Action For Annulment Research Articles

의무이행소송의 도입 필요성과 법제화 방향

The introduction of enforcement action (action seeking the issuance of an administrative act) has long remained an unresolved issue in the field of administrative law, both in academia and in practice. During discussions on the revision of the Administrative Litigation Act, intense disagreements arose over other major issues, such as the expansion of the scope of the administrative act and standing to sue. Although there was no fundamental opposition to the introduction of enforcement action itself, the amendment process ultimately failed, preventing its legislation. The current stagnant state, with no significant progress, leaves much to be desired. This article examines the rationale for the introduction of enforcement action and reviews the desirable legislative direction by addressing the detailed issues raised during these discussions. The most compelling reason for the introduction of enforcement action is the limitations of the action for annulment of a rejection and the action seeking confirmation of the illegality of an omission. Plaintiffs challenging a rejection or omission ultimately seek a favorable administrative act. However, under the current forms of litigation, it is difficult to achieve effective protection of rights, timely resolution of disputes, and efficiency in litigation. In addition, enforcement action is necessary to establish appropriate provisional remedies against a rejection and omission. The examination of detailed issues leads to the following conclusions: First, even after the introduction of enforcement action, it is necessary to maintain the action for annulment of a rejection, but this is not the case for the action seeking confirmation of the illegality of an omission. Second, the court should issue both an enforcement ruling and an annulment simultaneously to ensure clarity in legal relations. Third, although the reference point for judgment has been a topic of heated debate tied to the nature of enforcement action, this is an issue that is better left to the judiciary after the legislation is enacted, rather than being decided at the legislative stage. Fourth, it is unreasonable to require reasonableness as a condition for issuing an enforcement ruling for specific decision, and it should be possible to issue an enforcement ruling for mandatory decisions. Fifth, for the purpose of introducing enforcement action to be fully realized, courts should recognize enhanced judicial responsibilities and investigate the facts of cases more actively than they do at present. In conclusion, I would like to emphasize that, despite disagreements over the details, it is better to have enforcement action than not to have it. These disagreements are secondary to the overarching need for its introduction.

Vienna calling (Luxembourg) – About the admissibility of an Action for Annulment of the Nature Restoration Law

Vienna calling (Luxembourg) – About the admissibility of an Action for Annulment of the Nature Restoration Law

Council

This overview highlights the Council’s (i) formal adoption of a new Economic Governance Framework, (ii) publication of a compromise text on FASTER and call to Member States to reach a common general approach, (iii) political agreement reached on FASTER, and (iv) appeal raised by Fugro NV in the case concerning its action for annulment of the Minimum Taxation Directive (2022/2523).

The right to climate protection and the essentially comparable protection of fundamental rights: Applying Solange in European climate change litigation?

AbstractIn an action for annulment against the European Union (EU) Emissions Trading Directive, both the EU General Court and the Court of Justice of the EU (CJEU) found the claim to be inadmissible because the applicants did not satisfy the infamous Plaumann criteria. Conversely, at the national level, the German Federal Constitutional Court (GFCC) accepted to decide on a claim by individuals arguing that the German Climate Protection Act violated their fundamental rights. In its decision, the GFCC makes far‐reaching statements on the protection of fundamental rights in times of global climate change. Some might even argue the GFCC established a fundamental right to climate protection. By contrast, the CJEU did not yet decide on the effective protection of intertemporal rights or a right to climate protection respectively. Almost 50 years after the Solange I decision, one must ask whether there is a substantial deficit of fundamental rights protection at the EU level.

