FIFA Transfer Rules and Unilateral Termination Without •Œjust
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The Indirect Effect of the Treaty on a Constitution for Europe
The Indirect Effect of the Treaty on a Constitution for Europe Helle Krunke 1 The Treaty as a Source of Interpretation ....................................... 188 2 Confirmation of Case Law from the European Court of Justice . 193 3 A New Constitution Draft/New Treaties ......................................... 193 4 The Protocol on the Application of the Principles of Subsisidiarity and Proportionality .................................................. 195 5 The European Union Agency for Fundamental Rights ................. 198 6 Conclusion .......................................................................................... 201 Scandinavian Studies In Law © 1999-2012 188 Helle Krunke: The Indirect Effect of the Treaty on a Constitution for Europe Since Denmark joined the European Community in 1973 the European cooperation has constantly developed partly through new treaties and partly through case law from the European Court of Justice. The latest important development has been the Treaty on a Constitution for Europe. The treaty was rejected at referendums in France and the Netherlands in 2005 and thus the Member States decided to suspence the ratification of the treaty. At the moment Europe is in the middle of a reflection period. Even though the treaty has not entered into force it might nevertheless influence European law and thinking and the European cooperation might still develop into a closer cooperation. Also the Treaty might have some effects at the national level. I shall focus on five examples on how the Treaty on a Constitution for Europe could possibly have an effect even though it has not entered into force (yet). Some examples will concern the European level and some the national level. 1 The Treaty as a Source of Interpretation Even though the treaty has not entered into force the judges at the European Court of Justice and all the other political and legal actors are conscious of the treaty. -
EU Member State Constitutional Identity: a Comparison of Germany and the Netherlands As Polar Opposites
EU Member State Constitutional Identity: A Comparison of Germany and the Netherlands as Polar Opposites Gerhard van der Schyff* Abstract 167 I. Setting the Scene 168 II. Constitutional Identity Clarified 168 III. German Constitutional Identity Explored 170 1. Affirming the “Total” Constitution 170 2. Enter State-Based Democracy 172 3. Emphasizing National Sovereignty 173 IV. Dutch Constitutional Identity Explored 176 1. A “Modest” Constitution 176 2. Emphasis on Democracy 178 3. An “Open” Constitution 181 V. Germany and the Netherlands Evaluated 182 VI. On “Total” and “Modest” Constitutions 190 Abstract The purpose of this paper is to compare, in the light of European integra- tion, the concept of constitutional identity as it applies in Germany and the Netherlands as two EU Member States. Comparing Germany and the Netherlands not only allows for these polar opposites to be defined, but also evaluated. The benefits and drawbacks of expressing national constitu- tional identity will be considered, as well as ideas developed on how the concept is to be approached in the context of European integration. * Associate Professor, Department of Public Law, Jurisprudence and Legal History at the Law School of Tilburg University in the Netherlands. This contribution was written as part of the author’s research stay as a Humboldt Fellow in 2015 at the Chair for Public and Euro- pean Law of Professor Christian Calliess at the Law Faculty of the Free University of Berlin in Germany. All views expressed are those of the author. ZaöRV 76 (2016), 167-191 http://www.zaoerv.de © 2016, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht 168 van der Schyff I. -
Federalism and Subsidiarity: Perspectives from US
