Procedural Autonomy Research Articles

The Interrelation between Public Participation and Access to Justice in the eia Context in the Face of the Increasing Use of Digital Technologies: Comment on the cjeu Judgment in the A.Flausch et al Case (C-280/18)

Abstract The article analyzes the cjeu Judgment in the A. Flausch et al case, which concerns the compatibility of the Greek procedural rules relating to specific aspects of the public participation in the eia context and to a specific aspect of access to justice (time limit) with the respective EU Law provisions in the face of the increasing use of digital technologies in the public participation procedures. This ruling is important, because it sets limits to the procedural autonomy of ms when it comes to the rules that are applied to the eia-related disputes and those that concern the public participation arrangements. It demonstrates, though, the lack of a steady line in the Court’s jurisprudence concerning the standards for assessing the national procedural rules and the role of Article 47 cfr. Moreover, the Court did not lay the ground for an interpretation of the ΕU public participation provisions in a way that an obligation for taking measures could be established, with the aim to ensure equal participation opportunities.

Procedural Autonomy of a Member State: Application of the Principle by Latvian Administrative Courts

The article addresses certain issues of principle of national procedural autonomy. The meaning of the principle is briefly explained at the beginning of the article. It is followed by analyses of examples of the application of this principle by Latvian courts after the judgments of Court of Justice of the European Union, as well application of the principle of procedural autonomy by Latvian courts on their own initiative.

Policija u mađarskom krivičnom postupku

The police play a key role in the Hungarian criminal justice system. In addition to the legality supervision and effective professional management of the prosecution, the police have performed investigative tasks, which has procedural autonomy in initiating differentiated procedural methods in the reconnaissance and examination phase. The investigation consists of reconnaissance and investigation. In contrast, in the examination phase, they work under the direction of the prosecution. In addition to the general police, there are special police bodies in the country that do not have investigative powers but can take part in the preparatory process at the initial stage of the investigation, in particular by collecting data to establish the suspicion of a crime. Such bodies are the National Defense Service for Internal Corruption and Terrorism and the Counter-Terrorism Center. In our article, we provide an overview of the role of the police in a state organization. In accordance with that, we analyze the police's law enforcement role, outline the investigative activities of the Hungarian police and their tasks in criminal proceedings.

Juridictions internationales et Covid-19 : une approche procédurale

The article analyses the impact of the Covid-19 pandemic on the functioning of nine international courts and tribunals and international litigation, and what this reveals about the current state of a decentralised ‘international justice’. The courts’ stupefaction in the face of the pandemic led to an initial suspension of their activities, in varying degrees. Paradoxically, this also led to the emergence of a discourse on the necessary continuity and effectiveness of international justice, which is still perceived, legally, as optional. In order to uphold these objectives, international courts and tribunals have subsequently adapted their operating methods and the conduct of proceedings in order to cope with a pandemic that proved more enduring than expected. A policy of digitalisation was undertaken by all of them. The most visible transformation has been the holding of virtual hearings, a novelty for most. Even in criminal or investment cases, where the practice was not new, virtual hearings have been extended to new phases of international litigation, which the pandemic both revealed and transformed. On the one hand, this episode has confirmed its protean character, which is due as much to the procedural autonomy of international courts and tribunals as to the over-determining character of extra-legal factors, whether of material or axiological nature. On the other hand, it has contributed to its lasting transformation. Hybridity is destined to become a new normality, even as return to in-person processes is underway. The pandemic has also led to the emergence of the idea of ‘fair international trial’, still often confined to criminal litigation or investment arbitration, as a guiding principle of international procedural law.

Presumptions in EU Competition Law: Blurring the Substantive-Procedural Dichotomy

In EU competition law, presumptions are widely used for reasons of efficiency. However, the legal mechanism for the establishment and application of presumptions in the case law of the Court of Justice of the European Union may not always support efficiency. Instead, the fact that CJEU not only considers the systematic concept of presumptions per se, but also takes into account the full effect of EU law and any directly applicable general legal principles renders the establishment and the application of presumptions unpredictable and sometimes inconsistent. This phenomenon owes largely to the CJEU’s contextual approach in interpreting EU law and the fragmentary nature of this approach. To have a better understanding of this phenomenon, this article first explores the operation of presumptions in EU competition law; second, through concrete examples, it examines the Court’s approach to establishing and applying the presumptions; third, it identifies the potential impacts of the Court’s contextual approach on the enforcement of EU competition law. The article seeks to demonstrate that the Court’s interventions in presumption-related issues have blurred the boundary between substantive and procedural law, and thus risk narrowing the principle of national procedural autonomy. The Court’s approach also presents challenges for the current system of decentralised enforcement of EU competition law by national courts.

