On call-duty of medical Professionals – Changing the Paradigm of its Assessment as a Results of new Decisions of the Court of Justice of the European Union

The Data Retention Directive has given rise to significant concerns within the European Union regarding its compatibility with existing fundamental rights, and more specifically with the rights to privacy and data protection. Since 2008 numerous national courts have declared unconstitutional specific provisions of the national laws transposing the Directive on the basis that they violate the rights to privacy and data protection. Although a first impression may be created that the national courts have decided upon the compatibility of the Directive with those rights, a closer look into the reasoning of the various courts reveals that this might not be the case. To date, two requests for a preliminary ruling on the compatibility of the Data Retention Directive with fundamental rights have been filed at the Court of Justice of the European Union. This paper studies the rationale of the decisions of the national courts that have dealt with data retention with regard to the rights to privacy and data protection in order to identify the main arguments in the reasoning of the courts. The paper also examines whether these national court decisions could influence the Court of Justice, in view of its anticipated decision with regard to the cases pending before it.

The subject. This article examines the dialogue between the EAEU Court and national courts, on the one hand, as the application by national courts of the court of the integration organization, on the other hand, – as a recourse by the supranational court to the legal constructions that have been developed in the case law of the Member States’ courts.The purpose of the article is to confirm or disprove hypothesis that judicial dialogue between the court of the integration association and the courts of its Member States is the key to the effective application of supranational law.The methodological basis of the research is the doctrine of EU law, as well as the practice of Court of Justice of the European Union. The formal legal interpretation of the EAEU Court decisions and decisions of national Supreme Courts is also used.The main results, scope of application. One of the characteristics that differentiates the law of an integration organization from universal international law is its active application not only by the judicial body of such an organization, but also by the national courts. The plurality of actors in charge of the application of the law raises the question which of them have the authority of interpreting the integration law and the modalities of such an interpretation. One of the instruments that could help overcome the lack of uniformity of approaches regarding the interpretation and application of supranational law by the courts of several member states is the preliminary reference procedure. In the absence of such a procedure the burden of interpretation of supranational law rests on the national courts. Such a situation has arisen in the Eurasian Economic Union where the EAEU Court is empowered to interpret the law of the Union while settling disputes regarding the respect of EAEU law by its Member States, the challenge of the Eurasian Economic Commission's actions (failure to act) and decisions as well as delivering advisory opinions. The courts of the Member States, in turn, interpret the law of the EAEU in various fields of relations, including the ones where regulatory powers have been transferred to the supranational level. The analysis of national case law shows that in their application of EAEU law they premise their judgments on the principle of its primacy over national legislation.Conclusions. Judicial dialogue allows to prevent the non-uniform interpretation of the Union law by the court of the 5 Member States. It is a form of exchange of legal positions and concepts between the judicial bodies which, as a result, leads to a mutual enrichment of the legal orders by borrowing legal constructions and approaches.

ABSTRACTThis article contributes to the study of the preliminary reference procedure and the literature on the decentralized enforcement of European Union (EU) law through national courts. Drawing on the ‘compliance pull’ explanation for why national courts submit preliminary references to the Court of Justice of the European Union (ECJ), it suggests that a greater need to clarify ‘the validity and interpretation’ of one act compared to another is associated with variation in Article 267 submissions. Drawing on a sample of 1,300 national court decisions on EU directives with variation in Article 267 Treaty on the Functioning of the European Union (TFEU) submissions, this article finds that disputes relating to directives leaving more room for manoeuvre in implementation (‘delegation’) and relating to more complex regulatory issues (‘information intensity’) are more likely to be referred to the ECJ for interpretation. It argues that neglecting the ‘compliance pull’ explanations has consequences for how we conceptualize ‘decentralized enforcement’.

