General Principle Of Equality Research Articles

CONCERNING THE DEFINITION OF THE CONCEPT OF THE PRINCIPLE OF EQUALITY OF ALL PARTICIPANTS IN THE ADMINISTRATIVE PROCESS BEFORE THE LAW AND THE COURTS IN UKRAINE

The article analyzes approaches to understanding the concept, content and essence of the principle of equality of all participants in the administrative process before the law and the court. Were researched the primary definitions of the concept of the principle, the researched principle was considered through the prism of the principles of justice and the general constitutional principles of equality. This article determines that the principle of equality of all participants in the administrative process before the law and the court has many aspects, most of which are not fixed and not fully disclosed in Article 8 of the Code of Administrative Procedure of Ukraine. It stems from the constitutional principle of equality of human rights and freedoms and equality of citizens before the law, general principles of justice (including the general principle of equality of all participants in the legal process before the law and the court) and is imposed on the specifics of administrative-procedural relations. The article provides an interpretation of the content of the principle of equality of parties to the legal process, which was carried out in the Decision of the Constitutional Court of Ukraine dated 12.04.2012 in case No. 9-рп/2012 (on the constitutional appeal of the village of Troyan A. P. regarding the official interpretation of the provisions of Article 24 of the Constitution of Ukraine). The positions of a number of scientists who expand the limitation of the content of the principle of all participants in the administrative process before the law and the court, which are specified in Part 2 Art. 8 Сode of administrative proceedings of Ukraine. The article proposes a definition of the concept of the principle of equality of all participants in the administrative process before the law and the court in a broad and narrow sense, taking into account doctrinal provisions regarding the essence and content of this principle and the general specific properties of administrative proceedings, a certain «procedural inequality» of participants in the administrative process in their statuses and tort capacity.

Concept and content of gender equality: legal aspect

The article studies the concept, essence, and content of gender equality as a legal category. Examples of definitions regarding the understanding of gender equality are provided. It was determined that Ukraine shares the gender principles regarding the establishment of equal rights and opportunities for women and men, declared in international documents. Today, gender equality is considered the main value of the third millennium, along with other values, such as justice, tolerance and freedom. A democratic society must provide equal opportunities for men and women to participate in all spheres of life. Therefore, it is imperative that gender discrimination be eliminated at the state level. It is recognized that effective regulation of gender relations is crucial for promoting gender equality, preventing gender discrimination, and ensuring equal participation of both genders in socially important decisions. This regulation also ensures equal opportunities for men and women in their professional duties and responsibilities. Today, gender equality is a crucial factor in a country’s development, and in the era of globalization, every society must address the issue of gender inequality.It has been established that gender equality is a fundamental component of the general principle of equality. This means that every individual should be treated equally, regardless of their gender. Gender equality, as a legal concept, encompasses the equal rights and opportunities for individuals of all genders, providing the same conditions for the realization of their potential, and affirming the fundamental rights of both women and men. It is emphasized that Ukraine has made some positive changes in terms of gender equality at a legislative level. However, there has been no significant progress in implementation, which has resulted in Ukraine receiving low international ratings regarding gender equality.

«L’égalité entre les associés-coopérateurs en droit de l’OHADA»

Abstract This study focuses on the equality among cooperative shareholders under the OHADA2 law. It analyses, with regards to the specificity of cooperative companies; the place that OHADA legislature gives to the general principle of equality in cooperative structures. It shows from our analysis that the principle of equality in partners has not only been taken up by the legislature in the Uniform Act on cooperatives, but that it has also been strengthened giving the specificity of cooperative structures.

Diskriminierung wegen der sozialen Klasse durch Alkoholverbote?

In Germany, police laws of the Länder contain regulations on banning alcohol in public places. Despite attracting the attention of legal scholars and courts, the issue whether alcohol bans discriminate on grounds of social class has been overlooked. The article examines this issue through the lens of homelessness. We begin by evaluating the legal basis for alcohol bans in Saxony, which was reformed in 2020. To address this question, we first examine the concept of “social class”, which though not explicitly recognised in the Basic Law, is closely linked to the listed characteristic of “origin” and is, in any case, protected by the general principle of equality. Finally, besides emerging in individual cases, we demonstrate why current legislation already creates potential for discrimination through indeterminate legal terms.

