Search Results

Courts

Paul Craig

in EU Administrative Law

This chapter is concerned with the relationship between the European Court of Justice (ECJ) and the Court of First Instance (CFI), and that ... More

This chapter is concerned with the relationship between the European Court of Justice (ECJ) and the Court of First Instance (CFI), and that between the Community courts and the national courts. It begins with the analysis of the central structural and jurisdictional features of the present system, followed by consideration of the case-load problems of the Community courts, and the techniques available to limit the cases that are heard. Finally, the chapter discusses the aims that should underlie reform of the Community's judicial architecture.Less

Jurisdiction

David Stone

in European Union Design Law: A Practitioners' Guide

Community designs are, by definition, supranational. Therefore, every dispute concerning a Community design (registered or unregistered) will have an ‘international’ element to it. Thus, questions ... More

Community designs are, by definition, supranational. Therefore, every dispute concerning a Community design (registered or unregistered) will have an ‘international’ element to it. Thus, questions of jurisdiction—which court or tribunal should hear the dispute—will arise in every case. Some of these questions will be easily answered, but some are more difficult. Well-resourced parties may try to take advantage of the rules to seek to obtain a more favourable result. Less

Remedies I: The Community

Paul Craig

in EU Administrative Law

This chapter discusses remedies available against the Community. It begins with a consideration of the principles governing the grant of ... More

This chapter discusses remedies available against the Community. It begins with a consideration of the principles governing the grant of interim relief pending the final decision on the substance of a case and the way in which those principles are applied in relation to both direct and indirect actions. The chapter analyses the consequences of finding that the contested measure is illegal or invalid, the extent to which the Community courts modify the basic precept that a measure found to be invalid or illegal idea is void ab initio, and the relationship between the finding that the measure is void and the obligations placed on the Community institutions to redress the wrong. It then examines compensation, the criteria for recovery under Article 288 EC, and the way in which the tests have evolved over time.Less

Remedies II: Member States

Paul Craig

in EU Administrative Law

This chapter discusses the availability of relief against Member States. It analyses the extent to which Community law imposes constraints on ... More

This chapter discusses the availability of relief against Member States. It analyses the extent to which Community law imposes constraints on national rules such as time limits, quantum of recovery, and the like. The Community courts have developed a Community cause of action for damages that is applicable against all Member States. This is examined with consideration being given to the conceptual foundations of the cause of action, its subsequent modification, and the relationship between the Community courts and the national courts in the application of the criteria for recovery.Less

Proportionality I

Paul Craig

in EU Administrative Law

This chapter focuses on proportionality as a ground of challenge to Community action. It begins with an analysis of the meaning of ... More

This chapter focuses on proportionality as a ground of challenge to Community action. It begins with an analysis of the meaning of proportionality as it has been elaborated by the Community courts. The focus then shifts to the intensity of review and the way in which proportionality has been applied. Three broad types of case can be distinguished in this respect. There are cases involving discretionary policy choices, whether social, political, or economic in nature. There are cases where the applicant alleges that the Community measure infringes a right recognized by EU law. There are finally those cases where the essence of the claim is that a penalty or financial burden that has been imposed is disproportionate.Less

The ECOWAS Community Court of Justice: A Dual Mandate with Skewed Authority

Solomon T. Ebobrah

in International Court Authority

This chapter examines whether the ECOWAS Community Court of Justice (ECCJ or Court), as an international court operating in the West African region with its peculiar sociopolitical and economic ... More

This chapter examines whether the ECOWAS Community Court of Justice (ECCJ or Court), as an international court operating in the West African region with its peculiar sociopolitical and economic context, enjoys any form or degree of actual authority in any of its main functions. The ECCJ’s two contrasting epochs represent a variation in the authority of the Court. Whereas under its 1991 Protocol, the Court enjoyed limited de jure authority with little potential for growing its de facto authority, the 2005 Supplementary Protocol introduced expansions that increased the potential for enhanced de facto authority. Ultimately, the Court’s authority varies significantly both in terms of areas of competence, as among different court-users and in relation to wider communities in its State Parties. Arguably, these variations indicate that different factors influence the responses that the Court attracts from different user-groups.Less

Reference Guide to Africa’s International Courts: An Introduction

James Thuo Gathii and Harrison Otieno Mbori

in The Performance of Africa's International Courts: Using Litigation for Political, Legal, and Social Change

This chapter is a general introduction to the eight active international courts in Africa, and the ninth inactive court, the Arab Maghreb Union (AMU) Judicial Organ. The international courts in ... More