Judicial Review of the EU's Informal Migration Tools - Admissibility in Cases of Tunisia and Türkiye Deals

Accountability of the EU in external migration management has become increasingly challenging due to the widespread use of informal tools. Since the Amsterdam Treaty, the EU has exercised this competence primarily through readmission agreements. However, following the urgency of the migration crisis post-2015, coupled with the procedural and legal constraints of readmission agreements and the necessity for flexibility, informal tools like the EU-Turkey Statement (2016) have gained preference over hard law sources. Judicial review of these instruments has only been tested in the case of Türkiye, where the CJEU rejected the case during the admissibility stage. This article evaluates the judicial review of informal migration tools within this context. It does so by examining the potential for annulment against the EU-Tunisia Memorandum of Understanding (2023) from a procedural perspective, drawing upon criteria derived from the Türkiye case and relevant CJEU jurisprudence. It is concluded that the current criteria regarding the status of applicants are insufficient to bring the EU before the CJEU. Therefore, given the ongoing increase in the use of informal tools, there is a pressing need to reform the procedural rules concerning actions for annulment.

Annulment of The Arbitration Decision Accordin to The Legislation and Practice

Objective: The study of the work has a comprehensive approach, based on current legislation and practice. Based on the fact that the arbitration procedure is an alternative procedure for the resolution of disputes, it is quite demanded, and that there are deficiencies in the literature as well as in the knowledge of the subjects of the law. Thus, when it came to the decisions made in the arbitration procedure, we say that they have the same legal force as the decisions made by the regular courts of the state, and also the annulment of the decision requires special clarification, since there are cases that the decision made in the arbitration proceedings are required to be set aside as the reason that the agreement to arbitrate is void. Thus, the purpose of this paper is to clarify in short points that it is possible to annul an arbitration decision in the event that the arbitration agreement was invalid. Method: The work is formulated on the basis of appropriate scientific methods. The methods that are included in the paper are scientific methods, historical methods, comparative methods, deduction methods, induction methods, and other methods without which the paper could not be formulated! Result: The decision made in the arbitration procedure must be made in accordance with the law on arbitration as well as with the principles defined in the law on arbitration, whether domestic or international. If it is found that the arbitration decision is illegal, or not based on evidence, then the same can be annulled. This annulment can be done by the regular state courts, but always in case the party that has a legal interest addresses the court and requests the annulment of the arbitration decision because it is contrary to the law on arbitration or contrary to the agreement on arbitration. or other reasons which the parties may present in the action for annulment of the arbitration award. We will talk more about the annulment of the arbitration decision in the content of this paper. Conclusion: As a conclusion of the paper, in the general sense of this paper, I have mentioned that the parties during the terms of the agreement must be careful not to conflict with any reason that leads to the invalidity of the arbitration agreement, since this invalidity will have consequences in in the event that an arbitration award has been given by this agreement, as from the regular courts this award will be annulled because the arbitration agreement has been invalid since the beginning of the criminal offense of this agreement or may become invalid and with the passage of time. So, during any action taken by the parties who claim to resolve their dispute through arbitration, they should be careful that everything is in order with the arbitration agreement, as the invalidity of the agreement may lead to the annulment of the award. of arbitration and this would be to the detriment of the party.

Annulment Actions and the V4 Member States: Taking EU Legislative Conflicts Before the Court of Justice

<p>The EU Member States have been using the action for annulment to challenge the legality of EU measures while pursuing a range of non-legal, essentially political motivations. This also holds true for the V4 Member States, which have also resorted to annulment actions to judicialize their legislative conflicts within the EU before the Court of Justice. Among the V4, Poland has been the most frequent litigant, using this institutional tool increasingly actively during the last ten years. Poland’s behavior appears to confirm expectations of differentiation among this group of Member States. It also coincides with a period of political change marked by deep conflicts with the EU. The V4 annulment challenges against EU legislative measures usually made a genuine effort to achieve the legal objective of annulling the challenged legal act. However, there is evidence that they also pursued certain political motivations or a combination of them. These could include the securing of gains in domestic politics, avoiding the local costs of an EU policy misfit and/or promoting a preferred policy position, and/or the influencing of EU competence arrangements. In a few cases, the litigant Member State aimed to avoid concrete material disadvantages. Securing a legal interpretation from the Court of Justice that would influence the behavior of other EU actors, or clarify the law affecting the position of the applicant Member State also motivated some of the V4 legal challenges.</p>

20 Years from Aedo v. Fisco: Is There Still Something of the Old Public Law Nullity?

On November 27, 2000, the Supreme Court decided the case "Aedo v Fisco", which set an important precedent regarding the understanding that traditional doctrine and case law had regarding public law nullity and its scope. After two decades, the question arises regarding the validity of this line of cases. Based on the examination of ten subsequent cases, a brief analysis of the new contours that the Supreme Court has set out regarding the general regime of the action for public law annulment is presented. In light of the evidence provided by the rulings, the author questions the validity of this action as a general mechanism for protecting the rights of the administered, noting the troublesome state of national administrative litigation.