Northwestern University School of Law Northwestern University School of Law Scholarly Commons Faculty Working Papers 2011 Federalism and Subsidiarity: Perspectives from U.S. Constitutional Law Steven G. Calabresi Northwestern University School of Law, [email protected] Lucy D. Bickford Repository Citation Calabresi, Steven G. and Bickford, Lucy D., "Federalism and Subsidiarity: Perspectives from U.S. Constitutional Law" (2011). Faculty Working Papers. Paper 215. http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/215 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. Federalism and Subsidiarity: Perspectives from U.S. Constitutional Law by Steven G. Calabresi1 & Lucy D. Bickford2 Table of Contents I. The Economics of Federalism and of Subsidiarity A. The Advantages of State Lawmaking B. The Advantages of National Lawmaking C. How the Number of States in a Federation Affects the Balance D. Balance: Decentralization versus Federalism II. The U.S. Constitution‘s Enumeration of Powers and Subsidiarity A. Judicial Enforcement of Federalism in the U.S. B. Subsidiarity, the Philadelphia Convention, and Two Centuries of Practice C. Supreme Court Caselaw and Subsidiarity 1. Congress‘s Enumerated Lawmaking Powers 2. Dormant Commerce Clause 3. Intergovernmental Immunities and Preemption 4. Federal Jurisdiction III. Incorporation of the Bill of Rights and the Margin of Appreciation A. Subsidiarity and Incorporation of the Bill of Rights B. Original Meaning and Incorporation C. Incorporation and Practice from 1868 to 2010 D. The Right Answer E. -
The Transposition and Efficacy of EU Rights. Indirect Effect and a Coming
The transposition and efficacy of EU rights. Indirect effect and a coming of age of state liability? MARSON, James <http://orcid.org/0000-0001-9705-9671> and FERRIS, Katy Available from Sheffield Hallam University Research Archive (SHURA) at: http://shura.shu.ac.uk/10082/ This document is the author deposited version. You are advised to consult the publisher's version if you wish to cite from it. Published version MARSON, James and FERRIS, Katy (2015). The transposition and efficacy of EU rights. Indirect effect and a coming of age of state liability? Business Law Review, 36 (4), 158-168. Copyright and re-use policy See http://shura.shu.ac.uk/information.html Sheffield Hallam University Research Archive http://shura.shu.ac.uk The Transposition and Efficacy of EU Rights. Indirect Effect and a Coming of Age of State Liability? ABSTRACT Throughout the duration of the UK’s membership of the European Union (EU), non- implementation and incorrect transposition of Directives has been commonplace. Coupled with the Court of Justice of the European Union’s refusal to extend the direct effect of Directives to horizontal relationships, and historic difficulties in holding States liable in damages, it has often fallen to the national courts to give effect to EU laws through purposive statutory interpretation. Recent cases involving the collective redundancy of workers in the UK, and the High Court’s assessment of State Liability in the insurance sector (approved by the Court of Appeal), raise questions as to the efficacy of the current system of enforcement of EU law domestically. Despite the problems of access to EU rights experienced by workers in the UK, there appears to be hope that the judiciary is becoming more attuned to the relationship between EU and domestic laws, and are willing to take control of granting access to remedies without necessarily waiting for EU institutions to provide express permission or instruction. -
The Principle of Effectiveness of EU Law: a Difficult Concept in Legal Scholarship
The principle of effectiveness of EU law: a difficult concept in legal scholarship Professor M. Elvira MENDEZ-PINEDO1 Abstract Effectiveness is a principle frequently used by the Court of Justice of the European Union to secure the authority of EU law over national law. This study analysis the scholarly treatment of the concept in most relevant selected academic literature and draws some conclusions, mostly that difficulties remain surrounding the conceptualization of the principle. The Court uses it in a variety of ways and judicial outcomes are linked to the context of every case at hand. On one hand, we find effectiveness as a stand-alone principle or expression of general “effet utile”; but, on the other hand, we see the use of the term strongly connected to the effective judicial protection of individual rights and/ or as limit to national procedural autonomy. The concept is furthermore embedded in a complex matrix of various other principles of EU law, namely primacy, direct effect, indirect effect or the obligation of consistent interpretation, and Member State liability for breaches of EU law. The results of the study lead to question whether there is really one single concept of effectiveness in EU law and lead to further research in order to explore whether a comprehensive and coherent theory is necessary, feasible and/or desirable. Keywords: effectiveness; EU law; principle; academic literature; meanings and conceptualization. JEL Classification: K10, K33 1. Introduction A decade ago, a doctrinal study on the European principle of effectiveness was published, comparing the legal orders of the European Union and the European Economic Area (EEA) and assessing in parallel the impact of the case-law of the Court of Justice of the European Union (ECJ2) and the Court of the European Free Trade Association (EFTA Court) on the national legal orders with a special focus on Iceland. -
