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The section contains a presentation of the legislative process of the EU institutions, the procedures for drafting the European legislation, particularly the activity of the European Parliament, the EU Council and the Commission, and of the political events in the EU with legislative impact.
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The first part of the paper points to certain dilemmas in defining the comparative law and comparative method in law as a framework for understanding the content and the role of comparative environmental law. Basic indications of some of the specificities of the environmental law and problems in the field of environment are given, including their global and transnational dimensions, as one of the factors that influence the possibility to define the conceptual framework of comparative environmental law. In light of these, there arises the need to build specific relationships between comparative law and other branches of law which in different ways include the contents in the field of the environment or may be relevant to the environment. In this way, the author attempts to answer the question of the object and relevance of comparative environmental law. Some issues of importance for understanding the state and perspectives of development of comparative environmental law are discussed. The author starts with the premise that comparative environmental law, in the circumstances of contemporary globalization processes, has an increasingly important place in the system of legal disciplines, regardless of different problems associated with this branch of law. Specific difficulties in defining the conceptual framework of comparative environmental law are related, mainly, to a complex nature and dynamics of environmental changes.
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The Practice Statement of the House of Lords of 1966 posed the principle for the use of precedent in English law. The European Court of Human Rights developed its own stance on the authority of precedent in various judgments. The positions of the two jurisdictions on the issue are substantially the same. The precedents are to be followed and their authority is binding for the courts.
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Art. 22 para 1 of Regulation 650/2012 grants to the testator the right to choose his/her national law instead of the law of his/her last habitual residence as the law applicable to his/her succession (lex hereditatis). It states that “a person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death”. This provision reflects the freedom of the testator to dispose of his/her property at will in the field of conflict of laws. The main pros and cons of the professio juris successoria, as the choice of the testator regarding the law governing the succession to the estate is called, are the following: The right to choosethe lex hereditatis enables the testator to submit all questions related to his/her inheritance to the law he/she considers as more appropriate to be applied, either because it is more closely linked to the succession or because it may result in securing the best way to solve the questions concerning the succession on the level of substantive law. The main drawback the choice of the law applicable to the succession may entail lies in the likelihood of the testator’s choice being on purpose prejudicial to some persons who could expect to be the heirs. This is in particular the case when the law chosen by the testator downsizes to a bigger or lesser extent the protection granted to those persons who are entitled to a reserved share, i.e. the heirs (presumable family members) who cannot be totally disinherited.
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The main innovation of the Regulation on Succession is the creation of the European Certificate of Succession, a new cross-border instrument which ensures to prove the capacity and powers of heirs, surviving spouse, executor or administrator of the estates throughout the member states. Under the Regulation on Succession, the ECS is not mandatory(Article 62(2)) and it can be used both abroad and in the country where it was issued. However, the ECS is created mainly for situations with an international element. The ECS should produce the same effects in all Member States. However, it should not be an enforceable title in its own right. The main question is whether the ECS will represent sufficient basis for entering rights in rem in a corresponding register in another Member State? It should be remembered that the requirements and effects associated with the entry in registers will be evaluated by the law of the Member State in which the register is located. In the article authors discuss the most important aspects of the European Certificate of Succession, analyzing the articles from the European Regulation on which it is based.
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The first part of the study presents the dynamics of migration crisis in the European Union in the years 2015-2016. The second part discusses the reform of immigration policy and control of the EU’s external borders, the international agreement between the EU and Turkey on cooperation in stopping irregular migration signed on March 18 2016 is analyzed and new humanitarian and funding instruments as well as aid programmes for migrants established by the EU in the years 2015-2016 are described. The third part characterizes the changes in asylum policy designed by the EU in 2016.
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The failure to solve a request within the legally established deadline, as constitutionally approved and defined by the Law no. 554/2004, has generated both doctrinal disputes, and most specifically, various jurisprudence interpretations and solutions. From the perspective of solving a request within the legally established deadline, it is of a particular interest how its implications, encountered in the administrative practice, are reflected in the solutions of the court;therefore this study is a brief analysis of certain peculiarities as regards solving a request within the legally established deadline, with emphasis on commenting on Decision no. 30/2015 of the High Court of Cassation and Justice-Department for solving law problems. This decision shows that according to the High Court of Cassation and Justice, there are cases where the delay can even lead to retroactive effects in the form of administrative declarative acts exempted from the constitutional principle of non-retroactivity in European law.
