Principle Of Legitimate Expectations Research Articles

Respecting Legitimate Expectations in Civil Contracts

Objective: This research aimed to examine the principle of respecting legitimate expectations in civil contracts.
 
 Method: The analytical approach is used to analyze the selected legal texts.
 
 Result The findings reflect that legitimate expectations are one of the basic constituent elements of contractual justice, and the principle of legitimate expectations cannot perform its desired function unless the contract is valid and these expectations are reasonable and legitimate.
 
 Conclusion: It was revealed that the principle of legitimate expectations in civil contracts leads to achieving contractual equilibrium and contractual justice through the economy in terminating contracts. Furthermore, the judge plays the primary and important role in evaluating the contractual interests that must be protected.
 
 Originality/value: Achieving the principle of legitimate expectations leads to attaining contractual balance and contractual justice through the main and effective role played by the judge in assessing contractual interests in civil contracts.

Uticaj modernih tehnologija na pravnu sigurnost u poreskom pravu - novi horizont

The speedy reforms of Serbia's tax legislation, often introduced on the basis of comparative sources, has created a significant body of dormant legislation, due to the lack of knowledge and experience to implement them. The article explores some aspects of legitimacy of Serbian tax legislation, namely the consequences of the misalignment of tax law provisions with taxpayers behavior, using the example of unregistered freelancer taxation. The authors address fundamental legal certainty issues arising from the clash between changes brought on by innovation and imposition of static tax legislation to circumstances unimaginable at the time the legislation was enacted. Analysis has shown that Serbian legislation and caselaw do not provide an effective remedy for these cases, since the principle of legitimate expectations, as developed elsewhere in Europe, is still distant. The authors propose a specific institutional mechanism for overcoming uncertainty in similar situations.

The principle of legitimate expectations as a way to prevent the impact of the change in the position of the authorities

Introduction: Individuals may trust that their current favorable legal situation will be preserved in the face of unexpected legal, administrative or jurisprudential changes that compromise their legitimate expectations to the point of causing them some minor or major legal damage. Objective: The purpose of this study is to present the principle of legitimate expectations in the context of Colombian law, which has been transforming from a purelylegalistic system (civil law) to a system with a strong inclination to adopt the mechanics of precedent (common law) without being able to say that the latter system is fully assumed, either for legal reasons or for social reasons of legal culture that condition the mentality of jurists in general and of legal operators in particular. Conclusions: Can individuals be protected in any way against such unforeseen changes when a legal damage is causedto them? Eventually yes, if the legal system in question has a structure of principles, such as ours, where such principles inspire the justice that has been consolidating around the jurisprudence that has developed Article 83 of the Political Constitution which deals with the presumption of good faith and how it extends in terms of legal security to the confidence of individuals that they will not be surprised with unexpected changes forcing the State inspecific cases to recognize transition periods in terms of the adaptation of citizens to the new legal regime (legal, administrative or jurisprudential).

Application of the principle of legal significance when considering administrative cases

The principle is the starting point for the analysis, interpretation and application of any system. The principle is substantiated by the fact that in the administrative sphere it is common to change the interpretation of certain legal norms with a corresponding change of orientation, which has a normative character, affecting situations that are already recognized and enshrined in force. The increasing proclamation of the principle of legal certainty, which is becoming more and more widespread, sometimes creates exaggerations, sometimes unjustified risks, which imposes its delimitation in accordance with the current legal order. Thus, through dogmatic analysis, it is proposed to classify the content of the principle of legal certainty into two conceptual cores, namely: certainty and stability. In this aspect, the validity of legal norms, effective projection and content of legal norms is considered, while the institutions of acquired law, perfect legal act and res judicata, the subprinciple of protection of legitimate expectations with their respective manifestations are studied under the prism of stability.
 The principle of legal certainty, also known as the principle of legitimate expectations (protection of trust), is one of the basic sub-principles of the rule of law, which is one of the most important principles of common law. The principle of legal certainty or stability of legal relations prevents unjustified deconstitution of legal acts or situations, even if at the time of its constitution there was a discrepancy with the legal text. Thus, the importance of legal certainty is aimed at protecting the expectations of citizens, ie the public manager must use past practices and precedents of public administration, which made possible and created expectations of citizens. The principle of legal certainty presupposes the existence of a coherent mechanism capable of ensuring the rule of law and serving as a standard for legislation and the judiciary. In a broad sense, the principle of legal certainty is a set of requirements for the organization and functioning of the legal system in order to ensure primarily a stable legal position of the individual by improving the processes of lawmaking and law enforcement.

