Dissertations / Theses on the topic 'European Court of Auditors'

The topic of this diploma thesis is the Process of institutional reforms of EU in light of its enlargement. The thesis is divided into two parts -- theoretical part and practical part. Theoretical part talks about European treaties that founded or reformed five main European institutions -- Parliament, Council, Commission, Court of Justice and Court of Auditors. In separate chapter the thesis talks about Lisbon Treaty and this chapter is followed by description of the main institutions. Practical part was based on original research in which almost two hundred respondents took part and which was focused on the knowledge of respondets of the administration of EU. The results of the research were analysed in form of commented graphs and tables. Based on the research, last chapter provides recommendations that should help increase the knowledge of Czechs of the EU administration.

Tese de Mestrado em MPA - Administração Pública<br>O presente estudo descreve o regime da fiscalização prévia da contratação pública pelo Tribunal de Contas e confronta-o em termos gerais com outros regimes. Analisa numa perspetiva histórica, as alterações introduzidas na legislação nacional e as respetivas imposições da União Europeia, quer as vigentes, decorrentes do Memorando de Entendimento sobre as Condicionalidades de Política Económica [Memorando de Entendimento (celebrado entre o Governo e a Comissão)], quer as constantes da proposta de Diretiva de 20.12.2011 COM (2011) 896 (destinada a substituir a Diretiva 2004/18/CE). Em especial, efetua o enquadramento da fiscalização prévia dos contratos públicos celebrados pelas instituições de ensino superior de direito público e conjuga-o com o regime legal e constitucional destas, em particular com a sua autonomia. Expõem-se os números dos contratos submetidos a fiscalização prévia pelas instituições de ensino superior de direito público no último triénio, comparando-os com a generalidade dos submetidos ao Tribunal de Contas. Faz-se referência aos casos de recusa de visto decorrentes da qualificação das instituições de ensino superior de direito público como entidades compradoras vinculadas ao Sistema Nacional de Compras Públicas. Apresenta-se a perceção dos intervenientes (Tribunal de Contas e instituições de ensino superior de direito público), obtida a partir de entrevistas e questionários, concluindo-se que os dados recolhidos, combinados com o regime da fiscalização prévia no âmbito da contratação pública às instituições de ensino superior de direito público admitem a introdução de alterações neste, face ao imposto pela União Europeia, ao regime constitucional vigente e à proposta de Diretiva. Indicam-se ainda pistas para a reflexão da evolução do regime da fiscalização prévia da contratação pública em Portugal.<br>The present study describes the system of prior control of public procurement by the Court of Auditors and confronts it, in general terms, with other assessment schemes. It analyses, in a historical perspective, the changes in national legislation and the respective impositions of the European Union, either the current ones, resulting from the Memorandum of Understanding on Specific Economic Policy Conditionality [Memorandum of Understanding (signed between the Government and the Commission)], or the ones that result from a proposal of directive 20.12.2011 (intended to replace the directive 2004/18/CE). It particularly reviews the framework of prior supervision of procurement by higher education institutions of public law, and assesses its legal and constitutional framework, mainly their autonomy. The numbers of contracts submitted to prior inspection by higher education institutions of public law in the last three years are exposed and compared with the general contracts submitted at Court of Auditors. Reference is made to cases of visa refusal due to the qualification of the higher education institutions of public law as procuring entities linked to the National System of Public Procurement. The perceptions of stakeholders (Court of Auditors and higher education institutions of public law), obtained from interviews and questionnaires, are presented. The data collected, combined with the analyses of the framework of prior supervision of public procurement to higher education institutions of public law, recommend amendments to latter, taking into account what is required by the European Union, by the Constitution and by the proposal Directive. Slopes for reflection of the evolution of the system of prior control of public procurement in Portugal are also referred.