The Relationship Between EU Law and CAS Jurisprudence
The relationship btw EU law and CAS From the Bosman Ruling to the ISU case(s) By Alessandro Oliverio Law School of Chukyo University (JPN) January 2018 The relationship btw EU Law and CAS 1 The sources of sports law (Olympic Charter) IOC IFs NOCs NFs Clubs – Leagues Athletes WADA CAS January 2018 The relationship btw EU Law and CAS 2 The CAS – main features History established in 1984 Before 1995: few cases x year 1993: SFT Gundel ruling: recognition as independent and impartial tribunal / legitimacy of awards 1994: CAS reform: creation of ICAS (International Council of Arbitration for Sport) 1995: ECJ Bosman ruling / binding arbitration clauses in the SGBs’ statutes 2000: ad-hoc division at the Olympics 2003: 100 cases x year (adoption of WADA code) 2016: 500 cases x year Procedure Arbitration clause Ordinary Division (disputes of commercial/contractual nature) Appeal Division (decisions of SGBs) Supreme Court of World Sport Closed list of arbitrators (369). Japan: 2 Switzerland: 29 Panel of 3 arbitrators Time limits: R49 21 days – R59 3 months Binding award. Challenge (annulment) before SFT for incompability with public policy January 2018 The relationship btw EU Law and CAS 3 The EU instituions in brief (1) The EU Parliament: Directly-elected EU body with legislative, supervisory, and budgetary responsibilities White Paper on sport (2007): Its overall objective is to give strategic orientation on the role of sport in Europe, to encourage debate on specific problems, to enhance the visibility of sport in EU policy-making and to raise public awareness of the needs and specificities of sector. -
Evidence from the European Football Mar Et
Taxation and International Migration of Superstars: Evidence from the European Football Market∗ Henrik Jacobsen Kleven, London School of Economics Camille Landais, Stanford University Emmanuel Saez, UC Berkeley June 2011 Abstract This paper analyzes the effects of top earnings tax rates on the international migration of football players in Europe. We construct a panel data set of top earnings tax rates, football player careers, and club performances in the first leagues of 14 European coun- tries since 1985. We identify the effects of top earnings tax rates on migration using a number of tax and institutional changes: (a) the 1995 Bosman ruling which liberalized the European football market, (b) top tax rate reforms within countries, and (c) special tax schemes offering preferential tax rates to immigrant football players. We start by present- ing reduced-form graphical evidence showing large and compelling migration responses to country-specific tax reforms and labor market regulation. We then develop a multinomial regression framework to exploit all sources of tax variation simultaneously. Our results show that (i) the overall location elasticity with respect to the net-of-tax rate is positive and large, (ii) location elasticities are extremely large at the top of the ability distribu- tion but negative at the bottom due to ability sorting effects, and (iii) cross-tax effects of foreign players on domestic players (and vice versa) are negative and quite strong due to displacement effects. ∗We would like to thank Raj Chetty, Caroline Hoxby, Larry Katz, Wojciech Kopczuk, Claus Kreiner, Thomas Piketty, James Poterba, Guttorm Schjelderup, Dan Silverman, Joel Slemrod, and numerous seminar participants for helpful comments and discussions. -
The Future of Football in the European Union – from a Legal Point of View
