European Community Law Research Articles

Interpretation and gap‐filling in the CISG and in the CESL

PurposeThe purpose of this article is to compare the methods of interpretation and gap filling in the United Nations Sales Convention (CISG) and in the Draft Common European Sales Law (CESL). In particular, it aims to examine whether the established interpretation and gap filling method of the CISG can and should be used for the CESL.Design/methodology/approachThe article looks at the method by which international case law and doctrine interpret the CISG and fill its gaps. The article compares this method with the method that is provided for in the CESL instrument but has to be implemented.FindingsIt is suggested that despite its nature as European community law, CESL should be interpreted in a broad international way since it does not only cover internal EU sales, but also transactions involving parties from outside the EU. For this reason its interpretation and gap filling should follow the method of the CISG so as to interpret similar provisions in a similar way in order to harmonize law within and outside the EU.Research limitations/implicationsBoth the CISG and CESL intend to unify legal traditions or different legal systems; the CISG tries to harmonize globally what CESL tries to harmonize regionally. It is important that these two instruments complement one another by the avoidance of divergent interpretations of similar provisions. It would helpful for further research to assess whether and how two decades of experience with the CISG can be used in the interpretation and application of CESL.Practical implicationsCESL's interpretation provision, if it is enacted, is unlikely to change from the current version. The way CESL is interpreted and how its gaps filled will determine its practical significance as a viable opt‐in national law. It is therefore necessary to develop in advance the right interpretive methodology if CESL is to become a meaningful alternative instrument.Originality/valueThe article suggests that the CESL should not be interpreted in the traditional way European community law is interpreted, but, instead, be interpreted under a broad international perspective. It also advances the idea of interconventional interpretation by which the CISG would guide the interpretation of similar provisions found in CESL.

Hipoteka na vazduhoplovu u pravu Crne Gore

A mortgaged property is individually determined real property eligible for liquidation, as well as the ideal part of real estate. On the other hand, a ship or aircraft may be subject to the right of pledge as well. It is a movable property, to which the relevant rules for real property apply. This property is entered into an appropriate register in the same way as real property. The way of acquiring a mortgage is also similar: a mortgage on real property is acquired by its registration in the cadastre of real estate, and a mortgage over an aircraft by its entering in the Register. Similar rules and principles also apply to record keeping. Therefore, the right of pledge over an aircraft is also called a mortgage over an aircraft. Montenegro has recently adopted several regulations governing the above institute. In this institute “are contained many legal aspects”. In modern legislation rights over aircraft, ships and other vessels are subject to specific real estate law regulations. The importance of the aircraft for a country’s legal system is best illustrated by the fact that over the recent years a special legal discipline has been developing, a discipline that grew out of Transportation Law - Aviation Law. The same applies to the European Aviation Law. It initially did not enjoy the “favour” of the European Community Law, as was previously the case with the European Transportation Law. However, in recent times there have been different tendencies. The rule is that to aircraft, as specific objects, a method of registration, similar to that used with land registration is applied. This applies in particular to: registration, deletion, types of registration, registration procedure.

The Constitutional Right to a Healthy Environment

Do people have a right to clean air, safe drinking water, and a healthy environment? Fifty years ago, the concept of a human right to a healthy environment was viewed as a novel, even radical, idea...

Italy Accepts the Supremacy of European Community Law

Italy Accepts the Supremacy of European Community Law

Exploring the Textured Landscape of Water Insecurity and the Human Right to Water

he last decade has seen historic advances in the formal establishment of the human right to water and global agreements on development goals that target improved access to water and sanitation. How...

Defining the Indefinable: A Definition of ‘Minority’ in EU Law

This chapter proposes a definition of 'minority in context of European Community (EU) law. Prior to this, it examines whether there is in fact a need for such a definition in EU law. The chapter then investigates whether the various adjectives that often precede the term 'minority' impact on its content. It overviews some definitional aspects of 'national', 'indigenous', 'new', 'racial', 'ethnic', 'religious' and 'linguistic' minorities, and establishes how these labels affect the content and scope of the definition. The chapter then deconstructs three influential definitions of 'minority' proposed by Capotorti, Deschenes and the Parliamentary Assembly of the Council of Europe (PACE). Each of the common elements of these definitions, including both objective and subjective criteria, is discussed in detail. Keywords: Capotorti; Deschenes; European Community (EU) law; minority; PACE

Istota i dylematy funkcjonowania Bankowego Funduszu Gwarancyjnego w kontekście stabilności systemu bankowego

System guarantying deposits in Poland was created during the economy transformation. Its founding was resulted from a tough situation in the bank sector, that is why it was supposed to be an antidotum to clients' problems connected with solvency of the collapsing banks and also with adjusting to the European community law. The aim of this work is to present The Bank Guarantee Fund, an institution belonging to a network of financial security, which main task is to protect the deponent’s interests and to secure the banking system's stability. The work concerns some aspects of the growing interest in insurance systems for banks deposits and revived discussions on this subject during crisis on bank markets. In reply on the crisis, which was started on credit market subprime in USA and then spread on other segments of financial markets in other countries, the ECOFIN took a decision for increasing the obligatory guarantee limits for individual persons and also for accelerating the payment of guaranteed means. The aim of above changes is to increase surety of clients and trust to bank sector.

