This paper assesses whether the purposive interpretation of the term “undertaking” is used by decision-makers in antitrust cases. This article presents a short summary of this research regarding cases related to the abuse of a dominant position. As a rule, priority must be given to the direct meaning of a text. There are, however, important exceptions to the sup- posed rule. A concise examination of the jurisprudence shows that purposive interpretation is used where the provision in question is (...) open to several inter- pretations. This article relates in some form to the problems that arise from the EU-oriented purposive interpretation of the term “undertaking” as defined under Polish antitrust law. The article considers some of them. (shrink)

In order to achieve a desired effect of tax legal interpretation, its linguistic mechanisms are frequently insufficient. Elements of paralinguistic interpretation are more and more often indispensable. It applies inter alia when domestic tax law regulations must be verified in the light of the EU tax law. However, the study depict interpretative problems regarding the institution of remuneration of excess payments, which is regulated in Polish tax law. Considerations presented in this article confirm that legal interpretation of (...) tax law is a complicated process. It is important to establish correct system connection between the analyzed legal regulations and other provisions, often contained in other legal acts. Moreover, it seems necessary to refer to the purpose-oriented interpretation of the law. Only then a chance for a satisfactory final result of the provision’s legal interpretation can be guaranteed. What is more, such an effect will create an element being a part of a logically composed and arranged unity. (shrink)

From the point of the EU law, the CJEU has the exclusive competence to interpret the EU legal norms and decide upon validity of the legal acts adopted by the EU institutions because it is the most effective method to ensure the unilateral interpretation of the EU law and to prevent its fragmentation. Thus, it can be presumed that all disputes between the Member States regarding the EU law must be solved by the CJEU. The paper aims at finding (...) the answer to the question whether international courts under the international law must refuse their jurisdiction in cases where disputes of the Member States relate with the EU law. With the view of this aim, arguments arising from the international law (for instance, prohibition of intervening into affairs of another legal system, prohibition of abuse of laws), on the basis of which an international court should decline its jurisdiction, and applicability of such arguments to the situation discussed is assessed and an independent approach is formulated. (shrink)

The article is dedicated to determine de iure and de facto binding force of the case law of the Court of Justice of the European Union (hereinafter the ECJ) and its place in the system of legal sources in Latvia. The author concludes that the case law of the ECJ consists of legally important statements, which are included in judgements of the ECJ, namely, of an interpretation of legal norms, made by the ECJ, and of judge-made law norms, which (...) the ECJ has found in legal system by use of a further law-making. Therefore, it follows from the above that the case law of the ECJ is regarded as binding independent addition legal source in Latvia. This publication concerns not only Latvia, but also other European Union (hereinafter the EU) member states of the continental Europe or Romano-Germanic legal system. (shrink)

Starting from 2009, national courts of the EU Member States for the first time gained a “real” right to request the EU Court of Justice for preliminary rulings in asylum matters. First judgments of this Court demonstrate equivocal tendencies: some are blaming the Court for incompetence in asylum matters, others believe that the adoption of authoritative decisions at the European level will assist in developing consistent practice of applying asylum law in the European Union, something that failed at international level (...) due to absence of a single authoritative body to provide guidance on interpretation and application of the 1951 Refugee Convention. Considering that the judgments of the EU Court are part of the EU law, the Member States should develop their national asylum law with due regard being taken to those judgments. By the beginning of 2012, the Court has issued eight judgments on the interpretation of various problematic issues of EU asylum law. This Article analyses the jurisprudence of the EU Court in asylum cases, related to the granting of refugee status and subsidiary protection. It also provides a critical evaluation of those judgments. The main objective of the Article is to familiarise the relevant Lithuanian institutions and lawyers with the first judgments of the EU Court in asylum cases and encourage discussions concerning the application of rules established by the Court in the Lithuanian context. Due to limited size, this Article presents the analysis of two EU Court judgments adopted on interpretation of the 2004 Qualification Directive: Elgafaji v. The Netherlands (2009) dealing with granting of subsidiary protection, and Abdulla and others v. Bundesrepublik Deutschland (2010), dealing with cessation of refugee status. The value of those judgments first of all lies in the guidance they provided to the Member States on such concepts as: protection in a situation of an armed conflict, agents of protection, effectiveness of protection; as well as determination of a relationship between refugee status and subsidiary protection, relationship of the Qualification Directive with the European Convention on Human Rights and Fundamental Freedoms (ECHR), also cessation of protection. Elgafaji decision, while quite liberal with regard to persons seeking international protection, is not so liberally applied in the Member States’ practice and does not in itself guarantee positive outcome of the application of a concrete individual fleeing from an armed conflict, or a liberal approach to granting subsidiary protection in the Member States. Based on Elgafaji judgment it is clear that: Art. 15(b) of the Qualification Directive correspond to Art. 3 ECHR, while Art. 15(c) provides additional protection and in that it expands the Member States’ obligations beyond the ECHR to provide protection to persons fleeing in situations of armed conflict. While not every person arriving from an armed conflict situation would automatically fall under the granting of subsidiary protection, in certain exceptional situations indiscriminate violence may amount to individual threat without invoking personal circumstances. The EU Court departed from the individualisation requirement applied by the European Court of Human Rights in Art. 3 cases and did not also rely on international humanitarian law, by introducing a “sliding scale” formula for establishing an individual threat in armed conflict situation instead. This formula addressed the alleged internal discrepancy between “individual threat” and “indiscriminate violence”. The Abdulla decision brought in the human rights and law enforcement perspectives to the interpretation of cessation clauses, however it represents a rather superficial approach in the context of the analysed concepts (e.g. towards effectiveness of protection provided by the multinational armed forces) and is likely to be incompatible with the latest legislative trends in the EU asylum instruments (e.g. determination of refugee status and subsidiary protection by means of a single procedure) and the recent jurisprudence under the ECHR (e.g. failure to ensure a minimum standard of living may violate the ECHR). (shrink)