The Future of Football in the European Union – from a Legal Point of View Marie Kronberg University of Passau, Germany Publicerad på Internet, www.idrottsforum.org/articles/kronberg/kronberg101013.html (ISSN 1652–7224), 2010–10–13 Copyright © Marie Kronberg 2010. All rights reserved. Except for the quotation of short passages for the purposes of criticism and review, no part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the author. It’s often said, about one thing or the other, that if it didn’t exist, someone would invent it. This applies very much to sports, although it is clearly difficult to reason counterfactually about a phe- nomenon that so permeates the daily lives of all people. So let’s avoid imagining a world with- out sports, and restrict this speculation to a supposed introduction of sports in society in 2010. How would that work? – Like so much else today, it would probably be a project introduced from above, e.g. in Europe at EU level, with directives to member states to adopt laws that initiate and regulate this new form of entertainment. Much of what we today take for granted in terms of recreational and competitive sports would probably never come into being, such as sports where the participants might get hurt (like boxing), or where the environment might suffer (such as motor racing), or contests between nations – international competitions would most likely take the form of the Ryder Cup, extrapolated to the global level, that is to say that Europe will compete against the U.S. -
European Minimum Wage on What Legal Basis Does the European Union Have Power to Act? Lavinia Petrache and Karen Rudolph
cepInput No 13 | 2020 4 June 2020 European Minimum Wage On what legal basis does the European Union have power to act? Lavinia Petrache and Karen Rudolph © iStock On 14 January 2020, the European Commission began a consultation on the introduction of an EU minimum wage. The EU has no legislative power for the introduction of an EU minimum wage. An EU minimum wage cannot be based on the social policy competence [Art. 153 (2) (b) AEUV] as it explicitly excludes regulating pay [Art. 153 (5) TFEU]. Since pay is explicitly excluded from the social policy competence, neither the flexibility clause (Art. 352 TFEU) nor collaboration between states in the form of enhanced cooperation (Art. 329 TFEU) can be used as the basis for an EU minimum wage. The rules on economic, social and territorial cohesion [Art. 175 (3) AEUV] are of equally little help as pay does not fall under an EU financial instrument. The fundamental right of workers to working conditions which respect their health, safety and dignity (Art. 31 CFR) does not apply because the Charter of Fundamental Rights expressly states that it does not establish any power for EU action (Art. 51 (2) CFR). Member States are still entitled to agree on an EU minimum wage by way of a treaty under international law. 2 cepInput European Minimum Wage Table of Contents 1 Introduction .......................................................................................................................... 3 2 Context of the discussion on EU minimum wages ................................................................... 3 3 Minimum wages in the Member States .................................................................................. 4 4 Legal basis for an EU minimum wage ..................................................................................... 6 4.1 Social policy competence, specifically Art. -
David Held, Anthony Mcgrew, David Goldblatt, Jonathan Perraton
EUROPEANIZATION AND THE EMERGENCE OF A EUROPEAN SOCIETY Juan Díez Medrano 2008/12 Juan Díez Medrano Institut Barcelona d'Estudis Internacionals (IBEI) / Universitat de Barcelona. Research Program Coordinator “Networks and Institutions in a Global Society” at IBEI, and Professor of the University of Barcelona at the Dept. of Department of Sociological Theory, Philosophy of Law and Methodology for Social Sciences [email protected] / [email protected] ISSN: 1886-2802 IBEI WORKING PAPERS 2008/12 Europeanization and the Emergence of a European Society © Juan Díez Medrano © IBEI, de esta edición Edita: CIDOB edicions Elisabets, 12 08001 Barcelona Tel. 93 302 64 95 Fax. 93 302 21 18 E-mail: [email protected] URL: www.cidob.org Depósito legal: B-21.147-2006 ISSN:1886-2802 Imprime: Color Marfil, S.L. Barcelona, January 2008 EUROPEANIZATION AND THE EMERGENCE OF A EUROPEAN SOCIETY Juan Díez Medrano Abstract: This article examines the European integration process from a sociological perspective, where the main focus is the examination of the social consequences of the integration process. The European Union has advanced significantly in the economic, social, and political integra- tion processes. This has resulted in a rapid Europeanization of behavior. There has hardly been any progress, however, toward the development of European social groups. This article exam- ines the causes of this lag and concludes that it is highly unlikely that in the middle run there be significant progress toward the Europeanization of society. Key words: European integration, Identity, Sociology. -3- 1. Introduction orking Papers The literature on European integration of the last fifty years has focused almost exclusively on the process of economic and political institutionalization. -