This chapter is a general introduction to the eight active international courts in Africa, and the ninth inactive court, the Arab Maghreb Union (AMU) Judicial Organ. The international courts in Africa stem from two sources: from the sub-regional economic integration arrangements and the regional human rights system of the African Union. The African Court on Human and Peoples’ Rights is the regional human rights court in Africa. The chapter presents an overview of the general characteristics of these courts. First, excluding the AMU Judicial Organ, they all allow, or have allowed, cases from individuals and non-governmental organizations (NGOs), in addition to states against states. Second, excluding the African Court for cases by individuals or NGOs, these courts have compulsory jurisdiction. Third, although all of these courts allow states to file cases against each other, bar one exception, there have been none. The guide starts with the human rights-oriented courts: East African Court of Justice (EACJ); Economic Community for West African States (ECOWAS) Community Court of Justice (ECCJ); South African Development Community (SADC) Tribunal; and the African Court and Commission. It then discusses the Common Market for Eastern and Southern Africa (COMESA) Court of Justice, and courts that focus on economic disputes: Organization for the Harmonization of Business Law in Africa Common Court Justice and Arbitration (OHADA CCJA); Court of Justice of the Central African Economic and Monetary Community (CEMAC) Court of Justice; the West African Economic and Monetary Union (WAEMU) Court of Justice; and the least active of them, the AMU Judicial Organ.Less

The European Court of Justice 1

Arman Sarvarian

in Professional Ethics at the International Bar

This chapter examines the procedure and practice of advocacy before the European Court of Justice and General Court of the European Union. In tracing the historical development of advocacy before the ... More

This chapter examines the procedure and practice of advocacy before the European Court of Justice and General Court of the European Union. In tracing the historical development of advocacy before the Court from the early days of the European Coal and Steel Community to the present day, the chapter identifies issues particular to the admission requirements of the Court (such as the definition of a ‘lawyer’) arising from that history and manifested in its jurisprudence concerning the appearance of non-traditional legal professionals. In explaining the reasons for the relatively low incidence of problems concerning the conduct of agents and counsel in practice, the chapter also identifies a number of cases in which issues arose concerning the integrity of evidence and the honesty of pleadings. It analyses the issues of professional ethics that have arisen in the practice of the Court, including legal professional privilege or confidentiality. The chapter also sets out the limited control of the EU courts over their rules of procedure and the impact of this situation upon the potential professionalization of advocacy in the unique EU context.Less

The Role of National Courts

James Flynn

in The Law of State Aid in the European Union

This chapter addresses the circumstances, in which national courts can intervene in State aid issues and their powers to grant relief. It is also in accompaniment to that of Leo Flynn on the role of ... More

This chapter addresses the circumstances, in which national courts can intervene in State aid issues and their powers to grant relief. It is also in accompaniment to that of Leo Flynn on the role of the European Community courts in Luxembourg. It considers the question ‘how much use can national courts be in dealing with State aids?’ The focus is placed on actions brought by competitors or others who consider themselves adversely influenced by the grant of aid to someone else. It begins by presenting the recovery orders. A new role for national courts so far untested is the interpretation of block exemptions for State aids. The European Commission has the capability to act on suspicions and stray indications and to compel member states to develop the needed information. In principle, it is presented that a remedy given by a court to a claimant in order to offer relief in respect of a State aid to another does not itself constitute State aid.Less

The ECOWAS Court as a (Promising) Resource for Pro-Poor Activist Forces: Sovereign Hurdles, Brainy Relays, and “Flipped Strategic Social Constructivism”

Obiora C. Okafor and Okechukwu J. Effoduh

in The Performance of Africa's International Courts: Using Litigation for Political, Legal, and Social Change

This chapter examines the extent to which the human rights case-law of the Community Court of Justice of the Economic Community of West African States is either pro-elite or pro-poor. Without ... More

This chapter examines the extent to which the human rights case-law of the Community Court of Justice of the Economic Community of West African States is either pro-elite or pro-poor. Without assuming that “pro-human rights” necessarily translates to “pro-poor,” the chapter discusses how the Court functions more as a resource for local pro-poor activists than as a tool in the hands of anti-poor elements. The chapter conceptualizes expressions such as “the poor,” “sovereign hurdles,” “brainy relays,” and “flipped strategic social constructivism” to undergird its analysis. For example, the authors analyze the extent to which activists’ forces, acting as brainy relays, co-created and enhanced normative resources in a process styled in the chapter as “flipped strategic social constructivism.” The chapter also demonstrates the ways in which the court has been a valuable resource to the domestic activist forces who together with the Court have worked to advance the social conditions of the West African poor. Finally, the chapter examines the gaps that militate against such pro-poor activism.Less

Individual Character

David Stone

in European Union Design Law: A Practitioners' Guide

In addition to being ‘new’, a valid Community design (registered or unregistered) or a national or Benelux registered design must also have ‘individual character’.