A renewed search for legal certainty is a reaction to the preponderance of judge made law, which has been in turn prompted by the democratic deficit of the EU and the impact of Anglo-American law. The problem is that the search is oblivious to both systematic interpretation and the need of re-systematization of law. The paper defines systematic interpretation, relates the definition to standard French and German conceptions, indicates the room for systematic interpretation in Anglo-American laws, and (...) states prima facie reasons for a re-systematization of law as a prerequisite of systematic interpretation. The problem cannot be appreciated outside its proper context. It is a disregard for causation and evaluation. Hence the paper outlines Aristotle’s understanding of causation and evaluation in his presentation of phronesis, reconsiders continental European legal thought in the light of Aristotle’s presentation, and offers policy-oriented jurisprudence as a remedy to the deficit of evaluation and causation in European legal thought. A solution to the problem offers a typology of criteria and clarifies positive and fundamental legal concepts, positive and fundamental criteria of systematization, and the place of criteria in knowledge of law. The usefulness of the criteria is demonstrated by a common approach to the systematization of law and an alternative diagnosis of a defect of systematization diagnosed by an authority in history and philosophy of law rather than legal theory. (shrink)

The present work discusses the complex nature of the term ‘gender’ in legal discourse, in the wake of the recent pushbacks that the 2011 Istanbul Convention has received from anti-feminist movements and nations that have not signed/ratified the document or have withdrawn from it. Though its original aim was to protect women’s rights, the debate has eventually surfaced deeply-rooted problems linked to gender-related vocabulary. For this reason, the study will analyse the use of the terms ‘gender’ and ‘sex’ in the (...) 1995 UN Beijing Declaration, the 1998 Rome Statute, and the 2011 Istanbul Convention, from a synchronic and diachronic perspective. It aims to provide a critical comparison of the definitions, translations, and interpretations of the term ‘gender’, in an attempt to overcome some of the issues involved in the harmonisation of EU documentation, which could certainly help guarantee fundamental rights and convince more states to sign/ratify the Convention, or at least, not allow them to use issues not related to women’s rights to not accept the document. The interpretation of gender-related violence is still ‘in progress’, and the lack of harmonisation could eventually hinder fundamental human rights instead of helping the Istanbul Convention save lives. (shrink)

This article contributes to the analysis of refusal to license cases as abuse of a dominant position pursuant Article 82 EC from an economic perspective. In the Microsoft case, the European Commission introduced an "Incentives Balance Test" to assess whether the refusal to give access to interface information can be justified by arguing that this information is protected by Intellectual Property Rights (IPRs): The Commission argued that if the overall innovative effects evoked by a compulsory license are significantly higher than (...) without this access, the IPR owner is obliged to license. This should be assessed through balancing the different incentives to innovate between the dominant firm and its competitors. In the paper we pursue two objectives: Firstly, we analyze to what extent the decision of the Court of First Instance, which confirmed the decision of the Commission, helps to clarify the criteria in refusal to license cases; in fact, it is disappointing in this regard. Secondly, we demonstrate that the basic idea of the Incentives Balance Test can be interpreted as a test whether the specific IPRs of the dominant firm can be defended from the perspective of the economics of IPRs. This implies that Article 82 allows competition law to correct economically not optimal IPRs through a specific economic analysis. This is followed by a broad overview on theoretical and empirical insights from economics of IPRs, innovation economics and competition and network economics that can help to develop a more general and sophisticated Innovation Effects Test that can be applied in Article 82 refusal to license cases. (shrink)

Background In this study, we examined the ethical implications of Egypt’s new clinical trial law, employing the ethical framework proposed by Emanuel et al. and comparing it to various national and supranational laws. This analysis is crucial as Egypt, considered a high-growth pharmaceutical market, has become an attractive location for clinical trials, offering insights into the ethical implementation of bioethical regulations in a large population country with a robust healthcare infrastructure and predominantly treatment-naïve patients. Methods We conducted a comparative analysis (...) of Egyptian law with regulations from Sweden and France, including the EU Clinical Trials Regulation, considering ethical human subject research criteria, and used a directed approach to qualitative content analysis to examine the laws and regulations. This study involved extensive peer scrutiny, frequent debriefing sessions, and collaboration with legal experts with relevant international legal expertise to ensure rigorous analysis and interpretation of the laws. Results On the rating of the seven different principles (social and scientific values, scientific validity, fair selection of participants, risk-benefit ratio, independent review, informed consent and respect for participants) Egypt, France, and EU regulations had comparable scores. Specific principles (Social Value, Scientific Value, and Fair selection of participants) were challenging to directly identify due to certain regulations embodying 'implicit' principles more than explicitly stated ones. Conclusion The analysis underscores Egypt's alignment with internationally recognized ethical principles, as outlined by Emanuel et al., through its comparison with French, Swedish, and EU regulations, emphasizing the critical need for Egypt to continuously refine its ethical regulations to safeguard participant protection and research integrity. Key issues identified include the necessity to clarify and standardize the concept of social value in research, alongside concerns regarding the expertise and impartiality of ethical review boards, pointing towards a broader agenda for enhancing research ethics in Egypt and beyond. (shrink)

