Effectiveness Versus Procedural Protection

Die Arbeit untersucht das Spannungsfeld zwischen einem fairen Resultat und Fairplay im Rechtsverfahren. Bislang hat der Europäische Gerichtshof es traditionell abgelehnt, hier eine klare Wahl zu treffen, indem er sich in Vorabentscheidungen im Zusammenhang mit der ex officio-Überprüfung weitgehend dem nationalen Recht unterwirft. Diese Arbeit zeigt, dass spezifische Schutzvorrechte zunehmend substantiell korrekte Urteile hervorgebracht haben, während ein neuer Grundrechtsansatz den individuellen Verfahrensschutz nicht gefördert hat.

In fundamental rights adjudication, a court first has to determine whether the interest at stake falls within the scope of the fundamental right invoked. Whether or not an individual interest falls within the scope or ambit of one of the fundamental rights protected by the European Convention on Human Rights determines whether or not the European Court of Human Rights can decide on the merits of a case. This volume brings together a variety of legal scholars in order to examine the scope of fundamental rights. Topics range from the nature of human rights and the real or imagined risk of rights inflation to theories of positive obligations and social and economic rights. It contains contributions of a theoretical nature as well as analytical overviews of the ECtHR's approach. In addition, comparisons are made with domestic, EU and international law.

The Model Rules of Professional Conduct provides an up-to-date resource for information on legal ethics. Federal, state and local courts in all jurisdictions look to the Rules for guidance in solving lawyer malpractice cases, disciplinary actions, disqualification issues, sanctions questions and much more. In this volume, black-letter Rules of Professional Conduct are followed by numbered Comments that explain each Rule's purpose and provide suggestions for its practical application. The Rules will help you identify proper conduct in a variety of given situations, review those instances where discretionary action is possible, and define the nature of the relationship between you and your clients, colleagues and the courts.

This book provides a comparative assessment of the procedural law governing facts and evidence with references to over 900 judgments and decisions of the European and the Inter-American Court of Human Rights as well as the UN Human Rights Committee. It identifies underlying principles which govern the procedural law of these international human rights institutions. Based on the premise of a contextualized procedural law governing facts and evidence, the book analyzes where current approaches lack a foundation in the contextualization premise and offers solutions for recurring procedural problems relating to questions of subsidiarity in fact-finding, burden and standard of proof, as well as the admissibility and evaluation of evidence.

Written by expert contributors, this book collates and explains the core elements of national security law, both substantive and procedural, and the practical issues which may arise in national security litigation.

EU Directive 2004/48 EC obliges Member States to seek to achieve ‘partial harmonization’ of the remedies, procedures and measures necessary to enforce intellectual property law. These obligations provide what may be termed a minimum standard which must be fulfilled by the Member States in the course of their implementation of the Directive. However, the Directive is not faring well at the Member State level. The three authors’ vastly detailed, article-by-article analysis of the fortunes of Directive 2004/48 EC in three EU jurisdictions offers enormously valuable insights into the complex ways Member States respond to Community law, and in so doing provides an important addition to the ongoing inquiry into the nature of the reciprocal tensions between EU law (both judicial and legislative) and the laws of Member States. The particular investigation undertaken here reveals three paradigmatic situations: the situation in which the Directive has not been implemented at all, either because the Member State believes that its current legislation is adequate or that the wording of the Directive is such that no special legislation is required (England); the situation in which implementation has been inadequate, because either the pre-existing legislation constitutes inadequate legislation or because the specifically adopted legislation proves to be legally uncertain (The Netherlands); and the situation in which the relevant time for implementation for the Directive has elapsed and no specific legislation has been adopted (Germany). If there really is, as the European Commission contends, an ‘enforcement deficit’ in the protection of intellectual property rights by national rules of procedure, then the most effective remedial approach, Cummings shows, is through the principles of legal certainty, full effect, and effective judicial protection. These principles will assist the national court in interpretation of the precise meaning of the substantive obligations under the Directive. Drawing on the tenor of ECJ law that national procedural rules should not present an obstacle to adequate judicial protection, the author considers the conditions that must be fulfilled before an eventual claimant, who has suffered loss and damage caused by either the non-implementation or the incorrect implementation of a directive, may bring an action against the State for breach of Community law. The author presents his analyses of the implementation of the Directive in Dutch and English national procedure and his proposals for German implementation as three separate cases rather than comparatively, as any attempt to compare either the method of national implementation or the degree of adequacy or inadequacy inevitably obscures the essential particularities of each of the three national systems in relation to the Directive. Although this book will repay the study of anyone interested in European law, it will be of special value to practitioners and policymakers engaged in intellectual property law, particularly in EU Member States.

This book presents an analysis of the recent development of administrative procedures in EC law. It is a pathbreaking study of what might be termed the “constitutionalising norms” now emerging,including a range of 'process rights' and procedural standards, such as the right to access to information, the right to be heard, the principle of care and duty to state reasons. These new standards are increasingly applied in areas as diverse as competition, State aids, customs matters, anti-dumping and the European Social Fund. Different strands of case-law of the EC courts are thus connected to document the overall evolution of procedural rules peculiar to the EC administrative system as a whole. The author adopts a critical stance, in particular, towards the case-law of the Court of First Instance and points out the increasing pressure being brought to bear on the European Commission in respect of its procedural requirements. Particular emphasis is placed on the concept of 'care', i.e. the duty to collect and examine the factual and legal points of individual cases impartially and carefully. The book reveals both the theoretical and practical relevance of this principle as a means of both procedural and substantive review and the reasons why it is likely to be misinterpreted by the courts.

The idea of human rights as fundamental rights of every person is certainly one of the most powerful ideas of our modern age. Since the American and French revolutions, human rights have been the strongest link between law and democracy. They have played a crucial role when defining notions of constitutionalism and the rule of law. While some human rights have been made famous in national mottos such as the French libertU+fffde, U+fffdegalitU+fffde et fraternitU+fffde, other human rights have not attracted such attention. Generally, substantive human rights have been discussed and appreciated more than procedural human rights. Yet, without an effective and well-balanced set of procedural rights, the substantive rights and freedoms of almost any person or business would not enjoy effective protection before the courts of law. Based on the wish to reopen an international comparative discussion on fundamental notions of civil procedure, this book offers a number of insights into procedural human rights from different jurisdictions and different points of view. While some previous studies focused on Northern Europe, many of the authors in this book come from Southern and Eastern Europe, areas where a common understanding of procedural human rights may be an even more pressing necessity.

This book analyzes the issue of European fiscal State aid in order to provide insights into the related evolution prospects and legal problems. State aid has assumed a central position in the field of taxation, becoming the most important instrument of European legal integration, especially in the area of direct taxes. This is the result of major regulatory and interpretative development, which has altered the initial European and national balances in the face of globalization and the problems of the new economy. In this context, the scope and objectives of State aid have progressively broadened, encompassing a significant level of both positive and negative integration of European national tax systems.