Incorporation Of Community Law To The Spanish Public Sector Procurement Law Of 2007

The work carries out an analysis of the aims of the new Spanish law regarding Public Sector Contracts, which go beyond the necessary measures required in order to incorporate Directive 2004/18, as well as the major reforms introduced by the new legislation. The change of perspective which European Community law had imposed for many years in this sector and the modest introduction of electronic media, data processing and data transmission in recruitment procedures.

Keep Off Ze' Turf! -The European Court of Justice Decision in Zeturf Ltd. v. Premier Minister (France)

On June 30th, 2011, the European Court of Justice (“ECJ”) provided a preliminary ruling on whether the French Government’s decision to confer a monopoly on the Groupement d’Interet Economique Pari Mutuel Urbain (“PMU”), for the management of off-track horse betting, violated European Community Law.

Immobilized Pool of NCAM180 in the Postsynaptic Membrane Is Homeostatically Replenished by the Flux of NCAM180 from Extrasynaptic Regions

Homeostatic mechanisms maintaining high levels of adhesion molecules in synapses over prolonged periods of time remain incompletely understood. We used fluorescence recovery after photobleaching experiments to analyze the steady state turnover of the immobile pool of green fluorescent protein-labeled NCAM180, the largest postsynaptically accumulating isoform of the neural cell adhesion molecule (NCAM). We show that there is a continuous flux of NCAM180 to the postsynaptic membrane from nonsynaptic regions of dendrites by diffusion. In the postsynaptic membrane, the newly delivered NCAM180 slowly intermixes with the immobilized pool of NCAM180. Preferential immobilization and accumulation of NCAM180 in the postsynaptic membrane is reduced after disruption of the association of NCAM180 with the spectrin cytoskeleton and in the absence of the homophilic interactions of NCAM180 in synapses. Our observations indicate that the homophilic interactions and binding to the cytoskeleton promote immobilization of NCAM180 and its accumulation in the postsynaptic membrane. Flux of NCAM180 from extrasynaptic regions and its slow intermixture with the immobile pool of NCAM180 in the postsynaptic membrane may be important for the continuous homeostatic replenishment of NCAM180 protein at synaptic contacts without compromising the long term synaptic contact stability.

DESIGNING THE GREEN CLIMATE FUND: HOW TO SPEND $100 BILLION SENSIBLY

Confronting and responding to climate change is one of the foremost issues of our time, with the burden of response spread unequally around the globe. In general, climate impacts are hitting, and w...

Withdrawal, Revocation and Suspension of AEO Certification

The benefits and advantages of Authorised Economic Operator (AEO) status have been examined and discussed widely. However, the withdrawal, revocation and suspension of AEO certification have not been as closely examined. This paper addresses a range of issues that relate to European Community law and in particular, to the way in which German and Austrian regulations are applied. It is concluded that there are far-reaching legal and factual consequences that go beyond the provisions of the relevant customs legislation and suggests that any company that holds an AEO certificate or has applied for it needs to ensure that it satisfies the conditions of the certificate at the time of application and in the years thereafter.

The Impact of EU law on National Judiciaries: Polish Administrative Courts and their Participation in the Process of Legal Integration in the EU

Since May 2004 Polish administrative courts have passed a great deal of judgments in which the law of the European Union (formerly European Community law) has played either the main role or a subsidiary role in the proceedings. This article seeks to examine how the above-mentioned courts comply with the expectations which are put on them by EU law and how they participate in the process of legal integration within the EU. In this context, the author scrutinizes how the national judiciary adjudicating in the administrative law area understands, interprets, employs and applies the systemic principles of EU law such as: supremacy, and (in) direct effect and effectiveness. In addition, the participation of national courts in the process of a dialogue with the Court of Justice of the European Union through the preliminary ruling procedure is captured. The analysis is not aimed at being exhaustive and focuses solely on the total impact of EU law on the national judiciary and the general trends in the judicial application of EU law, that is to say the overall reception of EU law and the dimension of the EU-friendliness displayed by Polish administrative courts.

Chapitre 12. Les fondements de l'éthique de la recherche en droit communautaire

The creation of the European Community by the Treaty of Rome in 1957 marked the beginning of the efforts to coordinate and harmonize national policies in many strategic sectors with high economic value, among them several aspects of scientific research. The European Union Law, formerly known as European Community law, now includes a range of ethical principles that apply to research projects developed with the financial support of the European Union. Which were the steps in the integration of the ethics of sciences in the context of the Union? This article aims to study first, what were, and what are the legal bases of the integration of the ethical dimension of researches in life sciences by the European Union and, secondly, the institutional organisation that has been set up in order to discuss the development of common ethical norms, especially bioethics one, and in order to apply these rules which respect national particularities. In this regard, we analyse the relevant legal texts providing a foundation for the creation of a European bio-law and we give an overview of the European institutions' activity in the field of bioethics by looking particularly the health research field.