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Autor podejmuje refleksję dotycząca problemów Unii Europejskiej na gruncie teorii prawa. Traktując UE z punktu widzenia problematyki metodologicznej, wskazuje na problemy poznawcze w przyjętej procedurze badawczej i postuluje stworzenie metodologii badawczej uwzględniającej m.in. kwestie przemian ustrojowych w państwach członkowskich i odpowiadające temu procesy aktualizowania UE – w tym działań i ewentualnej zmiany koncepcji Unii czy kwestie z zakresu Unii i jej państw członkowskich pozostające poza uregulowaniami prawa.
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There is a tendency among non-historians to force «practioners» of the discipline to justify why the study of a particular episode of the past is so important and to articulate the lessons to be learned from the experience. The fate of international constitutions and treaties is particularly prone to demands of this kind. After all, «constitutional borrowing» has long been a common feature of international law and politics. This article will address one such Treaty from the past. But it does not aspire to preserving its historical integrity; rather to awaken interest in it in the first place.The European Defence Community (EDC) was an ambitious initiative in the first years of the 1950s. Leading European countries had different foreign policy agendas towards it. The EDC. could have been a crucial milestone on the long path towards European integration. European Defense Community(EDC), an abortive attempt by western European powers, with United States support, to counter balancethe overwhelming conventional military ascendancy of the Soviet Union in Europe by the formation of a supranational European army and, in the process, to subsume West German forces into a European force,avoiding the tendentious problem of West German rearmament.One can trace the U.S. influence from the very first stages of the EDC. negotiations. Even in the agreement of the EDC., the footprints of U.S. policies can be observed, bringing the NATO Alliance to the forefront. The EDC. is also interrelated with the Marshall Plan, which leads us to think that the EDC. was not solely a European dream as has been widely argued, but rather an instrument of U.S. foreign policy,which could be resorted to as and when needed.Influenced by the Korean War, the French politician René Pleven evolved a plan that later was put forward by the French foreign minister Robert Schuman at a meeting of the Council of Europe in 1951.Though the weaker members of the North Atlantic Treaty Organization (NATO) were keen, the Scandinavians were cool toward the idea, and opinion in France and Italy was divided. A treaty was actually concluded in Paris in 1952, but tension between eastern and western Europe lessened, and by 1954 the necessity for the EDC seemed also to diminish. However, the failure to ratify its agreement by the French Parliament in 1954 left this project of defence integration stillborn – but paved the way for another solution for the rearmament of Germany: the Western European Union (WEU), as a sub-group of NATO.Nevertheless, the dormant ideal, to contribute to a “European Army” later became one of the ultimate goals of the European Union
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The European Ombudsman investigates complaints about maladministration in the activities of the EU institutions, bodies, offices or agencies, with the exception of the Court of Justice of the EU acting in its judicial role. Cases of maladministration related to the transparency issues are the most common in the European Ombudsman’s practice. Therefore, the main goal of this paper is to analyze the role and contribution of Ombudsman in this area, as well as challenges and difficulties which lie ahead in his work. The analysis is largely based on case studies (cases brought by complaints, as well as the Ombudsman’s own-initiative inquiries), and on the interpretation of EU legal documents enacted in this area. The principle of transparency is violated when institutions unreasonably refuse to provide information or documents, when they provide misleading or wrong information, and further still when without reasonable explanations they exclude the public from their meetings or consultation process. These issues have been analyzed separately in the paper, due to the complexity of the principle of transparency and a better understanding of its various aspects. The main conclusion of this paper is that, despite numerous difficulties, the European Ombudsman has become a true champion of the principle of transparency within the EU, contributing to the reduction of its democratic deficit and strengthening the legitimacy of its institutions.