The process of elaborating EU legislation includes the activity of translation. Drafting and translation cannot be considered separately but are rather two complementary activities whose aim is the quality of legislation. In order to achieve the required quality of legislation, one guiding principle is consistency of terminology. This study examines the particular case of two terms in German that appeared in the EC Treaty: Entscheidung and Beschluss. The inconsistent use of the two terms was the source of interpretative problems, as (...) observed in Case C-370/07 Commission v Council. A comparison of the contested provisions in the EC Treaty and the provisions in the Treaty on the Functioning of the European Union shows that the terminological inconsistency has been corrected. After the examination of this case, we elaborate on the impact of terminological consistency on interpretation as reflected in requests for preliminary rulings. (shrink)

This chapter first considers the more formal basis for the relationship between international law and European Union (EU) law by looking at the international law framework of EU law. It then discusses the approach of the EU legal order to international law and the various ways in which the two legal orders interact within the EU legal order. The chapter also considers reasons for and implications of the CJEU's approach. The Court of Justice of the European Union (CJEU) has held (...) that customary international law (CIL), just like treaty law, is a standard of assessment in the review of the validity of EU secondary legislation, thus ranking CIL more highly within the EU legal order than secondary legislation. Treaties in the area of human rights have enjoyed a relatively strong role within EU law, either by interpretation or by linking them to general principles of law. (shrink)

Whilst the Charter of Fundamental Rights of the European Union, which became part of binding primary EU law on 1 December 2009, constitutes an important codification and clarification of fundamental rights as they exist in the European Union, the field of application of the Charter is limited in a significant way: the Charter only applies when EU law is at stake. When national courts and authorities in the EU Member States are confronted with problems of purely national law, they are (...) not obliged to apply the Charter but should instead rely on the national constitutional Bill of Rights as well as the international human rights instruments which are binding on the Member State in question. The borderline between EU law and national law is not always easy to establish in a concrete case. This article discusses theoretical and practical problems arising out of the application and interpretation of Article 51(1) of the Charter, according to which the Charter is addressed to the Member States ‘only when they are implementing Union law’. It is suggested to adopt a pragmatic case-by-case approach, asking oneself if there is another norm of Union law than a Charter provision which is directly relevant to a case in concreto. If the answer is yes, also the Charter should be applied, supposing that there is a Charter provision which could influence the outcome of the case. If the answer is in the negative, national courts and authorities are only obliged to apply national law, including the constitutional Bill of Rights and the international human rights obligations of the Member State concerned. (shrink)

The article investigates the significance of syntax in the multilingual EU law. It attempts to respond to the question whether syntax is apt to contribute to the uniformity of that law and how, with regard to this function, it relates to the (widely disputed yet uncontested) semantic and pragmatic methods of achieving such a uniformity. In order to respond to this question, the article firstly, recalls fundamental concepts which would help conceptualize the endeavour and, secondly, presents examples of analysis of (...) syntax arrangements which can be deemed representative for the study of the said problem of contribution. The study finds that EU law (expressed in 24 official languages which have equal authentic status) relies on diversified syntax of its respective constitutive languages. Syntax structures used in respective language versions of EU law represent narrower, law-specific, form of syntax structures available in these languages. Its specificity is determined mostly by legislative traditions of respective EU member states. Syntactic structures of EU law produced in different official languages do not represent a single pattern because of diversified mode of producing illocutionary value of provisions in which strongly idiomatic modal verbs (modal operators) and even special modal structures (not necessarily containing modal verbs) are used to express legal norms. They also differ when it comes to their law-specific compositionality, i.e. flexibility of different syntax structure to produce the same meaning and, in the same time, to preserve their genre/register informational value. Notwithstanding, these structures have well pronounced and system-significant common features within respective Germanic, Romanic, and Slavic families of languages in which EU law is mostly reproduced. The sentence structure and the relevant register of EU law provisions are the same for respective versions of EU texts of law expressed in the languages belonging to the respective three language families which were examined for the sake of this study. These common features are re-enforced by the synoptic mode of producing EU law which imposes formal resemblance of provisions reproduced in respective EU official languages to each other. The multilingual EU legislator also uses patterns which grant legal text the relevant register, yet its specific EU character ultimately transpires through semantic aspects of EU texts rather than their mere syntax. The unity of the system is achieved most strongly through the EU specific interpretation, where the teleological methods (which can be conceived as a language means to achieve EU law goals and objectives at the pragmatic level) are of utmost importance. Thus, there is no EU-specific syntax which would, as such, contribute to unity of EU law. Instead, unity is achieved in the area of semantics and pragmatics. The well exposed anaphoric character of EU law (as any other type of law) may contribute to narrowing down possibility for differentiation of respective language versions of EU law. (shrink)

