European Legal Space Research Articles

Repression of violence at public meetings and sporting events within the European legal space

Violence and unbecoming behaviour at sporting events stand for a most acute problem in numerous European countries. However, the method and modes of its' repression have been determined within the frames of each country, that is its' national legislation. Thus, a wide range of various regulations referring to the distinctions of this type of violence can be spotted in legislative of each European country. Nevertheless, along with the development and maturing of the idea of the necessity of implementation of both international and regional legal instruments, used for setting up national law of individual states, a number of European legal instruments have also come to life. It comes as no surprise, though, the growing need for more both general and separate legal instruments in the repression of violence and unbecoming behaviour at sporting events in the European legislative. Based on the analysis, it is possible to single out the ones to achieve the strongest effect to our national legislative. Consequently, the general frames of the repression of violence and unbecoming behaviour at sporting events are founded on European Convention on Human Rights and Fundamental Freedoms (1950), whereas the separated ones lie in the Convention of the European Council on the Repression of Violence and Unbecoming Behaviour at Sporting Events, especially the soccer games, with the Recommendation (1985). The subject of this paper is based on analysis of the legal frames established by the European legal instruments in the field of the repression of violence and unbecoming behaviour at sporting events. The methodological framework throughout the research considers the usage of various methods: historical, linguistic, sociological, logical, normative, analysis of content, etc.

Wpływ procesu integracji europejskiej na krajowe organy sądowe

National courts of the member states have an obligation to apply correctly the law of the European Union and to effectively protect the rights which the latter confers upon individuals. According to the established case law of the Court of Justice of the European Union (ECJ), an individual has the right to expect that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case the need for a preliminary ruling, regardless of the existence of a rule of national law whereby a court is bound on points of law by the rulings of a superior court.However, provisions of domestic law may complicate the use of preliminary ruling procedure by national courts. Those problems may deal with, firstly, relations between lower and higher courts and, secondly, with relations between ordinary or administrative courts and constitutional courts.As far as the first problem is concerned, the appellate court cannot prevent the referring court from exercising the right to make a reference to the ECJ, by varying the order for reference, by setting it aside and by ordering the referring court to resume the proceedings.As for the second problem, the deferral by the national constitutional court of the date on which the provisions of domestic law at issue will lose their binding force does not prevent the referring court from respecting the principle of the primacy of the union law and from declining to apply those provisions in the proceedings before it, if the court holds those provisions to be contrary to the law of the Union.The Treaties leave open the question whether constitutional court is the court or tribunal authorized (or obliged) to make preliminary reference to ECJ. However, constitutional courts are bodies established by law, they are permanent and they apply rules of law. That is why it would be consistent with the idea of judicial cooperation in the European legal space to accept their capacity to make preliminary references to the ECJ in the process of constitutional adjudication.

Disagreement Commonality Autonomy: EU Fundamental Rights in the Internal Market

The contribution explores the implications of disagreements about rights in the ‘multi-layered’ European polity for the autonomy of EU fundamental rights law. It argues that insomuch as the EU’s weak claim to supra-national political authority is corroborated by a strong case for economic integration, the internal market operates not simply as a constraining factor in the effective realisation of fundamental rights, but provides the very foundation of their autonomous interpretation in the EU legal order. Sections II and III elaborate upon the relationship between conflicts of authority in the European legal space and the autonomous interpretation of EU fundamental rights law under conditions of political disagreement. Section IV links the argument to the often-alleged instrumentalisation of EU fundamental rights in the service of the market. Sections V and VI substantiate the guiding contention of the contribution — that the autonomy of EU fundamental rights law is rooted in the unity of the market — with an analysis of pertinent case law. The concluding section suggests that the transformation of the EU into a ‘genuine’ human rights polity must proceed through a politicisation of the market by virtue of fundamental rights law.

Normative fault-lines of trans-national human rights jurisprudence: National pride and religious prejudice in the European legal space

AbstractThe article explores the relationship between religious pluralism and national-majoritarian models of social cohesion in European human rights jurisprudence. Comparing the German, French and British interpretation of the ‘social cohesion limitation’ of freedom of religion it contends that, at the national level, concerns for social cohesion are fuelled by attitudes towards religious diversity that range from indifference to intolerance and that are difficult to reconcile with the normative premises of religious pluralism in a democratic society. The second section of the article traces the relationship between religious pluralism and social cohesion in the case law of the European Court of Human Rights. The analysis suggests that the diversity of national-majoritarian approaches to social cohesion in Europe prevents the Court from ensuring an effective trans-national protection of religious pluralism. The third section turns to the controversial Lautsi judgments of the European Court of Human Rights to place the Court’s approach to religious minority protection in the context of trans-national judicial politics in the European legal space. The concluding section suggests an alternative approach to religious pluralism and social cohesion that vindicates religious diversity and does justice to the counter-majoritarian telos of human rights protection.