Юридические аспекты этического принципа защиты законных ожиданий (на примере Южной Америки)

The principle of legitimate expectations becomes a new limiter of administrative action, further strengthening the legal positions of the subject. The author shows that the principle of legitimate expectations is aimed at protecting the positions of the subject. This doctrine belongs to administrative law and is associated with the ethical principles of morality, loyalty and, above all, good faith. Influenced by the Spanish experience, this is now a widespread approach in South American countries where the doctrine of legitimate expectation is mentioned in administrative procedures. This is particularly relevant predominantly in the context of administrative actions. The author highlights the idea that in South America, legal practice directly points to the principle of good faith as an effective means of preventing a negative attitude towards an individual. The paper analyses the features of the application of this principle in such South American countries as Venezuela, Colombia, Brazil, Costa Rica, Peru, Bolivia and Uruguay. At the same time, the author notes that there are several factors that affect the operation of the principle, do not depend on normative acts, and may limit the protection of the legal positions of subjects. The most important of these is the process of transition to democracy, which is still ongoing in these countries and is strongly influenced by persistent primary dynamics such as the logic of so-called caudilism, idiosyncratic legal traditions and political practices, and complex and conflicting social, ethical and cultural contexts.

COVID-19 Related State Aid for the Airline Sector: EU Courts Not Hesitant to Remove the Commission’s Stamp of Approval

This article considers the significant amounts of State aid provided to European airlines in relation to the Covid-19 pandemic, three recent challenges in the EU General Court to the Commission’s decision to approve specific State aid measures and the consequences of those cases for the industry going forward. It is argued that the two successful challenges to Commission decisions approving aid are significant, because they confirm that the EU courts will not hesitate – despite the unprecedented financial damage to the airline industry caused by the Covid-19 pandemic – to annul Commission decisions approving aid where the reasoning is unsatisfactory. Equally, it is emphasized that the General Court did not find the State aid authorized by the Commission decisions in question to be unlawful as such, and the Court’s preferred remedy would suggest that the court was keen to avoid such an outcome, if possible. Furthermore, the principle of legitimate expectations would seem to render it unlikely that recipients of Commission-approved State aid will be required to repay that aid. Finally, it is argued that Covid-19 related State aid is liable to have caused some competitive distortions in the sector and that regulation of the industry needs to be attentive to this going forward. State Aid, EU Law, Covid-19, Airline Industry, Legitimate Expectations

JUSTIÇA SOCIAL COMO PRINCÍPIO DA SEGURANÇA SOCIAL

Abstract The purpose of this paper is to determine the impact of social justice on the volume, types, and amount of social security in the distribution of benefits in society. This study approaches the direction of social policy in the state and the place of social justice in the priorities of legislative activity. Failure to keep a balance between the interests of different classes of the population leads to confrontation in society and conflicts with the authorities. The state is constantly facing challenges that require a review of traditional social security conditions. Deteriorating demographic situation and other reasons that affect the amount of funding for the social sphere are forcing authorities to make unpopular decisions that worsen the conditions of social security. Therefore, the principle of social justice and the principle of legitimate expectation must be observed when changing the legislation in the field of social security. This article proposes the definition of the compensation coefficient in legislation, and its amount should be set in a bill to amend the legislation in the field of social security. This paper also focuses on the problem of social justice in providing social security to migrants.

The Importance Of The General Principles Of European Union Law In Ensuring Public And Private Interests In Environmental Relations

