Effective Judicial Remedies Research Articles

Enforcement of EU Labour Law: Legal foundations and the role of the CJEU

Labour law enforcement is crucial for achieving its social objectives, yet it often faces significant challenges in terms of its capacity to ensure the effective protection of labour rights. In the EU context, effective enforcement of labour law is further complicated by the absence of a sectoral, i.e., labour-specific, approach and the challenges in implementing EU substantive rules, often stipulated in Directives. The article assesses the enforcement landscape of EU labour law and particularly the legal foundations and the CJEU's role. Focusing on key enforcement issues, the analysis highlights how the constitutional right to an effective judicial remedy, as interpreted by the CJEU, and the inclusion of more comprehensive enforcement provisions in EU Directives are mitigating to some extent the existing fragmentation in the EU regulatory landscape, and concludes with considering future directions in EU labour law enforcement.

A Study on the Compensation for Mental Damage in the Breach of Personhood Property Contracts

The personhood property are not only the carriers of personality interests, but also an important manifestation of personality interests. The protection of personhood property is a key issue that the law needs to pay attention to. In recent years, contracts with personal property as the subject matter of contracts have become increasingly common, and the resulting breach of contract requires legal regulation. Article 996 of the Civil Code confirms China's compensation system for breach of contract mental damages, but stipulates that the damage to personality rights is a prerequisite for compensation for breach of contract mental damages. There is no provision for compensation for breach of contract mental damages in personal property contracts, resulting in different judicial standards for compensation for breach of contract mental damages in judicial practice, and the phenomenon of different judgments in the same case is common, The non breaching party in a personal property contract is unable to receive timely and effective judicial remedies, which is not conducive to the protection of the personal interests of the rights holders in reality. Based on this, this article takes the breach of personal property contracts as the starting point, combined with specific cases in judicial practice, to conduct in-depth analysis and propose improvement suggestions for the current problems of unclear standards for identifying personal property, lack of legal provisions for compensation for mental damages caused by breach of personal property contracts, and unclear reference standards for compensation for mental damages caused by breach of contract. The aim is to enable the parties who suffer losses in personal property contracts to receive corresponding compensation for mental damages, Strengthen the protection of personal property rights and the interests of everyone.

The political economy of effective judicial remedies

The political economy of effective judicial remedies

Judicial Control of Parliamentary Procedure: Theoretical Framework Analyses

Parliamentary procedures are undoubtedly at the heart of (national) parliamentary sovereignty. However, in the last two decades, courts, including supranational ones (e.g. ECtHR), are increasingly getting involved in assessing the application of parliamentary rules and procedures. This increasing judicial activism highlights the importance of finding the equilibrium between the right to an effective judicial remedy, which inevitably should encompass parliamentary decisions, and the principles of separation of powers and parliamentary autonomy. This paper analyses a possible theoretical framework of (judicial) remedies against parliamentary procedural decisions, distinguishing between types of procedural rules, applicants, fora, extents of judicial activism and types of judicial review. It concludes that the different types of remedies are highly dependent on the political landscape and the government structure. It is yet advisable that a permanent, extra-parliamentary forum, a kind of “House-Rules-Court” should be established in countries, where the House Speaker does not enjoy full respect and neutrality.

In Search of Legal Certainty Regarding 'Effective Redress' In International Data Transfers: Unpacking The Conceptual Complexities and Clarifying The Substantive Requirements

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.

The legal framework of data subject representation

The GDPR provided for new rules on the right of the data subjects to an effective judicial remedy against a controller or a processor where they consider that their rights have been infringed under the Regulation as a result of the processing of personal data. Art. 80 of the GDPR, on the representation of data subjects, is intended to favour private enforcement of EU data protection law, providing for the representation of data subjects by a body or entity which must meet specific requirements in order to exercise the rights conferred to the data subject regarding an effective judicial remedy. The representation of data subjects by a third party in legal actions is possible in two cases: on the one hand, the situation where a data subject mandates the body or organization to represent them or, on the other side, when a body or organization, has the right to lodge a complaint and exercise the rights to effective judicial remedies provided by the GDPR independently of a mandate. This paper will detail the legal framework of this private enforcement tool and analyse the links between data protection and consumer protection from the perspective of collective redress and representation of the interests of a data subject.