A violência doméstica e familiar à luz da obra “Hibisco roxo” e do “Caso Maria da Penha vs. Brasil”

This article is an application of the methodology Law in Literature, with bibliographic research. It develops the concept of education in Human Rights, based on the dignity of the human person, the right to non-discrimination, and the general principle of equality in law, all ideas acknowledged by the Brazilian Federal Constitution of 1988 and the current norms in the context of family and domestic violence in Brazil. It presents an interdisciplinary dialogue between the legal doctrine and the novel "Purple Hibiscus", in attempt to map the main actions applied in Brazil by the Interamerican Human Rights System in the Maria da Penha case. Thus, it is possible to establish an exchange between human and fundamental rights, through inclusion policies, information sharing and empowerment, especially regarding women and children.

Gleichheit als philosophisches und juristisches Konzept

The principle of equality is one of the guiding principles of modern legal and moral orders. However, one cannot draw direct conclusions from it about concrete equal treatment requirements. This raises the question for the legal system how equality requirements are to be dealt with; this applies in particular to the general principle of equality. Formalisations and materialisations do not help on in this respect. Finally, the question of how the principle of equality relates to the numerous factual inequalities arises.

Fair or Unfair Algorithmic Differentiation? Luck Egalitarianism As a Lens for Evaluating Algorithmic Decision-Making.

Differentiation is often intrinsic to the functioning of algorithms. Within large data sets, ‘differentiating grounds’, such as correlations or patterns, are found, which in turn, can be applied by decision-makers to distinguish between individuals or groups of individuals. As the use of algorithms becomes more wide-spread, the chance that algorithmic forms of differentiation result in unfair outcomes increases. Intuitively, certain (random) algorithmic, classification acts, and the decisions that are based on them, seem to run counter to the fundamental notion of equality. It nevertheless remains difficult to articulate why exactly we find certain forms of algorithmic differentiation fair or unfair, vis-a-vis the general principle of equality. Concentrating on Dworkin’s notions brute and option luck, this discussion paper presents a luck egalitarian perspective as a potential approach for making this evaluation possible. The paper then considers whether this perspective can also inform us with regard to the interpretation of EU data protection legislation, and the General Data Protection Regulation in particular. Considering data protection’s direct focus on the data processes underlying algorithms, the GDPR might, when informed by egalitarian notions, form a more practically feasible way of governing algorithmic inequalities.

"Gender Game" on the Field of Russian Jurisprudence

Equality of opportunities is the most important aspect of the general principle of equality, which is currently, received almost universal acclaim. This is one of the most fundamental principles on which democratic society is based. It is enshrined in international instruments, national constitutions and laws. However, despite significant progress in this topic, there is inequality between men and women. The article presents main study areas of the theory and practice of jurisprudence in the context of gender - with an emphasis on gender studies in specific areas of legal science; the importance of gender in the mechanism of legal regulation of social relations in the constitutional, administrative, criminal, labor, and family law, since this factor plays a more active role in these branches of Russian law and legislation. The authors come consider that ideas and solutions concerning the legal regulation of relations with the gender element are contradictory it its basis; complex, not always justified, interaction rules and practices, that include positive discrimination and gender neutralization.

Horizontal Effect and the Charter

The Charter of Fundamental Rights of the European Union (hereinafter: ‘Charter’) [1] is an act of the primary law of the EU. Whilst its Article 51(1) provides that individuals may invoke fundamental rights vis-a-vis the EU or its Member States, it is silent on the issue of whether fundamental rights can be invoked vis-a-vis other individuals. [2] This discrepancy can be partly clarified by looking into the case law of the Court of Justice. So far, the Court of Justice has recognised such a possibility with regard to the general principle of equality as it is expressed in different forms in the chapter on ‘Equality’ of the Charter and in the directives which implement it. The question this contribution aims to resolve is whether the case law of the Court of Justice opens up such a possibility for other provisions of the Charter as well. The Court of Justice has, however, rejected such a possibility as far as socio-economic fundamental rights from the chapter on ‘Solidarity’ of the Charter are concerned, despite the fact that these provisions are made concrete by directives and the national legislation which implements them. I will argue that this position of the Court of Justice is not consistent with its existing case law on the horizontal effect of the Charter and undermines its full effectiveness. [1] [2012] OJ C 326/02. [2] Opinion of Advocate-General Cruz Villal o n in Case C-176/12, Association de mediation sociale , delivered on 18 July 2013, para. 31.

