DOCSLIB.ORG

Of Legal Certainty ______

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Of Legal Certainty ______ Index of Legal Certainty ____________________________________ Report for the Civil Law Initiative (Fondation pour le droit continental) May 2015 Work supervised by Bruno Deffains and Catherine Kessedjian Index of Legal Certainty (ILC) ____________________________________ Report for the Civil Law Initiative Work supervised by Bruno Deffains and Catherine Kessedjian Bruno Deffains is a professor at the Université Panthéon Assas Paris II and a member of the Institut Universitaire de France. He is also the director of the Centre for Law and Economics (Centre de Recherches en Economie et Droit) at the Université Panthéon Assas. He can be contacted at: [email protected] Catherine Kessedjian is a professor at the Université Panthéon Assas Paris II and Assistant Director of the European College in Paris. She is also President of the French branch of the International Law Association. She can be contacted at: [email protected] The following people contributed to this report: Pierre Bentata, Université Paris 2 Panthéon-Assas, Claudine Desrieux, Université Paris 2 Panthéon-Assas, Dominique Demougin, University of Liverpool, Romain Espinosa, Université Paris 2 Panthéon-Assas, Claude Fluet, Université de Laval Québec, Jonas Knetsch, Université de la Réunion, Séverine Ménetrey, Université du Luxembourg, David Restrepo, HEC Paris, Tatiana Sachs, Université Paris Ouest Nanterre la Défense and Catharine Titi, Université Paris 2 Panthéon-Assas. Members of the ad hoc working group: Jean-Louis Dewost, Bernard Chambel, Jean du Bois de Gaudusson and Jean-François Humbert. FOREWORD “Ubi societas, ibi jus”....Since the origin of human societies law has always been an inherent part of how societies are organised. The various legal systems were originally set up to serve the ruling powers before, in democracies, being used to protect individuals and economic players from the excesses of the same ruling powers according to the choices societies made. Nowadays law is no longer constructed purely by the influence of political powers but increasingly by that of the different players in the life of society, particularly corporations for which it lays down the essential “rules of the game”. Since 2007 the Civil Law Initiative has brought together professionals of Romano- German influenced law from over thirty countries from all five continents. While the Foundation is convinced of the qualities of continental law, the “global law” that governs two-thirds of humanity and thirteen of the twenty most powerful economies (1), this does not mean it is hostile to the world’s other legal systems, particularly the various types of Common Law. We are in fact convinced of the inevitable “hybridising” of the various legal systems in a globalised economy and of its corollary, namely the need to build bridges between these systems, a process to which we contribute with our annual Convention of Legal Professionals in the Mediterranean. The first edition of the Index of Legal Certainty that we are now presenting is thus one of a series of measures the Foundation is undertaking to promote knowledge of continental law. The first category of these measures is educative: funding professorships in a number of Universities all over the world and organising the Summer University in Paris which brings together students from nearly fifty countries. The second consists in ensuring the active presence of the Foundation in international “lawmaking” institutions, both as regards written law (the European Union) or “soft law” (the United Nations Commission on International Trade Law - UNCITRAL). The Index illustrates a third aspect of our work, namely scientific research. This work targets all the economic players in law, particularly but not solely investors. The aim of the Index is to help all these players to establish what system offers the most guarantees regarding legal certainty. On this point, the Foundation believes that well thought-out legal certainty is not synonymous with immobility or the equivalent of either total lack of legislative or regulatory constraint or even minimal constraint. On the contrary, it presupposes the accessibility of the applicable law – contained in fully inclusive, validated, published form - its predictability, achieved through the ranking of the norms and the predefined competencies of lawmakers and judges, reasonable stability over time, and lastly a balance between economic interests and the parties concerned. Legal certainty should enable States that choose to create new legal rules to question the credibility and validity of norms that have been tried and tested and recognised in the international community and to make informed choices. It should also help investors to assess the risks they will be running before they take definitive decisions about where to locate a factory or subsidiaries. It was with this in mind that the Foundation commissioned an independent scientific team of legal specialists and economists supervised jointly by professor of law Ms Catherine Kessedjian and professor of economics Mr