The article aims at resolving the issue whether the Court of Justice of the European Union (CJEU) has an exclusive jurisdiction under Article 344 of the Treaty on Functioning of the European Union (TFEU) to resolve disputes between Member States, stemming from provisions of an international treaty, a party to which is the EU. This problem is especially relevant in cases when a mixed international agreement envisages independent institutions of dispute resolution. The position of the CJEU is expressed in the (...) case of Mox Plant. The European Commission applied to the CJEU against Ireland, because it considered that Ireland, which started an arbitration procedure against United Kingdom under the UN Convention on the Law of the Sea, has infringed the exclusive jurisdiction of the CJEU under Article 344 of the TFEU. The EU is also a Contracting Party to the UN Convention on the Law of the Sea. Therefore according to the consistence case practice of the Court, the provisions of the Convention that fall under the competence of the Union constitute an indivisible part of the EU legal system. Only in such case when a provision of a treaty is attributed to exclusive competence of the Member States, the jurisdiction of the CJEU regarding that provision can be negated. Thus, when deciding on the issue of exclusive jurisdiction of the CJEU in principle, a problem of attribution of the EU and Member States’ competences arises. (shrink)

Although the Lisbon Treaty maintained the general exclusion of Common Foreign and Security Policy (CFSP) matters from ECJ jurisdiction, it introduced a number of changes into this area, including an explicit statement that the Court is competent to review the legality of the Council decisions imposing restraining measures on persons. The article analyzes the nature and origin of those changes and considers the legal implications for the level of the protection of fundamental rights in the European Union. For this purpose (...) the author firstly considers the context of the exclusion of CFSP matters from the ECJ jurisdiction, including discussions on the issue at the European Convention, and, secondly, takes a closer look at the separate heads of jurisdiction over which the Court is competent to act after the entry into force of the Lisbon Treaty. A conclusion is made that the Lisbon Treaty did not introduce significant changes to ECJ jurisdiction. Similarly to the pattern of previous amendment treaties, the Lisbon Treaty again gave recognition to the practice of the ECJ on relevant questions. Nonetheless, the amendments made by the Lisbon Treaty should be welcome for introducing more clarity into the legal regulation of the matter, thus boosting the legal certainty and protection of fundamental rights in the European Union. (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)

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)

The main subject of the present research is the enforcement of the European Union law in the domestic legal order. This topic was chosen considering the Treaty of Lisbon amending the Treaty on the European Union and the Treaty establishing the European Community and especially its declaration No. 17 on primacy of EU law. This article will explain the meaning of primacy of the European Union law and the resulting problems in some EU Member States, as well as possible solutions (...) to tackle the problems. The primacy of the European Union law over the national law was recognised as one of the constitutive principles of the European Union. The article includes relevant provisions of the Lisbon Treaty that deal with the rules concerning the legal requirements of the primacy of the European Union law in the EU primary law. The European Court of Justice has developed the meaning of the principle of primacy, which means that the European Union law should take precedence over national law (even over constitutional provisions) and should there be any conflicts between EU law and national law, every national court is obliged to apply the law of the European Union. The main issue of this article is analysing the principle of primacy of the European Union law over the Lithuanian law. (shrink)

Straipsnyje apžvelgiamos Lietuvoje nuo 1992 m. veikiančio nepriklausomo lotyniškojo tipo notariato nūdienos aktualijos, patirtis, iššūkiai bei perspektyvos Lietuvos teisės kontekste, taip pat atsižvelgiant į tarptautines notariato veiklos teisinio reglamentavimo tendencijas. Straipsnyje aptariamas daug diskusijų sukėlęs ir Europos Sąjungos Teisingumo Teismą pasiekęs pilietybės reikalavimas asmenims, norintiems tapti notarais, notarų atliekamų funkcijų įvairovė bei jų spektro pokyčiai skirtingose valstybėse ir laiko požiūriu, e. notaro koncepcija, notarinių paslaugų tarptautiškumo didėjimas bei naujausios Europos Sąjungos notarų veiklos teisinio reglamentavimo iniciatyvos, (...) notariškai patvirtintų autentiškų dokumentų galiojimas. (shrink)