The article is aimed at studying the content of the general principles of European Union (EU) law, their importance in ensuring public and private interests in environmental relations.
 It is argued that the principles of law are based on public interests and needs, so the most important characteristic of the principles of law is their ability to put emphasis on the most important values of public life. It is established that the full potential of the principles of law is best manifested in the administration of justice, most clearly reflected in the case law of the European Court of Human Rights, less perfectly - in the judicial system of Ukraine.
 The general principles common to the legal systems of the EU member states are the following: 1) the principle of proportionality; 2) the principle of legal certainty; 3) the principle of legitimate expectations.
 Performing its functions, the state may intervene in the private sphere within acceptable limits, and the criteria of the principle of proportionality are used to optimize such intervention in order to satisfy the general public interest. The following criteria are defined: 1) the legality of intervention; 2) a legitimate purpose (justification of intervention by the general interest); 3) a fair balance between the interests of property rights and public interests. The intervention should ideally be proportionate, measured, optimal and easy for the entity. In essence, this principle is designed to control the law not only in terms of the legitimacy of the influence of the authorities on fundamental rights but also on its balance in general. Legal certainty requires not only the promulgation of adopted laws or other regulations but also the relative clarity of their content so that individuals can predict and determine their behavior, the limits of manifestation and realization of their interests. The principle of legitimate expectations (reasonable predictability of court decisions) in the procedural sense applies to uniform and consistent law enforcement practice, avoidance of selective justice. The use of the concept of legitimate expectations is effective for application in cases of the protection of private property rights as well as the right to public property and public interests. It is allowed to limit the principle of protection of legitimate expectations, for example, if there is an overriding public interest, which is applicable in terms of environmental relations.
 The article argues that the practice of the European Court of Human Rights, as a source of law, provides a legal interpretation of substantive and procedural norms that would be vague without practical explanation. In the meantime, it is argued that in the process of approximating the environmental norms of Ukraine with EU law, the specifics of the environmental sphere and the competitive nature of the interests of entities that implement the corresponding regulations have to be considered.

PRINCIPLE OF LEGITIMATE EXPECTATIONS: CONCEPT AND CONTENT

The article reveals the concept and content of the principle of legitimate (legitimate, legitimate, reasonable, justified) expectations (expectations) as a component of the rule of law and the principle of legal certainty derived from it. Legitimate expectations have been shown to be derived from principles such as good governance, legality and proportionality, and are directly related to such concepts as predictability (predictability) and the effect of law over time (the possibility of retrospective legal regulation). An analysis of the decisions of the European Court of Human Rights, in which the Court appeals to the protection of legitimate expectations, and on the basis of this analysis determined the content of the latter. It is substantiated that in accordance with the settled case law of the European Court of Human Rights, legitimate expectations are mainly the subject of protection in the aspect of Art. 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms. The author argues that the principle of legitimate expectations is inherent mainly in public law disputes resolved by administrative courts. It has been shown that legitimate expectations cannot be equated with expectations that arise from subjective perceptions or misjudgments of certain circumstances or legal norms. The conditions under which a certain hope (requirement) of a person acquires signs of legitimate expectation and becomes the subject of protection within the meaning of Art. 1 of the First Protocol to the Convention. The legal basis for the emergence of a person’s legitimate expectations has been established. It is proved that the absence in the law of provisions on a certain right, which, however, follows from the general constitutional principles or natural law, or the absence of a law defining the mechanism of realization of such right cannot indicate the absence of legal basis for a person to have legitimate expectations rights.

Authentic interpretation of legal norms: theoretical aspec

The article examines the problem of interpretive activity in the law enforcement process, which is due to the need to clarify the content of the legal norm. The issue of interpretation in the process of application of legal norms is considered, as the modern Ukrainian legislation is not regulated and contains internal conflicts. The article describes the types of official normative interpretation, in particular, as authentic, legal, departmental. The use of interpretation in the law enforcement process as an opportunity to understand the essence of legislative terms,ensuring equal application by all subjects of public relations, which involves compliance with the principle of legitimate expectations and the rule of law. Keywords: interpretation, application, authentic interpretation, casual interpretation.

Przeciwdziałanie unikaniu opodatkowania

Klauzula przeciw unikaniu opodatkowania narusza zasady ustrojowe, które stanowią o respektowaniu przez prawodawcę zasady demokratycznego państwa prawnego (art. 2 Konstytucji). Neguje, i to w sposób oczywisty, jaskrawy, treść zasady zaufania do państwa i stanowionego przez nie prawa podatkowego. Oznacza to, że klauzula stoi w sprzeczności z art. 2 Konstytucji w zw. z art. 31 ust. 3 Konstytucji. Tym samym, został złamany konstytucyjny nakaz, który zobowiązuje prawodawcę do precyzyjnego, tj. jednoznacznego w treści, zakresu i przesłanek dopuszczalnej ingerencji w prawa podmiotowe podatnika. Arbitralne wkroczenie w wolności gwarantowane Konstytucją, w tym wolności gospodarcze, jest tym bardziej niebezpieczne dla podatnika, że przyjęte w klauzuli unormowania proceduralne, które mają chronić podatnika przed nadużyciem stosowania klauzuli, są tylko pozorne i mają charakter złudy prawnej. A to narusza zasadę wzajemnej lojalności w relacjach państwo–podatnik. Klauzula ma kwalifikowane wady, albowiem: a) nie zapewnia bezpieczeństwa prawnego podatnikowi, b) nie respektuje zasady określoności przepisów prawa podatkowego, c) nie respektuje zasady wzajemnej lojalności w relacjach państwo a podatnik, d) narusza także zasadę zaufania do państwa i stanowionego przez nie prawa podatkowego. Z winy prawodawcy konstrukcja prawna klauzuli jest niejasna, nieprecyzyjna, wieloznaczna, a to stwarza niepewność, co do praw i obowiązków podatnika, a zatem stwarza podstawy do arbitralnych rozstrzygnięć organów podatkowych, albowiem swoboda luzu decyzyjnego organu podatkowego jest nadmierna.