Sped-Pro: The Impact of Rule-of-Law Backsliding on the Enforcement of (EU) Competition Law

Abstract The Sped-Pro judgment concerns an action for annulment of an EU Commission decision rejecting a complaint alleging the abuse of a dominant position by the Polish state-owned railway company PKP Cargo. In this judgment, the General Court for the first time established a direct link between systematic deficiencies in the legal order of a Member State and the ability of its competition authority to investigate and take enforcement action under EU law. The General Court addressed issues of the rule of law as an element of effective competition law enforcement and the case allocation principles between the Commission and National Competition Authorities (NCAs) under the decentralised enforcement system of Regulation 1/2003. The General Court now requires the Commission to examine, when handling complaints, whether an NCA can actually enforce EU law effectively.

Consumer Protection by the ECJ in Unit-Linked Group Contracts: On Transparency, Liability and Nullity under the UCPD

This case note addresses the ECJ’s drafting of essential information to be given to a consumer in the event of a unit-linked group contract. This information enables consumers to make an informed decision. The ECJ subsequently qualifies the failure to transfer this information as a misleading omission under Article 7 UCPD, which in turn may result in a violation of the transparency requirement enshrined in the UCTD. Liability of the traders on whom the responsibility rests to furnish this information is also examined in this comment, as the ECJ makes a distinction between the responsibilities of traders and intermediaries. The Polish action for annulment when the traders infringe the UCPD was lastly deemed compliant with the UCPD and proportionate by the ECJ, thereby using a cross-reference to its case law in the field of consumer credits on the requirement that national sanctions have to be effective, proportionate and dissuasive. The possible consequences of this cross-reference method are discussed afterwards.

The Court of Justice of the European Union as a legal field

AbstractReflexive sociology can contribute to a more holistic understanding of the role of the Court of Justice of the European Union (CJEU/Court) as a relational actor. This article draws on the Bourdieusian concept of (legal) field as an analytical framework to trace the power relations between the Court and its interlocutors. The analysis develops around four distinct conceptualisations of the Court as a legal field, ranging from its institutional architecture to the three mainstream judicial routes for a case to reach its docket (preliminary reference procedure, action for annulment and infringement procedure). These showcase the varied interactions among the different actors that either shape the Court as an institution or engage with it in the course of its adjudicative function. According to field theory, these interactions take the form of power struggles between the actors comprising a legal field in order to take control of the determination of the law. The actors of a legal field enjoy different positions that formulate their objective relations, and which are contingent on their disposition and capital. Each of the conceptualisations of the Court as a legal field in this article points to distinct power struggles and relations among a similar set of actors. Consequently, using field theory can be a very useful tool to contextualise the role of the Court and to systematically study its judgments, modus operandi and position in the European legal field under a reflexive lens that accentuates the significance of social space and power relations, and pushes for socio-legal and empirical insights.

Easy does it: pressing the right buttons in public access to documents of the EU

This article makes two claims regarding what is relevant in 2022 to the future of Regulation 1049/2001. The first is that an about-turn in the case law of the Court of Justice of the European Union (CJEU) has partly altered the formal scope of the EU policy concerning public access to documents (PAD) from document to information (PAI). This change in scope affects documents included in digital databases or other documents held in digital form but not the acquis regarding printed-on-paper documents. Second, we observe an uncomfortable stasis currently affecting both the EU judiciary and the Ombudsman. On the one hand, the judiciary remains imprisoned, without an alternative, within the bounds of insufficient remedial depth, i.e., concerning the action for annulment. Conversely, regarding the Ombudsman’s role, classical recommendations have proved insufficient to drive EU access policy. Interestingly, in reaction to suggestions that binding powers be considered for the Ombudsman, even the current head of this institution demurs. Such a proposal carries an inherent serious risk of cognitive dissonance between the EU framework and national frameworks.