World Trade Organization (WTO) Agreement includes the Annex 2 Dispute Settlement Understanding (DSU) that reveals with WTO dispute settlement rules and procedures. The Dispute Settlement Body (DSB) is hereby established to administer these rules and procedures. The article analyses the problematic issues of the direct effect of the DSB decisions in the European Union (EU) legal order. ECJ concluded that an individual does not have the right to challenge, the incompatibility of Community measures with WTO rules, even if the DSB (...) had previously declared the EU legislation to be incompatible with those rules. The position of the ECJ is based on the WTO dispute settlement system specifics—the importance of the negotiation between the parties, even after the DSB decision-making and lack of reciprocity, which means that major commercial partners of the EU does not recognize the direct effect of DSB decisions. (shrink)

The system of the European Convention on Human Rights created in 1950 is still regarded as the most important and effective regional system for the protection of human rights in the whole world. However, the experience of the European Court of Human Rights (ECHR) has clearly showed that the steady growth in the number of cases brought before the ECHR makes it increasingly difficult to keep the length of proceedings within the acceptable limits and to maintain the effectiveness of the (...) ECHR. This aspect is becoming extremely important due to the fact that the European Union (EU) will join the Convention system in the near future. The legal basis for the EU accession to the Convention system has been made possible after the entering into force of the EU Lisbon Treaty on 1 December 2009, and, from the Convention’s perspective, the new Protocol No. 14 to the Convention, which entered into force on 1 June 2010, and which, in Article 17 (amending Article 59 of the Convention), stipulates that the EU may accede to this Convention. (shrink)

This essay deals with conditions, challenges and perspectives concerning the legal system of the European Union after the Lisbon treaty has entered into force. It starts out by recalling constitutional principles such as primacy, direct effect and consistent interpretation of the European legal order on the one hand and the relationship of cooperation between the Court of Justice and national courts – notably pointing out the importance of the preliminary procedure (Article 267 TFEU) – on the other hand. In addition, (...) characteristics of the legal system of the European Union such as the integration of national legal systems are highlighted. It is accentuated that the legal community of the European Union depends on the acceptance by all 27 Member States. Furthermore, the normative quality of European law-making is discussed as well as the necessity for a sufficient democratic legitimation of European Law. As impressively illustrated by the financial crisis, the European Union is much better equipped with possibilities to effectively fulfil regulatory tasks than any Member State. The author shows developments with regard to European Union citizenship, non-discrimination, the Charter of Fundamental Rights - that is now equipped with binding character – and the vertical distribution of competences between the European Union and the Member States, including explanations relating to subsidiarity requirements and their judicial review. Moreover, challenges to the institutions of the European Union are discussed. (shrink)

Even though the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) does not explicitly address the rights of asylum seekers and refugees, the case law of the European Human Rights Court (ECtHR) confirms that their rights can be successfully defended under this mechanism. In parallel, in its evolving jurisprudence on asylum the Court of Justice of the European Union (CJEU) refers to the Strasbourg case law, where there is a certain interrelationship between these two jurisdictions, in particular (...) given the recent ECtHR pronouncement on “EU Dublin transfers”. The article aims at evaluating protection available for asylum seekers and refugees under the ECHR, while comparing it with protection of asylum relevant fundamental rights under the EU legal order and the most recent jurisprudence of the CJEU in asylum cases. The authors also analyze which of the two systems is more favourable and what are their limitations. Thus, the article offers to students and practitioners a detailed analysis of ECtHR and CJEU jurisprudence in asylum cases through a comparative perspective, as well as the key problematic aspects arising in both jurisdictions and their junction. The jurisprudence of the ECtHR reveals that despite the most developed protection from expulsion under Article 3 of the ECHR, it does not sufficiently secure status for the concerned persons. Effective remedy requirements under the ECHR allow for filling the gaps of national asylum procedures, while recognition of vulnerability and special status of asylum seekers by the ECtHR assist in addressing still commonly prevailing detention problems of asylum seekers in Europe. In the context of family protection, the recognition of positive obligations by states to reunite the refugee families is still rudimentary, thus, clearly Article 3 protection in expulsion cases takes over Article 8. At the same time, the jurisprudence of the CJEU in asylum cases is still inconsistent, as the court sometimes takes decisions without including human rights into its’ analysis (Kadzoev, Arslan, K.), while in other cases refers to the Charter (MA and others), verifies if its’ own decision is in line with the ECtHR jurisprudence (Elgafaji) or shapes secondary legislation in line with Strasbourg arguments and findings (N.S.). Quite likely, the ECtHR practice will have an important influence on the developments of subsidiary protection in the EU, at least in the context of Articles 2 and 3 of the ECHR, and serve as an important reference for interpretation of various concepts under the EU Qualification and Procedures Directives. The comparative analysis of pros and cons of the two mechanisms demonstrates that the main advantage of the ECtHR is individual justice possibility, which is not yet accessible under CJEU preliminary judgement procedure and its input in developing asylum law concepts, such as non-state agents of persecution, internal protection or even subsidiary protection regime under EU asylum law. Thanks to the ECtHR, the realistic possibility to question the application of certain EU norms has emerged (Dublin Regulation). While the ECtHR does not have such a specific competence over asylum issues as the CJEU and is clearly a slow and seriously overburdened mechanism, the pilot judgement procedure seems to be increasingly capable of providing guidelines to the states concerning systematic problems in their asylum procedures. Thus, both jurisdictions in their own ways contribute to strengthening asylum seekers’ protection while forming a common oasis for these individuals in Europe. (shrink)

Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty set out that in carrying out the duties assigned to it by Article 89 and by provisions adopted under Article 87 of the Treaty, the officials authorized by the EU Commission were empowered inter alia to enter any premises, land and means of transport of undertakings. Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 (...) and 82 of the Treaty has expanded Commission’s powers stating that Commission can by decision order an inspection to be conducted in any other premises, land and means of transport, including the homes of directors, managers and other members of staff of the undertakings and associations of undertakings concerned. Such an expansion of the investigative powers of the Commission raises a question of the balance between effectiveness of the EU competition law and a person’s right to privacy, which is guaranteed to everyone by the Article 8 of the European Convention on Human Rights. Nevertheless this right is not absolute and the conditions for the possible limitations of the exercise of it are enshrined in paragraph 2 of the same article. For this reason the aim of this article is to find out whether Commission’s power to carry out searches in private homes meet the requirements set in Article 8(2) of the Convention, i.e., whether the Commission’s power to conduct such searches could be justified under the ECHR Article 8(2). In this study, the authors analyse the Commission’s extended investigative powers, clarify what is covered by the concept of “privacy”, evaluate the requirements set in Article 8(2) of the Convention, analyse conditions of exercising Commission’s extended investigative power and thus qualify if the latter satisfies the requirements set in Article 8(2) of the ECHR. (shrink)

Straipsnyje nagrinėjamas Lietuvos Respublikos darbo ginčų instituto reformavimas ir kaita Nepriklausomybės laikotarpiu atskirų Europos Sąjungos valstybių patirties kontekste. Darbo ginčų reforma Lietuvoje minimu laikotarpiu vyko keliais etapais, iš jų paskutinysis, prasidėjęs 2013 m. sausio 1 d., pakeitė darbo ginčų komisijų organizavimo tvarką, šias komisijas pradėjus kurti teritoriniu principu, prie veikiančių Valstybinės darbo inspekcijos teritorinių padalinių, nustačius, kad į darbo ginčų komisiją su skundu gali kreiptis ne tik darbuotojas, bet ir darbdavys, įvedus kitas naujoves. Tačiau šie pokyčiai vis dar (...) neatspindi europinių tendencijų, kiek įmanoma mažiau institucionalizuoti ikiteisminę individulių darbo ginčų nagrinėjimo tvarką. Straipsnyje akcentuojama mintis, jog darbo ginčų instituto reforma laikytina nebaigta ir, tikėtina, bus tęsiama, remiantis pažangiausia kai kurių ES valstybių praktika šioje srityje, tačiau išlaikant nacionalinį teisinio reguliavimo ypatumą. (shrink)

