European Public Law最新文献_第7页

‘Loose’ Proportionality Review in the European Monetary Union’s ‘Law of the Crisis’: A Sign of Decline of the ‘Culture of Justification’? 欧洲货币联盟“危机法”中的“宽松”比例审查:“正当性文化”衰落的标志?

IF 0.6

European Public Law Pub Date : 2020-12-01 DOI: 10.54648/euro2020065

G. Vosa

{"title":"‘Loose’ Proportionality Review in the European Monetary Union’s ‘Law of the Crisis’: A Sign of Decline of the ‘Culture of Justification’?","authors":"G. Vosa","doi":"10.54648/euro2020065","DOIUrl":"https://doi.org/10.54648/euro2020065","url":null,"abstract":"In reviewing legal acts adopted in the context of the economic-financial crisis, proportionality finds frequent application. However, case-law at both national and Union’s level displays elements of a loose proportionality review, as Courts hardly dare to challenge the substance of the decisions negotiated by law-makers.\u0000The article argues that loose proportionality is tied to a departure from the juridical roots of the referring concept, which lie in a ‘culture of justification’ as alternative to a ‘culture of authority’ in the exercise of public power. In this light, it provides analysis of the case-law concerned to show that the decisions taken at the political level do not seek their legitimacy in dialogical justification, but find it in the alleged assumption that they represent the optimal ‘reasonable solution’ for all Member States, despite the painful inequalities they entail. As they prove somehow alien to the cultural-juridical roots of the concept, they cannot undergo a fully-fledged proportionality scrutiny. Yet, this may signpost the gradual comeback of a ‘culture of authority’ requiring careful reflection, as it would touch upon the very conception of the human person as capable of self-determination – arguably, the cornerstone of contemporary constitutional arrangements.\u0000Proportionality, Economic-Monetary Union, Judicial Review, Sovereignty, Crisis, Reasonableness, Fundamental Rights, Self-Determination.","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42735464","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

Just Say No! Appeals Against Orders for a Preliminary Reference 直接说不!对初步转审命令的上诉

IF 0.6

European Public Law Pub Date : 2020-12-01 DOI: 10.54648/euro2020058

G. Butler, J. Cotter

{"title":"Just Say No! Appeals Against Orders for a Preliminary Reference","authors":"G. Butler, J. Cotter","doi":"10.54648/euro2020058","DOIUrl":"https://doi.org/10.54648/euro2020058","url":null,"abstract":"Can an order for a preliminary reference to the Court of Justice of the European Union (the Court), made by a lower instance national court, be subject to an appeal to a higher instance national court? To date, the Court has not been sufficiently clear on an answer to this exact question. The Court’s Cartesio judgment mandated that national law could not permit a higher instance national court from varying an order for reference, setting aside an order for reference, or ordering the resumption of national proceedings whilst awaiting the return of the preliminary reference. However, the Court did not say that appeals against an order for reference, more generally, were incompatible, per se, with Union law. This article contends that such breadth given to higher instance national courts is contrary to the intent of Article 267 TFEU, which aims to ensure effective judicial dialogue between all national courts and the Court, uninterrupted by national law and practice. This article makes the case for ending this regime of undue deference to national procedural autonomy on this question, which is problematic in circumstances where the rule of law and judicial independence in all Member States cannot be assumed.\u0000National courts, Court of Justice of the European Union, Preliminary reference procedure, national procedural autonomy, Appeals, Appellate courts","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43171261","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: 1

Functional Approach and Economic Activity in EU Competition Law, Today: The Case of Social Security and Healthcare 欧盟竞争法中的功能方法和经济活动，今天：以社会保障和医疗保健为例

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European Public Law Pub Date : 2020-12-01 DOI: 10.54648/euro2020056

Daniel Gallo

引用次数: 1

Book Review: Specialized Administrative Law of the European Union. A Sectoral Review, Herwig C.H.Hofmann, Gerard C. Rowe & AlexanderH. Türk eds.Oxford: Oxford University Press. 2018 书评：《欧洲联盟专门行政法》。行业评论，Herwig C.H.Hofmann，Gerard C.Rowe&AlexanderH。Türk编辑，牛津：牛津大学出版社。2018

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European Public Law Pub Date : 2020-12-01 DOI: 10.54648/euro2020064

J. Handrlica

引用次数: 0

Autonomy of the EU Legal Order: A Concept in Need of Revision? 欧盟法律秩序自治:一个需要修正的概念?

