law.
C-56/13 Ersekcsanadi Mezőgazdasagi Zrt诉Bacs-Kiskun Megyei Kormanyhivatal案注释(法院，2014年5月22日)2014年5月，法院作出一项判决，其中一家匈牙利企业要求匈牙利当局赔偿因禽流感爆发引发的欧盟禁令给其造成的经济损失，但未能成功。在这一注释中，发件人指出，该决定之所以重要，有两个原因。首先，重要的是它阐明了对《宪章》第51条第1款的解释，并更多地揭示了法院在涉及《宪章》方面的管辖权初期问题。然而，第二，重要的是对《宪章》关于财产权的第17条的有问题的解读或可能的误读，特别是对该条款所保证的公平赔偿问题的解读。发件人认为，在欧盟一级，如果财产由成员国在执行欧盟法律时控制，则有获得赔偿的权利。
{"title":"Comment on Érsekcsanádi Mezőgazdasági","authors":"Richard Lang","doi":"10.2139/SSRN.2710205","DOIUrl":"https://doi.org/10.2139/SSRN.2710205","url":null,"abstract":"Annotation of Case C-56/13 Ersekcsanadi Mezőgazdasagi Zrt v Bacs-Kiskun Megyei Kormanyhivatal (Court of Justice, 22 May 2014) In May 2014, the Court of Justice delivered a judgment in which a Hungarian concern unsuccessfully sought damages from the Hungarian authorities for economic loss caused to it by an EU ban, prompted by an outbreak of avian flu. In this annotation, the author submits that the decision is important for two reasons. Firstly, it is important in the way that it sheds light on the interpretation to be given to Article 51(1) of the Charter, and reveals more of the Court’s jurisdictional teething problems where the Charter is concerned. However, secondly, it is important in its problematic reading, or possible misreading, of Article 17 of the Charter on the right to property, and particularly the issue of fair compensation, guaranteed by that provision. The author contends that there is a right to compensation, at EU level, where property is controlled by a Member State in implementation of EU law.","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2014-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2710205","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68265929","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
How does the Court of Justice reason? What interpretative techniques is it using to arrive at its conclusions? In itself, this topic may appear somewhat theoretical and dry. However, if coupled with the issue of judicial legitimacy and normative debate about the 'proper' way for a court to reason, a heated debate ignites quickly amongst all lawyers, not just a few jurisprudential devotees. Perhaps as a sign of the times, both issues, judicial reasoning and the legitimacy of the Court of Justice, are coming to the fore (again). This review essay critically examines a recent addition to the debate: Gunnar Beck’s 'The Legal Reasoning of the Court of Justice of the EU'. First, by the way of introduction, the main threads of the past debates on the judicial method in the Court are recalled. Second, the key arguments of the reviewed book are outlined with a few critical reflections added. Third, some broader reflections on the debates on judicial method of the Court are offered, zooming in on one or perhaps the recurring question in particular: the pro-Union interpretative tendency in the reasoning of the Court and its limits.
{"title":"Legal Reasoning of the Court of Justice of the EU","authors":"M. Bobek","doi":"10.5040/9781472566324","DOIUrl":"https://doi.org/10.5040/9781472566324","url":null,"abstract":"How does the Court of Justice reason? What interpretative techniques is it using to arrive at its conclusions? In itself, this topic may appear somewhat theoretical and dry. However, if coupled with the issue of judicial legitimacy and normative debate about the 'proper' way for a court to reason, a heated debate ignites quickly amongst all lawyers, not just a few jurisprudential devotees. Perhaps as a sign of the times, both issues, judicial reasoning and the legitimacy of the Court of Justice, are coming to the fore (again). This review essay critically examines a recent addition to the debate: Gunnar Beck’s 'The Legal Reasoning of the Court of Justice of the EU'. First, by the way of introduction, the main threads of the past debates on the judicial method in the Court are recalled. Second, the key arguments of the reviewed book are outlined with a few critical reflections added. Third, some broader reflections on the debates on judicial method of the Court are offered, zooming in on one or perhaps the recurring question in particular: the pro-Union interpretative tendency in the reasoning of the Court and its limits.","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2014-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70517620","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2014-01-01DOI: 10.1007/978-90-6704-939-9_7
S. Weatherill
{"title":"The Helsinki Report on Sport","authors":"S. Weatherill","doi":"10.1007/978-90-6704-939-9_7","DOIUrl":"https://doi.org/10.1007/978-90-6704-939-9_7","url":null,"abstract":"","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"51464987","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Using public procurement as a case study, this article considers how the European Court of Justice’s use of general principles to supplement existing secondary law obligations affects Member States in their design of national regulatory systems. It finds that the EU legislature and the Court appear to be pushing for different levels of market integration, to the displeasure of the Member States evaluated in this case study. Moreover, the Court’s use of the general principles as a regulatory approach has left the Member States with substantial legal uncertainty that they do not seem to be able to eliminate with national legislation or guidance. The article concludes that further revision to secondary legislation in this area will not result in a simplified EU public procurement policy unless the Court’s case law is somehow addressed in such a revision.
