EU Principles Research Articles

Introduction to Hybrid Public Private-Partnerships in Poland

Abstract Public-private partnership (PPP) is an alternative form of delivering public services by the private sector. The concept of hybrid PPPs developed by the European Commission puts emphasis on integration of the EU funding with the commercial financing supported by private investors. The Commission has introduced a number of advantages of so-called “blended” projects, and among them are: the opportunity to implement undertakings which otherwise would not be exclusively financed by commercial sources or reducing financial risk of projects. Hybrid PPPs demand respect for basic EU principles such as open market access, state aid regulations, protection of public interest and defining the optimal level of subsidization. In Poland PPP has been developing since 2009 when the legislation on PPP and concessions entered into force. The Polish legal framework allows the formation of hybrid PPPs according to the EU concept. Hybrid projects may be realized in a different variants, defining private partner’s role as a beneficiary or operator of the co-financed infrastructure, or mixed types of his engagement in projects.

The principle of mutual trust versus the child’s right to be heard

This central topic for this article is a CJEU decision that allows for the study of the application of the principle of mutual trust and a child’s right to be heard in the enforcement of a decision ordering the return of a child wrongfully taken abroad. The article also looks at the jurisdiction of a requested court being able to refuse the enforcement the above-mentioned decision by reference to violation of its own constitutional principles or to the grave violation of the basic rights of the child. In the Zarraga case, in connection with the facts of the wrongful removal of a child, the CJEU came to face the issue of how to reconcile EU principles such as the principle of mutual trust with principles of procedure within the area of fundamental human rights, such as the child’s right to be heard.

European Commission's Banking Communication: Question of Validity in the Slovenian Banking Bail-in Puzzle ∙ Tadej Kotnik and Others v Državni zbor Republike Slovenije ∙ C-526/14 ∙ Annotation by Ana Vlahek and Matija Damjan

In July 2016, the CJEU issued a preliminary ruling on the interpretation of the effects of the European Commission's Banking Communication, and on the interpretation and the validity of its framework of burden-sharing being a prerequisite for granting State aid to banks. The questions were referred to Luxembourg in December 2014 by the Slovenian Constitutional Court reviewing the constitutionality of various provisions of the Slovenian Banking Act of 2006 as was amended in November 2013 following the issuance of the Banking Communication in August 2013 and the Bank of Slovenia's finding in September 2013 that five Slovenian banks were showing capital shortfalls. The result of the enactment of the Communication and the Banking Act amendment, but also of negotiations between the Republic of Slovenia and the European Commission assessing the planned State aid to the banks, was that the Bank of Slovenia ordered in December 2013 a total write-off of equity capital, as well as hybrid capital and subordinated debt, and that the Commission consequently gave green light to State aid aimed at preventing the collapse of the Slovenian banking system. The preliminary ruling will assist the Constitutional Court in understanding the effects of the Communication and the substance of some of its relevant provisions on burden-sharing, as well as in being certain that the burden-sharing framework of the Communication is in line with the rules and principles of EU that were assessed in the ruling. It is now up to the Constitutional Court to assess the constitutionality of the Banking Act. Keywords: Bail-In; Banking Communication; Financial Crisis; Burden-Sharing; Hybrid Capital; Subordinated Debt; Legitimate Expectations; Right to Property.

EU principles as a guide for modelling timely administrative procedures in Slovenia and Croatia

In the theory, legislation and practice of regulation and conduct of administrative procedures, trends towards the concept of good administration can be detected at both supra- and national levels. Based on normative and comparative-legal analyses of Slovene (1999), Croatian (2009) and the EP Resolution (2013) administrative procedure acts (APAs), the article identifies user-oriented institutions that pursue the principles of good administration. Furthermore, it examines acceleration and braking mechanisms that influence the duration of procedures (e.g. setting and shortening time limits, positive fiction, preclusions, and enforcement of procedural errors, broader participation of affected parties, legal protection). Timely and efficient decision-making viewed as a human right with balanced protection of public and private legal interests is in fact crucial for achieving good administration. Hence, in conclusion, the authors propose selected changes de lege ferenda for the reregulation of APAs in Slovenia and beyond, in support of less excessive length of procedures.

