Judicial Review of Transnational Administrative Action in Greece: Upholding the Principle of Mutual Recognition

The principles of mutual trust and mutual recognition are well established features of EU law. On a technical level, it is clear that the principles may require adoption of foreign levels of protection in individual cases as well as in legislation. At a closer look, however, the principles through “the rule of reason” also may imply quite the opposite: the imposing of domestic requirements on foreign goods, services etc. The CJEU case law following the Cassis judgement may be seen as striking a balance between cooperation and Member State self-determination, or between trust and distrust, in different fields. This contribution aims at looking into the regulatory function of the legal principle of trust in EU law. Taking this wider regulatory perspective, the mutual recognition regimes of EU must be seen from a holistic perspective. Rather than dwelling upon harmonized and non-harmonized fields separately, we will approach mutual trust as one, albeit multi-faceted, concept, where harmonization, proportionality assessments and Member State actions in various fields of law form part of the same wider picture. In this regulatory perspective, the law on mutual trust and mutual recognition may be seen as a balancing between the regulatory interests of the EU (promoting free movement and cooperation) and the various Member States (promoting their interests of – alleged – protection of safety of various kinds). Through this perspective, we will be able to address the tension between regulation and deregulation, between integration and disintegration, and between unity and diversity present in EU law on a very general level. The first section of this contribution will look at the constitutional life of mutual trust within the CJEU case law: looking at its origins and main logic. The second section will attempt to clarify why the principle of mutual trust is mostly invisible in the free movement jurisprudence. This section also argues for understanding mutual recognition in terms of Regulatory Trust. The last section focuses on the thorny issue of the levels of protection and attempts to understand which are the key factors used by the CJEU in reviewing the (host) States measures that restrict free movement law and thus may constitute a break to the application of the principles of mutual trust and mutual recognition.

This contribution analyses the influence of WTO primary and secondary law on the primary and secondary law of the European Union. Moreover, the influence of WTO panel and Appellate Body reports on EU secondary law and administrative decisions is evaluated. As a principal example the article takes the interaction between WTO and EU anti-dumping law. However, also other selected examples of the influence of WTO law on EU law are subjected to scrutiny. It turns out that WTO primary and secondary law have had a considerable influence on EU primary and secondary law and their interpretation. This is true in particular where the scope and the technical aspects of classical trade policy are concerned, ranging from the scope of the EU’s trade policy powers to the details of EU anti-dumping law. However, in respect of the EU’s internal regulatory policies, the WTO has had much less influence and the EU has been less law-abiding.

Two emerging principles of EU internet law: A comparative analysis of the prohibitions of general data retention and general monitoring obligations

Relaxing ministerial control and judicial review of government agencies is not a new phenomenon. On the German national level, independence typically occurs in two different guises. First, by depriving the superior ministry of the ability to control and determine the agencies’ decisions. Second, by shielding the agencies’ decisions from judicial review. Some impulses for the independence of agencies originate on the European level – they have been stipulated through EU secondary law in the area of regulatory issues (e. g. telecommunication and energy) and data protection for some time already, while in financial supervision independence has only recently been implemented. In the recent past, the EU primary law requirement of an independent European Central Bank (ECB) launched heated debates on the democratic implications of independence. This article adopts a functional perspective by determining the adequacy of independence as a matter of the function to be performed by the agency. In this vein, judicial restraint must be accepted where asymmetries in knowledge and expertise materialize to the extent that judicial control would be unable to review agency decisions accurately. The comprehensibility or reproducibility of an agency’s decision are crucial in determining the judicial ability to review. More broadly, the role of legislation, ministries and courts in controlling or reviewing agency decisions depends on the functional characteristics performed by the agency. The functional idiosyncrasies in regulatory issues (i. e. simulation of competition in natural monopolies) and monetary policy (ensuring the functioning of the transmission mechanism) are multidimensional, contingent, hard to operationalize, and leave significant discretion to the relevant agencies. The ensuing disparities in knowledge and expertise stretch the competences of the judiciary and thus justify judicial restraint by limiting review to evident mistakes. By contrast, in the area of competition law (addressing anti-competitive conduct), there is no such functional asymmetry between the competition authorities (under German rules) and the courts. Regarding intra-executive independence, in the sense that ministries are deprived of control over the agency, the functional perspective is concerned with the different rationalities at work in ministries and agencies, respectively. While ministries primarily pursue political and strategic goals, agencies act within the logic of substance-oriented implementation. Independency intends to fend off undesirable political interventions through minis-terial control (regulation, competition law, monetary policy) or seeks to avoid adverse nationalism by entering into harmful inter-Member-State competition (financial supervision), thereby justifying an EU-based independent agency. However, the constitutional law foundation for such functional determination of the agency’s independence remains ambivalent. Depending on the area concerned, fundamental rights can require the agency’s independence in order to protect individuals’ rights. By the same token, agency decisions affecting fundamental rights can make parliamentary approval through political control (by the ministry) or judicial control (through courts) indispensable. The ambivalence can be illustrated by the example of monetary policy: while the Federal Constitutional Court (FCC) had acknowledged, in its early Maastricht judgment, the role of the ECB’s independence for the protection of individual rights, the ECB’s recent expansive monetary policy stance has led the FCC to question the independence and request tight judicial review of monetary policy decisions. Finally, consideration is given to the concept of output legitimacy as a justification for the independency of an agency. However, this concept can hardly compensate missing input legitimacy, where agencies act within a polytelic, discretionary and multidimensional mandate.