Conventionalism and Legitimate Expectations

To be a conventionalist about a specific obligation or right is to believe that the obligation or right is dependent on the existence of a social practice. A conventionalist about property, for example, believes that a moral right to property is generated by conventional norms rather than by any natural right. One problem with dominant conventionalist theories is that they do not adequately justify conventional moral claims. They can justify why it is wrong to steal, for example, but they do not justify the claim that you have on me to not steal from you. As a remedy, this article develops and defends the Principle of Legitimate Expectations. Suggested by John Rawls, this principle grants individuals a moral claim to what the rules of morally justified practices entitle them. This article addresses common objections to the principle to show how it can ground a wide range of conventional moral claims.

The Europeanisation of Spanish Administrative Law Through the Principle of Legitimate Expectations

This article describes the Europeanisation of Spanish administrative law as a result of the influence of the EU law general principle of legitimate expectations. It examines, firstly, whether the formal incorporation of the principle of legitimate expectations into national legislation and case law has modified the substance of the latter, and if so, secondly, whether this has led to a weaker or a more robust protection of the legal status quo. To carry out that examination, the article considers the influence of the principle of legitimate expectations in two different areas: in individual administrative decision-making, and in legislative and administrative rule-making. Our conclusion is that the Europeanisation of Spanish administrative law through the principle of legitimate expectations has been variable and ambiguous.

The Europeanisation of Spanish Administrative Law through the Principle of Legitimate Expectations

This article describes the Europeanisation of Spanish administrative law as a result of the influence of the EU law general principle of legitimate expectations. It examines, firstly, whether the formal incorporation of the principle of legitimate expectations into national legislation and case law has modified the substance of the latter, and if so, secondly, whether this has led to a weaker or a more robust protection of the legal status quo. To carry out that examination, the article considers the influence of the principle of legitimate expectations in two different areas: in individual administrative decision-making, and in legislative and administrative rulemaking. Our conclusion is that the Europeanisation of Spanish administrative law through the principle of legitimate expectations has been variable and ambiguous.

Selected problems of changes in EU and national legislation in the perspective of the principles of legitimate expectations and legal certainty

This article addresses selected problems related to the complex topic of changes in EU and national legislation. The considerations contained in the article focus on the so-called previous effectiveness of an EU directive and on the retroactivity of (ordinary) laws passed by EU Member States. The research perspective concentrates on the functioning of these institutions in the face of the principles of legitimate expectations and legal certainty. The article utilizes primarily and predominantly the analytical method, as well as the empirical method, making use of the extensive case law of the EU Court of Justice and the Supreme Administrative Court. As a result of the research, it shall be stated that, first and foremost, the source of legitimate expectations of an individual cannot be an EU directive during the transposition thereof in an EU Member State. Secondly, the principle of legal certainty is not precluded by the exceptional retroactive effect of a normative act, due to the need to protect the public interest, provided that legitimate expectations of individuals are guaranteed.

Načelo predvidivosti u upravnom postupku

The principle of legitimate expectations is one of the new principles of Serbian administrative procedure. Unfortunately, it is regulated in a very wage and imprecise manner. This is why the authors have tried to determine its true meaning. They have also posed the following question: is the principle of legitimate expectations necessary in Serbian administrative procedure? In reply to this question, they have confirmed their basic hypothesis and concluded that the answer is: no. This "principle" is just another way to name and explain some other principles - such as legality, equality and legal certainty. Legitimate expectations are just a reflection of these principles; they do not form some new and special principle. In Serbian administrative procedure, they change nothing and mean nothing