In its jurisprudence relating to Article 267 TFEU, the Court of Justice of the European Union seems to oscillate between two different approaches. According to the jurisprudential mainstream, the preliminary ruling is an instrument of dialogue between national courts and the Court of Justice. This constant dialogue can fulfill the role assigned to the Court to ensure consistency of interpretation and application of Union law. Another line of cases, however, seems to make preliminary rulings means for individuals to ensure their (...) rights which derive from EU law. These two visions of the preliminary references recently have been opposed in discussions about a particular aspect of the preliminary procedure, which is the late withdrawal of the question referred by the national court. In fact, when the national court considered that the response of the Court of Justice was not “necessary to render judgment,” it could, at any time, including both before and after the deliberate publication, date the judgment to the parties and remove this issue. Therefore, the jurisdiction of the Court of Justice became dependent on matters of procedure (dealings between the parties, amicable agreements, etc.) that occurred in extremis before the national court, which sometimes cast doubt on a possible manipulation of the Court by the parties to the main proceedings. It became necessary to find a solution to solve this problem. The two different visions were then compared. If the preliminary ruling is conceived as an additional instrument for the rights that individuals derive from EU law, there is no need for the Court of Justice of the European Union to make a decision when the dispute is resolved before the national court and the defendant has obtained satisfaction. Conversely, if the preliminary ruling is conceived as an instrument to ensure the uniform application and interpretation of EU law, this judgment may be necessary. In fact, without deciding in abstracto, the Court in its judgement will anchor an interpretation that should be applied in all similar cases in the courts of the 27 Member States. In this case, a judgment may still be necessary, even if the dispute before the national court ended off. In order to preserve this approach, the new Rules of Procedure now contain a provision in Article 100 (1) which reads as follows: “The Court shall remain seised of a request for a preliminary ruling for as long as it is not withdrawn by the court or tribunal which made that request to the Court. The withdrawal of a request may be taken into account until notice of the date of delivery of the judgment has been served on the interest persons referred to in Article 23 of the Statute”. Thus, the late withdrawal of a request for a preliminary ruling is clearly limited in time and, even if such removal would occur in extremis, the judgment of the Court will be delivered in the interest of interpretation and uniform application of Union law. (shrink)

The main aim of this research is to analyse the peculiarities of legal regulation of metrology and the problems arising in this area. The content of the article is divided into two parts. The first part of the article analyses the concept of metrology, reveals the relation between fundamental and legal metrology and accentuates problems of metrology as well as repressive means applied in the metrological procedure. The second part analyses the European Union as well as national legislation regulating the (...) implementation of metrology in Lithuania and peculiarities of harmonisation of national law with the European Union legislation. (shrink)

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)

This article analyses the legal basics of the Member States liability in damages for the breach of European Union law and the conditions for liability. It is emphasized that the Member States liability in damages for the breach of European Union law has three different grounds—one direct legal background (Article 4 of the Treaty of the European Union) and two indirect basics—principles of direct effect and that of effectiveness of European Union law. The author subsequently examines the content of each (...) condition for liability established in the practice of the Court of Justice of the European Union —the intention of the rule of European Union law infringed to confer rights on private parties, the sufficiently seriousness of the breach and the direct causal link between the breach and the damage. It is stated that in order to prove that a Member State is liable for the breach of European Union law, one more condition for liability should be established—a private party must prove that he has incurred particular damage. It is also highlighted that the second condition for the Member States liability in damages for the breach of European Union law —sufficiently seriousness of the breach—restricts the right of a private party to obtain compensation. (shrink)

The article deals with the question whether a state might be held liable for the infringement of the European Convention on Human Rights if its national court of last instance fails to implement the obligation to make a reference for a preliminary ruling to the Court of Justice of the European Union under the conditions laid down in Article 267 of the Treaty on the Functioning of the European Union and developed in the case-law of the Court. Relying on well-established (...) practice that an arbitrary decision not to refer a question for a preliminary ruling theoretically could infringe the right to a fair trial, the author analyses the practical application of the “arbitrariness rule” and discusses whether the European Court of Human Rights has established any specific criteria that national courts are required to bring into play in order to substantiate the decision not to refer. (shrink)