The System of Courts and Tribunals with Jurisdiction for European Union Design Disputes

David Stone

in European Union Design Law: A Practitioners' Guide

The system of courts and tribunals determining issues under the Regulation and the Directive is complex, and, occasionally, counter-intuitive.

Competence and Subsidiarity

Paul Craig

in EU Administrative Law

This chapter focuses on competence and subsidiarity. It examines the way in which issues of competence have been interpreted by the Community ... More

This chapter focuses on competence and subsidiarity. It examines the way in which issues of competence have been interpreted by the Community courts. It begins by considering the difficulties of delineating internal and external competence. It then analyses subsidiarity and the judicial approach to actions based on non-compliance with this principle.Less

Remedies

David Stone

in European Union Design Law: A Practitioners' Guide

Remedies under the Directive are entirely a matter for national law, subject to the harmonization of the Enforcement Directive. They are therefore not discussed here, as they will vary from member ... More

Remedies under the Directive are entirely a matter for national law, subject to the harmonization of the Enforcement Directive. They are therefore not discussed here, as they will vary from member state to member state. Under the Regulation, certain provisions are made for remedies, although most procedure and practice is still left to national law, again, subject to the Enforcement Directive. This chapter therefore briefly examines the Enforcement Directive, before turning to the remedies provided under the Regulation. These remedies will apply in relation to infringement and other actions with respect to Community designs, both registered and unregistered. Less

A flawed revolution? Interrogating the Transforming Rehabilitation changes in England and Wales through the prism of a Community Justice Court

Jill Annison, Tim Auburn, Daniel Gilling, and Gisella Hanley Santos

in Marketisation and Privatisation in Criminal Justice

This chapter investigates changes that have taken place in the recent past in relation to interventions with adult offenders in England and Wales, particularly in the context of the application of ... More

This chapter investigates changes that have taken place in the recent past in relation to interventions with adult offenders in England and Wales, particularly in the context of the application of risk technologies and the increasingly managerial and market-driven set of arrangements. This review draws on criminological frameworks which examine such neo-liberal penal reforms, where social problems have been reframed as crime problems and where the application of the political policy of austerity has brought about the fragmentation and reduction of local services. Quantitative and qualitative data from a 2-year ESRC-funded research project are presented to illustrate and analyse the situations regarding ‘low-level’ offenders, whose cases were heard in a Community Justice Court in a large city in England. Detailed examination of this data reveals a complex picture of offending patterns, social issues and the pre-existing involvement of a wide range of statutory and third-sector agencies, even for many deemed ‘low-risk’ offenders. In many of these cases pathways out of crime seemed elusive, with rehabilitative interventions being framed in terms of penal narratives which emphasised individual responsibility and which denied wider structural problems. This critique raises concerns about the implications and consequences of these issues, particularly in relation to the widescale changes that were brought about by the Transforming Rehabilitation agenda. It argues that for constructive and effective interventions to take place in the field of community sanctions, including the therapeutic justice approach explored here, social justice and a more holistic approach to rehabilitation need to be (re)placed as central pillars of the criminal justice system.Less

Invalidity Proceedings before the Office

David Stone

in European Union Design Law: A Practitioners' Guide

The validity of an RCD can be tested either before the Office or in a counterclaim in infringement proceedings before a Community design court. It is not possible to commence proceedings for ... More

The validity of an RCD can be tested either before the Office or in a counterclaim in infringement proceedings before a Community design court. It is not possible to commence proceedings for invalidity of an RCD directly before a Community design court (or indeed, any court). Less

European Union Trade Mark Law: The Directive and the Regulation

Alexander Mühlendahl, Dimitris Botis, Spyros Maniatis, and Imogen Wiseman

in Trade Mark Law in Europe

Trade mark law at the European Union (EU) level has developed following two parallel paths. One led to the harmonization of disparate national systems of trade mark protection; the other to the ... More

Trade mark law at the European Union (EU) level has developed following two parallel paths. One led to the harmonization of disparate national systems of trade mark protection; the other to the creation of a ‘federal’ trade mark right, unitary in nature and effective throughout the territory of the European Union. The aim of this chapter is to describe briefly the destinations reached by the ‘harmonization’ and the ‘federal’ paths. Less