Bruno Deffains to devise a research method applicable for this first edition in 13 countries located in four areas of the world. In order to ensure we were as close as possible to economic reality, a questionnaire specific to the six sectors of law chosen in this first exercise (viz. contracts, liability, corporate law, property law, employment law and the settling of disputes, this last subdivided in turn into the court system and arbitration) was drawn up after discussions between researchers and legal professionals. In addition, in order to ensure that analysis was as objective as possible, two case studies were devised for each of the six sectors. The second stage – the most difficult – consisted in putting together a panel of respondents who were themselves legal professionals, sometimes nationals of the countries concerned, sometimes working closely with those countries, to whom the questionnaire was submitted. Finally the research team examined the responses, established averages weighted using certain criteria and performed aggregations in order to rank the systems. This entire methodology is accurately explained in the report. An ad hoc working group chaired by Jean-Louis Dewost, monitored and supervised the researchers’ work on behalf of the Civil Law Initiative. How should we view the results of this exercise? We first need to show a certain humility.... We know that any ranking is subject to imponderables related to the quality of the material it works with (in this case the responses) and the weightings chosen. Are there really no more than twenty global rankings in the field of law? The present case is our first exercise and the methods used can certainly be improved for future editions of this Index to include new countries and new legal sectors. In order to improve transparency the joint directors of the team, at the request of the Civil Law Initiative, set out the choices of method (Chapter 4 of the report) they used to produce the final ranking so that readers might, if they saw fit, aggregate the results differently for each sector. Nevertheless a few bottom lines stood out very clearly: a) groups of States emerged clearly that do not necessarily follow the distinction between Continental Law States and Common Law States. Countries can be assigned to three groups: those where legal certainty is high, those where legal certainty could be increased, and those somewhere in between. b) legal certainty is one factor of economic appeal. Companies’ needs for stability and predictability are greater at a time when the globalisation of trade is accompanied by greater competition. “Know and predict” have become major imperatives and risk evaluation – particularly of disputes – is a factor in any economic decision. c) certain sectors of law are more divisive than others; this is the case of corporate law and employment law. From the preliminary conclusions of this first report and the feedback from questionnaires for each country, it would appear that sensitivity to legal certainty, if it results from choices by societies that are themselves governed by historical, geographical and cultural factors, in fact affects all public and private actors. This first report should contribute to correcting certain judgements of the different legal systems, particularly the Continental Law system. It should also provide food for thought for those in public office concerning the economic appeal of the law. And finally it should stimulate dialogue between legal systems worldwide. That is our hope and our ambition. Jean-François Dubos President of the Civil Law Initiative Acknowledgements The leaders of this research project would like to thank everyone who made it possible. Firstly, we would like to express our gratitude to the French and foreign colleagues who joined the scientific committee formed to test and finalise the questionnaires created by the team. We would then also like to thank the professionals, who are all experts in their fields, who agreed to answer the questionnaires. We are also grateful to the members of the scientific committee, chaired by Mr Jean-Louis Dewost, State Councillor, the Notary Maître Jean-François Humbert, the Lawyer Maître Bernard Chambel, Professor Jean du Bois de Gaudusson and Professor Michel Grimaldi, Chair of the scientific committee. We would particularly like to thank the group of professions that helped validate the questionnaires: notaries, lawyers, corporate legal experts, administrators and legal agents, judicial officers, clerks of the commercial courts, representatives of the Ministries of Justice, Foreign Affairs, the Economy and Finance. The team is grateful for the support of the Founder Members of the Civil Law Initiative, including the High Council for the Notarial Profession, the Deposit and Consignment Office and the National Council of Bars. We would like to thank all the members of the Management Board and Meeting of the Founder Members chaired by Mr Jean-François Dubos. Lastly, special thanks to Nicole Souletie and Patrick Papazian who never hesitated to help create an effective link between the work of the team and the various bodies of the Foundation.