{"title":"The limits of General Principles: a procurement case study","authors":"Sylvia de Mars","doi":"10.2139/SSRN.2294010","DOIUrl":"https://doi.org/10.2139/SSRN.2294010","url":null,"abstract":"Using public procurement as a case study, this article considers how the European Court of Justice’s use of general principles to supplement existing secondary law obligations affects Member States in their design of national regulatory systems. It finds that the EU legislature and the Court appear to be pushing for different levels of market integration, to the displeasure of the Member States evaluated in this case study. Moreover, the Court’s use of the general principles as a regulatory approach has left the Member States with substantial legal uncertainty that they do not seem to be able to eliminate with national legislation or guidance. The article concludes that further revision to secondary legislation in this area will not result in a simplified EU public procurement policy unless the Court’s case law is somehow addressed in such a revision.","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2013-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2294010","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68072847","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The author outlines recent developments as to the operation of the European arrest warrant before the Irish Supreme Court. The European Arrest Warrant Act, 2003 includes a far-reaching obligation to refuse surrender where a breach of fundamental rights has occurred, one that has been read down dramatically by the Irish courts. While the Irish courts cannot access the Court of Justice pursuant to Article 35 EU, they have employed the Pupino decision so as to “bridge the gap” and provide judicial protection. The effectiveness of the Supreme Court as a Third Pillar guardian of fundamental rights is thus considered.
{"title":"How to Be a Third Pillar Guardian of Fundamental Rights? The Irish Supreme Court and the European Arrest Warrant","authors":"E. Fahey","doi":"10.2139/SSRN.1788282","DOIUrl":"https://doi.org/10.2139/SSRN.1788282","url":null,"abstract":"The author outlines recent developments as to the operation of the European arrest warrant before the Irish Supreme Court. The European Arrest Warrant Act, 2003 includes a far-reaching obligation to refuse surrender where a breach of fundamental rights has occurred, one that has been read down dramatically by the Irish courts. While the Irish courts cannot access the Court of Justice pursuant to Article 35 EU, they have employed the Pupino decision so as to “bridge the gap” and provide judicial protection. The effectiveness of the Supreme Court as a Third Pillar guardian of fundamental rights is thus considered.","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2011-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67745239","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2009-08-01DOI: 10.1163/ej.9789004154599.i-0
H. Vedder
{"title":"Review [Bespreking van het boek The Regulation of Gambling- European and National Perspectives]","authors":"H. Vedder","doi":"10.1163/ej.9789004154599.i-0","DOIUrl":"https://doi.org/10.1163/ej.9789004154599.i-0","url":null,"abstract":"","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2009-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64586029","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2009-04-01DOI: 10.4324/9781315553474-17
Jon Yorke
This article investigates the prima facie paradox of the endorsement of the death penalty in Art.2(1) of the European Convention of Human Rights, with the “abolition” of the punishment provided by Protocol No.6 and Protocol No.13. It will analyse the evolution of the Council of Europe’s abolitionist discourse which led to this juxtaposition, and identify whether there are unified or heterogeneous approaches to the punishment by the Committee of Ministers, the Parliamentary Assembly, and the judicial organs of the Commission and Court. What emerges is a conflict between the radical expansion of the boundaries of human rights by the Assembly, with the Committee’s demonstration that the shadow of state sovereignty constantly attempts to thwart the progress. Consequently, the Court has bowed to the need for Member State acceptance of provisions for amendment of Art.2(1) and has not applied any purposive application of the “living instrument” doctrine. However, the gradual solidification of the Council’s abolitionist position has produced the possibility of legislative abolition through the Protocols, but the text of Art.2(1) remains. So is the death penalty abolished or not? As contemporary practice within Member States affirms that it is, is textual amendment now a moot issue?