<p>The European Court of Justice (ECJ) has long been recognized as a major engine behind the European integration project for its role in passing judgments expanding the powers and scope of the European Community, while member states have consistently reacted negatively to judgments limiting their sovereignty or granting the Community new powers. It is this interplay between the Court and member state interests that cause the ECJ to pose a threat to the future of integration. Using a combined framework of neofunctionalism and rational choice new institutionalism, six landmark cases and the events surrounding them are studied, revealing the motivations behind the Court’s and member states’ actions. From the analysis of these cases is created a set of criteria which can be used to predict when the ECJ will make an activist decision broadening the powers of the Community at the expense of the member states as well as when, and how, member states will respond negatively.</p>

This is a study of the European Court of Human Rights' doctrinal response to complaints for protection under the European Convention on Human Rights submitted by or on behalf of companies. Companies indisputably enjoy ECHR protection in principle yet the protection of persons closely tied with for-profit and corporate business enterprise is sometimes doctrinally problematic. The thesis has two main objectives. First, it analyses the Court's reasoning in three groups of cases in which corporate human rights litigation has presented particular problems of treaty interpretation: 1) The extent to which shareholders are 'victims' (Article 34) when they complain of measures that formally have befallen their companies. 2) Whether companies are protected by provisions that were conceived in relation to the needs of natural persons outside the business context (select areas under Articles 8(1), 10(1) and 41 are considered). 3) Which standard of review to be applied by the Court when companies allege that public regulation of their activity violates Articles 8 and 10. The case law is streamlined in a minimalist fashion, which obscures the Court's rationale. The thesis construes the structural framework within which the Court operates, and seeks to explain how the relevant case law is largely coherent when considered on these grounds. Second, the Court's response is used for highlighting crucial aspects of the Convention system that are aptly revealed but which extend beyond the company context. Three aspects, which are suitable for further analyses, are essentially brought to the fore: 1) The Convention as a European liberal project, a characteristic that makes it stand out from the bulk of international human rights law. 2) The complex nature of the Convention's object and purpose, and, consequently, the Court's teleology. 3) The collective and economic aspects of the Convention's civil and political rights.

This paper comparatively compares compliance to the rulings of the United States Supreme Court and the ECJ by the state/member state courts. Besides comparing the compliance to the two courts judgements, the paper also tries to establish how to increase compliance with these rulings in the future. This is done because compliance is an important aspect of a functioning judicial system, and a comparison might reveal solutions from one side that could be utilized on the other. The main resources used in this book are: articles, books, webpages and statistics on the subject. The main focus lies on the legal approach, but as a comparative study, elements of political science have been used as well. The results of the comparison show that although statistical compliance is quite high, the actual compliance might be lower due to lack of knowledge or political divisions. Increasing the actual compliance is then a good strategy to be sure that lower courts follow the rulings correctly. The conclusion of this paper is that political and policy divisions in a country, or between an organization and its members results in non- compliance. Reducing this kind of friction will help increase compliance to decisions, not only statistically but also in practice, as the lower courts will feel more comfortable with the rulings. An increase of knowledge of the subject, and the development of efficient judicial mechanisms in a state will also help assure correct interpretation of the rulings.

COORDENAÇÃO DE APERFEIÇOAMENTO DO PESSOAL DE ENSINO SUPERIOR<br>O Tribunal Europeu de Justiça começou sua trajetória como um tribunal internacional bastante fraco que sofria dos mesmos problemas enfrentados por outras instituições da mesma natureza. Assim, a questão crucial a ser respondida é como o Tribunal foi capaz de alterar os fundamentos do sistema jurídico comunitário, fortalecendo as bases de seu próprio prestígio político. O procedimento de reenvio prejudicial, criado pelo artigo 177 do Tratado de Roma, estabelece um vínculo direto entre os tribunais nacionais e o Tribunal Europeu, atruindo aos primeiros a responsabilidade pela aplicação das decisões do último. Isso siguifica que todas as sanções previstas pelo direito nacional podem ser aplicadas aos julgamentos do Tribunal Comunitário. Devido ao apoio dos tribunais nacionais, a maior ameaça política ao Tribunal Europeu - a ameaça da desobediência - foi em grande medida superada.<br>The European Court of Justice began as a fairly weak international tribunal, suffering from many of the problems faced by institutions of the same nature. So the crucial question to be answered is how the Court was able to change the foundations of theCommunity legal system, thus strengthening the bases of its own political prestige. The preliminary ruling procedure created by the Article 177 of the Treaty of Rome establishes a direct link between the national courts and the European Court, ascribing to the former the responsibility for the application of the decisions of the latter. lt means that all sanetions available under national law can be applied to the European court judgements.