Load more

Recommended publications
  • Against Certainty
    Florida State University College of Law Scholarship Repository Scholarly Publications Fall 2012 Against Certainty Shawn J. Bayern Florida State University College of Law Follow this and additional works at: https://ir.law.fsu.edu/articles Part of the Law Commons Recommended Citation Shawn J. Bayern, Against Certainty, 41 HOFSTRA L. REV. 53 (2012), Available at: https://ir.law.fsu.edu/articles/43 This Article is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Scholarly Publications by an authorized administrator of Scholarship Repository. For more information, please contact [email protected]. AGAINST CERTAINTY Shawn J. Bayern* I. INTRODUCTION In legal argumentation, appeals to certainty and predictability have enormous rhetorical power. This Article argues that their use outstrips their legitimate role in legal analysis. The Article is not literally ―against certainty‖ in the sense that it promotes uncertainty as a good thing in itself;1 it is just a skeptical consideration of the role of appeals to certainty in legal theory. The Article‘s principal contention is that arguments about certainty are often mistaken, that certainty itself is often misunderstood, and that many defenses of certainty in legal rules are tautological, irrelevant, or substantively overstated.2 There are many reasons that certainty has at least a superficial appeal in legal reasoning. For one thing, it may comport with analytical philosophers‘ desires for conceptual clarity; a pragmatic or pluralist mode of analysis may appear unprincipled, intellectually incoherent, or simply unhelpful to those who promote formal argumentation.3 For * Assistant Professor, Florida State University College of Law.
    [Show full text]
  • Certainty and Uncertainty in Tax Law: Do Opposites Attract?
    laws Article Certainty and Uncertainty in Tax Law: Do Opposites Attract? Alexander V. Demin Law Institute, Siberian Federal University, 660075 Krasnoyarsk, Russia; [email protected] Received: 14 October 2020; Accepted: 26 November 2020; Published: 4 December 2020 Abstract: The principle of certainty of taxation is the dimension of a general requirement of certainty in the legal system. The purpose of this article is to argue the thesis that uncertainty in tax law is not always an absolute evil, sometimes it acts as a means of the most optimal (and in some cases the only possible) settlement of relations in the field of taxes. On the contrary, uncertainty and fragmentation in tax law are colossal problems subject to overcome by the efforts of scientists, legislators, judges, and practicing lawyers. Uncertainty in tax law is manifested in two ways: on the one hand, negatively—as a defect (omission) of the legislator and, on the other hand, positively—as a set of specific legal means and technologies that are purposefully used in lawmaking and law enforcement. In this context, relatively determined legal tools are an effective channel for transition from uncertainty to certainty in the field of taxation. A tendency towards increased use of relatively determined legal tools in lawmaking processes (for example, principles, evaluative concepts, judicial doctrines, standards of good faith and reasonableness, discretion, open-ended lists, recommendations, framework laws, silence of the law, presumptive taxation, analogy, etc.), and involving various actors (courts, law enforcement agencies and officials, international organizations, citizens, organizations and their associations) allow making tax laws more dynamic flexible, and adequate to changing realities of everyday life.