Court decisions not only serve to end legal disputes between the parties to the case, but also serve as precedents. In that sense court decisions are a source of law. This is common ground as to both national and European court decisions. Noting the existence of a context in which Danish legal information systems only publish case reports very selectively, we argue that although decisions of the European courts, notably European Court of Justice and European Court of Human Rights, are available from the homepages of these courts (CURIA and HUDOC), the fact that these decisions are not part of an integrated dissemination of case reports in Denmark may diminish the regard for these decisions and lead to a relative neglect of European law to the detriment of legal certainty. The article proposes that one explanatory factor in this regard is that the main legal information system in Denmark is influenced by a legal culture which is still predominantly national in orientation. In order to promote awareness of European case law and to improve the quality of legal thinking and practice, we propose that significant parts of this case law should be published in a more suitable way by incorporating it into a comprehensive information system that integrates the promulgation of Danish and European case law.

National (civil) courts play a significant role in enforcing EU competition law as functional Union courts. This scientific article objective is to investigate the extent to which the European Commission is obligated to follow the decisions of national civil courts. The analysis requires an examination of the appropriate legal framework. As a result, in the first part of the paper, the European Commission obligation to take into account the decisions of the national courts from primary law perspective will be examined. Based on this, the second part explore the link between the European Commission and national courts from the standpoint of relevant secondary law. From the scientific methods we have used the analytical and descriptive method to analyse the current situation. By comparative method we introduce different views on the legal regulation. The presented topic has not been thoroughly examined in the literature on the subject thus far, giving the chance to identify avenues for future research.

Annual Digest of Public International Law Cases. Being a selection from the Decisions of International and National Courts and Tribunals given during the Years 1929 and 1930. Edited by H. Lauterpacht, LL.D., Dr. Jur., Dr. Sc. Pol. London, New York, Toronto: Longmans, Green & Co. 1935. (42s. net.) - Volume 6 Issue 1

Annual Digest of Public International Law Cases, Being a Selection from the Decisions of International and National Courts and Tribunals given during the years 1927 and 1928. Edited by Arnold D. McNair H. Lauterpacht. London, New York and Toronto:Longmans, Green & Co., 1931. pp. iii, 592. Index. $15.00. - Volume 26 Issue 2

Witness anonymity as a protective measure leads to a conflict between two rights – the defendant’s right to confront and cross-examine witnesses, on the one hand, and the witness’s right to protection. How witnesses before international criminal courts faced threats and intimidation, and their role in international criminal trials is important and indispensable, the question arises as to whether they should be granted anonymity in certain cases and under certain conditions. So far, in the practice of international criminal courts, anonymity has been granted to witnesses only in the Tadić case before the ICTY. Although other chambers of the ICTY considered the application of this protective measure, and the chambers of the ICC as well, anonymity was not granted to any witness. The main reason is that it is considered that the application of this protective measure is not in accordance with the rights of the defendant. Today, when examples of the use of anonymous witnesses can be found in the practice of certain national courts, which has been confirmed in the practice of the European Court of Human Rights, their use in the practice of international criminal courts can be reconsidered. If the use of anonymous witnesses is allowed before international criminal courts, it must be a last resort and an exceptional measure. Strict conditions for its application must be met first of all, and a balance must be established with the rights of the accused, which are limited due to the use of anonymous witnesses. If the use of anonymous witnesses is not allowed, the consequence may be an acquittal due to lack of evidence, because witnesses refuse to testify out of fear, which has already happened in the practice of international criminal courts. The paper provides a brief historical overview of the use of anonymous witnesses, as well as a brief presentation of national solutions and decisions of national courts regarding their use. The protective measures provided by the acts of international criminal courts, which can serve as a basis for the use of anonymous witnesses, are analyzed. Various positions presented in the Tadić case before the ICTY when deciding on the use of anonymous witnesses, as well as some positions presented before the ICC, are also analyzed. Finally, some guidelines are provided that may be useful for granting anonymity status if this protective measure is to be applied in international criminal justice.