Land lease contract. Dynamic of invalidity

The article is devoted to the issues of invalidity of land lease contracts. The author points out that the problem is important and significant both for the theory and practice. Cases on land lease contract validity contain significant part of disputes in Ukrainian business and civil courts, that demonstrates topicality of the problem and demand to the ideas, conception and solution. Author proposes considers the problem of invalidity in dynamic, in accordance to the sequences of legal facts and conditions that are related to invalidity of contracts, proposes his own phases of invalidity (preceding or preparation; committing contract; executing contract; contestation of validity of the contract; legal consideration and application of effects of invalidity) as well as corresponding stages of invalidity of the contracts. In this view, the article contains analysis of legislation and it’s specific in aspect that is related to the issues of invalidity of land lease contract. The author made analysis of literature proposes changes to legislation on invalidity of land lease contract. The author points out that form of the land lease contract is not conditioned by registration of rights and contract itself, meanwhile, parties agreed another conditions/ Among others, the author proposes consider land lease contract as real contract (not consensual), that committed at the moment of signing, proposes application of the principle of legitimate expectations to relations that are related to invalidity agreement and proposes changes to legislation.

Greece, Ireland, Portugal and Spain Ten Years After the Start of the Euro-Crisis. A Constitutional Appraisal

This special section features four comments concerning the impact of the Euro-crisis, ten years after the start of the subprime mortgage crisis in the US, on the four Eurozone countries that probably have been affected the most. In fact, the year 2018 marked the end of the financial assistance programmes activated between 2010 and 2015 in favour of Ireland, Portugal, Spain Cyprus and Greece (which benefited from three rescue packages). We have preserved a proper constitutional perspective of analysis and we have tried to understand what constitutional consequences stemmed from the crisis and from the related application of EU and international measures at the Member State level. Leaving aside the case of Cyprus – characterised by unique economic, social and geopolitical features – we have asked national experts to illustrate the most significant constitutional implications of the Euro-crisis in their country. We have suggested a set of topics of possible interest: i) budgetary procedures and the role of Parliaments; ii) Relations between the State government and regional/local authorities; iii) possible constitutional conflicts between supranational constraints and national constitutional identities; iv) workers’ rights and rights of pensioners, with special attention to the (im)balance of the social security system; v) protection of savings; vi) tax law reforms and principle of legitimate expectations.

The Never Ending ‘Saga’ of the Fallimento Traghetti del Mediterraneo · Case C-387/17 Traghetti del Mediterraneo · Annotation by Alessandra Franchi

This judgment continues the ‘saga’ related to the litigation between Fallimento Traghetti del Mediterraneo and the Italian State concerning the unlawful State aid granted to Tirrenia di Navigazione SpA as compensation for public service obligations from 1976 to 1980 and shows the complexity of the assessments by national courts on damages related to the granting of unlawful State aid. The CJ provides guidance on the notion of existing aid, clarifying that State aid measures which were granted in a period when the maritime cabotage market was not yet liberalized at Union level cannot be classified as existing aid because of the merely formal absence of liberalisation of that market, to the extent that those subsidies were liable to affect trade between Member States and distorted or threatened to distort competition. The CJ also emphasises the cooperation obligation of the national courts and their role in awarding damages related to the distortion of competition created by unlawful State aid. Member State cannot invoke the principle of legitimate expectation in case of breach of the notification obligation set in Article 108 (3) TFEU. Finally, the CJ clarifies that the ten-year limitation period set out in Article 15, paragraph 1, of Regulation 659/1999 (repealed by Regulation 2015/1589), only applies to Commission investigation under Article 108, paragraph 3, TFEU and only refers to the Commission’s power and time limit for recovery of illegal aid, but does not apply in damages proceedings before the national jurisdictions. Keywords: Existing aid; Recovery; National enforcement; Prescription; Damages.

The Doctrine of Legitimate Expectation & Proportionality: A Public Law Principle Adopted into the Private Law of Employment

This article examines the possible adoption of the public law principles of ‘legitimate expectation’ and the standard of ‘proportionality’ as the appropriate and cohesive legal approach to voluntary promises that are normally found in ostensibly non-contractual documents. The article argues that, allowing a further development into the principle of legitimate expectation, which has already been adopted in employment relations as a further development of the implied duty of trust and confidence, could enhance the courts’ approach to the issue of voluntary promises and avoid the unsatisfactory contractual solution that appears to produce inconsistent results. Giving particular consideration to the courts’ application of the proportionality test, thereby recognises an employee’s hierarchy of interests, when seeking to justify an employer’s decision, this article assesses how the influence of the proportionality standard can, and should, offer a more satisfactory solution when applied to resolving disputes.