    [Show full text]
  • Constitutional Law Connotations of Legal Certainty in the Rule of Law
    CONSTITUTIONAL LAW CONNOTATIONS OF LEGAL CERTAINTY IN THE RULE OF LAW Emilian CIONGARU Abstract The Rule of law must accomplish the rule of law, both in its relations with citizens and in relations with the governing bodies. An main foundation of the Rule of law consists of the principle of legal security which implies that individuals, as beneficiaries of the law, to be able, without putting too much effort, to decide what is allowed and what is prohibited by the applicable law. To achieve this outcome, the legal norms adopted must be clear and understandable and not be subject over the time to so frequent and especially, unpredictable changes. The principle of legal security is also known as the principle of legal certainty because it consists of the uncertainty that the enforcement of legal norms in a given situation to be predictable, the incident legal norm to be easily to establish, its recipients to be certain a legal provision corresponding offense is applied, and not another one, and that it will be interpreted in a uniform manner and a legal norm which did not come to the notice of recipients can not be applied Key words: rule of law, legal security, legal certainty, constitutional order, political organization of society. JEL Classification: [K10] Throughout the historical evolution, the political organization of society, particularly through its main institution, the State, was realized more and more on perfecting the State structure in relation to natural or legal persons of the State and the rigorous legal norms, which set both their rights and freedoms, but also duties of the State bodies to act within the legal norms intendment.
    [Show full text]
  • Employment & Labour
    Employment & Labour Law 2019 Seventh Edition Contributing Editor: Charles Wynn-Evans Global Legal Insights Employment & Labour Law 2019, Seventh Edition Contributing Editor: Charles Wynn-Evans Published by Global Legal Group GLOBAL LEGAL INSIGHTS – EMPLOYMENT & LABOUR LAW 2019, SEVENTH EDITION Contributing Editor Charles Wynn-Evans, Dechert LLP Editor Sam Friend Senior Editors Caroline Collingwood & Rachel Williams Group Consulting Editor Alan Falach Publisher Rory Smith We are extremely grateful for all contributions to this edition. Special thanks are reserved for Charles Wynn-Evans for all of his assistance. Published by Global Legal Group Ltd. 59 Tanner Street, London SE1 3PL, United Kingdom Tel: +44 207 367 0720 / URL: www.glgroup.co.uk Copyright © 2018 Global Legal Group Ltd. All rights reserved No photocopying ISBN 978-1-912509-49-2 ISSN 2050-2117 This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. The information contained herein is accurate as of the date of publication. Printed and bound by TJ International, Trecerus Industrial Estate, Padstow, Cornwall, PL28 8RW December 2018 CONTENTS Preface
    [Show full text]
  • Legal Uncertainty Anthony D'amato Northwestern University School of Law, [email protected]
    Northwestern University School of Law Northwestern University School of Law Scholarly Commons Faculty Working Papers 2010 Legal Uncertainty Anthony D'Amato Northwestern University School of Law, [email protected] Repository Citation D'Amato, Anthony, "Legal Uncertainty" (2010). Faculty Working Papers. Paper 108. http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/108 This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Faculty Working Papers by an authorized administrator of Northwestern University School of Law Scholarly Commons. Legal Uncertainty, by Anthony D'Amato*, 71 California Law Review 1-55 (1983) Abstract: Legal certainty decreases over time. Rules and principles of law become more and more uncertain in content and in application because legal systems are biased in favor of unravelling those rules and principles. In this article I attempt to show what these biases are, and why commentators who have argued that the law tends toward certainty are wrong, then describe various attempts which have been made at restoring certainty, and why these attempts have generally not worked. My conclusion is that these proposals are at best holding actions, and that the tendency toward increasing uncertainty in the law is inexorable. Tags: legal certainty, legal uncertainty, judicial discretion, Case Revision Commission [pg1]** Legal certainty decreases over time. Rules and principles of law become more and more uncertain in content and in application because legal systems are biased in favor of unravelling those rules and principles. In Part I of this Article, I attempt to show what these biases are, and why commentators who have argued that the law tends toward certainty are wrong.