The article discusses the certain features of the constitutional doctrine of human rights developed by the Constitutional Court of Lithuania which were influenced by the jurisprudence of the European Court of Human Rights, the role of the European Convention on Human Rights as a legal source in the system of sources of constitutional law. The intersection of the jurisprudences, which came into being due to different assessments of the legal regulation in cases where the same legal act was recognized by (...) the Constitutional Court being in compliance with the Constitution and the European Court of Human Rights recognized that the application of the said act was a cause of the violation of a certain person’s rights protected by the Convention (or vice versa) is one of the most important questions and raises many theoretical and practical problems. Different assessment of the legal acts made by the European Court of Human Rights with regard to their compliance with the Conventionshould not be regarded as such an essential circumstance which could lead to possible repeated review of such legal act at the Constitutional Court, such intersection of the jurisprudences, should be solved by ordinary courts while following the doctrine that in cases where legal acts contain the legal regulation which competes with that established in the international treaty, the international treaty should be applied. (shrink)

The article underlines the significance of social rights as important constitutional rights of a human being and emphasises the peculiarities of their nature from the point of view of not only national, but also international law. The article presents an analysis of the constitutional doctrine of the protection of guarantees of social rights, which has been formulated by the Constitutional Court of the Republic of Lithuania in the course of considering the issues of reduction of social guarantees—pensions and remuneration, which (...) were determined by the economic crisis. In the Constitutional Court’s jurisprudence the personal right to social security has been construed in the most broad and comprehensive terms. The human rights and freedoms enshrined in the Constitution have been treated as constituting an integrated and harmonious system, and social rights have been interpreted not only as certain obligations of the state to the public, which inter alia are determined by the social purpose of the state, but also as a person’s individual rights, for which judicial defence is guaranteed. Such concept of the said rights has also been influenced by international law, inter alia the jurisprudence of the European Court of Human Rights. Social rights, while being an object of regulation of international law, have been forming the European doctrine of guarantees of these rights and have influenced the concept of these rights in national law. The main attention in the article is devoted to the analysis of the doctrine formulated in the Constitutional Court’s jurisprudence in relation to the correction (limitation) of social rights (payment of pensions and remuneration) under the conditions of economic crisis. In the article the period of formation of this doctrine is divided into two stages: the period of 2002–2006, when the Constitutional Court had to decide regarding the compliance of the legal acts whereby social guarantees had been constricted with the Constitution, and which was caused by the consequences of the so-called Russian economic crisis for the economic development of the state of Lithuania; and the period from 2009 to date, during which the Constitutional Court has been forming the constitutional doctrine of limitation of social rights, which was conditioned by the outcomes of the global economic crisis for the economy of the state of Lithuania. The article raises a question as to whether the constitutional doctrine being formed by the Constitutional Court in relation to the limitation of social rights under the conditions of economic crisis may be assessed as an independent one or whether it still remains to be a separate case of limitation of rights within the general doctrine of limitation of human rights. On the basis of the analysis of the Constitutional Court’s jurisprudence, a conclusion is drawn that the criteria established in the Constitutional Court’s doctrine of limitation of social rights under the conditions of economic crisis are even stricter than the universally recognised criteria for the limitation of human rights in the law of human rights, therefore, it is possible to assess the doctrine of limitation of social rights under the conditions of economic crisis, as formulated by the Constitutional Court during 2009–2012, which is the continuation of the previous doctrine, as an independent doctrine, the basis of which, undoubtedly, remains to be formed by the general principles of limitation of human rights recognised in the law of human rights. The article is not only confined to the analysis of the jurisprudence of the Constitutional Court of the Republic of Lithuania, it also provides examples of construction of the doctrine of social rights (inter alia those influenced by the economic crisis) by certain other constitutional courts. (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 6th of February 2005 marks the deadline of transposition of the EU Council Directive No. 2003/9/EC (Reception Conditions‘ Directive) into national legislation. This article is the second in a series of articles on transposition of the European Union Asylum Directives in Lithuania and remaining concerns. It analyses the transposition of the Reception Conditions Directive in the country, the impact of the directive‘s provisions on the development of the Lithuanian asylum law and draws attention to the remaining concerns in relation (...) to implementation of this directive in Lithuania. The authors illustrate the remaining concerns with practical and live examples/stories from Lithuania. (shrink)

