German Law Journal最新文献_第2页

The Systemic Criterion in the Use of Infringement Proceedings 侵权诉讼程序运用的制度规范

German Law Journal Pub Date : 2023-09-01 DOI: 10.1017/glj.2023.62

Luca Prete

引用次数: 0

The Untapped Potential of the Systemic Criterion in the ECJ’s Case Law on Judicial Independence 欧洲法院司法独立判例法中制度规范的未开发潜力

German Law Journal Pub Date : 2023-09-01 DOI: 10.1017/glj.2023.57

Mathieu Leloup

{"title":"The Untapped Potential of the Systemic Criterion in the ECJ’s Case Law on Judicial Independence","authors":"Mathieu Leloup","doi":"10.1017/glj.2023.57","DOIUrl":"https://doi.org/10.1017/glj.2023.57","url":null,"abstract":"Abstract This article explores the use of the systemic criterion in the European Court of Justice’s (ECJ) case law on judicial independence under Article 19(1)(2) Treaty on European Union (TEU). It starts from the observation that ever since the Portuguese Judges judgment, the case law has moved towards a more abstract and general assessment of issues of judicial independence. Yet, despite that evolution, the Court—perhaps surprisingly—only rarely uses the systemic criterion in its judgments. There are only two strands of case law to be found, neither of which tell us much about how the Court understands the notion of “systemic” in this field. This article argues that this criterion nevertheless has an important role to play in the case law on judicial independence and that the Court should explicitly limit the finding of a violation of Article 19(1)(2) TEU to those issues that have a systemic impact on the functioning of the domestic judiciary. By limiting the effects of Article 19(1)(2) TEU in such a way, the Court would strike a balance between the protection of the independence of the domestic judiciary, which is crucial for the proper functioning of the European Union (EU), and respect for the autonomy of the Member States as to the organization of their judiciary.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135589039","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Addressing System Deficiencies in the Protection of the Financial Interests of the EU: Preventing Harm and Incentivizing Change 解决欧盟金融利益保护的制度缺陷:防止损害和激励变革

German Law Journal Pub Date : 2023-09-01 DOI: 10.1017/glj.2023.65

Robin Gadbled

{"title":"Addressing System Deficiencies in the Protection of the Financial Interests of the EU: Preventing Harm and Incentivizing Change","authors":"Robin Gadbled","doi":"10.1017/glj.2023.65","DOIUrl":"https://doi.org/10.1017/glj.2023.65","url":null,"abstract":"Abstract The article looks at how “systemic” irregularities or breaches of law imputable to EU Member States are defined in key legal documents relating to the protection of the EU budget – notably with regards to Agricultural, Structural and Recovery funds, and with regards to the Conditionality Regulation. It is argued that “system deficiencies” arise where the financial interests of the European Union are damaged or put at risk because the systems meant to protect these interests in a Member State are considered deficient themselves. The scope of these systems varies with documents: some systems are defined in sectoral legislation and only have relevance for specific funding programmes; other systems have a more constitutional character and are linked to the protection of the rule of law in EU member states. Moreover, the severity of system deficiencies can be graded on a scale. This has implications regarding the extent of the financial consequences which can be imposed on Member States for the protection of the EU budget – how much EU funding should be withheld from them. It is also argued that the rationales underlying the imposition of financial consequences – putting the EU budget out of harm’s way or incentivizing change to reduce risk? – have implications pertaining to the legal and constitutional relationship established between the EU and its Member States.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135588139","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The Systemic Equivalence Test and the Presumption of Equivalent Protection in European Human Rights Law—A Critical Appraisal 制度对等检验与欧洲人权法中的同等保护推定——评鉴

German Law Journal Pub Date : 2023-09-01 DOI: 10.1017/glj.2023.63

Cecilia Rizcallah

引用次数: 0

Systemic Breaches of EU Environmental Law and Techniques of Judicial Engagement with Science: the Underused Potential of Infringement Proceedings 欧盟环境法的系统性违反与科学司法介入技术:侵权诉讼未充分利用的潜力