Understanding National Remedies and the Principle of National Procedural Autonomy: A Constitutional Approach

This Article provides a constitutionally grounded understanding of the vexing principle of “national procedural autonomy” that haunts the vindication of EU law in national court. After identifying tensions and confusion in the debate surrounding this purported principle of “autonomy”, the Article turns to the foundational text and structure of Union law to reconstruct the proper constitutional basis for deploying or supplanting national procedures and remedies. It further argues that much of the caselaw of the Court of Justice of the European Union may be considered through the lens of “prudential avoidance”, i.e., the decision to avoid difficult constitutional questions surrounding the principle of conferral. As the last section shows, this constitutional understanding of “national procedural authority” – not “autonomy” – ultimately helps clear up some persistent puzzles, and provides critical guidance for when deference to national procedures and remedies is appropriate, and when such deference is misplaced. Comparative references inform the argument along the way.

Just Say No! Appeals Against Orders for a Preliminary Reference

Can an order for a preliminary reference to the Court of Justice of the European Union (the Court), made by a lower instance national court, be subject to an appeal to a higher instance national court? To date, the Court has not been sufficiently clear on an answer to this exact question. The Court’s Cartesio judgment mandated that national law could not permit a higher instance national court from varying an order for reference, setting aside an order for reference, or ordering the resumption of national proceedings whilst awaiting the return of the preliminary reference. However, the Court did not say that appeals against an order for reference, more generally, were incompatible, per se, with Union law. This article contends that such breadth given to higher instance national courts is contrary to the intent of Article 267 TFEU, which aims to ensure effective judicial dialogue between all national courts and the Court, uninterrupted by national law and practice. This article makes the case for ending this regime of undue deference to national procedural autonomy on this question, which is problematic in circumstances where the rule of law and judicial independence in all Member States cannot be assumed. National courts, Court of Justice of the European Union, Preliminary reference procedure, national procedural autonomy, Appeals, Appellate courts

The Principle of Proportionality and the European Central Bank

The principle of proportionality is a general principle of EU law which applies to the European Central Bank (ECB) in the fields both of monetary policy and banking supervision. In recent years, the issue of the proportionality of the ECB’s action has been at the centre of extensive debate in European legal doctrine and jurisprudence. This article aims to contribute to this debate by providing a comprehensive analysis of the meaning and implications of the principle of proportionality in the field of banking supervision and monetary policy. The article is divided into four parts. Parts I gives a general overview of the origin of the principle and its subsequent developments in light of the case-law of the European Court of Justice. It also reflects on the different meanings of proportionality as a flexible and multi-faceted principle. Part II investigates the principle of proportionality according to an ex ante perspective, i.e. as a principle capable of governing and orienting legislative and administrative action. Under this perspective, the article analyses the way proportionality impacts banking regulation, banking supervision and monetary policy. Part III deals with the ex post perspective, i.e. the way proportionality is assessed and scrutinized by EU courts. Part IV concludes. Part III and IV will be published in the next issue. National courts, Court of Justice of the European Union, Preliminary reference procedure, national procedural autonomy, Appeals, Appellate courts

Arm Wrestling around Air Quality and Effective Judicial Protection. Can Arrogant Resistance to EU Law-related Orders Put You in Jail?

Abstract In the judgment Deutsche Umwelthilfe (C-752/18) of December 2019, the Court of Justice of the European Union (ecj) addresses the situation where a referring court has already ordered a public authority to adopt traffic bans, based upon the need to comply with Directive 2008/50 on air quality, but is confronted, together with the non-governmental organization which is at the initiative of the lawsuit, to the public authority’s persistent refusal to comply with that injunction, even though it has become final. In such awkward situation and due to the lack of success of other avenues, is a national court entitled – and possibly even obliged – to impose coercive detention on officials, by virtue of the right to an effective remedy and the obligation to ensure effective legal protection in the fields covered by EU law, asked the referring Court? It is not surprising that the Court of Justice sat as the Grand Chamber for delivering the preliminary ruling. The case is a landmark on the right to an effective remedy and on the right to liberty, in a context of procedural autonomy. The case is also essential in the way it embraces human health and adds a higher step in the ascending line gradually constructed by the ecj on the binding force of EU law on air quality standards. The ecj decides that EU law only empowers and even obliges a national court to have recourse to the privation of liberty of a public official, like a Minister-President, if this is provided for in a domestic legal basis, which is sufficiently accessible, precise and foreseeable in its application. This contribution observes that, if the judgement may look like a victoire à la Pyrrhus for the environmental association and if it confirms that EU environmental law remains systemically dependent upon the choices made at domestic level on enforcement matters, the judgment also truly consolidates the right to effective judicial protection and the right to an effective remedy, in more normal circumstances and when human health is in the balance. It also cements the direct effect of Directive 2008/50 on ambient air quality and associated rights for individuals.