IF 0.6

European Public Law Pub Date : 2020-12-01 DOI: 10.54648/euro2020061

Marja‐Liisa Öberg

{"title":"Autonomy of the EU Legal Order: A Concept in Need of Revision?","authors":"Marja‐Liisa Öberg","doi":"10.54648/euro2020061","DOIUrl":"https://doi.org/10.54648/euro2020061","url":null,"abstract":"The issuing of Opinion 2/13 on the European Union’s (EU’s) accession to the European Convention on Human Rights by the Court of Justice of the EU (CJEU), followed by Case C- 284/16 Achmea and Opinion 1/17 on the compatibility with EU law of the Comprehensive Economic and Trade Agreement between Canada and the European Union (CETA), brought the concept of the autonomy of the EU legal order to the persistent limelight of scholarly attention. An important yet unanswered question that arises in the light of the CJEU’s case law is to what extent the concept of the autonomy of the EU legal order or its specific application by the CJEU has been outlived in the context of EU external relations. Closely connected to the expansion of the EU’s normative influence globally and in its neighbourhood is the necessity to set up effective institutional and procedural frameworks, including judicial protection mechanisms. The keen protection of the autonomy of the EU legal order in such instances conflicts sharply with the Union’s interests and foreign policy strategies and may well warrant a review of the current paradigm of the autonomy of the EU legal order. This article provides a critical account of the compatibility of the concept of autonomy as developed by the CJEU over the past several decades with the Union’s aspirations as a normative superpower.\u0000Autonomy, EU legal order, Opinion 2/13, Achmea, Opinion 1/17, unity, effectiveness, norms export, EU external action, European Economic Area","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46205347","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: 4

Shrinking Space for Civil Society: A Case Study of Poland 公民社会空间的萎缩:波兰个案研究

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European Public Law Pub Date : 2020-12-01 DOI: 10.54648/euro2020072

Adam Ploszka

引用次数: 3

Multi-Level Governance in Action: Access to Justice in National Courts in Light of the Aarhus Convention 多层次治理在行动:根据《奥胡斯公约》在国家法院获得司法救助

IF 0.6

European Public Law Pub Date : 2020-12-01 DOI: 10.54648/euro2020070

Ioanna Hadjiyianni

{"title":"Multi-Level Governance in Action: Access to Justice in National Courts in Light of the Aarhus Convention","authors":"Ioanna Hadjiyianni","doi":"10.54648/euro2020070","DOIUrl":"https://doi.org/10.54648/euro2020070","url":null,"abstract":"This article explores the multi-level governance of access to justice in environmental matters by analysing how the Aarhus Convention gains added force in the national legal order through its interpretation by the Court of Justice of the EU. In combination, the Aarhus Convention and its incorporation in the EU require national legal orders to grant wide access to justice, particularly to environmental non-governmental organizations (ENGOs). This article explores the interplay of the different levels of governance and analyses their distinct contribution, with the Aarhus Convention setting the general legal requirements at the international level, EU law refining such requirements vertically in relation to Member State obligations, and national law potentially implementing wide access to justice on the ground. While in some Member States, such access is assumed and has led to the emergence of strategic litigation, in others standing requirements are still interpreted narrowly. Within this context, the article assesses the applicable legal framework in Cyprus, whose legal system provides interesting opportunities to realize the combination of the different levels of governance in light of the added force of supremacy of EU law over constitutional provisions that determine access to courts. The Cypriot case study exemplifies the potential of a combination of international, EU, and national requirements, to require a move away from an unduly restrictive interpretation of standing, which has been largely followed to date.\u0000access to justice, environment, non-governmental organizations, Aarhus, Cyprus, multilevel governance, CJEU, standing, locus standi, courts, European Union","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44788270","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: 1

‘Optional’ Exclusion from Public Tenders Grounded on Conflicts of Interests and Principle of Proportionality: Whose Choice? 基于利益冲突和比例原则的招标“选择性”排除:谁的选择?