While linguistic and analytical interpretations of the Euthyphro are usually circumscribed to two passages of the dialogue, there is a general tendency to disregard the distinc­tion between the ὅσιον and the θεοφιλές. Consequently, one makes hardly any attempt to understand Plato’s criticism of religion. The concepts of θεραπεὶα τοῦ θεοῦ and ἀπεργασία provide us with the possibility of positively characterizing piety and distinguishing it from pure love affection. Contrary to the views of Schleiermacher and Gigon, but following Willamowitz, the present (...) paper shows that the idea of service to the god consists in the doric harmony of Λόγος and Ἔργον, combined with various duties and services to the state. While this is precisely what justice is, the criticism of religion is not solely negative. Through justice, the ὅσιον becomes elevated to εὖ ζῆν and the highest ἀγαθόν in private as well as in public dimension. Without justice, one is left with the neccessity to flee to the other world and embrace the ὁμοούσια with the god, as shown in the Theaetus. If that is the meaning of Socrates’ death, then the idea resembles Kant’s postulate of the immortality of the soul, for in both cases one is faced with the neverending task of realizing the highest good. The question is whether it is possible to realize the δικαιοσύνη in a political life. Plato considers the issue in his the Republic, Sophist, Statesman and Laws. In the Statesman, justice is the primary goal of any political life that can only be attained through cultivting the divine relationship of harmoni­ous elements in the ὅσιον. It is here that Plato’s doctrine of the ὅσιον becomes completed. (shrink)

This article argues that the existing philosophy of EU law, such as it may be perceived, is flawed. Through a series of propositions it claims that EU law is infected by an underlying indeterminacy of ideal that has deeply affected the appreciation and realization of stated values. These values, the most fundamental of which appear in Article 6(1) of the Treaty of European Union, have been applied in a haphazard fashion and without an understanding of normative content. The European Court (...) of Justice has instead adopted a largely pragmatic approach that has focused on principles or virtues of governance rather than attempting to offer a way of satisfactorily defining values or ensuring their realization. The underlying philosophy thus appears to be based on a theory of interpretation (of original political will) rather than a theory of justice. The recent decision in Kadi paradoxically offers not only confirmation of the argument presented but also a judicial appreciation that a new direction may be desirable, one inspired by a law based on the predominance of fundamental values with particular emphasis on respect for fundamental rights. (shrink)

This article refers to the issues associated with the crucial significance of the interpretation of tax law provisions made by administrative courts in the course of the judicial inspection of tax decisions, within the context of protecting the subjective rights of taxpayers. The analysis in that regard has been prepared based on the provisions of art. 153 of the Act of 25 July 2002 on Proceedings before Administrative Courts, which expresses the important rule of binding the court and the (...) administrative authority, whose act was the subject of an appeal, with a legal assessment and instructions regarding the further proceedings described in the decision of the administrative court. As a result of this rule, a decision of an administrative court exerts the results exceeding the scope of judicial administrative proceedings, while its effect also covers the future tax proceedings. If the legal assessment made by the court refers to the regulations that affect the subjective rights of a taxpayer, it means that the administrative court imposes the effects of “its” interpretation of those provisions on a tax authority. In turn, the tax authority is obliged to respect those rights in accordance with the opinions of the court, which usually affects the final resolution of a tax case. It should be borne in mind that a taxpayer, by submitting an appeal against a tax decision to an administrative court, demands not only an inspection of the acts of tax administration, but also - which should be emphasized - demands the execution of its rights, including its subjective rights. Therefore, we should not forget the crucial role of the administrative courts in the protection of the substantive rights of taxpayers. The instrument that allows the administrative courts to guard the subjective rights of taxpayers, consists in the procedural regulations included in the provisions on proceedings before administrative courts, and in particular art. 153 of the Act on Proceedings before Administrative Courts in Poland. (shrink)

In the science of administrative and constitutional law, administration science and many other sciences, including political science, it is widely accepted that the basic, inherent feature of a municipality, deciding the essence of the territorial self-government unit as an entity of public administration, is the self-reliance it is entitled to. The self-reliance of territorial self-government units is even defined as a constitutional norm.In principle, self-reliance is perceived as a fundamental attribute of a decentralised public authority and constitutes one of the (...) fundamental systemic principles of the Republic of Poland. It was formulated expressis verbis in art. 165 par. 2 of the Constitution of the Republic of Poland, which states that the self-reliance of territorial self-government units is subject to judicial protection, meaning that TSGUs can defend themselves against illegal attempts, not grounded in the law to interfere in their self-reliance. This protection seems to encompass both the private-law and public-law spheres of territorial self-government activity.The essence and guarantees of territorial self-government units’ self-reliance also arise from other constitutional principles, including the aforementioned decentralisation principle, subsidiarity principle, separation of powers, supremacy of the nation and democratic state under rule of law.The goal of this article is to interpret the principle of municipal self-reliance in the context of constitutional principles of law, in the light of the Polish Constitution. The studies were conducted based on analysis of normative acts, doctrinal views and case law. (shrink)

This article investigates some special criteria of implementation of the EU directives into the national legal order and the consequences of their non-compliance, that could arise from the EU membership obligation to the European Union law. The most important acting form for the Institutions of European Union comes after the Reform treaty of Lisbon the form of the EU directive. The law-making practice of the Institution of the European Union set out with different levels of full or partial harmonization of (...) the EU directives. Consequently, there comes the problem of the enforcement of the adopted EU directives into the domestic legal order. The article analyses the changes in European Union law after the Reform of Lisbon. The investigation begins with treatment of the general characteristic of the EU directive. After that it analyses the choice of primary legal ground for adopting of the EU directive and the consequences of its wrong choice for the legality of the EU directive. (shrink)