Normative Fault-Lines of Transnational Human Rights Jurisprudence: National Pride and Religious Prejudice in the European Legal Space

The article explores the relationship between religious pluralism and national-majoritarian models of social cohesion in European human rights jurisprudence. Comparing the German, French and British interpretation of the ‘social cohesion limitation’ of freedom of religion it contends that, at the national level, concerns for social cohesion are fueled by attitudes towards religious diversity that range from indifference to intolerance and that are difficult to reconcile with the normative premises of religious pluralism in a democratic society. The second section of the article traces the relationship between religious pluralism and social cohesion in the case-law of the European Court of Human Rights. The analysis suggests that the diversity of national-majoritarian approaches to social cohesion in Europe prevents the Court from ensuring an effective trans-national protection of religious pluralism. The third section turns to the controversial Lautsi judgments of the European Court of Human Rights to place the Court’s approach to religious minority protection in the context of trans-national judicial politics in the European legal space. The concluding section suggests an alternative approach to religious pluralism and social cohesion that vindicates religious diversity and does justice to the counter-majoritarian telos of human rights protection.

Disagreement—Commonality—Autonomy: EU Fundamental Rights in the Internal Market

AbstractThe contribution explores the implications of disagreements about rights in the ‘multi-layered’ European polity for the autonomy of EU fundamental rights law. It argues that insomuch as the EU’s weak claim to supra-national political authority is corroborated by a strong case for economic integration, the internal market operates not simply as a constraining factor in the effective realisation of fundamental rights, but provides the very foundation of their autonomous interpretation in the EU legal order. Sections II and III elaborate upon the relationship between conflicts of authority in the European legal space and the autonomous interpretation of EU fundamental rights law under conditions of political disagreement. Section IV links the argument to the often-alleged instrumentalisation of EU fundamental rights in the service of the market. Sections V and VI substantiate the guiding contention of the contribution—that the autonomy of EU fundamental rights law is rooted in the unity of the market—with an analysis of pertinent case law. The concluding section suggests that the transformation of the EU into a ‘genuine’ human rights polity must proceed through a politicisation of the market by virtue of fundamental rights law.

SPECIFIC PERFORMANCE IN THE DRAFT COMMON FRAME OF REFERENCE

The paper undertakes a policy analysis of the remedy of specific performance. It compares the approach of the Draft Common Frame of Reference with the domestic legal systems of selected common law and civil law countries of the European Union with respect to specific performance. The paper then turns to two dilemmas facing any policy judgment about the availability of the specific performance showing no insurmountable policy argument against the remedy. Afterwards, the remedy of specific performance is placed within the framework of legal certainty. In concluding the paper, a case is be made for the general availability of specific performance as fostering legal certainty within the European legal space.

Disagreement—Commonality—Autonomy: EU Fundamental Rights in the Internal Market

Abstract The contribution explores the implications of disagreements about rights in the ‘multi-layered’ European polity for the autonomy of EU fundamental rights law. It argues that insomuch as the EU’s weak claim to supra-national political authority is corroborated by a strong case for economic integration, the internal market operates not simply as a constraining factor in the effective realisation of fundamental rights, but provides the very foundation of their autonomous interpretation in the EU legal order. Sections II and III elaborate upon the relationship between conflicts of authority in the European legal space and the autonomous interpretation of EU fundamental rights law under conditions of political disagreement. Section IV links the argument to the often-alleged instrumentalisation of EU fundamental rights in the service of the market. Sections V and VI substantiate the guiding contention of the contribution—that the autonomy of EU fundamental rights law is rooted in the unity of the market—with an analysis of pertinent case law. The concluding section suggests that the transformation of the EU into a ‘genuine’ human rights polity must proceed through a politicisation of the market by virtue of fundamental rights law.

Main challenges and prospects of improving Ukrainian legislation on criminal liability for crimes related to drug testing in the context of European integration

The proposed article provides an overview of European and North American states’ legislation, which regulates the procedure for pre-clinical research, clinical trials and state registration of medicinal products, as well as responsibility for its violation, analysis of the problems and prospects of adaptation of the national legislation to European legal space, particularly in the field of criminal and legal regulation of relations in the sphere of pre-clinical trials, clinical trials and state registration of medicine. The emphasis is put on the matter that inclusion of Article 321-2 into the Criminal Code of Ukraine leads to a false concurrence with other provisions of the Code. The author proposes to introduce recent EU legislation (Acquis Communautaire) on legal regulation of clinical trials and circulation of medicine into the law of Ukraine, clarify terminology related to Fundamentals of Ukrainian Legislation on Health Protection and the Special Part of criminal law, introduce criminal liability for legal entities that will provide effective control over negative effects of research centers’ activity. It is suggested to develop legislative proposals to improve the provisions of the Criminal Code of Ukraine, which provide legal protection of relations arising in connection with pre-clinical research, clinical trials and state registration of medicinal products.