Measures for Sustainable Development of Road Network

In the first decade of XXI century, considerable changes took place in the world and in Lithuania, and together with a 20-year experience of road development and maintenance in independent Lithuania, they force to re-assess the attitude towards roads, their infrastructure, development trends and priorities. The aim of the paper is to analyse sustainable ways of road network development, to identify main goals and objectives in accordance with EU and national sustainable development principles. The analysis is based on feasibility studies, environmental impact assessments of road projects in Lithuania. Sustainable road network development should meet 3 essential principles of sustainability – to reduce the impact on climate change; on human health and biological diversity. The main tasks for achieving the aims of sustainable development were defined and the measures for their implementation were anticipated: to reduce the use of natural resources, fuel consumption and emissions of green-house gases (CO2 carbon dioxide); to reduce traffic generated emissions to such degree that the impact on human health and environment is decreased; to reduce traffic-generated noise in the environment and at source by implementing noise mitigation measures in order to minimize the impact of total noise level on human health; to increase road traffic safety; to reduce the impact of existing roads on biological diversity, to stop increasing the impact on biological diversity when building roads. The paper presents a forecast on the possible economic effect of the purposeful implementation of sustainable development measures.

Services of General Economic Interest In-between EU and Italian Law

1-. Introduction and demarcation of the inquiry on SGEIs; 2-. The notion of services of general economic interest and its relation to public economic service in the Italian system; 3-. The progressive definition of minimum competition rules for SGEIs: comparative profiles between national regulation and Europe inspired principles; 4-. SGEIs: competitiveness, proportionality and balance within the framework of EU principles. 5-. National regulations on local public services of economic interest: the difficult implementation of EU principles in Italy; 6-. Management models: from the bureaucratic model to the functional model

Safeguarding EU Policy Aims and Requirements in Smart Grid Standardization

The EU electricity market is changing. We are leaving a decade of liberalization and enter a period in which the sustainability of the system and consumer participation play a more significant role. The application of ICT technology, especially by way of smart grids, is presumed to support these roles. Smart grids may change the face of the energy systems in the EU. They potentially contribute to reducing CO2 emissions, empower consumers and make markets more competitive. However, to what extent smart grids will contribute to these aims depends on how their technology is developed. In turn, standardization largely influences the development of their technology. This study investigates the issue of safeguarding policy aims and requirements in the standardization process of smart grids. How can the EU aims and requirements for smart grids be safeguarded in this standardization process? To establish the existing safeguards, this thesis first addresses the current legal framework of EU standardization and its consequences for the standardization process of smart grids. It subsequently investigates the important role of standards in society and shows that additional safeguards are crucial to ensure the incorporation of EU aims and requirements in the standardization process. The thesis first and foremost brings to light the responsibility of the EU Commission to clarify its aims and requirements in the standardization mandate. Secondly, it proposes the application of the EU principles of good governance as procedural safeguards in the process. Finally, it discusses the possibilities and implications of their application to standardization.

The European Unitary Patent System: On the Unconstitutionall Misuse of Conflict-of-Law Rules