Effective judicial protection and the European arrest warrant: Navigating between procedural autonomy and mutual trust

The article explores the ECJ case law on effective judicial protection in EAW proceedings, looking critically at the interpretation of Article 47 CFR in this context. The article reveals the approach to national procedural autonomy within the EAW case law, emerging most distinctly from the ECJ’s interpretation of “judicial authority” under Framework Decision 2002/584/JHA. The case law analysis challenges the scholarly arguments according to which the Court’s interpretation of Article 47 CFR has contributed to a significant erosion of national procedural autonomy. By contrast, the article concludes that in the context of judicial cooperation in criminal matters, the ECJ case law has mostly sought to mitigate the impact of Article 47 on national procedural autonomy. The Court may have done so to accommodate specific policy priorities pertaining to the nature of the EAW system (e.g. the fight against impunity) and uphold the principle of mutual trust.While showing internal incoherence in the interpretation of the notion of “judicial independence”, the Court has thus far failed to provide convincing arguments to secure the right to an effective judicial remedy for requested individuals in the cases at hand. European arrest warrant, effective judicial protection, procedural autonomy, independence of the judiciary, right to an effective remedy

The Political Economy of Effective Judicial Remedies

The Political Economy of Effective Judicial Remedies

New Grounds for Civil Liability under National Law in the Light of Article 79 of the GDPR

The subject of the paper is the functioning of Article 79 of the GDPR in the Polish legal system and in other countries. The above provision establishes the right to an effective judicial remedy against a controller or processor, which is to guarantee the protection of personal data in relation to the data subjects. The paper submits to a dogmatic and comparative analysis those regulations that concern the right to an effective legal remedy in the field of personal data protection based on the example of Polish legal regulations, but also with reference to France, Germany and Great Britain to comprehensively study solutions on the issues in question.

Court of Justice

This overview highlights the General Court’s decision on the incompatibility of the Spanish tax lease system for the purchase of vessels with State aid rules and the ECJ’s decision on legislation of a Member State that excludes the possibility of an effective judicial remedy against a request for information arising from an exchange of information request from another Member State.

El arbitraje de inversiones en los tratados de libre comercio de nueva generación: un análisis nacional desde la perspectiva del derecho a la tutela judicial efectiva

En este trabajo se analiza el sistema de solución de diferencias en materia de inversio­nes extranjeras en los tratados de libre comercio de nueva generación desde la perspectiva del derecho a la tutela judicial efectiva. En concreto, se examina la compatibilidad del arbitraje de inversiones del CETA con los arts. 47 CDFUE, 6 CEDH y 24 CE.

Recalibrating the Debate on MiFID’s Private Enforceability: Why the EU Charter of Fundamental Rights is the Elephant in the Room

The genesis of MiFID I initiated a fierce scholarly debate on the following question: does MiFID dictate private enforceability of the rules embedded in the directive? More specifically, under a general reference to the effet utile doctrine, certain authors have argued that MiFID requires member states to provide private law remedies for infringements of certain (investor protecting) MiFID provisions. However, another strand in legal scholarship has sternly denounced this idea. In their reading, member states might equally achieve an effet utile in light of the investor protection objective by solely providing administrative enforcement mechanisms. According to this vision, it is thus for the member states to decide whether, and if so under what conditions, private law remedies are made available. This debate has never resulted in a widely endorsed consensus and persists in the MiFID II era. My thesis, somewhat provocatively, is the following: legal scholarship has erroneously overlooked the EU Charter of Fundamental Rights when assessing the private enforceability of MiFID. As the Charter requires effective judicial remedies for violations of rights conferred upon individuals by EU law, I contend that its omission in the debate on MiFID’s private enforceability has led to serious misconceptions about the enforcement of MiFID. Furthermore, in light of my article’s central thesis, I extend existing scholarship on MiFID II’s controversial paragraph about remedial action in a new direction. I present two fresh textual arguments that might shed light on the meaning of this paragraph. The arguments, which—to the best of my knowledge—have not been advanced in legal scholarship before, draw upon an integrated and coherent reading of the text of MiFID II. More precisely, the novel arguments are based on the relation between the contested paragraph and the structure and wording of MiFID II as a whole.