The effectiveness of EU law and private arbitration

This article examines the impact of the principle of effectiveness of EU law on private arbitration. It uses the frame of post-award litigation to demonstrate that the relationship between these two normative orders is transversal and potentially very disruptive. This is evidenced by the alteration of the burden of proof in post-award actions, the irrelevance of the loss of the right to object, the widening of judicial review over awards that violate EU public policy, and the possibility to scrutinize errors of EU mandatory law concerning the merits of the case. The result is the weakening of the finality of awards and the replacement of the principle of procedural autonomy of Member States by European procedural primacy.

The Effectiveness of EU Law and Private Arbitration

This paper examines the impact that the principle of effectiveness of EU law has on private arbitration. It uses the frame of post-award litigation to demonstrate that the relationship between these two normative orders is transversal and potentially very disruptive. This is evidenced by the alteration of the burden of proof in post-award actions, the irrelevance of the loss of the right to object, the widening of judicial review over awards that violate EU public policy and the possibility to scrutinise errors of EU mandatory law concerning the merits of the case. The result is the weakening of the finality of awards and the replacement of the principle of procedural autonomy of Member States by European procedural primacy.

When marketization encounters centralized governance: Private Higher education in Egypt

The growing presence of private higher education institutions, including international branch campuses (IBCs), can potentially lead to transformations in governance and evaluation modes in contexts of state-centric steering. This paper addresses these transformations in the context of Egypt. The paper shows a hybrid progression in the legal and discursive practices governing private institutions, and a shift towards more procedural autonomy specifically in relation to IBCs. The system, however, continues to rely on a centralized a priori evaluation mode and strict controls. This reflects the inherent tensions within systems of centralized governance and weak institutional autonomy to shift into a posteriori evaluation modes, despite the forces of marketization.

Relevant questions of decisions agreement on receipt of information on connection between subscribers and/or devices

This article analyzes the procedural autonomy of an investigator and agreement of investigative work with the head of the investigative branch or prosecutor. The object of this research is the relations forming in the process of decisions agreement on receipt of information on connection between subscribers and/or devices. The author examines the questions of the role of the investigator, head of investigative branch and the prosecutor in this procedure. Analysis was conducted on the legislative and departmental normative legal act regulating the authority of the aforementioned officers, corresponding law enforcement practice, as well as literary sources dedicated to this issue. The research substantiates the conclusion that there is a need for ensuring procedural autonomy of the investigator, including through the means of voiding the need for agreement from the head of the investigative branch or prosecutor to forego filing for court warrant to obtain information. The autonomy of the investigative branches from prosecutor’s office can be ensured by delegation of authority by agreement of procedural decisions that require prosecutor’s approval over to the head of the investigative branch. The question of allowability of circumvention of the right to privacy of phone communication is the subject of consideration of the request to obtain information on connection between subscribers and/or devices by a court.

Party will autonomy in public-private partnership: Procedural aspects

The article examines the problems of the realization of the autonomy of parties in the process of selecting ways to resolve disputes from public-private partnerships. A public-private partnership is considered as a type of contractual relationship based on the autonomy of will of the parties (the autonomy of the parties). The autonomy of the parties is one of the principles of private relations and is implemented in the material and procedural aspects. The opinion is expressed that the autonomy of the parties was formed as a principle in not only private, but also civil procedural and transnational procedural law. In procedural relations, it is expressed in the freedom to choose the method of resolving a dispute. The procedural autonomy of the parties is limited by imperative norms of national legislation. A comparison is made of methods for resolving disputes from public-private partnerships recommended by international intergovernmental universal and regional organizations and enshrined in domestic and foreign legislation. The protection mechanisms offered by international organizations are based on freedom of choice when selecting a method for dispute resolution by the parties, however, the state may limit the autonomy of the parties in the freedom of choice of procedures. An assessment is made of the prospects for the use of alternative procedures as an effective means of resolving disputes between the state and business structures. There is considerable potential for the extrajudicial procedures in the settlement of public-private partnership disputes. It is noted that in the legislation of the states that allow a foreign natural or legal person as a public partner, international commercial arbitration is usually introduced into the dispute resolution system. One of the trends in the development of the dispute resolution mechanism was the creation of specialized arbitrations for the settlement of disputes in the field of public-private partnerships.