On 18 November 2014, Advocate General Bot delivered his opinion on the Spanish action against Regulation No. 1257/2012 on Unitary Patent Protection. Among other things, Spain claims that the Regulation is not capable of guaranteeing unitary patent protection as required by Article 118(1) TFEU since, pursuant to the conflict-of-law rule contained in Article 5(3), it leaves this question to the national law of the participating Member States. AG Bot rejected this claim by arguing that, under the EU principle of sincere cooperation, the participating Member States are under an obligation to ratify the Unified Patent Court (UPC) Agreement, which contains uniform rules on the scope of such patents. The legislative history shows that most of the substantive patent law provisions that were included in the Commission Proposal for the UPP Regulation were ultimately transferred to the UPC Agreement as part of a political compromise that attempts to exclude the jurisdiction of the Court of Justice of the EU (CJEU) for these rules. Hence, following the reasoning of AG Bot, the conflict-of-law rule of Article 5(3) is not designed to solve a conflict of laws, but only aims to insulate the UPC Agreement against claims that its uniform substantive patent law provisions are nevertheless part of EU law and, therefore, ought to be interpreted by the CJEU. This, however, gives rise to three constitutional concerns that are not addressed by AG Bot, namely, (1) a conflict with the principle of democracy as a fundamental value of the Union, (2) a circumvention of the fundamental rights of the European Union, which would otherwise guide the interpretation of the substantive patent law provisions, and (3) a curtailment of effective judicial control as an expression of the rule of law. In sum, the opinion of AG Bot comes as a clear disappointment and should not be followed by the CJEU.

Who Governs Europe? Public Versus Private Regulation of Sustainability of Fish Feeds

Primary tensions within EU government are consistently shown as between public actors who compete with one another to set policy — the European Commission/Member States/European Parliament. Whilst important, such a wholehearted focus on these conflicts is obscuring other tensions increasingly defining its politics, namely between public vs. private regulation. These merit greater attention in European integration analysis. Private regulation is not totally disconnected from its public counterpart: through standardization, private actors can evoke and institutionalize EU norms and principles, like sustainability, thus governing in its name; the contents of private self-regulation can potentially undermine the effects of EU public policies. To better capture the causes of these emerging public–private interdependencies and their consequences for EU government, a key contribution of this article is to argue for the necessity to both localize and particularize the inquiry on private regulation. This we demonstrate through presenting the revealing case of fishfeeds and their sustainability.

Mutual Recognition in Criminal Matters and the Principle of Proportionality: Effective Proportionality or Proportionate Effectiveness?

The principle of proportionality constitutes a general principle of EU law. However, its application with regard to judicial cooperation in criminal matters between the EU Member States has remained somewhat unclear, especially after the introduction of the principle of mutual recognition. This article first of all analyses the content and structure of said principle, as it can arguably be given different understandings. Secondly, it discusses the relevance ascribed to the principle in both EU and State legislation and practice.

Harmonization and Reformation of the Fiscal System of the South Eastern Europe according to EU Principles

Apart from positive developments and the effects of globalism mankind is being challenged by the negative phenomenon caused by a number of crisis.It is broadly known that the global economic crisis change always financial markets, and this situation is difficult to be overcome.Bu unfortunately this crisis is not the only one.There is of high social dangerousness the incrimina and the de-balance of the ecosystem. There is no dilemma that the natural resources are in a continual degradation and in a continual decrease and this should be for every country a signal as a need to enter into changes of the economic model and basic structures. Without any calculation, if the world policies quickly don’t take measures to reduce the emission of CO2 to from 50 -80% then the capabilities of limiting the global warm changes. Just because of this governments should be more responsible in order to create an economic more advanced model on the basis of sustaiable development.To realise this model there should be made a substantial reform of the fiscal system, as well. Legislative basis should be re-designed in that way that taxes, licences and other instruments to be compatibile with the concepts for a sustainable environment development. Within this activities the reformation of the system should be done on the basis of rules,principles,programs and procedures of relevant institutions of EU. Respect to this elements creates more possibilities for unification of fiscal systems that as the final goal have itself accession to this organization. DOI: 10.5901/ajis.2014.v3n4p65

