Monthly Archives: January 2016

Komilla Chadha . article 267 EU law

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people have v little contact with ECJ. People enforce right sin national courts

national courts refer issues to ECJ on how to interpret law. This is called article 267 reference.

answer is caused a preliminary ruling – it comes before end of case

national courts then apply it

this procedure is limited. ECJ cannot compel court to make a reference

petitioner can seek a state liability if a reference is not made. As in Cogler in relation to an Austrian court.

It is hard to prove that this is a sufficiently grave breach

 

only a court or tribunal can make a reference

one can only make a reference is necessary

the court can be obliged to make a reference or not if the thing is mandatory

ECJ may reject a  reference

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how can we decide if something is a court or tribunal?

Dorsch consult 1997 – criteria for a court set out

there was a supervisory board

broekmuelen related to a

appeals committee of the dutch medical profession (that was established as a court or tribunal_)

Nordsee case – the body was found not to be a court or tribunal

 

whether the body is established by law.

does it have backing and legal framework – that makes it a court

is it permanent?

ministerial appointees been there for a long time

is jurisdiction compulsory?

broekmuelen – decisions were binding not subject to appeal in an ordinary court

Nordsee – arbitrator ‘s ruling was not binding.

a voluntary ruling is not a court

if people do not have to go there it is not a court – decisions not binding/

are all the parties present and heard as in broekmuelen

does the body apply law?

is it independent? In broekmuelen the decision was binding. iN broekmuelen it was independent.

Dorsch consult

federal supervisory board was a court or tribunal

Not all six factors have to be met for it to be a court or tribunal\

no clear guide on what makes a reference necessary

where will article 267 not be necessary – if reference is not relevant to tribunal;

CILFIT case – where reference is not necessary

second if ECJ Has already been dealt with this issue

if issue is so blatant – acte claire

established in costa case. no reference is needed if the national court considers law is free from doubt

criteria for sending article 267 reference

mandatory court – highest one whose decision cannot be appealed

permissive court is anything else – i.e. its decisions can be overturned

courts are not required to make reference

whether they do or not should be determined by certain reference

ECJ information note – send a case if the facts are novel

  • new interpretation may need a reference
  •  – if you are doubtful about validity of EU law then send a refernece. No national court can declare EU law invalid
  • Irish Creamery – in this case a court of first instance made a ruling

 

Lord Bingham was v pro ECJ reference since ECJ are experts on EU law. As he said in International Stock Exchange case.

court of appeal said the courts should not send too many refernec ebecause ECJ would be swamped.

 

 

 

A dream of trouble with the mentor and contact from Angell Summers

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I had said something rash. The Muscovite was angry with me. I was regretufl. How ould I calm the situaiton. The more fool me. This relates to me slight clash with the caterhamite some days back. I think of composing an ouevre with him but will he agree? Is it a climb down to do so when I said I shan’t?

Then I dreamt of a message on fb from Angell Summers. She wanted me to be her boyfriend. As you can imagine I was cock a hoop. I awoke with morning glory only to find it was a fantasy.

EU law indirect effect. Komilla Chadha

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indirect effect is an interpretive tool.

people can rely on directives through this. they can use it to bring actions against other individuals.

this is the purposive approach to interpretation – teleological

von colson – this case initiated this. German one. two female workers refused job in prison because of sex.

ECJ invented indirect effect. Von colson could not use direct affect as per van gend en loos.

ECJ said purposive approach can be taken.

directives – 3 years to implemento

Legislation can be implementing i e it transposes a directive into national law.

Non-implementing legislaiton predates the directive.

house of lords has been reluctant to use indirect effect in non implementing legislaiton

Duke v AGC alliance – they did not want to penalise someone who had abided by the law.

they use iindirect effect for implementing direct

picklestone freemans – house of lords used Equal Pay act – applied it against its literal meaning

ECJ – marleasing indirect effect was used

national courts must interpret national law in accordance with directive as far as ppossible.

indirect effect was still permitted

Webb v EMO – employee act sakced due to pregnany

 

Sex Discrimination Act had no law against this.

An EEC directive forbade it. Lord Keith said the UK was obliged to use the purposive approach.,

indiirect effect cannot always be utilised

when national legislation conflicts with directive then indirect effect will not apply.

Wagner Miret – Spanish case

indirect effect cannot be used to impose criminal liability

Accaro

he was guilty under directive but not under Italian national legislation. That would be unfair and retroactive

nulla crimen nulla poena sine lege.

Graine de Burca on EU law.

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States cannot use deflation

EU insists on austerity.

deeper integration or disintegration are the two paths – one cannot stay still.

economic upheaval would result from breakup

political messianism – pursuit of mission of peace, prosperity and supra nationalism

Euro is capstone of Germany’s integration with her neighbours

EU offers a social democratic model

 

EU convention of HR. A Gearey

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everyone’s right to life shall be protected by law.  No one shall be deprived of his life intentionally except in accordance with a sentence under law following conviction for a crime for which provided for y law. . Deprivation of life shall not be in contravention of life when it results from the use for force that is no more than absolutely necessary, in action lawfully taking in quelling a riot or rebellion. ”

article 2.

there is much case law on article 2

everyone has a right to life

article 11  – freedom of assembly and association

everyone has the right to peaceful assembly including the right form and join trades unions. no restrictions shall be placed on these rights  except as are necessary for the prevention of – this article shall not prevent the prohibition of trades unions being formed in armed forces, police, administration of the state exempted.

a criticism of the convention in that it does little for trades union

similar to article 10  – limitations

schema is akin .

necessary in a democratic society, in the interests of national security or public safety.

HR themselves understand and present to us where the right is abridged under narrowly prescribed circumstances

 

 

adam gearey. rights in ECHR

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human rights regime definition

  • consistent understanding of way in which rights are to act as a limit on state power

how can we understand convention rights/ Categories – integrity rights

this includes article 2 and 3. this protects rights to life

prohibition on torture and inhuman and degrading treatment. This is about bodily integrity

other group is integrity in the sense of due process and legal proceedings.

article 5-  liberty and security.

this other group of rights relate to way in which human rights protect due process and the structure of law. This inclides article 6

right to a fair trial.

court operates in a transparent fashion. rights are guaranteed. protect court procedures

article 7 – no punishment without law

articles 17 and 18 – prohibition on abuse of rights

18 – prohibition on restriction of rights

these are important.

classical civil liberyt. article 10 freedom of expression

article 11 – freedom to associayye

substantive civil liberties

common law

go beyond integirty of procedure.

these characterise democratic life

International covenant on social and cultural rights

article 4 bans slavery

this is mild compared to international covenant which has right to healthcare and education

article 12 – right to marry

protection of privacy article 8

article 14 – prohibition on discrimination

convention provides coherent statement of legal principles

these cohere with democracy and rule of law

these are not hard edged

coherent way in which convention rights allow us to think about legal principles

how can we understand freedom of expression

two paragraphs

right to freedom of expression – ”without interference by authorities and without frontiers. this article shall not prevent states form requiring the

licensing of broadcasting since it carries with it

duties are responsibilities relating to broadcasting may carry with it certain restrictions and penalties, formalities , conditions. these are necessary in a democratic society – prevention of crime, protection of territorial integrity,protection of health or morals , national security, public safety, protection of reputation, for maintaining authority and impartiality of the judiciary. ”

limits on rights are limited

a state can restrict a right but this must be justified from the perspective of democracy.

 

A right correlates with duties and responsibilities

right must function within a free system