Uma noção de “templos de qualquer culto” para os fins do artigo 150, VI, “B” da Constituição

Subjective tax immunities and, in particular, the immunities granted to the “temples of any cult” have received too generous interpretation by the doctrine and the jurisprudence, to the point of enabling a number of imbalances in the tax system and in the economic order. The main purpose of this article is to establish a notion of “temples of any cult” that equips the interpreter in the construction of the tax immunities rules provided for in Article 150, section VI, “b” and paragraph 4th of the Federal Constitution, maximizing, however, the general principle of equality in its special aspects of generality in taxation and tax neutrality. In such process, the article will eliminate the assumption that the tax immunity is to any temple of any cult, as a careless hermeneutic could induce.

Comparative Institutional Analysis, the European Court of Justice and the General Principle of Non‐Discrimination—or—Alternative Tales on Equality Reasoning

AbstractThe general principle of equality in European law is often held to be inconsistently applied by the European Court of Justice (ECJ) and insufficiently supported by methodology. Contrary to this assessment, this paper argues that there is substantial coherence and theoretical underpinning to the court's equality reasoning. First, it shows that the respective case‐law can be subdivided into three groups, depending on the level of scrutiny applied. Second, it establishes that the prevailing accounts have difficulty in explaining the court's choice of scrutiny due to their limited selection of analytical parameters. Third, it concludes that comparative institutional analysis offers an alternative framework to make the ECJ's testing approaches in equality matters more intelligible.

Equal Treatment of Atypical Workers: A New Frontier for EU Law?

In order to address the specific issues of worker protection that are raised by non-standard forms of work, the European Union (EU) has adopted three measures concerning ‘atypical’ workers: a social partners’ Agreement on part-time work;1 another social partners’ Agreement on fixed-term work;2 and a Directive on temporary agency work (the ‘agency work Directive’).3 To protect the atypical workers directly from abusive conditions of employment, and to protect workers with standard employment contracts indirectly from being undercut by atypical workers, each of these measures contains important provisions banning, in principle, discrimination against atypical workers as compared to workers with standard employment contracts. There is now extensive case-law of the EU’s Court of Justice on the non-discrimination provisions of the two social partners’ Agreements. This case-law indicates that the principle of equal treatment of (or non-discrimination against) atypical workers forms part of the general principle of equality...

Criticizing the Horizontal Direct Effect of the EU General Principle of Equality

This article discusses recent case law of the Court of Justice of the European Union (CJEU) on the horizontal direct effect of the general principle of equality at EU level. The CJEU, in Mangold, held that the general principle of equality is capable of horizontal direct effect. It was argued that equality as a fundamental human rights principle enjoys the status of a general principle of EU law after Mangold. The horizontal direct effect of the general principle of equality infers that equality as a fundamental human rights principle is further developed. In Kucukdeveci, the CJEU confirmed the horizontal direct effect of the general principle of non-discrimination on grounds of age. However, the CJEU, in Kucukdeveci, did not use the EU Charter of Fundamental Rights in order to underpin its arguments on horizontal direct effect of the general principle of equality Following the criticisms of the Advocates General in other cases, this article argues that the CJEU's approach on the horizontal direct effect of the general principle of equality presents significant defects. Many issues on the horizontal direct effect of the general principles of EU law remain obscure; the CJEU should clarify these issues in its future rulings.

Commentary on the EU Court’s Decision in Audiolux

In its Audiolux judgment of 15 October 2009, the EU Court decided that under EU law there is no general principle of equality of shareholders, pursuant to which a shareholder who acquires control of a company would be obliged to also offer to buy the shares of the remaining minority shareholders for the same share price as was paid in the control-acquiring transaction.

Horizontal Effect of Fundamental Freedoms and the Right to Equality after Viking and Mangold, and the Implications for Community Competence

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Reverse Discrimination in Purely Internal Situations: An Incongruity in a Citizens’ Europe