14 International Review of Leave Policies and Related Research 2018
INTERNATIONAL NETWORK ON LEAVE POLICIES AND RESEARCH 14th International Review of Leave Policies and Related Research 2018 EDITED BY SONJA BLUM (UNIVERSITY OF HAGEN), ALISON KOSLOWSKI (THE UNIVERSITY OF EDINBURGH), ALEXANDRA MACHT (OXFORD BROOKES UNIVERSITY) AND PETER MOSS (UCL INSTITUTE OF EDUCATION, UNIVERSITY COLLEGE LONDON) SEPTEMBER 2018 SEPTEMBER 2018 Contents 1. Introduction 2. Defining Leave Policies 3. Cross-Country Comparisons • Sources Used • Statutory Maternity Leave: April 2018 • Statutory Paternity Leave: April 2018 • Statutory Parental Leave (not including Additional Childcare Leaves): April 2018 • Statutory Other Measures: April 2018 • Total Statutory Leave (including Additional Childcare Leaves): April 2018 • Relationship between Leave and ECEC Entitlements: April 2018 • Leave Policy Changes: April 2018 4. Country Notes: April 2018 • Australia • Austria • Belgium • Brazil • Bulgaria • Canada • China • Croatia • Czech Republic • Denmark • Estonia • Finland • France • Germany ii • Greece • Hungary • Iceland • Ireland • Israel • Italy • Japan • Korea • Latvia • Lithuania • Luxembourg • Malta • Mexico • Netherlands • New Zealand • Norway • Poland • Portugal • Romania • Russian Federation • Slovak Republic • Slovenia • South Africa • Spain • Sweden • Switzerland • United Kingdom • United States • Uruguay iii 1. Introduction The International Network on Leave Policies and Research has been producing an annual review of leave policies and related research since 2005 (for earlier reviews, go to the network’s website www.leavenetwork.org). The review covers Maternity, Paternity and Parental leaves; leave to care for sick children and other employment-related measures to support working parents; and early childhood education and care policy. As well as policies, it provides some information on publications and research. Please be aware that this is not intended to be a comprehensive list of all publications or research in this area for this country. -
Direct Effect of Directives - an Instrument for Uniformity Or the Cause of Incoherence?
J U R I D I C U M Direct Effect of Directives - An Instrument for Uniformity or the Cause of Incoherence? Josefin Johansson & Lisa Lindström VT 2017 RV600G Rättsvetenskaplig kandidatkurs med examensarbete (C-uppsats), 15 högskolepoäng Examinatorer: Annina H Persson & Eleonor Kristoffersson Handledare: Senem Eken Abstract Over 40 years have past since the Court of Justice (the Court) established direct effect (of directives). Direct effect enables individuals to invoke – rely on a European Union (EU) directive provision(s) before a national court, presupposed that the directive has direct effect and the national rule(s) is in conflict with this directive. However, the Court has limited direct effect to vertical situations, meaning that an individual can invoke a directive against a Member State (vertical situations), but directives cannot be invoked between two individuals (horizontal situations). The Court has relied on different legal reasoning to exclude horizontal direct effect. However, despite the rule of no-horizontal direct effect, the Court has adopted a broad definition of state and has introduced the doctrines of incidental direct effect and consistent interpretation. Furthermore, the concept of state liability has been established as a form of remedy. One argument for these developments is to maintain (full) effectiveness of EU law. Consequently, the evolutions of the Court is a controversial issue, which has been subject to discussions in the doctrine and is facing criticism/challenges due to the emerged tension between the rule of no-horizontal direct effect and the doctrines created by the Court that impinge this rule. The purpose of the thesis is to examine whether the ‘exceptions’ restraining on the rule of no-horizontal direct effect in fact amounts to horizontal direct effect and consequently affects state sovereignty adversely.