The revised and expanded second edition of Gary Born's treatise Commercial provides detailed commentary, case analyses, and practice pointers. With full annotations and footnotes for research assistance, and analyses that identify and discuss critical issues, it should be a valuable guide to the actual practice of international commercial arbitration anywhere in the world. Among other things, Commercial Arbitration, Second Edition, examines the procedural aspects of international arbitration in contemporary practice; provides excerpts of representative international arbitral awards and national court decisions; and makes abundant reference to leading institutional rules as they are brought to bear on specific fact situations. It discusses in detail all leading international practices and legal sources relating to international commercial arbitration, including the New York and Inter-American Conventions, the UNCITRAL Model Law and other national arbitration legislation, and all leading institutional arbitration rules. It also expands and updates the First Edition's authoritative treatment of international arbitration by U.S. and other national courts. Divided into three parts - international arbitration agreements, international arbitral procedures, and international arbitration awards - the treatise explores each topic in detail, dealing with both legal and practical issues under leading international and national legal regimes. Through excerpts of key court decisions and detailed analysis, it thoroughly covers the role of U.S. courts in enforcing international arbitration agreements under the Federal Arbitration Act, providing a guide to the enforceability of international arbitration awards in U.S. courts and the role of U.S. courts in granting provisional remedies, selecting arbitrators and arbitral situses, ordering discovery, and otherwise providing judicial support for the international arbitral process. Appendices reproduce commonly-used materials essential for practitioners, including the New York and Inter-American Conventions, the Geneva Convention of 1961, the UNCITRAL Model Law, the Federal Arbitration Act, the Swiss Law on Private International Law, leading institutional arbitration rules (including the ICC, AAA, LCIA, and UNCITRAL Rules), and the IBA's Supplementary Rules Governing the Presentation and Reception of Evidence in International Commercial Arbitration and Ethics for International Arbitrators.

This article addresses the question of relationship of constitutional courts to the Court of Justice in national case law; the hierarchy of these national courts to the Court of Justice of the European Union (EU); the hierarchy of national law (constitution) and EU law and the constitutional identity as a limit of the principle of supremacy. The innovative contribution of the present article is that it distinguishes between the effects of the principle of supremacy of EU law on national courts and on national legislators. It thus provides clear and precise guidance to national judges on how to proceed in contentious cases of conflict between national and EU law. This question is not satisfactorily answered in the case law of the Court of Justice. It is also avoided in articles and most textbooks dealing with the supremacy principle. This article also addresses the possibility of a comprehensive solution to the conflict between EU and national law in extreme, but politically extremely important and sensitive, divergences between the decisions of national constitutional courts and the Court of Justice. Contrary to conventional notions, which cognise such a divergence as a serious problem and tend to deny constitutional courts the possibility of making their own independent conclusions, the author of the present article sees this as a natural consequence of the position that these courts occupy in the legal systems of the Member States. In the last part of the article, the author presents several options that constitutional courts have and can use to deal with decisions based on EU law, ranging from full acceptance of this law to its complete rejection on the grounds that EU law does not fall within the frame of reference protected by constitutional law.

This contribution argues that recent EU-related decisions of national constitutional courts demonstrate a new quality of comparative legal reasoning. While classic EU-related case law at best reflects comparative law dimensions by sporadic references to foreign case law, some constitutional courts in Europe have now taken a path towards a more elaborate use of comparative reasoning, including in-depth and sometimes even critical evaluations of foreign jurisprudence in the ratio decidendi. Beyond the traditional motives for courts to rely on comparative law, one particular reason for this intensification seems to be taking an active role in an EU-wide process of shaping common constitutional law. Seen in a transnational perspective, comparative reasoning by judges can be more than a mere reference to foreign law as such; in fact, the judicial evaluation of foreign EU-related decisions can simultaneously be an evaluation of propositions on common constitutional standards. Comparative reasoning by courts then becomes an active contribution to a transnational dialogue of judges on the making of a common constitutional law in Europe.

The topic of public access to national court decisions has never been explicitly on the agenda of the Council of the European Union, since it has been viewed upon as a national responsibility. Recent developments though – like the introduction of the European Case Law Identifier (ECLI) and the go-live of the ECLI search engine, operated by the European Commission and containing millions of national court decisions – have raised awareness about the importance of online accessibility of national case law for the European legal order. This has set the stage for the adoption, on 8 March 2018, of the ‘Conclusions of the Council and the Representatives of the Governments of the Member States Meeting within the Council on Best Practices regarding the Online Publication of Court Decisions’. This Chapter discusses various aspects of these Conclusions. First of all, the character of such Council conclusions as a soft law instrument will be explained. Secondly, the document is reviewed in a broader context of recent policy developments and other (semi-) legal instruments. Finally, the substantive contents of the document will be examined. Although most of the best practices prescribe what is already common practice in all or most EU Member States, some provisions call upon governments and judiciaries to implement strategies that are not commonplace yet, e.g. to supply for some kind of importance qualification, indicating which, and to which extent court decisions are of relevance for others than the parties to the case.