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International air carriers protested against the extension of the EU Emission TradingScheme to aviation activities that entered into force in 2012. The High Court of Justice forEngland and Wales made a reference for a preliminary ruling to the Court of Justice of theEU asking about the validity of Directive 2008/101 in the light of the customary principles of international law and the international agreements, mainly the Chicago Convention, the Kyoto Protocol and the so-called Open Skies Agreement between the EU and the USA.The case C-366/10 featured strong economic and political interests. From a legal perspective it tackles the problem of direct effect, the validity of Union acts and the love-hate relationship between the EU and international law.
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The article presents the most important European Union policies and standards aimed to assure a high degree of protection for the forests against illegal logging. There are severe problems in Romanian forests, following the massive, illegal and uncontrolled deforestation. As result, the forests surface in Romania considerably decreased. That why, the author appreciates the importance of dissemination and integration of European standards in national juridical framework.
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One of the European Union’s important principles of environmental and health policy in the XXI century is the precautionary principle. It calls for early measures to avoid and mitigate uncertain damages. It also is said to be one of the most troublesome EU principles and often criticized for its vagueness and possible adverse effects. This article discusses the implications of the precautionary principle for the EU environmental and health regime and methods of its implementation. It also provides analysis of this principle from the point of view of its possible criticism and reactions to it in order to answer the question whether the precautionary exigences constitute unacceptable barrier to development or should it be declared the most rational approach in the face of new potential dangers.
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The paper presents an attempt to shed the light on the importance of flexibility concept in the context European integration. The debate on flexibility in matters relating to the European integration is not new. The concept of flexibility has always been built into the foundations of the European construction. The paper primarily focuses on the evolution of theoretical and political debate on flexibility (Chapter 2), following by analyses of categories and examples of flexibility (Chapter 3). The flexibility concept was formally recognized by the Amsterdam Treaties. The enhanced cooperation provisions of the EU Treaties, whether in their Amsterdam or Nice or Lisbon guises, represent a key manifestation of a flexibility concept (Chapter 4). Nowadays, the mechanism of enhanced cooperation has only been initiated twice: first in the area of the law applicable to divorce and legal separation and second in the area of unitary patent protection (Chapter 5). Commission’s White Paper on the future of Europe, from March 2017, offers five scenarios for the future integration models. One of them is differentiated integration based on flexibility concept (Chapter 6).
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State aid policy is a type of EU competition policy that symbolizes the braking system of industrial sector strategies that impede competition in the Single Market of the European Union. The determination of conditions and the procedure for controlling state aid are carried out to protect free competition in this specific market, applying the principles of market economy and stimulating economic development. It is necessary to ensure transparency in the granting of state aid, as well as respecting the provisions of the public law related to the state aid institute. It is fascinating to apply state aid to certain areas, such as regional aid, research, development and innovation assistance, environmental aid and assistance in taking risk capital. It is crucial that the economic life of the European Union be harmonized with the legislative framework of the communitarian law, which will also be the subject of the research presented in this paper.
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Article 41 of the Charter for Fundamental Rights of the EU guarantees the right to good administration as a fundamental right of the EU citizens. It seems from the wording that Article 41 applies only to the institutions, bodies and agencies of the Union, without mentioning the Member States. This gives it a narrower scope than that given in Article 51.1 concerning the scope of the Charter as a whole. This paper discusses the question of applicability of the right to good administration regarding the implications of Article 41 in this respect. The doubt that stems from this is whether the content of 51.1 prevails or, on the contrary, it must be ignored and taken as reference the particular provision in Article 41.