Evaluating the success of pay-by-use (PBU) domestic waste charges in Ireland

Irish waste collectors were advised by the Department of Environment, Heritage and Local Government to adopt pay-by-use (PBU) domestic waste charges from 1 January 2005. The measure was taken to combat the rising volumes of waste produced nationally and to apply the ‘polluter pays’ principle to waste charging, in line with EU principles. The implementation of PBU domestic waste charges in Ireland and the impact of these charges nationally, in terms of waste to landfill, recycling and illegal waste diversion, were examined using a combination of postal surveys and telephone interviews with local authorities. The research revealed that PBU has had the desired effect of reducing waste to landfill. However, as currently applied in Ireland, PBU is not reaching its full potential. The use of a variety of PBU charging systems across the country, with one system used widely in Ireland considered internationally as the least effective PBU system available, and the absence of universal curbside recycling services, may have contributed to the relatively small decreases in waste to landfill on a nationwide level when compared to reductions reported internationally.

European Union: Gender and politics

Political representation is the central issue in contemporary debates on the level of democracy in political institutions and processes in the European Union. Underrepresentation of particular groups in political institutions, decision-making and policy-making processes is perceived as the problem of justice, legitimacy and effectiveness in democratic societies. In this paper, the author analyzes the gender aspects of democratic decision-making processes and political representation of women in the EU member states. The social, historical and political dimension of women's efforts to obtain and promote their civil status and political rights have been the framework for developing the principle of gender equality as one of the founding EU principles. In the past hundred years, one of the most significant trends in politics has been the expansion of formal political representation of women. Yet, even though it has been more than a hundered years since women won their political rights in the 19th and the 20th century (the right to vote and the right to be voted), gender differences in political rights are still a substantial part of debate. Today, women's political representation is still inadequate and their political capacity and power have not been exercised to a sufficient extent (or proportionally) through their actual representation in parliament. In March 2012, the European Commisision published a report on gender equality in different areas of social life; the Eurobarometer survey shows that women are generally underrepresented in politics. In national parliaments, only one out of four MPs is a woman. In the European Parliament, three out of ten parliamentarians are women. The statistics shows a huge discrepancy among the EU Member States in terms of women's representation in parliament (44.7% in Sweden as contrasted to 13.3% in Romania). The prevailing view in many studies is that post-industrial democracies are deficient as they have failed to provide for an adequate representation of women's needs and interests. The legal standards on political equality of men and women have been incorporated into the international and regional legal frameworks. Yet, the international conventions, declarations, optional protocols, strategies, action plans and recommendations for policy-makers at different levels have not generated a significant change in the general attitude to political equality of men and women. Why is it so? Women are underrepresented whenever the number of women in the elected bodies of authority is unproportional to the total number of women in the general population; such exclusion of women from politics is unjust because it diminishes the quality of political debate and undermines the essence of democratic legitimacy. For the past ten years, the academic community has been involved in a debate on different aspects of women's political representation. Within the framework of feminist research on gender, politics and state, the discussions have focused on the following issues: what are the benefits of increasing the number of women in politics; will the increase of female MPs in parliament change the nature of politics (given that it may be a chance to articulate women's perspective and discuss women's problems and interests); do women MPs make a difference in political life (and, if so, in what circumstances); and what kind of changes may be expected from their participation in politics? Most discussions have focused on establishing and analyzing the mutual relations between the descriptive and substantive women's representation in politics, primarily concerning the issue whether the increase in the number of female MPs contributes to increasing their interest in representing women's political interests. The quota system, which has been applied in the EU counties as a response to the problem of women's underrepresentation in politics, and the introduction of women's policy agencies (aimed at supporting and promoting the gender equality policy) have proven to be examples of good practice in addressing the 'democratic deficit' in the modern Western European societies.

VAT neutrality: a principle of EU law or a principle of the VAT system?

According to recent CJEU case law, fiscal neutrality is not a rule of primary law which can condition the validity of a provision of an European Directive; it is only a principle of interpretation, to be applied concurrently with the principle of strict interpretation of the VAT exemptions. In this article it is suggested that the principle of fiscal neutrality has been contained in the European Treaties since 1957, and it is an implementation in VAT matters of the concept of the EU principle of non-discrimination. Discrimination is sometimes expressly authorised by EU law, but for a transitional period in the case of VAT exemptions. The distinction between non-discrimination and VAT neutrality is not based on historical or economic evidence and it creates logical inconsistencies. The CJEU gives priority to uniform interpretation above the objectives of the Treaties but this does not improve the functioning of the internal market.