    [Show full text]
  • The Rule of Law in Governance of Complex Socio-Ecological Changes
    G Model JGEC-737; No of Pages 9 Global Environmental Change xxx (2009) xxx–xxx Contents lists available at ScienceDirect Global Environmental Change journal homepage: www.elsevier.com/locate/gloenvcha The rule of law in governance of complex socio-ecological changes Jonas Ebbesson a,b,* a Stockholm Resilience Centre, Stockholm University, S-106 91 Stockholm, Sweden b Department of Law, Stockholm University, S-106 91 Stockholm, Sweden ARTICLE INFO ABSTRACT Article history: This article discusses the impact of the rule of law on the resilience of societies for governing complex Received 23 May 2009 socio-ecological changes. It concludes that the notions of the rule of law and legal certainty have Received in revised form 21 October 2009 changed, and that they can be compatible with the use of framework laws of a rather open-textured Accepted 27 October 2009 character, provided certain legal safeguards, such as the right to a legal review, are at hand. While legal certainty is an important virtue of law, it does not as such necessarily prevent adequate flexibility in Keywords: administrative decision-making concerning health, the environment or the use of natural resources. The Rule of law article also considers to what extent certain established administrative means of control in the field of Legal certainty environment protection and the use of natural resources match the findings and proposals, e.g. on Environmental law International law flexibility and adaptability, provided by resilience research. Finally the article discusses the impact of State sovereignty state sovereignty on governance of large-scale socio-ecological changes, with reach across state borders.
    [Show full text]
  • THE PRINCIPLE of LEGAL CERTAINTY in EC LAW Law and Philosophy Library
    THE PRINCIPLE OF LEGAL CERTAINTY IN EC LAW Law and Philosophy Library VOLUME 64 Managing Editors FRANCISCO J. LAPORTA, Department of Law, Autonomous University of Madrid, Spain ALEKSANDER PECZENIK, Department of Law, University of Lund, Sweden FREDERICK SCHAUER, John F. Kennedy School of Government, Harvard University, Cambridge, Mass., U.S.A. Former Managing Editors AULIS AARNIO, MICHEAL D. BAYLESt, CONRAD D. JOHNSONt, ALAN MABE Editorial Advisory Board AULIS AARNIO, Research Institute for Social Sciences, University of Tampere, Finland ZENON BANKOWSKI, Centre for Criminology and the Social and Philosophical Study of Law, University of Edinburgh PAOLO COMANDUCCI, University of Genoa, Italy ERNESTO GARZON VALDES, Institut fur Politikwissenschaft, Johannes Gutenberg Universitiit Mainz JOHN KLEINIG, Department of Law, Police Science and Criminal Justice Administration, John Jay College of Criminal Justice, City University of New York NEIL MacCORMICK, European Parliament, Brussels, Belgium WOJCIECH SADURSKI, European University Institute, Department of Law, Florence, Italy ROBERT S. SUMMERS, School of Law, Cornell University CARL WELLMAN, Department of Philosophy, Washington University THE PRINCIPLE OF LEGAL CERTAINTY IN EC LAW by JUHA RAITIO SPRINGER-SCIENCE+BUSINESS MEDIA, B.V. A C.I.P Catalogue record for this book is available from the Library of Congress. ISBN 978-90-481-6264-2 ISBN 978-94-017-0353-6 (eBook) DOI 10.1007/978-94-017-0353-6 Printed on acid1ree paper All Rights Reserved © 2003 Springer Science+Business Media Dordrecht Originally published by Kluwer Academic Publishers in 2003 Softcover reprint ofthe hardcover Ist edition 2003 No part of this publication may be reproduced Of utilized in any form or by any means, electronic or mechanical, inc1uding photocopying, recording or by any information storage and retrieval system, without written permission from the copyright owner.