While effective redress has emerged as a decisive issue in the context of international data transfers, it is shrouded by legal uncertainty due to several conceptual and practical challenges. First, the CJEU rulings on the right to an effective (judicial) remedy raise issues regarding its role in the international domain as well as in relation to EU data protection primary and secondary law. Second, the extraterritorial application of substantive requirements for redress remains unclear and limited to ad hoc assessments. In particular, questions relating to the administrative and/or judicial nature of remedies as well as the according constitutive elements of redress are yet to be determinately answered. The present article aims to address this gap by proposing a roadmap of what effective redress should entail in the context of international data transfers by focusing on i) the EU autonomous definition of tribunal as developed within the CJEU case-law on Article 267 TFEU and, ii) the United Kingdom's Investigatory Powers Tribunal (IPT) as providing for an effective judicial remedy in the context of secret surveillance.

Lately both the Court and the Commission have taken to referring to the principle of mutual recognition in the law of the EU’s internal market. But there is no principle of mutual recognition in the law of the EU’s internal market. There is only a principle of non-absolute or conditional mutual recognition. Put another way, EU law does not require Member States to admit on to their market products or services that comply with the regulatory requirements of the State of origin. Instead EU law requires Member States to show good reasons in the public interest when they wish to refuse admission to such products or services. Internal market law includes space for justified trade barriers. The Court and the Commission are probably not trying to re-write the law of the EU’s internal market. The Court and the Commission are probably just being a bit sloppy and a bit lazy. But such imprecision carries risk. An over-emphasis in internal market law on the impetus towards the liberation of cross-border trade at the expense of the regulatory sensitivities of individual Member States carries the risk that deregulation-by-law will be driven too deep—more deeply than the Treaty envisages. And that same overemphasis on market deregulation also carries the risk of loading too much weight on to the judicial means to construct an internal market—the law of free movement—at the expense of the supplementary role performed by the EU’s legislative process, most prominently in the name of harmonisation. So recognition that there is no principle of mutual recognition in the law of the EU’s internal market is important in grasping the legitimate place of both Statelevel and EU-level regulation in the building of that market.

Unjust enrichment and civil delictual liability are but the two sides of the same coin, having the same scope without overlapping, juridically speaking. This is obvious when enrichment arises from an illegal interference with another?s property. The French and the Greek legal order seem to be two legal systems maintaining until today the Einheitslehre of unjust enrichment claims. Both orders do not take into account a categorization and a systematization of claims in accordance with the requirements giving rise to an unjust profit. Regardless of the special provisions of each legal system, crucial questions arise in the same way: Would it be possible to consider, under the same perspective, enrichment by undue payment and enrichment due to the forces of nature (e.g. confusio or commixtio)? Is it possible to find a common denominator, as regards the causa, between enrichment with performance and enrichment without performance? How to compare enrichment produced by a person?s interference with another?s property with enrichment born by an undue payment? Is it not rather reasonable to proceed with the theory of separation of claims (Trennungslehre) proposed by German legal scholarship, after Wilburg?s and Von Caemmerer?s legal model of distinction between enrichment based on performance and enrichment not based on performance?