The paper analyses the relevant issue of the relationship of international law and European Union law. Therefore, independent systems of law exist, which inevitably arise the issue of relationship and interaction of these systems. Legal literature analyses the question of the relationship of these two systems of law on the basis of various aspects. The author has chosen the following structure of the paper: first, the general problem of the relationship of international and European Union law is discussed. While describing (...) the problem, the nature of the European Union and international law, as well as the distinguishing features of these systems of law, is analysed. The paper also provides a discussion about the decisions of the Strasbourg court and the Court of Justice of the European Union, which provide the basis of solving the problem of the relationship of these systems of law. In the second part of this paper, the main theories are analysed: the monistic, dualistic and coordination theories, which can be used to answer the issue of interaction of the two systems of law – international law and European Union 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 deals with the concept of the court’s fault in the action for damages against a state suffered due to infringement of European Union law. The author searches for the right position of the criterion in the system of the conditions of state liability and discusses whether European Union law establishes a uniform standard of fault, or at least the guidance on the application of the criterion that would enable uniform national judicial practices concerning state liability for the infringements (...) attributable to the courts of last instance. The article also analyses national legal regulation and jurisprudence of several Member States such as France, Belgium and Italy, providing the definitions of different forms of fault and (or) examples of their practical implementation. (shrink)

The article deals with the question whether a state might be held liable for the infringement of constitutional law if its national court of last instance violates the obligation to make a reference for a preliminary ruling to the Court of Justice of the European Union under the conditions laid down in Article 267 of the Treaty on the Functioning of the European Union and developed in the case-law of the Court. Relying on the well-established practice of the European Court (...) of Human Rights, which accepts that in theory an arbitrary decision not to refer a question for a preliminary ruling could infringe the right to a fair trial established in the ECHR, the author analyses whether constitutional courts of Germany, Czech Republic, Spain and Lithuania have elaborated the equivalent practice and if so, whether they have established any specific criteria that national courts are required to bring into play in order to substantiate the decision not to refer. (shrink)

The article discusses the possible consequences that can be faced by a Member State of the European Union if its national court does not comply with the obligation to make a reference for a preliminary ruling to the Court of Justice. The TFEU does not specify any sanctions applicable to a state when its national court disregards its obligation under Article 267 TFEU. Therefore, the analysis focuses on the practice of the Court of Justice and its interpretation by scholars. At (...) the outset, the author analyses whether refraining from making a reference for a preliminary ruling can lead to the duty to pay damages to an individual. Taking into account the criteria of a sufficiently serious breach formulated in the Köbler case, the author comes to the conclusion that the infringement of the obligation to make a reference for a preliminary ruling is one of the most important criteria in assessing whether a Member State has to pay damages for any loss suffered by an individual, but the infringement itself is not sufficient to make a state liable. (shrink)

This article provides a study of the legal regulations of the European enforcement order and the uniform enforcement of judgments without the exequatur procedure, which have been in place between the member states of the European Union for five years already. In the Lithuanian civil procedure law it details the implementation of Regulation (EC) No. 805/2004 of the European Parliament and of the Council of 21 April 2004 for creating a European Enforcement Order for uncontested claims in the national law (...) of Lithuania. The aforementioned legal act of the European Union has been implemented in Lithuania with the adoption of the Republic of Lithuania Law on the Implementation of the European Union and International Legal Acts regulating civil procedure of 13 November 2008. (shrink)

Notwithstanding constant “crises of confidence,” a high number of international disputes lay at the docket of the International Court of Justice in The Hague. In the word of Judge Rosalyn Higgins, states are turning to the ICJ for the peaceful settlement of their disputes. The option provided by the Charter of the United Nations in limiting the compulsory jurisdiction of the Court to certain categories of disputes, clearly contributes to convening a greater number of states to accept this international jurisdiction, (...) resolve their disputes peacefully and in accordance with international law. Not surprisingly, only a few declarations provided in Article 36 of the Statute of the Court do not contain any reservation as to the limits of the Court’s competence. Interwar Lithuania contributed heavily to the strengthening of international justice. It was amongst the first members of the League of Nations to recognise the compulsory jurisdiction of the Permanent Court of International Justice and remained its faithful supporter until the very end of the Court’s activities. International justice provided at least titular security guarantees for the young nation. This faith of the Lithuanian government in relying on international justice was rewarded in full. The Lithuanian State defended its legitimate place amongst the independent nations and successfully stood up for its interests in all three cases before the Permanent Court. (shrink)