German Law Journal Pub Date : 2023-09-01 DOI: 10.1017/glj.2023.58

Mariolina Eliantonio

{"title":"Systemic Breaches of EU Environmental Law and Techniques of Judicial Engagement with Science: the Underused Potential of Infringement Proceedings","authors":"Mariolina Eliantonio","doi":"10.1017/glj.2023.58","DOIUrl":"https://doi.org/10.1017/glj.2023.58","url":null,"abstract":"Abstract Environmental law has long been an area of concern in terms of correct implementation and enforcement. In this context, the Commission’s enforcement focus has been on “systemic” breaches of environmental law (that is, breaches that form part of a pattern of individual breaches that, taken together, because of their repeated or widespread nature, have a significant effect on the environment). Proving the existence of such breaches in environmental law presents a number of peculiar features, because of the scientifically–loaded questions which underlie environmental legislation. The aim of this article is to relate the established approach of the CJEU towards scientific uncertainty to the specific situation in which the Commission asserts that a breach of EU environmental law has a systemic nature. It will show that, while the CJEU has been sensitive to the systemic nature of the claims brought forward by the Commission by using some of the procedural tools at its disposal, its general reticence to engage with the substantive claims at stake might have the potential to reduce the effectiveness of the infringement proceedings as a tool to adequately pursue systemic breaches of EU environmental legislation.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135589038","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The Systemic and the Particular in European Law—Judicial Cooperation in Criminal Matters 欧洲法律—刑事司法合作的体制性与特殊性

German Law Journal Pub Date : 2023-09-01 DOI: 10.1017/glj.2023.61

Leandro Macano

引用次数: 1

“Systemic Violations” in EU Asylum Law: Cover or Catalyst? 欧盟庇护法中的“系统性违规”:掩护还是催化剂?

German Law Journal Pub Date : 2023-09-01 DOI: 10.1017/glj.2023.59

Evangelia (Lilian) Tsourdi, Cathryn Costello

{"title":"“Systemic Violations” in EU Asylum Law: Cover or Catalyst?","authors":"Evangelia (Lilian) Tsourdi, Cathryn Costello","doi":"10.1017/glj.2023.59","DOIUrl":"https://doi.org/10.1017/glj.2023.59","url":null,"abstract":"Abstract The concept of a systemic fundamental rights violation refers to a particular set of violations that are both widespread and embedded, so their reoccurrence may be assumed to be likely. It takes on at least two distinctive roles in EU asylum law and policy. One role is linked with the functioning of the principle of mutual trust, a principle that obliges Member States to recognise each others’ systems and decisions, presuming them to be legal, apart from exceptional cases. In this context, the principle sets the standard from when the presumption of legality is rebutted. In its conceptualisation and application, it is in tension with European human rights law, and, for a period, set up frictions between the CJEU (in NS/ME and Opinion 2/13 ) and the ECtHR (in MSS and Tarakhel ). This tale of judicial frictions is not merely of historical interest. Its legacy is, we conclude, a thin concept of systemic breach, characterised by an over-individualized approach to assessing the human rights risks. The second role for the concept of systemic violations relates to embedded violations, including at the EU’s external borders. We demonstrate the utility of this other invocation, in particular as systemic breaches often signal deeper rule of law issues both within particular national systems and embedded within the Common European Asylum System (CEAS). We illustrate that the CEAS itself brings about systemic human rights violations. Identifying and responding to the “systemic” in asylum increasingly relates to the credibility of the EU as a Union based on the respect for fundamental rights and the rule of law.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135588138","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

How “Systematic” is the European Court of Human Rights’ Approach to “Systemic” Violations of the Convention? 欧洲人权法院处理“系统性”违反《公约》行为的方式有多“系统性”?

German Law Journal Pub Date : 2023-09-01 DOI: 10.1017/glj.2023.60

Koen Lemmens, Sébastien Van Drooghenbroeck

引用次数: 0

Unpacking the Multifaced Nature of the Systemic and the Particular in European Law: An Introduction 解读欧洲法中系统性与特殊性的多面性:导论

German Law Journal Pub Date : 2023-09-01 DOI: 10.1017/glj.2023.64

Robin Gadbled, Cecilia Rizcallah

引用次数: 0

GLJ volume 24 issue 6 Cover and Front matter GLJ第24卷第6期封面和封面问题

German Law Journal Pub Date : 2023-09-01 DOI: 10.1017/glj.2023.66

引用次数: 0