'The Principle of Supremacy of European Law and its Application in the Greek Legal Order'

Examining the principle of mutual recognition in the EU legal order, this book takes a cross-policy approach to focus on the principle in the internal market and in the criminal justice area. It asks whether the principle of mutual recognition, as developed in relation to the free movement provisions (internal market), can equally be applied in judicial cooperation in criminal matters (the area of freedom, security, and justice), and if such a cross-policy application is desirable. Divided into three parts, the book first looks at the way this principle functions in the internal market. Part II examines how the principle works in judicial cooperation in criminal matters, with the final part answering the book's central questions. In each part, further related questions are asked: What is the object of the principle of mutual recognition? Who are the main actors involved? How does the mechanism of mutual recognition operate (with an emphasis on the existing limits to mutual recognition)? How does mutual recognition relate to harmonization and to mutual trust? What is the relevance of equivalence requirements and the distribution of competence between the home (issuing) state and the host (executing) state? What are the main characteristics of the principle of mutual recognition? And is it a workable principle? Through an in-depth analysis of the relevant Treaty provisions, EU legislation, EU case law, and EU policy documents, the book comes to the conclusion that a cross-policy application of the principle of mutual recognition is both feasible and desirable.

A novel feature of the Treaties was that they created institutions distinct from the Member States with the capacity to make law. Such law is known as the secondary law of the EU. It is subordinate to the Treaties, which belong to the primary law of the EU. ‘Secondary EU Law’ explains the principles of conferral and competence, which play an important role in preserving a balance between the powers of the EU and those of the Member States. A leading role is played in the exercise of the EU’s competences by its four main political institutions: the European Parliament, the European Council, the Council, and the Commission.

This chapter examines the legal instruments on judicial cooperation in criminal matters that are based on the principle of mutual recognition (framework decisions and directives). A first heading discusses the terminological issue concerning mutual recognition, country of origin and equivalence. It states that the ‘country of origin’ and ‘equivalence’ requirements should be seen as flexible tools that enable a tailor-made application of the principle of mutual recognition. A next heading evaluates the relationship between mutual recognition and harmonization. It verifies to what extent the corresponding instruments have included provisions on harmonization and cooperation in order to enhance mutual recognition and mutual trust. A last heading discusses the available limits to the principle of mutual recognition and the margin of discretion for the executing authority which prevent a too radical application of the principle of mutual recognition.