The thesis examines one of the latest novelties in the work of the ECtHR - Pilot Judgement Procedure. The thesis covers all the aspects of the PJP such as an introduction of the procedure and its reasons, its main objectives, theoretical basis, practical application, and effectiveness.

The reciprocal influence between the Inter-American Court andthe European Court of Human Rights has been analysed by several studies that have focused on the impact of the European case- law in its Inter- American counterpart. In this context, this paper aims to pay attention to the reverse phenomenon. Therefore, it studies the decisions in which the European Court of Human Rights has explicitly referred to the Inter-American Court’s case law. By doing so, it attempts to elucidate the subject areas in which the European Court is most influenced by its Inter-American counterpart and the extent of this influence.<br>La  influencia  recíproca  de  las  jurisprudencias  de  la  Corte Interamericana y el Tribunal Europeo de Derechos Humanos ha sido objeto de muchos estudios, que han tendido a poner especial atención en el impacto de la jurisprudencia europea en su homóloga americana. En este contexto, el trabajo que se presenta propone analizar el fenómeno inverso, estudiando las decisiones del Tribunal Europeo de Derechos Humanos que han citado de forma expresa a la Corte Interamericana, con miras a determinar las materias sobre las que la influencia interamericana en la jurisprudencia europea es más evidente, así como el alcance de esa eventual influencia.

This thesis analyses the role of the European Court of Justice in the process of European integration. The role of the Court of Justice as an important supranational institution is discussed by taking into account various decisions of the Court that established the fundamental principles of the European Union Law. The thesis also analyses the contribution of the Court from the perspective of its interactions with the other actors within the EU. In this framework, the thesis will seek to answer such questions as: What are the contributions of the European Court in the development of the EU legal system? How did the Court play such an important role in the process of European integration? Finally, how did the interactions of the European Court with the other actors affect the process of European integration?

The purpose of this thesis is to examine the procedural democratic legitimacy of the Court of Justice of the European Union. The Court of Justice has been instrumental in the construction of the European Union. Through its interpretation of the Treaty of Rome since the 1960s, it has constituted a legal system distinctive in kind. In contrast to orthodox instances of the political community – international organisations and the nation-state – the EU exemplifies no general type. Its legal, constitutional, political, economic and social infrastructures are part of a complex and pervasive web of overlapping jurisdictions that goes some way beyond the ordinary international organisation (by virtue of constitutional principles such as direct effect and citizenship), but not quite as far as the nation-state (e.g. sovereignty contestation). This being the case, its interlocutors have long since understood that the EU is in a state of transformation – it is itself a project and a process, the end result of which (finalité) is unknown. As such, many questions have been asked about the legitimacy of this process; and, given the Court of Justice’s (in)famous generative role within this process, the Court also finds itself the subject of such scrutiny. The legitimacy of the Court of Justice has been the focus of attention from both academics and practitioners. Most of that attention has been on the Court’s jurisprudence and jurisdiction – scrutinising the legal reasoning of cases; or questioning the limits of its constitutional functions according to axiomatic conceptions of, for example, the separation of powers doctrine. By contrast, less attention has been paid to the democratic legitimacy of the Court of Justice, and much less in relation to the Court’s institutional design. The subject-matter of the analysis in this thesis is the Court’s structures and processes, such as: the composition and appointments processes for members of the Court; the mechanisms that give access to various kinds of participants (such as locus standi and third-party intervention); and the use of judicial chambers. Procedural democratic legitimacy, moreover, has two dimensions: intrinsic and instrumental. The intrinsic is a measure of the democratic credentials of the Court as a discrete decision-making authority (such as representativeness and democratic participation); whereas the instrumental is concerned with the ways in which the Court contributes to the overall democratic legitimacy of the EU. In this thesis, the structures and processes of the Court of Justice are examined in light of both of those criteria. In contrast to prevailing approaches of constitutional theorists – who tend to treat these criteria as functions that are quite discrete, and their performance as mutually exclusive – an important theoretical contribution of this thesis is to develop an analytical framework that allows for the inherent synergies and tensions that exist between intrinsic and instrumental criteria to be factored into analyses of the democratic legitimacy of constitutional courts.