This chapter provides evidence that, while Kadi was an important decision, different perspectives on the underlying subject-matter were taken by various national courts. This is the due to the fact that increasingly, individuals blacklisted by the Security Council or otherwise affected by its decisions are trying to challenge such UN acts before national courts. In particular, the Swiss Supreme Court in Nada, the Canadian Federal Court in Abdelrazik, the Irish High Court in Bosphorus, the English High Court and ultimately the ECJ in the Othman case, as well as the English High Court and the UK Supreme Court in the Hay case provide evidence on national court decisions that rule on the scope of their power to review UN Security Council resolutions. In doing so, different forms of engagement methods can be distinguished, ranging from abstention, low intensity review, consistent interpretation to the annulment of the domestic measure, all confirming the working hypotheses.

The subject of this research is the international legal acts in the area of acceptance and execution of decisions rendered by foreign courts, current procedural legislation of the Republic of Bulgaria, as well as research publications on this topic. The object of this research is the legal foundation and procedural actions in acceptance and execution of foreign court decisions on civil and commercial issues in the Republic of Bulgaria. The author carefully examines the rules directly related to execution and refusal to execute a court decision rendered in a member-state on the territory of Bulgaria. Special attention is given to the multiple issues pertaining to implementation of EU regulations recently passed in the area of EU civil process. Analysis of the positions dedicated to direct execution and refusal to execute a court decision is conducted in the context of the position of Brussels I Bis Regulation. The author makes following conclusions and recommendations: Bulgarian legislator needs to eliminate the difference between obligation to execute a foreign court decision and domestic court decision; it is necessary to amend the Civil Procedure Code of Bulgaria, as well as clarify the process of refusal to execute in accordance with the Article 47 of the Brussels I Bis Regulation. The author’s contribution into the research of this topic consists in the recommendation on improvements to the legal regulation and passing equal conditions for execution of foreign and national court decisions within the framework of the EU.

Introduction. The proliferation of bilateral investment treaties in the late 20 th century has led to a proportional increase in the number of disputes between investors and host states. Materials and methods. Based on traditional methods of system analysis, deduction and induction, scientific analysis, but also system analysis of various international acts, decisions of investment arbitrations and national courts, the author forms the vectors of research of the complex and sometimes contradictory practice of implementing the procedural principles of independence and impartiality in the field of investment arbitration. Discussion. According to the standard provisions of investment treaties, disputes between states and investors arising from them were subject to referral to ad hoc arbitration, created on the model of international commercial arbitration. However, the overwhelming majority of claims filed by investors concerned not violations of investment contracts, but rather challenges to general measures taken by states to regulate their economies. Traditionally, such measures were challenged in national courts, but the practice of considering them in investment arbitrations quickly revealed a number of problems directly related to the specifics of the formation of such arbitration tribunals. As a result of the emerging practice, investment arbitration found itself in a deep crisis of legitimacy for the reasons set out in the study. The ways out of the crisis necessitated identifying its causes and making attempts to resolve them. The main results. The issues of independence and impartiality of arbitrators in resolving investment disputes are a legitimate concern for states that have allowed, in their international treaties, disputes between investors and the state to be considered not in national courts but in special ad hoc arbitration. This problem has become particularly acute in light of the obvious tendency of investors to refer disputes related to the adoption by states of general measures taken for public purposes and aimed at regulating the economy to arbitration. States have approached the issue of resolving the problems that have arisen in different ways. The nearest future will show the real impact of the adopted Code of Conduct for Arbitrators in Resolving International Investment Disputes on the perception of the parties to the dispute as to what level of impartiality the arbitrators should have and on the tendency to increase the disqualification of arbitrators on the grounds of their bias.