On the nature of the legal category "procedural autonomy of the body of the preliminary investigation

On the nature of the legal category "procedural autonomy of the body of the preliminary investigation

Of Legislative Waves and Case law: Effective Judicial Protection, Right to an Effective Remedy and Proceduralisation in the EU Asylum Policy

This article explores the multifaceted relationship between the principle of effective judicial protection, the fundamental right to an effective remedy, and secondary EU procedural rules in asylum. Proceduralisation has been an explicit goal of the EU asylum policy since its inception. It has materialised in three legislative waves. The first resulted in the creation of a basic set of procedural guarantees, alongside a plethora of exceptional procedures. The second resulted in modest improvements in terms of harmonisation, and adherence to fundamental rights, but saw exceptional procedural arrangements either retained or introduced. The third, forthcoming wave, aims at further harmonisation that risks, however, being heavily focused on the underlying goal of externalising protection to third countries. Case law of the Court of Justice of the European Union has further refined procedural guarantees shaping national procedural autonomy. Drawing from the Charter rights to good administration and to an effective remedy, the Court has not shied away from adducing additional procedural requirements. It has also clarified how the principle of effective judicial protection and the Charter right to an effective remedy relate to each other, finding that the latter reaffirms the principle of effective judicial protection and largely aligning their scope. The emerging procedural landscape is increasingly complex. The Court's nuanced assessments combined with a plethora of exceptional arrangements at national level led to convoluted standards that are increasingly difficult to put in practice.

National Procedural Autonomy and General EU Law Limits

This article examines the recent approach of the European Court of Justice of the EU towards the applicability of procedural national law in cases falling within the scope of Union law. It argues that the Court increasingly assesses such rules within the framework of the principle of effective judicial protection, as bindingly codified in Article 47 of the Charter of Fundamental Right of the EU since December 2009. This test is gradually replacing the rather deferential test on the Rewe principles of equivalence and effectiveness and implies a further limitation of procedural autonomy of the Member States. The reason for the shift seems to be the necessity to coordinate the Court's case law on Article 47 CFR with the case law of the European Court of Human Rights on Article 6 ECHR, because this coordination requires the application of a similar standard by both European Courts. As a result, the importance of, in particular, the Rewe principle of effectiveness, has already decreased to a considerable extent and might decrease further in future. Nevertheless, it is not to be expected that this standard will be abolished completely. First, because it may provide an adequate standard for assessing procedural issues that are not related to effective judicial protection or Article 47 CFR. Secondly, because incidentally it may be used by the Court for modifying national procedural law with a view to the effective application of substantive EU rules.

Amplitud en la admisión y restricción en la desestimación de un recurso de amparo en el ámbito parlamentario

Un grupo parlamentario del Parlamento de Cataluña interpone el recurso de amparo 2634-2018 contra un acuerdo de la Mesa de esta Cámara, relativo a la tramitación de una proposición de ley. El Tribunal Constitucional lo admite pero lo desestima al reconocer la autonomía procedimental de la Cámara y al atender a las facultades de su Mesa, que debe admitir la iniciativa al cumplir sus requisitos mínimos de admisibilidad.

SOME ASPECTS OF PROTECTION OF RIGHTS OF PARTICIPANTS OF THE STATE DEFENSE ORDER WHEN CHALLENGING BIDDING RESULTS

The article deals with some features of the systems of revision of decisions made in the compliance with the results of procurement procedures in the EU Member States in the light of the requirements of EU law. In particular, the author investigates the EU law requirements applied to bodies reviewing decisions in the context of the need to determine the balance between the principle of procedural autonomy of the European Union member States (Article 4 of the Treaty on European Union) and the principles of efficiency and equivalence (derived from jurisprudence interpreting Article 19 of the Treaty on European Union). Also, the paper analyzes the problems arising while determining the applicant’s locus standi, since an excessively narrow interpretation of the notion “interest in obtaining a relevant contract” may serve as an unreasonable restriction for the access to the procedures of reviewing and, more generally, access to justice. The author explores the issues of applying such grounds in order to exclude the procurement participant from the number of bidders on the ground of “commission of a significant violation of the rules of professional activity” in the understanding of EU restrictive measures applied to managers of the procurement participant. There may be situations when the actions of the sole executive body result in the application of restrictive measures and that may be considered as evidence of the commission of a fundamental violation of rules of professional activity; the article considers standings that both confirm this thesis and indicate an excessively broad interpretation of this rule. On the one hand, the European Court of Justice has affirmed that organs of governance, especially the sole executive bodies, have a decisive influence and effective control over business activity to such an extent that their actions can be regarded as actions of the company also with regard to issues of liability. On the other hand, restrictive measures themselves do not, by their nature, constitute a measure of liability. However, the question of whether national authorities have the right to reassess the conclusions of the EU Council with regard to challenging the bidding results remains open.

'Jurisdiction of Statutory Bodies to Disapply National law, or Nothing': Procedural Primacy taking over Procedural Autonomy in the CJEU's Judgment Minister for Justice and Equality and Commissioner of the Garda Síochána

'Jurisdiction of Statutory Bodies to Disapply National law, or Nothing': Procedural Primacy taking over Procedural Autonomy in the CJEU's Judgment <i>Minister for Justice and Equality and Commissioner of the Garda Síochána</i>