The logistic function now constitutes the most widely used model for there presentation of growth kinetics of the continuous monotonous type in biological systems (populations, organisms, organs, ...). This ubiquity led to consider logistics from a phenomenological rather than mechanistic viewpoint. Whence the question : can logistics be given an interpretation, a signification which confers the rank of an "explicative" model to it? This Note presents some critical comments on the relationships between logistics and three types of biological systems (...) : population demography, environmental resources, autocatalyzed reactions. The so-called functional (in the mathematical meaning) interpretation, which is then discussed, is based upon a variational principle : the occurrence of a minimum of a function associated with the logistic law. Its present limitation to the only simple logistics of Verhulst and the difficulties of its expression in biological terms are then pointed out. (shrink)

Following an introduction to international law regarding the use of force, the author examines the impact of post-9/11 practice, focusing on the right of self-defence. After critically reviewing operation Enduring Freedom, the U.S. National Security Strategy, the ‘Yemen strike’ and the war in Iraq, including the justifications offered for these actions and the international responses to them, as well as developments in NATO and the EU, he concludes that there is a tendency towards a broader interpretation of the right (...) of self-defence, in that this right may be extended to attacks by non-state actors and such attacks may be more easily attributed to states that support such actors. However, the author submits that this interpretation has not yet been sufficiently affirmed to have changed the law, that the rules of the UN Charter still accurately reflect the law and that there is insufficient support for a right of anticipatory or pre-emptive self-defence. Finally, he recommends strengthening the effectiveness of the Security Council and regional organizations such as the EU and NATO to avoid the risk of a true deregulation of the use of force. (shrink)

Interpretations of the tax law, issued by tax authorities, are a fairly new institution in Poland. They were introduced into the legal system by the Tax Ordinance Act of 29 October 1997. From that time these regulations were deeply changed three times. Now it seems that Polish legislator has finally succeeded in elaborating an appropriate model for binding interpretation of tax law that protects the interests of taxpayers. However, discussed regulations seem to need some other amendments. The objective of (...) this article is to present the evolution of the provisions pertaining to the issuing of the so-called official interpretations of tax law and to point at certain shortcomings of the present regulations. (shrink)

This article relates to the CJEU’s understanding of the concept of the spouse in Case C-673/16 and its effect on the process of law application by Polish administrative courts. The authors considerations are based on the assumption that the CJEU’s interpretation of EU law in Coman and Others is of a dynamic-deliberative nature, based on functional rules, and that at the same it time takes into account a specific legal and socio-cultural context in which one of the fundamental freedoms (...) guaranteed by EU law is implemented. This judgment, as authors underline, confirms that a proper understanding of the current legal context of the concept of a spouse requires that the social and cultural context and the plurality of values arising from different lifestyles be taken into account in the application and interpretation of the law, all with a view to empowering the individual in his or her relationship with the State and raising the level of protection of human rights. Authors observe in the practice od Polish administrative courts that this CJEU’s judgment is important in the argumentative layer, but not decisive for the resolution of the case in specific situations where there is a need to address the effect of same-sex marriage in a case related to the implementation of the EU right to free movement. In this context authors consider whether the justification for rulings of administrative courts may be sought in John Gray’s concept of modus vivendi liberalism. (shrink)

The obligation of the legalization of entrepreneurial activity from Article 14 of The Act of July 2, 2004 on the freedom of entrepreneurial activity caused deliberations regarding constitutive or declarative character of the legalization entry and as a result, created a problem with indication of the moment when the public law status of an entrepreneur is acquired. The answer to the question whether Central Register and Information of Entrepreneurial Activity or the register of entrepreneurs of the National Court Register have (...) also the creation function incites many controversies and is subject to discussions, in the process of which two main standpoints were formed. It is also important to note that the resolution of the discussed issue not only holds scientific value, but above all, it has significant importance in practice. Therefore, it is necessary and even essential. Furthermore, it is typical for this issue that concerns related thereto and arguments raised during the discussion have their basis in the legislation in force and in fact, encapsulate the favoured path of its interpretation. (shrink)

Any abstract account of a field of law must make generalizations that are both faithful to the legal materials and appropriate to the subject matter's aims. The uniqueness and fluidity of the European Union's institutions makes such generalizations very difficult. A common theoretical approach to EU law (one that is often relied upon by the Court of Justice, the Parliament and the Commission) is to borrow directly from the theory of domestic constitutional law. The most recent manifestation of this tendency (...) is the draft Treaty on the European Constitution, which includes many of the symbolic features of a domestic constitutional order. But the European Union is not a state and the constitutional analogy is in many ways problematic. In this article I defend the view that a more complex theory is more appropriate to the unique combination of ordinary politics with diplomatic conferences that constitutes the European Union. The key to these institutions is, in my view, a Kantian international ideal of liberal peace. The foundational constitutional principles of the EU, principles that both fit the current legal framework and offer its most attractive interpretation, require the qualified autonomy of member states in a union of republics that create collective institutions for the purposes of liberal peace. (shrink)

The non-discrimination principle is one of the essential principles in the area of European public and private law too. The importance of this principle also takes a great place in field of company law, especially in the area of “freedom of establishment of the companies” in the European Single Market. Freedom of establishment of companies is closely related to the general concept of “free movement of people, capital, goods and services,” in ESM. In fact, freedom of establishment is a substantive (...) part of the process of creation the internal market in EU. The freedom of establishment is based on the Treaty of the functioning of EU. According to article 49 from TFEU, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. This prohibition also applies to restrictions on setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. In-depth exploration of this issue is conditioned by the interpretation of the Court of justice of European Union, which embodies the real legal regime of freedom of establishment. Freedom of establishment of companies is closely related to the principles of healthy and fair competition and equal access of the companies too. This article seeks to elaborate fundamental theoretical aspects of this issue, considering certain case - study analyze of CJEU judgements. The main focus is on the non-discrimination principle, legal effects of the CJEU judgments, free market and competitiveness, and finally, determination of the concept of primary and secondary establishment of companies in EU. (shrink)