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European Public Law Pub Date : 2020-12-01 DOI: 10.54648/euro2020060

Javier Mirando Díaz

{"title":"‘Optional’ Exclusion from Public Tenders Grounded on Conflicts of Interests and Principle of Proportionality: Whose Choice?","authors":"Javier Mirando Díaz","doi":"10.54648/euro2020060","DOIUrl":"https://doi.org/10.54648/euro2020060","url":null,"abstract":"Focusing on the current regulation of conflicts of interest in public procurement by Directive 2014/24/EU we try to answer two main questions: (1) what is the core content of its regulation and which implications does it have in daily public procurement activity; and (2) whether this core content and the way it is materialized in Directive 2014/24/EU leaves any leeway to Member States law to modify or create new conflict of interests provisions. The first part of the article is devoted to the analysis of the ‘conflict of interest’ concept under the procurement Directive, concluding that it rests on three fundamental pillars: (a) a broad and functional subjective application based on the objective nature of the phenomenon; (b) a transfer of power (and responsibility) to the contracting entities; and (c) the strong relevance of the principle of proportionality. This new concept of conflict of interest at EU level and the recent CJEU case law in the field suggest a reduction of Member States’ deference in the transposition of optional exclusion grounds. In the present article, the case of Spain is used as an example to illustrate how the interpretative implications of the current EU framework do not leave virtually any margin to Member States to adapt the conflict of interests provisions to national legal traditions.\u0000public procurement law, administrative law, EU law, public law, conflicts of interests, causes of exclusion, integrity, anti-corruption","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47997025","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: 1

Administrative Constitutional Review in Sweden: Between Subordination and Independence 瑞典的行政宪法审查：处于从属与独立之间

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European Public Law Pub Date : 2020-12-01 DOI: 10.54648/euro2020074

Henrik Wenander

{"title":"Administrative Constitutional Review in Sweden: Between Subordination and Independence","authors":"Henrik Wenander","doi":"10.54648/euro2020074","DOIUrl":"https://doi.org/10.54648/euro2020074","url":null,"abstract":"The article examines the power of administrative bodies to assess the constitutionality of legislation (‘administrative constitutional review’), taking examples from Swedish public law. The Swedish constitution explicitly requires all public bodies to engage in administrative constitutional review when necessary. In this way, Swedish administrative authorities have the right and duty to act as guardians of the rule of law. This competence relates to the historical development of Swedish public law, which deviates from most other European constitutional systems by organizing all state administrative authorities as separate public organs detached from the Government and the ministries. The Swedish constitutional obligation is parallel to EU law requirements on national administrative organs to set aside national legislation in conflict with directly applicable EU law (‘the Costanzo obligation’). Against the background of practical examples in Swedish law, the article identifies theoretical and practical challenges for administrative bodies to engage in constitutional review. These include the risk of disturbing constitutional structures by putting lower administrative authorities on par with the parliament. The possible problems of lack of legal expertise and the problem of independence in practice are also discussed. At the same time, the concept of administrative constitutional review has a potential to protect the constitutional system, including the fundamental rights of individuals.\u0000administrative constitutional review, separation of powers, rule of law, administrative independence, Swedish administrative model, Costanzo","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47427003","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: 1

Book Review: Andrea Broderick & Delia Ferri, International and European Disability Law and Policy: Text, Cases and Materials, Cambridge: Cambridge University Press. 2019 书评:Andrea Broderick和Delia Ferri，国际和欧洲残疾法律和政策:文本，案例和材料，剑桥:剑桥大学出版社，2019

IF 0.6

European Public Law Pub Date : 2020-12-01 DOI: 10.54648/euro2020075

Eliza Varney

引用次数: 0