    [Show full text]
  • EUI Working Papers MWP 2007/02
    EUI Working Papers MWP 2007/02 The External Dimension of the Acquis Communautaire Roman Petrov EUROPEAN UNIVERSITY INSTITUTE MAX WEBER PROGRAMME The External Dimension of the Acquis Communautaire ROMAN PETROV EUI W orking Paper MWP No. 200 7/02 This text may be downloaded for personal research purposes only. Any additional reproduction for other purposes, whether in hard copy or electronically, requires the consent of the author(s), editor(s). If cited or quoted, reference should be made to the full name of the author(s), editor(s), the title, the working paper or other series, the year, and the publisher. The author(s)/editor(s) should inform the Max Weber Programme of the EUI if the paper is to be published elsewhere, and should also assume responsibility for any consequent obligation(s). ISSN 1830-7 728 © 2007 Roman Petrov Printed in Italy European University Institute Badia Fiesolana I – 50014 San Domenico di Fiesole (FI) Italy http://www.eui.eu/ http://cadmus.eui.eu/ Abstract The aim of this article is to study the concept of the acquis communautaire in the domain of EU external relations. It is argued that the acquis communautaire varies according to the specific aims of its internal and external applications. The main objective of the acquis communautaire in its internal dimension is to enable the consistent development of the EU while preserving EC/EU patrimony by Member States. The objective of the acquis communautaire application in its external dimension is to push third countries to the forefront of the acquired level of economic, political and legal cooperation achieved by the EU.
    [Show full text]
  • Access to Justice, Legal Certainty and Economic Rationality (2011)
    ACCESS TO JUSTICE, LEGAL CERTAINTY AND ECONOMIC RATIONALITY (2011) SUMARIO Introduction .................................................................................................. 9 Access to justice ......................................................................................... 11 Justice or substantive due process of law, etc, legal certainty, econo- mic rationality or convenience ............................................................. 13 ACCESS TO JUSTICE, LEGAL CERTAINTY AND ECONOMIC RATIONALITY* (2011) Introduction My aim in this chapter is to say some words about “access to justice” as a global value, and to consider its relationship with related ideas of “legal certainty” and “economic rationality.”1 I have chosen “access to justice” as the focal point for the chapter as it is perhaps the sole value that can at least be argued to have a global reach.2 Although the value is at its most advanced in developed and democratic States, it also exists in a procedural sense in failed and rogue States, in frontier economies, in developing and underdeveloped States, as well as in primitive so- cieties and indigenous tribes. This means that access to justice is a procedural value with a global relevance —even if its workings may vary significantly from context to context. The chapter’s main point is, that in order for access to justice to be a meanin- gful value in global administrative law,3 it must correspond with wider notions * Publicado en GORDON ANTHONY, JEAN-BERNARD AUBY, JOHN MORISON y TOM ZWART (editores), Values in global administrative law, Oxford (UK) y Portland, Oregon (USA), Hart, 2011, pp. 363-372. 1 Or convenience. There are many possible variations, which we will mention later. 2 Although we shall see —both in this subject and others— that values are so much entrenched in each language’s choice of words, that translation sometimes becomes an issue by itself, thus making it difficult to deal with global values in a meaningful way.
    [Show full text]
  • How to Realize the Value of Stare Decisis: Options for Following Precedent
    How to Realize the Value of Stare Decisis: Options for Following Precedent Nina Varsava* When courts deliberate on the implications of a precedent case in the adjudication of a new dispute, they generally frame the issue as if there are three paths through-(1) follow the precedent, (2) overrule, or (3) distinguish-without acknowledging that option number one contains its own garden of forking paths. My chief aim in this paper is to delineate and evaluate several options for following precedent. I show that we can respect the doctrine of precedent or stare decisis without committing to any one particular method. I argue further that we have good reason to refrain from endorsing any single method for following precedent, and I propose instead a variable approach--one that is sensitive to the contextual factors that make one method preferable to another. My analysis reveals the methodological challenges that courts must face if they wish to make good on the promise of stare decisis when they go about their business of following precedent. I conclude with the suggestion that we should be open to considering a no stare decisis regime; at least in some types of case, adherence to precedent comes with considerable costs and only tenuous benefits. INTRODUCTION ...................................... 65 1. Appraising Common Law Reasoning .................. ..... 66 A. A Meta-Interpretive Method ......... ............... 66 B. Values or Goals of Precedent ........................... 68 (1) Predictability or Reliance............................70 (2) Equality, Fairness, or Formal Justice ............... 71 - Conceptions of Equality ................ ..... 73 (3) Consistency .......................... 75 * For feedback on various iterations of this paper, I'm very grateful to Al Klevorick, Amalia Kessler, Bernadette Meyler, Debra Satz, Josh Landy, Scott Shapiro, Gideon Yaffe, Daniel Markovits, Megan Wright, Kate Redburn, and Roseanna Sommers.