The question of detention of asylum seekers is specific due to the special situation of detainees (persons who have experienced human rights violations and apply for asylum in receiving country) and due to peculiarities of detention itself (persons have not committed crimes, but come or stay illegally because they have been forced to do so by fleeing from human rights violations). Therefore, lately it raises many discussions at the European level. Sooner or later, discussions influence national laws, as after adopting (...) the EU directives their provisions must be properly transposed into national laws. This article describes the recent documents: the study in Lithuania, the UNHCR guidelines, the EU developments, the Lithuania judicial practice. The authors of the article discuss the latest amendments of the Law on the Legal Status of Aliens (entering into force on 1 February 2012) related to detention of asylum seekers after the transposition of the provisions of the Return Directive. The practice of the Supreme Administrative Court of Lithuania when applying the new detention-related provisions is also reviewed in the article. The authors do not agree with the position of the Supreme Administrative Court of Lithuania that the provisions of the Return Directive are applicable to asylum seekers. The authors pay attention to the case-law of the European Court of Justice, the preamble of the Return Directive and its legal relations with the EU asylum directives. At the end, the conclusions are drawn as to the way that the provisions of the Law on the Legal Status of Aliens should be interpreted in the light of the purposes and provisions of the European Union directives. In order to avoid contradictory practice and at the same time ensure the interests of public order in Lithuania, Article 113(7) of the Law on the Legal Status of Aliens could be applied. (shrink)

The results of the linguistic interpretation should be verified through systemic and purposive methods of interpretation. That process is especially desirable in the cases where the result of the linguistic interpretation is not unequivocal. Whereas, as practice demonstrates, the quality of tax law is not the best, it is impossible to overestimate the role of the non-linguistic method of interpretation. The object of this paper was to present the role which the linguistic interpretation may play (...) in interpreting the tax law. However it was also important to: place the purposive interpretation among the methods of tax law interpretation and to present static and dynamic elements in tax law interpretation. Within the frames of this paper one can find out about historical interpretation of tax law, economic method of tax law interpretation and purposive interpretation directives. The above considerations allow for posit a thesis according to which purposive interpretation is an indispensable element of the process of interpreting a legal text. Its role in the scope of norms of tax law is, however, peculiar, since it serves only to verify the results of linguistic interpretation. However, it can be indicated that the growth in importance of purposive interpretation is direct proportional to the fall in the quality of tax law regulations. (shrink)

The topic of annotating legal data has received surprisingly little attention. A key challenge of the annotation process is reaching a sufficient agreement between annotators and filtering mistakes from genuine disagreement. This study presents an approach that provides insights into and resolves potential disagreement amongst annotators. It (1) introduces different strategies to calculate agreement levels and compares (2) agreement levels between annotators (inter-annotator agreement) before and after a revision round and (3) agreement levels for annotators who annotate the same texts (...) twice (intra-annotator agreement). The inter-annotator agreement levels are compared to a revision round in which an arbiter corrected the annotator’s labels. The analysis is based on the annotation of EU legislative provisions at two stages (initial annotations, after annotator revisions) and for various tasks (Definitions, References, Quantities, IF-THEN statements, Exceptions, Scope, Hierarchy, Deontic Clauses, Active and Passive Role) by multiple annotators. The results reveal that agreement levels vary based on the stage of measurement (before/after revisions), the nature of the task, the method of assessment, and the annotator combination. The agreement scores - along with some initial measurements—align with those reported in previous research but increase after each revision round. This suggests that annotator revisions can substantially reduce disagreement. Additionally, disagreements were found not only between but also among annotators. This inconsistency does not appear to stem from a lack of understanding of the guidelines or a lack of seriousness in task execution, as evidenced by moderate to substantial inter-annotator agreement scores. These findings suggest that annotators identified multiple valid interpretations, which highlights the complexity of annotating legislative provisions. The results underscore the significance of embracing, addressing, and reporting about (dis)agreement in different ways and at the various stages of an annotation task. (shrink)

The article aims to provide a semiotic interpretation of the sign of the Ecclesiastical Court within the legal framework from temporal and spatial perspectives. The starting point of the research is the idea that the history of the Russian Ecclesiastical Court is inextricably linked to the history of Russian society and secular court. Consideration of the pre-revolutionary ecclesiastical and secular law helps us explore principles of the ecclesiastical proceedings and organization, identify contradictions in understanding modern Ecclesiastical Court. Its sign (...) is not only limited to the legal interpretation. In his novel The Brothers Karamazov, Dostoevsky F. M. gave the sign of the Ecclesiastical Court symbolic meaning and, thus, expanded it beyond the existing legal framework. The Ecclesiastical Court is one of the symbols of Russian spirituality which is reflected in the concept of “Russian soul”. Rational elements of the sign of Ecclesiastical Court as well as its sensual and metaphorical components, are analyzed using the category of Truth. Clearly, the Cross is sign-symbol for Christianity. But if applied to the concept of Ecclesiastical Court, the Orthodox Cross becomes a sign-index. As a result, several semantically heterogeneous meanings of the sign of Ecclesiastical Court are revealed and described. (shrink)