Constitutional comparativism in action. The example of general principles of EU law and how they are made--a German perspective

This article deals with constitutional comparativism in action. In contrast to a US view which considers constitutional comparativism to be futile, the law of the European Union explicitly relies on comparison as the core issue of general principles of EU (constitutional) law. The case law of the Court of Justice of the European Union (CJEU) includes constitutional law comparisons that matter. This article deals with questions such as whether the comparative efforts lead to better law, whether they are only subjective views in disguise, and how the CJEU model of comparative constitutionalism in action affects players and their perspectives in the member states. The answers will help to better understand the potential and the limits of comparative constitutionalism.

Integrated municipal solid waste scenario model using advanced pretreatment and waste to energy processes

In this paper an Integrated Municipal Solid Waste scenario model (IMSW-SM) with a potential practical application in the waste management sector is analyzed. The model takes into account quantification and characterization of Municipal Solid Waste (MSW) streams from different sources, selective collection (SC), advanced mechanical sorting, material recovery and advanced thermal treatment. The paper provides a unique chain of advanced waste pretreatment stages of fully commingled waste streams, leading to an original set of suggestions and future contributions to a sustainable IMSWS, taking into account real data and EU principles. The selection of the input data was made on MSW management real case studies from two European regions. Four scenarios were developed varying mainly SC strategies and thermal treatment options. The results offer useful directions for decision makers in order to calibrate modern strategies in different realities.

A state supervised monopoly in the betting market: a legal and economic assessment of the regulatory framework in Greece

On January 24, 2013, the European Court of Justice issued its decision on the joined cases C-186/11 and C-209/11, which refer to the regulated gaming sector in Greece. Due to the nature of the market, each Member State has the right to impose regulatory constraints as long as they are justified on the grounds of public policy, public security and public health. For this reason, some EU Member States, including Greece, have chosen to impose a restricted regulation and granted the exclusive right to organise, manage and run games of chance to a single operator. EU jurisprudence has extensively dealt with cases of similar characteristics and laid down the prerequisites for the compatibility of this policy with EU law. On the basis of the above, a legal and economic analysis will be made of the state’s regulation’s compatibility with the fundamental EU principles of proportionality and non-discrimination. Moreover, the efficiency of the sports betting industry in Greece with regard to the benefit of the State and consumers will be assessed. Through the multidisciplinary research analysis, a number of challenges and questions are emphasized which go beyond Greek regulation and touch upon other Member States with similar policies. The purpose of this article is to exhibit and discover through the analysis of one Member State’s regulation, the coherence of the regulated monopoly practice in the gaming sector.

Is There an Alternative to Intra-European Bilateral Investment Treaties Framework under European Law?

In order to facilitate trade, bilateral investment treaties create a favourable framework for the promotion and protection of foreign investment. The core guarantees present in most bilateral investment treaties include national and most-favoured nation treatment, fair and equitable treatment, free transfer of funds, protection against expropriation and an international dispute settlement mechanism. In the light of the problematic status of intra-European Union bilateral investment treaties, the purpose of this article is to assess whether there is a viable alternative under the European law comparable to the protection of investments given in BITs among member states of the European Union.Common standards of European law offer similar protection in terms of guarantees for free transfer of capital and protection against expropriation. National and most-favoured nation treatment, which are replicated by the EU principle of non-discrimination, has even broader ambit, providing investors with higher safeguards on pre-entry stage of investments. EU law does not contain the same forms of protection, which are covered by fair and equitable treatment clauses in BITs. Nonetheless, EU law does embrace some features attributed to the protection under fair and equitable treatment through the application of omnipresent principles of European law. National court systems of the European Union may not be able to offer competitive procedure of asserting investment claims. Therefore, submission to the national courts instead of arbitration tribunals remains the most contentious difference between BITs and EU law. In relation to this, establishment of a specialised European court dealing with international investment claims is proposed.