This article addresses several aspects of interaction between procedural and conflict rule regulation in private international law both of which are subject to unification process under the European Community law. They are interdependent of each other, and use the same or similar terms on many occasions. Problems with interpretation arise in application of these legal regulations. The European Court of Justice addresses them more or less successfully. As demonstrated in this article, the interpretation of procedural rules of regulation may contribute (...) to the clarification of the conflict rules and vice versa. It can be even said that the mutual interaction of conflict rules and procedural rules through interpretation is both unavoidable and desirable. (shrink)

The article deals with the constitutional right of a person to apply to court. While construing this constitutionally entrenched right of a person, one analyses the doctrine of the right of a person to apply to court, which was formed in the jurisprudence of the Constitutional Court of the Republic of Lithuania. The right of a person to court is entrenched expressis verbis in Paragraph 1 of Article 30 of the Constitution whereby the person whose constitutional rights or freedoms are (...) violated shall have the right to apply to court. The doctrine of the Constitutional Court derives this right also from the constitutional principle of a state under the rule of law. The right of a person to court is inseparable from other norms and principles of the Constitution, which are equality of rights, the right to compensation of damage, the right to a proper court process, etc. (shrink)

Las pretensiones del autor son: (i) Describir la versión modal de la prueba ontológica propuesta por Charles Hartshorne, una versión que enfatiza la anomalía modal del concepto de Dios, que demuestra que las dos únicas alternativas metafísicas coherentes son el positivismo y un teísmo basado en la noción de “necesidad bajo condiciones tautológicas”, y que vindica esta última opción apelando a una filosofía del proceso inspirada en Whitehead y cuya herramienta conceptual básica es la distinción entre existencia y actualidad. (ii) (...) Evaluar la propuesta de Hartshorne, defendiéndola frente a equivocaciones frecuentes y desarrollándola en al menos dos aspectos, incluyendo un análisis del proyecto de Russell de reducir las proposiciones modales a enunciados de alcance, y proponiendo una concepción iterativa de la modalidad. (iii) Reivindicar la actitud filosófica de Hartshorne, un racionalismo circunspecto que evita el reduccionismo sin temer el conocimiento racional. (shrink)

Não é pensando que criamos mundos. É compreendendo o mundo que aprendemos a pensar. Cosmovisão é um termo que deve significar um conjunto de fundamentos dos quais emerge uma compreensão sistêmica do Universo, seus componentes como a vida, o mundo em que vivemos, a natureza, o fenômeno humano e suas relações. Trata-se, portanto, de um campo da filosofia analítica alimentado pelas ciências, cujo objetivo é esse conhecimento agregado e epistemologicamente sustentável sobre tudo o que somos e contemos, que nos cerca (...) e que nos relaciona de alguma forma. É algo tão antigo quanto o pensamento humano e, além de utilizar elementos da cosmologia científica, engloba tudo na filosofia e na ciência que se refere ao universo e à vida. Uma cosmovisão não é um conjunto de ideias, hipóteses e suposições, mas um sistema baseado em observação, análise, evidência e demonstração. Nenhuma cosmovisão pretende definir, estabelecer, propor, mas apenas compreender, analisar e interpretar. Cada um de nós constrói e transporta sua cosmovisão ao longo da vida, sem estabelecer formas, como pano de fundo para nosso pensamento e comportamento. Linguisticamente, o termo “cosmovisão” derivaria do alemão, equivalente ao conceito de “ Weltanschauung”, usado por vários filósofos. No entanto, essa relação linguística não é aplicável porque contraria o que propomos como cosmovisão. Esta palavra alemã refere-se a uma visão pré-lógica ou proto-experimental da realidade, com um contexto intuitivo e longe de um conhecimento crítico ainda inexistente no momento da sua formulação. Sem dúvida, as cosmovisões , no sentido em que as entendemos, abrigam e utilizam esses elementos protoexperimentais ou pré-lógicos que incluem a história, o inconsciente coletivo e todos os arquétipos que carregamos. No entanto, no conceito que aqui aplicamos, a cosmovisão vai muito além desse conteúdo, primeiro por submetê-lo constantemente ao pensamento crítico presente e, finalmente, por tornar a experiência analítica (e não o próprio pensamento ou intuição) seu universo real. António Lopes expõe a amplitude deste conteúdo: -/- “Cosmovisões não são o produto do pensamento. Não nascem do simples desejo de saber. A apreensão da realidade é um momento importante em sua configuração, mas, no entanto, é apenas um. Vem da conduta vital, da experiência da vida, da estrutura de nossa totalidade psíquica. A elevação da vida à consciência no conhecimento da realidade, na valorização da vida e na realidade volitiva é o trabalho lento e árduo que a humanidade tem feito no desenvolvimento das concepções de vida. (W. Dilthey, 1992 [1911]: 120)” Neste trabalho, buscamos traçar uma cosmovisão baseada nas realidades que a ciência oferece hoje. Não nos propomos, em nenhum momento, a fazer ciência ou teorizar a filosofia, mas sempre buscaremos ser apoiados por elas ou, pelo menos, protegidos por elas das distorções cognitivas que costumamos carregar. (shrink)