The development of citizenship in the framework of European integration has been marked by conceptual innovations. This article concentrates on three of its elements: antidiscrimination rights, the concept of Union Citizenship, and the right to free movement. In these cases, either concepts were newly coined, or already-established concepts were newly interpreted in the context of the European Union by the European Commission or by the Council. In a second step, they were then incorporated into new EU citizenship laws and then (...) transferred into national legislation and national political and administrative practice. During the implementation phase in the member states, the innovations often led to conflicts related to the interpretation of the new concepts in political and administrative practice. The article discusses the related processes as a pattern of conceptual innovation by law making that is typical for the EU. (shrink)

The article analyses information exchange agreements between competitors. The article aims to reveal the cases where the exchange of information between competitors might be considered as a prohibited agreement, violating Article 101 of the Treaty on the Functioning of the European Union or Article 5 of the Law of the Republic of Lithuania on Competition. The article analyses the legal nature of the information exchange agreements between competitors, with utmost regard to the criteria, according to which an agreement on the (...) exchange of information could be acknowledged as prohibited or violating the rules of competition law. In the article it is presumed that information exchange agreements do not aim at restricting competition, however in certain cases they might have the effect of restriction of competition. (shrink)

Machine generated contents note: 1. Introduction; 2. Peace; 3. Rule of law; 4. Human rights; 5. Democracy; 6. Liberty; 7. The institutional ethos of the EU; 8. Towards the EU as a just institution; 9. Concluding proposals.

The paper focuses on the general principles established in the caselaw of the European Court of Human Rights while applying and interpreting the Article 3 of the First Protocol of the Convention for the Protection of Human Rights and Fundamental Freedoms which provides: „The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.“ Article 3 of (...) the First Protocol enshrines a fundamental principle for effective political democracy, and is accordingly of prime importance in the Convention system. It refers not only to positive obligation of the Contracting State to organize democratic elections, but also guarantees individual rights, including the right to vote and the right to stand for election, although this is not explicitly stated in it. These rights are not absolute; there is room for “implied limitations” and Contracting States are given a wide margin of appreciation in this sphere. However, these limitations must be such that the rights in question were not curtailed to such an extent as to impair their very essence and deprive them of their effectiveness, should be imposed in pursuit of a legitimate aim and should not be disproportionate. (shrink)

Quine’s project of “naturalized epistemology” is usually interpreted as a rejection of classical epistemology, which becomes merely a “chapter of psychology”. It does not imply, however, a different understanding of the character of naturalization is inadequate or wrong. Susan Haack’s interpretations are briefly analyzed in the paper. Thereafter, they are harnessed as models of interpretation of the “naturalization of law”. The main aim is to point the radical reading of Quine’s project is not the only acceptable one. Consequently, there (...) are at least three models of the “naturalization of law” that are analogical to the “naturalization of epistemology”. The author details their character. (shrink)

This book explores the question of how international law is applied by domestic courts. Through case studies and analysis the contributors consider how traditions and diversity affect the interpretation of international law, from a mixture of doctrinal, practical, and theoretical approaches.

I criticize the widely accepted “practical” interpretation of the universality test contained in Kant’s first formula of the categorical imperative in the Groundwork of the Metaphysics of Morals – the formula of the universal law of nature. I argue that this interpretation does not work for contradictions in conception because it wrongly takes contradictions in the will as the model for them and, as a consequence, cannot establish a clear distinction between the two kinds of contradiction. This (...) class='Hi'>interpretation also assumes an understanding of universality that departs from Kant’s own and, cannot, for this reason, capture the kind of contradiction that he explicitly claims to establish. I provide an alternative interpretation, which I call revised logical interpretation, that allows us to account for contradictions in conception, including those examples that the practical interpretation cannot handle, as well as to establish a clear distinction between the two kinds of contradiction. (shrink)

We review different studies of the Periodic Law and the set of chemical elements from a mathematical point of view. This discussion covers the first attempts made in the 19th century up to the present day. Mathematics employed to study the periodic system includes number theory, information theory, order theory, set theory and topology. Each theory used shows that it is possible to provide the Periodic Law with a mathematical structure. We also show that it is possible to study the (...) chemical elements taking advantage of their phenomenological properties, and that it is not always necessary to reduce the concept of chemical elements to the quantum atomic concept to be able to find interpretations for the Periodic Law. Finally, a connection is noted between the lengths of the periods of the Periodic Law and the philosophical Pythagorean doctrine. (shrink)

Clinical research with children generates special ethical concern, raising the need for additional protections beyond those for research with competent adults. Most guidelines permit research with children when it offers a prospect of direct benefit, or poses minimal risk. Unlike many other guidelines, the U.S. federal regulations also allow institutional review boards to approve pediatric research that does not offer a prospect of direct benefit when the risks are no greater than a minor increase over minimal risk. To approve research (...) in this category, IRBs must find that two additional conditions obtain:1). The intervention or procedure presents experiences to subjects that are reasonably commensurate with those inherent in their actual or expected medical, dental, psychological, social, or educational situations; and 2). The intervention or procedure is likely to yield generalizable knowledge about the subjects disorder or condition which is of vital importance for the understanding or amelioration of the subjects disorder or condition. (shrink)