The article is devoted to the study of the peculiarities of the sources of law of the European Union. It is emphasized that the quantitative and qualitative specificity of the sources of law in the European Union is determined by the uniqueness of its legal system, which determines the diversity of their classification, hierarchy and application at the national and supranational levels. It is noted that the most widespread in modern scientific literature is the dichotomous division of the law of the European Union into primary and secondary, in connection with which the sources of «primary» and «secondary» EU law are distinguished. At the same time, the primary law of the EU includes, first of all, the fundamental, defining principles and norms for the European Union, enshrined in the founding treaties of the EU, the EU Charter of Rights, as well as international treaties concluded both by the European Union and the EU member states, and secondary law of the European Union includes norms issued by EU institutions in the form of regulations, directives, resolutions, etc., and which must correspond to the sources of primary law. The basis of the sources of law of the European Union is the common interest of the European peoples, their common valuable assets, which are laid at the basis of their progressive development. This feature refers primarily to the EU Constituent Treaties as international legal acts, which directly express the will and interests of all the states participating in them. At the same time, it also finds its indirect manifestation in the relevant legal acts of supranational EU institutions (European Parliament, European Commission, Council of the EU, etc.), which by their legal nature rather have a regional character, because they are not international and national legal acts in the classical meaning. At the same time, the legal acts of such institutions of the European Union, by their legal characteristics, are designed to ensure a stable relationship between the norms of its Constituent Treaties and legal acts of the EU member states and, in this way, the relationship of the supranational legal system of the European Union as an integration association of European states with the national legal systems that are part of it. As a result of research the following conclusions are made: 1. The system of sources of law formed in the European Union is directly interconnected with the features of the legal system of the EU as an integration association of sovereign states, characterized by the presence of supranational power institutions common to them, authorized to adopt regulatory and legal acts that are binding on the entire territory of the EU. The dual nature of the legal system of the European Union, which combines international legal and national contexts, determines the specificity of the hierarchical structure of the sources of EU law, the highest level of which belongs to the EU Constituent Treaties, primarily the Treaty on the European Union and the Treaty on the Functioning of the European Union. At the same time, the hierarchy of sources of EU law is most clearly manifested at the level of legal acts of primary and secondary EU law, as well as legal acts of the authorities of EU member states, which must comply with the mandatory norms of primary and secondary EU law. 2. The specificity of the sources of the law of the European Union is manifested primarily in the special nature of their spatial and subject action, the differentiated order of their adoption, putting them into effect, implementation of its norms into the national legal systems of the EU member states, in the combination of precedents and normativelegal foundations in the legal regulation of social relations, as well as in the common axiological basis of the legal development of the EU member states, the content of which is embodied within the entire system of sources of law of the European Union. Key words: sources of law, the European Union, sources of primary law, sources of secondary law, judicial precedents, founding treaties.

Recognition and Enforcement of Foreign Judgments in Greece Under the Brussels I-Bis Regulation

Greece is member of the EU since 1.1.1981. The accession of Greece to the European Community was signed and ratified by the Greek Parliament in 1979 with a majority of 193 votes out of 300. Article 28 of the Constitution of 1975 provided the legal basis of the incorporation of Community law into the Greek legal order. According to article 28 competencies provided by the constitution can be vested in agencies of international organizations by treaties or agreements, when this serves an important national interest and promotes co-operation with other states. European Community law has pervasive effects upon the Greek legal order and the regulations have direct applicability and effect in Greece.When required, domestic law is adapted to the provisions of Community law. In addition, Greek law belongs to the civil law tradition. The era of modern Greek law began with the National Revolution of 1821 against the Turks, which led to the creation of the Greek State in 1830. The most important codifications in Greek law are the following: Civil Code, Commercial Code, Penal Code, Code of Civil Procedure, Code of Criminal Procedure, Code of Private Maritime Law and Military Penal Code. The Greek Civil Code of 1946 was greatly influenced by Byzantine law, which was applied in Greece before the drafting of the Civil Code. The Civil Code is founded on the principles of personal autonomy, private property and freedom of contract. It also protects the institution of family, with equality between the sexes, being constitutionally proclaimed. It contains, however, general clauses, leaving space for judicial adaptation to changing circumstances aswell as for the introduction of elements of fairness . Main objective of this paper is to analyze Greece’s Obligations law in a comparative view with the European law. DOI: 10.5901/mjss.2014.v5n20p127

The principle of mutual recognition tests a potential breach of internal market treaty provisions and restricts the scope for a Member State to justify a breach by reference to what happens, or has happened, in a different Member State. The principle of mutual recognition is a distinct principle to that of non-discrimination and does not apply by reference to the functional equivalence of Member States’ regulatory regimes. Mutual recognition has been developed by the Court of Justice of the European Union (CJEU) as a distinct principle (perhaps a general principle) of EU Law, quite separate to the settled principles of non-discrimination and prohibition of obstacles to market access. The principle of mutual recognition entrenches a neo-functionalist model of the Union project and acts as an accelerant to the harmonisation of the domestic regimes of Member States which are subject to its application, in areas where harmonisation is realistically possible. In areas where harmonisation is not realistically possible, the application of the internal market by reference to the principle of mutual recognition sets aside non-internal-market-compliant Member States’ regulatory provisions, leaving an unsatisfactory space in these regulatory regimes. However, the principle of mutual recognition is, in the light of the application of the principles of non-discrimination and the prohibition of obstacles to market access, quite unnecessary and operates to frustrate legal certainty and the legitimate expectations of the Member States.