A Commentary on the Right to an Effective Remedy in the Case Law of the CJEU

The right to an effective judicial remedy is an essential element of realising the rule of law. It is the fundamental right granting individuals the possibility to request independent review of compliance with the legal provisions. The genius of protecting as an individual fundamental right this structural notion of independent judicial review, has much contributed to the prominence and the protection of judicial accountability and effective enforcement of EU law. Yet, this critical commentary on the right to an effective remedy shows that the case law of the CJEU has predominantly aimed at ensuring Member State compliance with the right to an effective remedy. When it comes to reviewing EU law provisions against this right, the general considerations of ensuring effective judicial remedies are a lot less pressing, and accordingly, the CJEU has decided to be less stringent in its application of the right. Such case law of the CJEU has left gaps in protection. The commentary ends with the observations that additional problems for the enforcement of the right to an effective remedy arise from the often-composite nature of procedures, linking one or several Member State bodies with European institutions and bodies in one single procedure.

Micro-Harmonisation of the Fundamental Right to An Effective Judicial Remedy in the Proposed Return Directive and Beyond: a Dangerous Path?

Micro-Harmonisation of the Fundamental Right to An Effective Judicial Remedy in the Proposed Return Directive and Beyond: a Dangerous Path?

(Dis)placing the Law: Lessons from South Africa on Advancing U.S. Asylum Rights

As the administration vastly erodes asylum rights in its efforts to reshape the immigration landscape, advocates are taking the battle to the courts. But their legal victories may have little impact on the lived realities of asylum seekers. Asylum seekers face continuing obstacles in accessing legal guarantees because, outside of the formal legal space, the law operates within a sociopolitical context that mediates access to rights. Frontline bureaucratic actors who interact directly with asylum seekers have considerable autonomy to implement their own more localized understandings of rights and justice, understandings that may, in turn, reinforce centralized policy preferences. While these frontline actors generally mediate interactions between the citizen and the state, asylum seekers stand outside of the political community defined by citizenship. The fact that the rights holder is external to the political community upon which they are making claims creates more space for frontline actors to displace formal legal rights and may limit the reach of judicial decisions. This paper focuses on the actions of frontline, or street level, actors and the efforts of an intransigent executive, characterized by hostility to the legal framework, to show how centralized (executive) and decentralized (street level) processes work in concert to circumvent legal guarantees. An intransigent executive whose policy interests diverge from the legal framework may create more opportunities for autonomous bureaucratic actors on the frontlines to implement their own legal understandings. The argument contextualizes emerging developments in the US by looking to South Africa. Despite highly progressive refugee legislation, street level actors implementing more localized understandings of rights and justice have prevented asylum seekers in South Africa from accessing their legislated rights, a process that converges with and is reinforced by national level policy preferences. Similar dynamics are now at work in the US as the Trump administration significantly alters the asylum system. Understanding these dynamics can lead to more effective judicial remedies. The argument reveals that these processes can affect the implementation of legislated and judicially recognized rights not just in emerging democracies, but also in established democracies where there rule of law is highly institutionalized. It also informs global discussions around refugee protection as countries around the world adopt similar strategies to limit asylum rights.