The Spirit and Task of Democratic Cosmopolitanism: European Political Identity at the Limits of Transnational Law

The problem motivating this essay is the continuing, yet difficult hope for a Europe of democratic cosmopolitanism, for a Europe in which cosmopolitics works to continually question the terms of lingering exclusion while preserving our ideals of self-legislation and democratic authorship. In what follows, I expand the familiar criticism of Europe’s democratic legitimacy gap, its democratic deficit, as a lens through which to analyse the possibility of a supranational participatory identity within the European political space. First, I describe the contemporary juridification of European politics, specifically concerning the legal formalism of the European Court of Justice, and the dangers such depoliticisation poses to the search for a cosmopolitan demos , depriving it of its solidaristic base. Second, I offer a critique of Jurgen Habermas’s ‘constitutional patriotism’ as a viable frame in which Europeans might hope to dissolve the contradictions of a nascent constitutional democracy at the supranational level. Rather, following the work of Bonnie Honig, I develop a more primary and original paradox confronting the European Union: the ‘paradox of politics’, which posits the radical indeterminacy of the demos as the starting place for the creation of any political identity. Third, drawing on the work of Ernesto Laclau, I develop in greater detail the processes of symbolic identity-formation involved in such a creation, namely the interplay of inclusion/exclusion that characterizes modern political attachment. What this analysis elucidates is that the problem of EU constitutionalization and political integration is the problem of borders or of the closed polis , in general. The apposite symbolic frame of European political identity is therefore that of 'the heterogeneous', that which constructs yet destabilises our settled understanding of boundary and border and shows them to be contingent. Further, I argue that the operative European political subjects are now in a certain sense the refugees, the sans-papiers , and the third-country nationals, each of whom serves to remind EU citizens of this foundational contingency of existing legal orders. Practically, I analyse European citizenship and immigration laws within their broader institutional and policy contexts: asylum and refugee policy, Frontex and the EU’s border security policy, and the promise and dangers of various models of disaggregated citizenship operating within the European legal space. Finally, I conclude with a preliminary discussion of the political task that we might appropriately call European cosmopolitics: the reinvention of emancipatory and utopian possibility into the future, beyond the nation-state to the droit de cite , the assertion of unconditional citizenship. Here, the European city—as a site in which the droit de cite can be anticipated and achieved—is where new supranational sovereignties might be born.

Revitalizing the European ‘Neighbourhood Economic Community’: The Case for Legally Binding Sectoral Multilateralism

The revolutionary upheaval in the southern Mediterranean and the slow reforms in most of the eastern neighbourhood have pushed the European Union to revise its approach to the European Neighbourhood Policy (ENP). In May 2011, the Commission presented a full review of the ENP, introducing an enhanced form of conditionality which should see more political and financial support being given to those neighbouring countries that implement more reforms and are more democratic. Characteristic of this 'more for more' conditionality is its strong bilateral dimension. While there is some rhetorical commitment to strengthening the regional dimensions of the ENP, for example, the Union for the Mediterranean and the Eastern Partnership, few tangible proposals to that effect have been made. Notably, while the reviewed ENP repeats the goal of a 'Neighbourhood Economic Community' as a long-term objective of regional integration across the neighbourhood, it makes no proposals on instruments or strategy as to how to achieve that objective. This paper proposes that 'legally binding sectoral multilateralism' should be the EU's method and instrument of choice to reach that goal. This entails a pro-active strategy consisting of treaty-based legal integration between the EU and neighbouring countries and between the latter themselves, in sectors where such is clearly beneficial in its own right, as well as in the light of the long-term objective of a neighbourhood community. On the basis of two case studies, pertaining to the Energy Community Treaty and the draft Transport Community Treaty, the paper explores the benefits and weaknesses of this approach. The paper argues that the challenges posed by legal fragmentation in the wider European legal space can be overcome in order to reap the substantial economic and policy benefits spurred by legally binding sectoral multilateralism.

The Natural 'Home' of Fundamental Rights Adjudication: Constitutional Challenges to the European Court of Human Rights

The European Convention on the Protection of Human Rights (ECHR) has successfully permeated the domestic legal orders of most Council of Europe (hereinafter COE) member States. It has become an essential point of reference for fundamental rights adjudication in the different legal orders of the European legal space. The Convention might well have become ‘a constitutional instrument of European public law’, as the European Court of Human Rights (ECtHR) claimed. 1 The jurisprudence of the ECtHR has gained an equally prominent position in multilevel adjudication of fundamental rights. The Court is accepted as the authoritative interpreter of the Convention and its case-law is considered a guiding source of fundamental rights adjudication. The text of the ECHR considers that only member States who act as defendants in a Strasbourg procedure, are under the obligation to abide by a Strasbourg judgment. 2 Yet, the jurisprudence of the Court has gained, to...