    [Show full text]
  • Venice Commission Rule of Law Checklist
    The principle of the Rule of Law is enshrined in legal texts – whether at national constitutional level or at the level of the Council of Europe or the THE RULE OF LAW European Union. The Rule of Law is often and easily used in political debate, as it lacks a clear definition. CHECKLIST However, is it implemented in an objective, thorough, transparent and equal manner? The Venice Commission’s checklist aims to address these issues. It contains detailed questions to assess the degree of respect for the Rule of Law in any given country. This assessment will not merely consist of counting the right answers, but provide Access to courts a global overview of the situation, while focusing Access to justice Law Consistency of law on the respect for the most important criteria. Accessibility of legislation and court decisions The Rule of Law Checklist is a tool that is available to all stakeholders, including international organisations, Equality Prevention of abuse of powers national authorities and civil society. Equality before the law before Equality of innocence Presumption Compliance with the law Compliance Supremacy of the law Constitutional justice Constitutional International law International Rule of Law Prosecution service: autonomy and control Consistency of law www.venice.coe.int Equality before the law Stability and consistency of law Non-discrimination Non-retroactivity Effectiveness of judicial decisions Law-making procedures Legality Legality PREMS 056216 Constitutional justice Legality Constitutional justice Rule of Law certaintyLegal International law Consistency of law Non-retroactivity Access to justice to Access Fair trial Fair Rule of Law ENG Access to courts Compliance with the law Domestic law Supremacy of the law Compliance The Council of Europe is the continent’s leading human rights organisation.
    [Show full text]
  • The Interplay of Multiple Fundamental Rights Catalogues in the European Union
    Department of Law Spring Term 2013 Master's Thesis in European Law 30 ECTS Optimation or Conflict?: the interplay of multiple fundamental rights catalogues in the European Union A closer examination of the relationship of the European Court of Justice and the Bundesverfassungsgericht Author: Susann Gdawitz Supervisor: Associate Professor Maria Bergström 2 Abstract The European Union is a unique system; a coalition currently formed by 27 sovereign Member States. In the light of this constitutional pluralism, the arising of conflicts between the European Union and its Member States is unavoidable and foreseeable. One often discussed issue concerns the field of fundamental rights protection within the EU in which the European Court of Justice along with the national constitutional courts experienced tensions. With the now legally binding European Charter of Fundamental Rights another applicable fundamental rights catalogue came on the scene and raised questions concerning its scope of application and its interplay with the national fundamental rights catalogues. Following this situation, the justified question can be raised whether this existence of multiple fundamental rights catalogues leads to an optimised or rather conflictual protection. In order to achieve a closer examination in this complex field of fundamental rights protection in the European legal order, the focus will lie on the relationship between the European Court of Justice and the Bundesverfassungsgericht as a representative of the Member States. 3 Table of Contents Abbreviations 6 1. Introduction 7 1.1 Relationship between Karlsruhe and Luxembourg 7 1.2 Purpose and delimitation 9 1.3 Methodology 12 2. Constitutional Pluralism 16 2.1 European Court of Justice 17 2.1.1 Protection mechanisms 17 2.1.2 Position on fundamental rights 19 2.2 Bundesverfassungsgericht 24 2.2.1 Protection mechanisms 24 2.2.2 Position on fundamental rights 25 2.3 Conclusion and potential conflict zone 29 3.
    [Show full text]