Recalibrating the Debate on MIFID’S Private Enforceability: Why the EU Charter of Fundamental Rights is the Elephant in the Room

The genesis of MiFID I initiated a fierce scholarly debate on the following question: does MiFID dictate private enforceability of the rules embedded in the directive? More specifically, under general reference to the effet utile doctrine, certain authors have argued that MiFID requires member states to provide private law remedies for infringements of certain (investor protecting) MiFID-provisions. However, another strand in legal scholarship has sternly denounced this idea. In their reading, member states might equally achieve an effet utile in light of the investor protection objective by solely providing administrative enforcement mechanisms. According to this vision, it is thus for the member states to decide whether, and if so under what conditions, private law remedies are made available. This debate has never resulted in a widely endorsed consensus and persists in the MiFID II era. My thesis, somewhat provocatively, is the following: legal scholarship has erroneously overlooked the EU Charter of Fundamental Rights when assessing the private enforceability of MiFID. As the Charter requires effective judicial remedies for violations of rights conferred upon individuals by EU law, I contend that its omission in the debate on MiFID’s private enforceability has led to serious misconceptions about the enforcement of MiFID. Furthermore, in light of my paper’s central thesis, I extend existing scholarship on MiFID II’s controversial paragraph about remedial action in a new direction. More specifically, I present two fresh textual arguments that might shed light on the meaning of this paragraph. The arguments, which – to the best of my knowledge – have not been advanced in legal scholarship before, draw upon an integrated and coherent reading of the text of MiFID II. More precisely, the novel arguments are based on the relation between the contested paragraph and the structure and wording of MiFID II as a whole.

Jurisdiction in Foreign Direct Liability Cases in Europe

The right to remedy for victims of human rights abuses by transnational corporations is far from guaranteed. Often, the state where the abuses occurred is unwilling or incapable of offering effective remedies, especially effective judicial remedies. The victims may then choose to “go global” and bring civil suits in the courts of other states, including the home states of the corporations alleged to have committed the abuse. One way in which they have done so is by bringing so-called “foreign direct liability” (FDL) cases: civil claims in domestic courts of foreign states against corporate actors, in the hopes of getting financial compensation as a remedy.

Standing Up for British Lungs: Effective Judicial Enforcement in Environmental Law – R (on the application of ClientEarth) v. Secretary of State for the Environment, Food and Rural Affairs

The judgment of the Supreme Court of the United Kingdom in R (on the application of ClientEarth) v. Secretary of State for the Environment, Food and Rural Affairs represents a pragmatic approach to a pressing public health problem. However, the appellate history of the case reveals a number of important failures in the proper process of European Union law, in relation to the granting of an effective judicial remedy and with regard to the preliminary reference procedure.

RESPONSIBILITY IN GROUPS OF COMPANIES AND THE FUTURE OF INTERNATIONAL HUMAN RIGHTS AND ENVIRONMENTAL LITIGATION

EVER since the establishment of separate legal personality of companies and their limited liability in the nineteenth century, there have been attempts by voluntary and involuntary creditors of the insolvent or dissolved subsidiary to obtain remedies from the parent company. The orthodox view is that the parent company is neither responsible for the acts and omissions of the subsidiary nor liable for its debts. The Court of Appeal in David Thompson v The Renwick Group plc [2014] EWCA Civ 635 confirmed that the exceptions to this orthodoxy apply only in truly exceptional circumstances. As discussed below, the importance of this judgment extends into the realm of international human rights and environmental litigation and has the potential to set back the existing efforts within the European Union to ensure effective judicial remedy for corporate abuses.

UN Guiding Principles on Business and Human Rights & Effective Remedies: A state-based non-judicial grievance mechanism for Switzerland

The paper answers the UN Guiding Principles on Business and Human Rights’ call for effective state-based non-judicial grievance mechanisms. To begin, it is explored why people whose human rights have been harmed due to extraterritorial business operations are often denied effective judicial remedy. In light of this, the paper scrutinizes the requirements that a non-judicial grievance mechanism should satisfy to be effective. To this end, by starting from procedural guarantees of human rights treaties, the UN Guiding Principles’ effectiveness criteria are interpreted. Based on these findings, a grievance mechanism for Switzerland is ultimately conceived.