Legal regulation of access to the telecommunications market

On the improvement of legal mechanisms of access to the telecommunication market in conditions of European legal space establishing.

The Promotion of Fundamental Rights by the Union as a Contribution to the European Legal Space: The Role of European Private International Law

This article aims to contribute both to the REFGOV project, which is focused on the ambition to find ways of promoting human rights within the European Union, but also, more in general and apart from the project, to an improved understanding of the crucial place conflict of law rules occupy in the building of a common Europe - a highly political question behind apparently technical issues. In the study the author deals with the parameters, points of interest etc. in relation to Private International Law which should be heeded if European Member States look at each other's laws, and - in the context of the REFGOV project - if the idea would be to exchange best practices or harmonize substantive law, or to further harmonize Private International Law etc. through a kind of Open Method of Coordination. The contribution also shows that Private International Law issues are decisive in respect of every evaluation of the impact of European integration on human rights, both if this integration process takes place through negative harmonization (for example, by falling back on the principle of mutual recognition) and through positive harmonization. The main question is the following: what role is there to play for Private International Law in the promotion, by and within the European Union, of Human Rights?

Towards a Renewed Universalism in Law

AbstractDespite the phenomena of internationalization and Europeanization, legal process remains essentially national in character. However, certain domains of law are already unified. Focusing mainly on the French tradition and its contribution to the construction of a European legal space, this paper: a) criticizes the traditional methods used to manage diversity in law – unifying the law and co-ordinating those legal codes likely to be conflictual; b) studies the debate between universalism and particularism in private international law, a discipline whose essential object is the resolution of the difficulties derived from pluralism; and c) attempts to discern an appropriate path towards a ‘renewed universalism' by pursuing a comparative approach which can open the way towards unification but must also be able to preserve the irreducible diversity of law.

The Identity of European Law: Mapping Out the European Legal Space

The main purpose of this discussion is to supply some content to the concept of the ‘European legal space’ at the turn of the twentieth century. The term ‘legal space’ is used in preference to ‘legal system’ or ‘systems’ in order to convey a sense of the complex, non‐hierarchical, overlapping, interlocking and evolutionary character of contemporary European legal phenomena. A number of evident legal orders may be identified within the overall European space: those of the EC, the EU, the EEA, the Council of Europe and the OSCE, although to refer to some of these as ‘orders’ may be misleading, by implying too much in terms of a centrally determined structure. It is also possible to point to less evident legal ordering, such as the process of norm exportation contained in the Europe Agreements concluded between the EU and individual non‐Member States, or the kind of order resulting from transatlantic co‐operation in fields such as criminal justice (which also challenges the description of ‘European’). In juristic terms, the argument here confronts the primacy traditionally accorded to the sovereign state in the field of law‐making, and draws upon two non‐juridical models of analysis: that of multi‐level governance, as used by political scientists to indicate a shift away from the exclusive authority and legitimacy claimed by sovereign states; and the biological model of catalytic closure, used to indicate evolution through a process of spontaneous reactions within a body. Both models may be usefully employed to probe the dynamics of European legal ordering at the close of the Twentieth Century.

The constitution of Europe: "Do the new clothes have an emperor?" and other essays on European integration

Preface Acknowledgements List of abbreviations Part I. 'We Will Do ...': 1. Introduction: 'We will do, and hearken' 2. The transformation of Europe 3. Fundamental rights and fundamental boundaries: on the conflict of standards and values in the protection of human rights in the European legal space 4. The external legal relations of non-unitary actors: mixity and the federal principle 5. The least-dangerous branch: a retrospective and prospective of the European Court of Justice in the arena of political integration Part II. 'We Will Hearken ...': 6. Introduction: the reformation of European constitutionalism 7. Fin-de-siecle Europe: do the new clothes have an emperor? 8. European democracy and its critics: policy and system 9. The autonomy of the Community legal order: through the looking glass 10. To be a European citizen: Eros and civilisation Index.

Fraud against European Public Funds

This article considers the approach adopted towards the fight against fraud within the European Union. It considers the role(s) of the various agencies at both a transnational and national level. It concludes that it is impossible to effectively fight transnational fraud across fifteen different legal systems. There is an urgent need for the “Corpus Juris” proposals to be adopted so that a defined European legal space can be created which is able to deal with crimes against the European budget.