{"title":"The right to life and abolition of the death penalty in the Council of Europe","authors":"Jon Yorke","doi":"10.4324/9781315553474-17","DOIUrl":"https://doi.org/10.4324/9781315553474-17","url":null,"abstract":"This article investigates the prima facie paradox of the endorsement of the death penalty in Art.2(1) of the European Convention of Human Rights, with the “abolition” \u0000of the punishment provided by Protocol No.6 and Protocol No.13. It will analyse the evolution of the Council of Europe’s abolitionist discourse which led to this \u0000juxtaposition, and identify whether there are unified or heterogeneous approaches to the punishment by the Committee of Ministers, the Parliamentary Assembly, and \u0000the judicial organs of the Commission and Court. What emerges is a conflict between the radical expansion of the boundaries of human rights by the Assembly, with the \u0000Committee’s demonstration that the shadow of state sovereignty constantly attempts to thwart the progress. Consequently, the Court has bowed to the need for Member State acceptance of provisions for amendment of Art.2(1) and has not applied any purposive application of the “living instrument” doctrine. However, the gradual \u0000solidification of the Council’s abolitionist position has produced the possibility of legislative abolition through the Protocols, but the text of Art.2(1) remains. So is \u0000the death penalty abolished or not? As contemporary practice within Member States affirms that it is, is textual amendment now a moot issue?","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2009-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70649312","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Directive 2001/29 (the EU Copyright Directive) aims to repress copyright infringement in the digital environment through the harmonisation of copyright discipline and the safeguard of technological protection measures (TPMs). It claims that this harmonisation is instrumental to the protection of the exclusive rights of the owners while granting protection to the fundamental rights of the public, such as freedom of information and the circulation of culture. The contribution of this paper is twofold. First, by analysing the Directive’s national implementation in the 27 Member States of the European Union, it assesses the extent to which the Directive attained the intended harmonisation and whether this is effective to achieve the balance of rights. Secondly, after the identification of areas of dysfunction, the paper proposes an alternative strategy to reach a harmonisation able to strike a better balance between the rights of owners and users.
{"title":"Fine-Tuning European Copyright Law to Strike a Balance between the Rights of Owners and Users","authors":"M. Favale","doi":"10.2139/SSRN.2613454","DOIUrl":"https://doi.org/10.2139/SSRN.2613454","url":null,"abstract":"Directive 2001/29 (the EU Copyright Directive) aims to repress copyright infringement in the digital environment through the harmonisation of copyright discipline and the safeguard of technological protection measures (TPMs). It claims that this harmonisation is instrumental to the protection of the exclusive rights of the owners while granting protection to the fundamental rights of the public, such as freedom of information and the circulation of culture. The contribution of this paper is twofold. First, by analysing the Directive’s national implementation in the 27 Member States of the European Union, it assesses the extent to which the Directive attained the intended harmonisation and whether this is effective to achieve the balance of rights. Secondly, after the identification of areas of dysfunction, the paper proposes an alternative strategy to reach a harmonisation able to strike a better balance between the rights of owners and users.","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2008-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2613454","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68225133","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper highlights the unforeseen or unintended effects of the European Union's refugee law on the World's most vulnerable refugees, those forgotten by the law. The paper focuses on those refugees automatically denied protection in Europe by being impliedly defined out out of the EU's refugee definition. Not only must refugees seeking protection in Europe meet the legal definition, but they are also assumed to have the means to reach Europe. Due to the limitations on legal access routes, often only those who can afford to pay a smuggler have the chance to reach Europe. The great majority of the World's refugees remain outside Europe. Therefore, an exploration of the external policies of the EU institutions which are designed to counter the limiting affects of its restrictive migration policy is required. The paper examines the move towards the establishment of Regional Protection Programmes, Protected Entry Procedures and Resettlement Schemes as providing possible hope for enduring protection for those refugees trapped outside Europe.
{"title":"Who is the New European Refugee","authors":"Nadine El-Enany","doi":"10.2139/SSRN.1033334","DOIUrl":"https://doi.org/10.2139/SSRN.1033334","url":null,"abstract":"This paper highlights the unforeseen or unintended effects of the European Union's refugee law on the World's most vulnerable refugees, those forgotten by the law. The paper focuses on those refugees automatically denied protection in Europe by being impliedly defined out out of the EU's refugee definition. Not only must refugees seeking protection in Europe meet the legal definition, but they are also assumed to have the means to reach Europe. Due to the limitations on legal access routes, often only those who can afford to pay a smuggler have the chance to reach Europe. The great majority of the World's refugees remain outside Europe. Therefore, an exploration of the external policies of the EU institutions which are designed to counter the limiting affects of its restrictive migration policy is required. The paper examines the move towards the establishment of Regional Protection Programmes, Protected Entry Procedures and Resettlement Schemes as providing possible hope for enduring protection for those refugees trapped outside Europe.","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2007-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68131103","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this paper, argue that Union citizenship cannot be understood as the elevation of national solidarity, however thinly conceived, to the transnational level. On the contrary, Union citizenship acts on national solidarity, thereby altering its shape. It lends expression to an individualistic view of the political realm. I attempt to explain why owing to the preponderance of this view, national solidarity comes to be perceived as ungenerous and unkind, even in the eyes of its own beneficiaries.
{"title":"Solidarity Decomposed: Being and Time in European Citizenship","authors":"A. Somek","doi":"10.2139/SSRN.987346","DOIUrl":"https://doi.org/10.2139/SSRN.987346","url":null,"abstract":"In this paper, argue that Union citizenship cannot be understood as the elevation of national solidarity, however thinly conceived, to the transnational level. On the contrary, Union citizenship acts on national solidarity, thereby altering its shape. It lends expression to an individualistic view of the political realm. I attempt to explain why owing to the preponderance of this view, national solidarity comes to be perceived as ungenerous and unkind, even in the eyes of its own beneficiaries.","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2007-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.987346","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67926343","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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