A new interpretation of the modern two-pronged tests for insanity Michael Moore has argued that modern two-pronged tests for legal insanity are wrongheaded and that the insanity defense instead should be a ‘status defense’. If Moore is right, than the laws on insanity in most legal systems are wrong. This merits a critical examination of Moore’s critique and his alternative approach. In this paper I argue that Moore’s status approach to insanity is either under- or overinclusive. A new (...) class='Hi'>interpretation of the modern tests for insanity is elaborated that hinges on the existence of a legally relevant difference between the mentally disordered defendant and the ‘normal’ defendant. This interpretation avoids Moore’s criticism as well as the pitfalls of the status approach. (shrink)

Countering the influential view of Critical Legal Studies that law is an incoherent mixture of conflicting political ideologies, this book forges a new paradigm for understanding the common law as being unified and systematic. Alan Brudner applies Hegel's legal and moral philosophy to fashion a comprehensive synthesis of the common law of property, contract, tort, and crime. At a time when there is a strong tendency among scholars to view the common law as essentially fragmentary, inconsistent, and contradictory, Brudner suggests (...) instead a coherence that synthesizes several interrelated dichotomies: good-centered and right-based legal paradigms, instrumental and non-instrumental conceptions of law, externalist and internalist interpretations of the common law system, and communitarian and individualist attempts to found the legal enterprise. Brudner covers genuinely new ground through an interpretation of the common law from the standpoint of Hegelian legal philosophy. His unifying notion of common law corresponds to Hegel's notion of Geist, suggesting a designation of the mutual dependence of the community and the atomistic self for their confirmation as ends. (shrink)

I argue that, even supposing substantive principles of distributive justice entail that animals warrant constitutional protection, there are other, potentially weightier forms of injustice that would probably be done by interpreting a Bill of Rights as implicitly applying to animals, namely, formal injustice and compensatory injustice. Formal injustice would result from such a reading of the Constitution in that the state would fail to speak with one voice upon newly according legal rights to animals. Compensatory injustice would likely result from (...) such a reading, at least in a South African context, in that the law would not only suppress facets of culture that many Africans deem important to their self-conception, but also require spending scarce resources on animals that could have gone toward saving African lives and livelihoods. If the state must choose between acting for the sake of the urgent interests of animals and those of humans, humans must take priority, even assuming that animals have a worth that morally forbids harming them in our private lives. (shrink)

The ethics of Wolfhart Pannenberg has a nomological dimension at its center. Based on the history of the natural law tradition, Pannenberg maintains the possibility of the natural law theory on the following five grounds. -/- The theological ground is his understanding of the Decalogue, the Sermon on the Mount, and the Pauline interpretation of the law. For its historical ground, Pannenberg articulates the natural law theories of Patristic theology and the theologies of Troeltsch and Brunner. The ontological ground (...) is the order of the world, which God established in the process of history. The anthropological ground is the mutuality of human society. The latter two dimensions are related to the epistemological ground, which is based on the hermeneutics of universal history. -/- Pannenberg attempts to combine the law, the gospel, and love in relation to the Kingdom of God. Thus, Pannenberg’s Kingdom ethics is nomological as well as eschatological. (shrink)

Montesquieu is famous as a tireless critic of despotism, which he associates overtly with Asia and the Middle East and not with the apparently more moderate Western models of governance found throughout Europe. However, Vickie B. Sullivan argues that a creaful reading of Montesquieu's enormously influential The Spirit of the Law reveals the surprising result that he recognizes that Europe itself is susceptible to despotic practices - and that the threat emanates not from the East but rather from certain despotic (...) ideas that inform Western institutions and practices. Sullivan guides readers through Montesquieu's sometimes veiled yet sharply critical accounts of Machiavelli, Hobbes, Aristotle, and Plato, as well as various Christian thinkers have brough forth despotic ideas in the form, for example, of brutal Machiavellianism, of Hobbes's justifications for the rule of one, of Plato's reasoning that denied slaves the right of natural defense, and of the Christian teachings that equated heresy with treason. Such ideas, Montesquieu shows, inform such revered European institutions as the French monarchy and the Roman Catholic Church. In this new reading of Montesquieu's masterwork, Sullivan corrects the misconception that it offers simple, objective observations, showing it to be instead a powerful critique of European politics that would become remarkably and regrettably prescient after Montesquieu's death, when despotism repeatedly emerged in Europe with virulent intensity. -- from dust jacket. (shrink)

This paper analyzes how, during the Juncker Presidency, the European Commission employed argumentative strategies to address the question of member-states’ compliance with European Union law. There is a literature gap regarding how European leaders employ argumentative strategies to coax member-states to comply with EU legislation and how those strategies can be associated with multilevel governance designs and problem-solving approaches. Building on van Eemeren and Grootendorst’s pragma-dialectical approach to argumentation, the paper explores what dialectical and rhetorical strategies were employed by the (...) Juncker European Commission to build an argumentative regime where the question of compliance with European Union law is articulated with the representation of the European Union as an efficient multilevel governance system. Starting from the distinction between procedural and operational concepts of problem-solving in multilevel governance polities, the paper questions whether the Juncker Commission’s arguments on the need to ensure European Union law compliance favor a particular conception of problem-solving in multilevel governance systems. The paper argues that the argumentative strategies employed by the Juncker European Commission in the field of compliance reveal a preference for an operational notion of problem-solving combined with some aspects of a more procedural perspective of problem-solving in multilevel governance polities. The background of this paper is associated with the growing impact that European legislation has on member-states and also with the efforts developed by the Juncker European Commission in discussing how to improve EU regulation to increase compliance with EU law. (shrink)