EU: No direct actions for annulment against binding decisions of the European Data Protection Board

EU: No direct actions for annulment against binding decisions of the European Data Protection Board

Specifičnosti tužbe za poništaj odluka odbora za žalbe decentralizovanih agencija EU

There are ten EU decentralised agencies empowered to take decisions that are intended to produce legal effect vis-à-vis private persons in the context of regulating the internal market. In order to ensure effective protection of the rights of private persons against these agencies, EU law establishes mechanisms of internal and external legal control of their decisions. Internal control is achieved through the mechanism of administrative appeals before the Boards of Appeal (BoAs) established within each of the agencies. The BoA's decision on the appeal is final and legally binding on the parties to the appeal proceedings. It is therefore the subject matter of an action for annulment before the Court of Justice of the European Union (CJEU), which ensures external control of the agency decisions. The action for annulment of the BoA's decision is subject to the same rules that apply to the annulment of any act of EU law intended to produce legal effects vis-à-vis third parties, but there are certain peculiarities in the context of the judicial review of the agency decisions. These peculiarities exist in four aspects of the action for annulment, namely: 1) the jurisdiction of the CJEU; 2) the grounds for annulment - the scope and intensity of the review performed by the BoA; 3) the effects of the first-instance judgment - alteration of the BoA's decision in some agencies; and 4) the appeal against the first instance judgment - filtering mechanism under Art. 58a of the CJEU Statute. These peculiarities are the subject of this paper.

Locus standi pojedinaca kod tužbe za poništaj akata Evropske unije

The aim of this paper is to analyze the circumstances under which private parties (natural and legal persons) can have a legal standing in annulment actions in EU Law. The limitations imposed on these private parties justifiably mark them as non-privileged applicants. Besides proving the legal grounds for initiating an annulment action and the compliance with the short preclusion period, two additional conditions must be cumulatively met: the non-privileged applicants must prove that they are directly and individually affected by the challenged act. The latter requirement, which is more disputable and difficult to meet, is additionally made more stringent in the jurisprudence of the EU Court of Justice. Therefore, the central part of the paper focuses on the analysis and criticism of the Plaumann test as an extremely strictly set application test for acquiring a legal standing by private parties. In light of understanding EU law as a comprehensive legal order including a complete system of protection of individual rights, the paper provides an overview of arguments and counter-arguments for a prospective reform of the Plaumman test. The analysis leads to the conclusion that the limiting conditions for locus standi of non-privileged applicants, as well as the occasional unavailability of legal remedies before national courts, are the shortcomings of EU law as an order that strives to achieve the rule of law and bring the EU closer to its citizens. In the past decades, the Plaumann test served as a tool for effectively denying the legal standing to private parties. Although the Treaty on the Functioning of the European Union (TFEU) has made some progress in the direction of liberalizing the acquisition of locus standi, it is only the case in a limited and narrowly defined number of situations.