Reverse discrimination suffered by Member State nationals in purely internal situations has traditionally been considered by the Court of Justice to be a permissible difference in treatment that falls outside the scope of EC law. The principal aim of this article is to argue that, in the light of the introduction of the status of Union citizenship and, in particular, the interpretation afforded by the ECJ to some of the citizenship provisions, the Court should reconsider its stance on the issue of reverse discrimination. It will be explained that the Court has already made some tentative steps towards this direction: in line with the overall developments in the EC since 1993, the Court in recent years, in some of its case-law, has extended the scope of application of the free movement Treaty Articles to situations which presented a very tenuous link with those provisions, preventing, in this way, the emergence of reverse discrimination. It will be concluded that, although the Court’s underlying objective in those cases has been correct, the approach it has followed in attaining that objective has, nevertheless, been the wrong one. Reverse discrimination is, indeed, an incongruity in a Citizens’ Europe, yet, the scope of the fundamental freedoms provisions can never be extended in such a way as to encompass this difference in treatment since it does not impede the achievement of their sole aim (the establishment of a single market). Therefore, some other way should be employed for bringing reverse discrimination within the scope of EC law and, where appropriate, for ruling that it amounts to a prohibited difference in treatment. Reverse discrimination will be re-proposed as an unjustified violation of the general principle of equality, the latter being one of the core principles that must be respected in a Citizens’ Europe.

The internal market and the grand exception

This second volume of the Oxford Encyclopaedia appears some fifteen years after the first volume, which dealt with Institutional Law. A third volume is projected which will cover Competition Law. Given the excellence of the first two volumes, one hopes that we will not have to wait as long for the final instalment. An update of the first volume would also be welcome. Whereas Professor Toth was the sole author of Volume I, for this volume he has recruited a panel of distinguished co-contributors. Nonetheless, he is responsible for 20 of the 42 articles, and for many of the most substantial ones. All topics of relevance to the Internal Market are covered; however, although Equal Treatment (of men and women) is covered, for the general principle of Equality one is referred to the inevitably less up-to-date discussion in Volume I. Company Law features both in its own right (Vanessa Edwards),...

Legal Protection against Discrimination based on Racial and Ethnic Origin Under European Union Law — Necessary but not Sufficient?

Inter-related developments at three distinct levels of European Union law relevan to protection against race discrimination are the focus of this article. First, the article considers Article 13 E.C. enacted by the Treaty of Amsterdam, and the enabling model it embodies. This model is critiqued and contrasted with other potential forms of equality provision, by drawing on international law models. Next, the article analyses the Council Directive on Equal Treatment between persons irrespective of racial or ethnic origin (EC 43/20(0) from a number of substantive and formal legal perspectives. Finally, the article discusses the Charter of Fundamental Rights of the E.U. and the import of its equality provision, Article 21. A number of themes recur in this piece: among them, the limitations of the current equality model with respect third country nationals and nationality discrimination which amounts to de facto race discrimination; the inadequacy of the current equality model to provide a consistent level of protection for all of the heads of discrimination enumerated in Article 13; and the absence of a general principle of equality which clearly binds Member States, E.U. citizens and the E.U. itself.

Le principe du respect de la situation particulière des pays en développement et de l'assistance au développement

THE PRINCIPLE OF RESPECTING THE PARTICULAR SITUATION OF DEVELOPING COUNTRIES AND OF ASSISTING DEVELOPMENT The paper first examines to which extent the particular situation of developing countries has given rise to specific rules derogating in their favor from general principles of equality and reciprocity in the area of international trade of goods and services and technolgy transfer, such as the concept of preferential treatment regarding customs and tariffs, the specific exceptions regarding protection of and access to intellectual property, the particular rules on services, investment and agricultural products etc. It then summarily reports on the existing principles of development assistance regarding both private and public assistance, in particular those prevailing in the EU-ACP Convention. In a second part the paper analyzes the legal underpinnings of these specific rules and principles, criticizing in part their conceptual form of exceptions and advocating their complementary nature by reference to a formal principle of non-discrimination, since they represent legitimate rules of differentiation according to existing differences. In that respect the author also points to differences among developing countries,which have resulted in further differentiation of treatment in particular areas. By way of conclusion the author proposes to reconsider the concept of a New Economic Order as a way to overcome the hypocritical method of carrying on exceptional rules which mirror a permanent problem that can be overcome only by rules of adequate treatment.

Equality, Non-Discrimination and the Labour Market in the UK

English law lacks a general principle of equality of the kind found in constitutional texts in some other European countries. Legislation embodies a principle of non-discrimination in employment on grounds of sex, race and disability. This body of law stresses formal rather than substantive equality, and defines discrimination in terms of the asymmetrical treatment of individuals rather than by reference to the structural sources of group disadvantage. These conceptual weaknesses are part of the explanation for the relatively limited impact of the legislation on the UK labour market, which continues to be characterized by occupational segregation and persistent pay inequality.