Planning for States and Nation/States

National spatial strategies and state development plans and frameworks face many of the same challenges in both the EU and the USA. As inherently intergovernmental endeavours, the successful implementation of planning goals requires extensive vertical integration across various levels of government and horizontal integration across functional agencies within each level of government, as well as spatial articulation of key concepts and policies at various geographic scales. To help develop comparative studies between the approaches in both areas, University College Dublin's School of Geography, Planning and Environmental Policy and the US Lincoln Institute of Land Policy and University of Maryland, jointly hosted a Symposium in Dublin in mid-October 2012. The aim of the meeting was to bring together academics and practitioners across the USA and Europe, to share their different experiences of planning frameworks and to draw out transferability lessons from each jurisdiction.The symposium was timely given that Ireland is undergoing a period of policy and economic reflection, triggered by a deep economic recession, evidenced by a property collapse and a planning legacy of housing oversupply and under-delivery of vital transport and education infrastructure. Ireland's strategic planning frameworks, namely the National Spatial Strategy (NSS) and Regional Planning Guidelines (RPGs) closely follow the EU spatial development framework and principles. These planning frameworks have recently been subject to mid-term review and there is now more emphasis in Ireland on evidence-based planning. The timing of the symposium also tied in with plans by the Irish Department of Environment, Community and Local Government to scope a new NSS in 2013, so as to align it with the new economic and demographic realities brought about by recession.The report published here focuses on the introduction to the cross-national and cross-state comparative approach adopted by the symposium, the particular features of planning identified in the USA and the EU and the discussion and the outcomes and lessons, including transferability lessons, from the meeting as a whole. The central and most detailed part of the symposium, the presentation and discussion of a series of US state and EU national profiles, is more lightly touched on. However, readers can access electronically not only the full text of most of the papers as written (some in dated 'draft' form), but also the speakers' PowerPoint presentations and some written 'comments' made by discussants.Access can be found by first going to the UCD School of Geography, Planning and Environmental Policy website for the symposium: http://www.ucd.ie/gpep/events/ seminarsworkshopsconferences/natplanssymp2012/ and then opting for either 'Background', to find an introduction to the analytical theme of the symposium as a whole, or, for 'Program', to find the listing of speakers. Once in 'Program', the relevant sections of the 'written' archive can be accessed by clicking onto 'download paper' or 'presentation' or 'commentary', as required. Additionally, through accessing the third major section of the website, 'Watch on You Tube', readers can also view recordings of the speakers themselves and their words as spoken at the symposium through a playlist of 26 YouTube recordings. These recordings will be designated by the convention (YT/ number) immediately following the speaker's institutional affiliation in the remainder of the report to provide for direct identification and to display something of the range of material available to viewers. The Lincoln Institute is also preparing a book publication based on the symposium.Introduction and EU/USA comparative study considerationsOpening the symposium, the Irish Minister for Housing and Planning, Jan O'Sullivan (YT/2), acknowledged the importance of setting out the correct strategic planning framework for national development: 'Spatial planning has a crucial role to play in the recovery of our country'. …

Judicial Review of Measures Implementing Security Council Resolutions: The Relevance of the EU Principle of Loyal Cooperation

AbstractIn recent years, the question of whether, and to what extent, measures implementing United Nations (UN) Security Council Resolutions can be subject to judicial review has stirred heated debates. This contribution takes a fresh look at the question in the context of the EU’s implementation of a series of Security Council Resolutions relating to the fight against terrorism using the well-established EU principle of loyal cooperation. It suggests that the principle could play a role in determining the appropriate standard and intensity of judicial review, and considers the value of approaching the question in that way.