Balancing Article 17 CDSMD and the Freedom of Expression

Accompanied by massive protests driven by concerns about the introduction of upload filters, Art. 17 of Directive (EU) 2019/790 on copyright in the Digital Single Market (CDSMD) came into force in 2019. Since then, a lot has happened: Poland filed an action for annulment, whose ruling was announced by the CJEU on 26 April 2022, Member States delivered transpositions with diverging approaches, and a political agreement on the Digital Services Act, which contains numerous regulations that are potentially also applicable to online platforms as addressees of Art. 17 CDSMD, was reached on 23 April 2022. With all these regulations, the question remains open as to how it can be ensured that Art. 17 CDSMD is compatible with the fundamental right to freedom of expression and information, enshrined in Art. 11 of the Charter of Fundamental Rights. In order to answer this question, the origin of Art. 17 CDSMD and its ratio, its liability mechanism and its impact on the fundamental right will first be examined. In a further step, the safeguards laid down in Art. 17 CDSMD are analysed and the effects of the current ruling on national implementations are discussed. Finally, the focus is on the German approach, which contains farther-reaching ex ante safeguards and is considered as a model for further implementations, especially after the judgement of the CJEU. It is concluded that the developments since the adoption of Art. 17 CDSMD overall strengthen the freedom of expression and information. In order to ensure effective protection of this fundamental right, however, it is necessary to define when content is to be regarded as manifestly infringing and can thus be blocked ex ante according to the recent judgement. Determining this, should not be left to the OCSSPs. The German implementation offers a first step in this regard but is also confronted with doubts about its compatibility. This article takes the recent case law, national and EU legislation and offers a timely contribution to the debate on the compatibility of Art. 17 CDSMD with the fundamental right to freedom of expression and information.

İTİRAZIN İPTALİ DAVASINI DAVA ŞARTI OLARAK ARABULUCULUK KAPSAMINDA DEĞERLENDİREN BİR YARGITAY KARARININ İNCELENMESİ

The Code of 7155 has added the rule of compulsory mediation to the Turkish Commercial Code. It’s regulated that some commercial disputes are subject to the mediation process just before filing a lawsuit. This regulation mainly aspire to enable the parties to get rid off the contradictions in a short term with less expense. However, the action for annulment of objection related to commercial disputes may not appropriate for the compulsory mediation. In the frame of the decision enacted by the court of cassation it is argued that the action for annulment of objection is subject to the compulsory mediation rule. However, it should be analyzed whether the action for annulment of objection is suitable for this rule. If the action for annulment of objection is not suitable for the compulsory mediation this practice may cause consequences in contrary to the aims of the rule.

Poland’s challenge to Article 17 CDSM Directive fails before the CJEU, but Member States must implement fundamental rights safeguards

Abstract The Court of Justice of the European Union (CJEU) has dismissed Poland’s action for annulment of the new copyright liability regime for specific online platforms but subjected its implementation to strict fundamental rights control. As a result, national implementations must ensure that the rights of users are given sufficient protection against preventive blocking and filtering of content uploads.

SİLAHLARIN EŞİTLİĞİ VE ÇELİŞMELİ YARGILAMA İLKESİ BAĞLAMINDA İDARİ YARGILAMA USULÜNDE SEBEP İKAMESİ

Substitution of motives improved by judicial case laws, can be explained as the administrative judicial bodies examining annulment actions, not rescinding the action according to another motive they have determined during the trial, although they have determined that the motive on which the administration bases its action, is unlawful. The substitution of motives discussed in both the practice and the doctrine from various aspects, will be studied in terms of equality of arms and adversarial trial principles. Equality of arms and adversarial trial are two sub-principles of right to a fair trial and provide significant guarantees for administrative trial procedures. While the principle of equality of arms aims to establish a fair balance between the parties in the trial and to avoid substantial disadvantage of a party vis-à-vis the other party, the principle of adversarial trial aims to ensure that the parties know and discuss any evidence, claim or explanation included in the case file. Remarkable results are obtained by studying the abovementioned principles in terms of substitution of motives. The substitution of motives, which has been dealt with by the doctrine and especially by the Constitutional Court in terms of the principle of adversarial trial, will be studied in terms of the principle of equality of arms in addition to this principle, and it will be tried to determine the disadvantages which the practice may cause in terms of this principle.

Consideration on the Possibility of the Cancelation of the Decisions Adopted by the Special Meeting of Shareholders under the Conditions of art.132 of Law no. 31/1990 regarding Companies

The issue of law in question concerns the possibility of verifying the legality of a decision adopted by the special meeting of shareholders, based on the provisions of art. 116 of Law no. 31/1990, by way of an action for annulment, regulated by the provisions of art. 132 of Law no. 31/1990. Basically, based on art. 132, the admissibility of action in the annulment of the decision of the special meeting of shareholders, adopted under the conditions of art. 116, is questioned.