Lietuvos, kaip ir kitų Europos valstybių, teisės aktai numato bendrovės visuotinio akcininkų susirinkimo sprendimų teisėtumo užtikrinimo priemonę – tokių sprendimų pripažinimo negaliojančiais institutą. Civiliniame kodekse išvardijami teisiniai šio instituto taikymo pagrindai. Kita vertus, visuotinio akcininkų susirinkimo sprendimų pripažinimo negaliojančiais pagrindų sistemos skirtingose valstybėse skiriasi. Šiame straipsnyje siekiama pateikti bendrą įstatymo numatytų bendrovės visuotinio akcininkų susirinkimo sprendimų pripažinimo negaliojančiais pagrindų Lietuvos teisėje apžvalgą, minėtų pagrindų sistemą lyginant su užsienio valstybių teisiniu reglamentavimu.

The authors of this article use systemic, comparative and historical methods to review the most representative legal systems – rench, English and German – and analyse how these legal systems deal with the effects of change in circumstances on the performance of a contract. The authors also discuss solutions adopted by scholar groups working on supranational contract law (soft law) instruments, namely, UNIDROIT Principles of International Commercial Contracts and Principles of European Contract Law, stressing that these sets of principles have (...) significantly affected Lithuanian contract law provisions on changed circumstances. The authors concisely evaluate the case law of the Supreme Court of Lithuania on the application of the provisions on change in circumstances and their effect on the performance of a contract. (shrink)

Os dois ensaios aqui traduzidos: “Uma visita a uma glândula pineal”, publicado originalmente em 21 de abril de 1713 no número 35 do Guardian e a “A glândula pineal (continuação)”, publicado no dia 25 de abril, no número 39, formam uma unidade não apenas pela referência a ideia de glândula pineal concebida por Descartes como ponto de interação entre a alma e o corpo, mas também pela forma literária e pelo pseudônimo comum. Eles fazem parte de um conjunto de quatorze (...) ensaios atribuídos a George Berkeley, reunidos e publicados pela primeira vez apenas em 1871, no volume III da edição organizada por A. C. Fraser. Os ensaios publicados no Guardian foram escritos durante a permanência de Berkeley em Londres em 1713, quando Jonathan Swift (1667-1745) e Richard Steele (1672-1729), seus conterrâneos, contribuiriam para lhe abrir caminho no ambiente literário inglês. O principal objetivo de Berkeley ao publicar os ensaios foi o de defender o teísmo cristão contra os “livre-pensadores” da época, assumidos como materialistas e ateus. A tradução aqui apresentada foi realizada com base na edição organizada por Luce e Jessop. The Works of George Berkeley Bishop of Cloyne. Luce, A. A. and Jessop, T. E. London and Edimburgh: Nelson, 1948, v. 7, 185-192. (shrink)