Examining European Community Law Principles in a New Legal Context: Placing the Stabilisation and Association Agreement Under the Constitutional Legal Framework of Albania

This paper primarily attempts to present a broad historical overview of relations between Albania and EU, with a view to establish a basis for an advanced legal analysis of several questions contained in it. Subsequently, it focuses on the structure, key legal provisions and the role of the Stabilisation and Association Process, the Stabilisation and Association Agreement itself and the Stabilisation and Association Council, being the organ in charge for implementing the agreement. In addition it includes a detailed legal analysis of the Constitution of Albania, with a view to weigh its legal framework against the legal novelties contemplated by the integration processes. It is important to note that in the analysis of these documents the controversial question as to whether the legal provisions of the Stabilisation and Association Agreement have direct effect and whether the supremacy principle of EU law is currently applicable in the Albanian legal order, including the interpretation by the national courts, will be thoroughly elaborated.Besides, the paper examines a couple of other questions. Among them is the one related to the sovereignty issue. In light of the integration process and according to the present Constitution, national sovereignty is inalienable, indivisible and non-transferable, which, I argue, might not be aligned with the EU legal principle of shared sovereignty. This is arguably a central point which leads to the second question of how the Albanian Constitution deals with the implementation of international law in the national legal order, i.e. through the courts system, and whether it allows, and if so to what extent, the transfer of legislative powers to international organizations, including EU, in the future.Finally, to support my arguments, I make extensive use of primary legal sources, including but not only, the text of the Stabilisation and Association Agreement, the Constitution of Albania, and other academic materials and case law from the European Court of Justice.

Book Review: European Community Law of State Aid, edited by Kelyn Baco. (Oxford: Oxford University Press, 2009)

Book Review: <i>European Community Law of State Aid</i>, edited by Kelyn Baco. (Oxford: Oxford University Press, 2009)

The Regulation of Retail Investment Services in the EU: Towards the Improvement of Investor Rights?

Despite the fact that a substantial body of European Community (EC) law already exists to protect retail investors, the markets in retail investment services and products in the EU remain fragmented. Moreover, the recent financial crisis has undermined investor confidence in financial markets more generally, and “packaged” retail investment products (PRIP), such as investment funds or life insurance policies, in particular. To rebuild retail investor confidence in PRIP by empowering retail investors to make active use of their rights, in 2009 the European Commission proposed to extend the provisions of the 2004 Markets in Financial Instruments Directive (MiFID) to PRIP. Is the MiFID, however, fit for the purpose which the Commission has in mind? This contribution explores to what extent the MiFID actually confers rights on retail investors and empowers them to make use of these rights. The author concludes that investor rights and remedies should be taken more seriously when making European financial services law. The current overhaul of the EC legal framework for the provision of investment services provides a good opportunity to do so.

The Impact of European Law on Domestic Procedural Tax Law: Wrongfully Underestimated?

CJ case law reveals that European law is having an increasing influence on procedural tax law. In this article, an overview of the influence of European law on procedural tax law will be depicted. Procedural tax law is here defined as the totality of rules regarding the manner in which material tax liabilities should be expressed in the actual payment of tax. The authors will describe the above-mentioned influence in two articles. In part 1, the authors first outline the European law framework against which domestic procedural tax law should be tested. Subsequently, they discuss in more detail the notable influence of European Community (EC) law to several specific domestic rules and concepts of procedural tax law, such as entitlement to compensation for EC infringements, unlawful administration of justice, rules of evidence, and fixed payment of procedural costs. In part 2, the authors discuss whether national time limits, the impossibilities for an administrative body to re-examine an earlier decision, procedural legal effect, and the principle of res judicata, are compatible with European law.

Laval returns to Sweden: The Final Judgment of the Swedish Labour Court and Swedish Legislative Reforms

The article examines the Swedish Labour Court decision in the Laval case on issues of trade union liability and damages. The court held that the European Court of Justice (ECJ) case law did not provide explicit support for the argument that an individual should pay damages on a European Union (EU) law basis on the violation of Article 49 of the European Community (EC) law. Also explored are legislative reforms of industrial action and posting of workers resulting from the Laval case.

Antidiskriminační zákon a jeho ekonomické a právní souvislosti z pohledu liberální ekonomie

The article deals with sex discrimination prohibition in the European community law as well as in the Czech law and it describes antidiscrimination juridical practise in the Czech Republic. It judges selected institutes of the antidiscrimination act from the point of view of their economic consequences. It shows to which behaviour the economic subjects are forced and analyses whether this behaviour is in accordance with economic rules of market economy, with principle of private property and free choices. It pays attention to equal opportunities and affirmative action as measures to ensure them, and the institute of burden of proof transfer to the accused. It concludes that the antidiscrimination act does not respect the natural rules of people's behaviour in real economic relations and it seems to be an artificial authority construct, which serves special purposes.