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Directive 2013/32/EU established the common standards which the EU Member States are obliged to incorporate into their national legislations in order to regulate the procedure for deciding on asylum applications. Asylum proceedings are to be carried out by national authorities but states are obliged to comply with the standards set out in this Directive. The asylum procedure is initiated upon the request of an interested party and its aim is to examine whether a third-country national or a stateless person has met the requirements for obtaining a refugee status. Before examining the justifiability of the asylum application, it is essential to determine which EU Member State is responsible for examining the application, which is established by applying the Dublin rules. If it is established that the state of the applicant’s current location is not the state responsible for examining the asylum application, the applicant will be transferred to the respective state. Then, the responsible state is obliged to institute the first instance procedure and examine the submitted application within the prescribed time limits. The examination is carried out in a regular court proceeding, unless there are reasons for instituting a special proceeding (a priority procedure, an admissibility procedure, an accelerated procedure, and a border procedure). Under this Directive, the applicant is guaranteed the right to remain in the territory of the deciding EU Member State, as long as the final decision at first instance is pending, and some other procedural guarantees aimed at ensuring that the decision on asylum has been rendered by observing the rules of fair proceedings. On the other hand, the applicant has certain obligations, the most important of which are the obligations to appear before the competent state authority, to submit the available documents, to agree to being photographed and fingerprinted, etc. If dissatisfied with the first instance decision, applicants may challenge the decision by filing an appeal with the competent national court. During the appeal proceedings, they have the right to remain in the territory of the EU Member States, except in cases involving a number of explicitly prescribed situations. If the asylum application is accepted by the final decision of the competent authority, the person acquires the legal status of a refugee and all the rights arising from that status. If the asylum application is denied, the person is obliged to leave the territory of that EU Member State.
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Under the EU founding treaties, the European Commission has been entrusted with a range of responsibilities, the most significant of which are the enactment and execution of EU legal acts. First of all, the Commission has a major role in proposing new legal acts and initiating common EU policies and measures. Concurrently, the Commission may be given the authority to adopt some general EU legal acts, acting either on the basis of the original powers it has been vested under the founding treaties or on the basis of rights it has been delegated by the European Council and the European Parliament. Yet, only in exceptional cases can the Commission act in the capacity of the holder of original powers; in most cases, it acts on the basis of the delegated authorities conferred by the Council and the Parliament. Finally, the Commission has executive powers, which are aimed at ensuring a uniform implementation of the legally binding EU acts. The Lisbon Treaty has brought significant changes in terms of the Commission’s role in the process of enactment and execution of EU legal acts. Under this Treaty, the Commission has retained and partly extended its authority to propose new legislation in the legislative procedure, as well as its competences in the field of foreign and security policy, and police and judicial cooperation in criminal matters. In addition to the original legislative powers entrusted to the Commission, the Lisbon Treaty introduced a completely new category of legal acts into the EU legal system. The delegated acts are adopted by the Commission on the basis of the authorization contained in a legislative act for the purpose of supplementing or amending some non-substantial elements of that legislative act. In terms of the Commission’s executive powers, the Lisbon Treaty still leaves the implementation of EU law and policies to the Member States. However, apart from the Commission and the Council, which may be entrusted with the implementation of legal acts, the Treaty introduced a new actor: the European Parliament, which is given the authority to participate in the regulation of the comitology system by adopting regulations in the ordinary legislative procedure. Although such a change is insufficient to deprive the Commission of its status of the chief executive authority, it is sufficient (particularly in light of the new regulation on comitology) to justify a conclusion about an altered role of the Commission in exercising its executive function in the EU legal system.
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The issue of sources of law has been а matter of considerable attention not only in legal theory and philosophy but also in positive law disciplines. Sources of law are commonly divided into substantive, formal and value-based sources. Depending on classifications suggested by different authors, general principles of law may fall into all three categories of sources of law. General principles of domestic law are rules covering a vast number of specific situations which are subsequently used as grounds for generating numerous norms regulating these situations in more detail. In international law, there are general principles of international law as well as legal principles recognized by civilized nations. General principles of the European Union law are an integral part of the positive EU legislation, which clearly differentiates them from similar sets of general goals, objectives, values, agenda postulates, and the like. The general principles of EU law are have their origins in the Founding Treaties, the legal systems of the Member States and the case law of the EU Court of Justice. Considering their content and legal nature, the general principles of EU law are divided into: compulsory or axiomatic principles, regulatory or structural principles (which all national laws of the Member States have in common), and the general principles inherent to the EU legal order. Some of the most important general principles of EU law are: the principle of supremacy of EU law over the national law, the principle of direct effect of EU law, the principle of autonomy of EU law, the principle of full effect of EU law, the principle of State liability for damage, the principle of legality, the principle of legal certainty, the principle of good faith and fair dealing, the principle of fair hearing, the principle of subsidiarity, the principle of proportionality, the principle of loyalty, the principle of non-discrimination, etc.
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