This thesis examines the topic of conflict of norms in European Union (EU) law and the legal reasoning of the European Court of Justice (ECJ), arguing that the framework of conflict of norms provides conceptual insight into justification and the role of value choices in legal reasoning. After examining the theory of conflict of norms, which seems to have been relatively under-studied generally and especially in EU law, it examines three particular aspects of norm conflict resolution in the legal reasoning of the ECJ and EU law: conflict of interpretative norms, especially the opposition between conserving and innovative interpretation; conflicts of human rights norms, looking in particular at the idea of a hierarchy of rights and of specificationism in the articulation of rights; and conflicts of competence norms. It concludes that the scope exists for a fuller justification of the choice of norms in the legal reasoning of the ECJ and generally in EU law and offers a perspective on how the values articulated by the EU suggest particular approaches to norm conflict resolution by the ECJ in its decision-making in these fields, in particular, a greater resort to lex specialis and originalist or historical interpretation, in contrast to its current method.

This thesis is about establishing a balance between universal human rights and particular cultures or local conditions. It examines the universality debate with reference to the "margin of appreciation" in the jurisprudence of the European Court of Human Rights, in particular from the end of the Cold Wax when new Contracting Parties from central and eastern Europe came under the Court's jurisdiction.The thesis considers that analysis of these issues must not be parochial. In Part One the universality debate in international human rights law is therefore examined in detail. It is argued that universal human rights do not require absolute uniformity in their protection - even universal human rights are necessarily and defensibly qualified. In order to link the margin of appreciation to this universality debate its evolution, operation and the factors which underpin it are also clarified in Part Two. It is demonstrated that the margin of appreciation has evolved from a concession to states into a methodology for demanding ever greater justifications for their limitations upon human rights. In doing so the margin permitted accords with the defensible level of local qualification to human rights already identified.Part Three tests these conclusions against original analysis of recent case law, showing that the Court has been responsive to the differing needs of the new Contracting Parties. The Court had evolved a coherent and defensible approach to cases that have raised complex localised issues, and has maintained this even since its jurisdiction expanded. Whilst allowing modulation of European human rights protection according to local characteristics, use of the margin of appreciation does not amount to cultural relativism even in the expanded Council of Europe.

This review is an attempt to analyze the published materials on precedent law of the European Court on Human Rights. The article analyzes the case law activity by the European Court on Human Rights, its influences on national legal systems. The precedent law of the European Court on Human Rights is one of the complicated issues, because there is not general theoretical view on it. The precedent law of the Court is developing and gains new features. The Court uses its previous consequences in previous decisions on a subsequent case as a precedent norm. The Court creates a case law system that influences legal reforms in national legal order.

The European Court of Justice and European integration has recently been the subject of scholarly discussion. The ECJ contributes to European integration in terms of legal integration. For legal integration to be possible, and therefore the ECJ to be successful, it is necessary for member states of the European Union to internalize the legal norms and rules of EU law, such as direct effect and EU law supremacy. The constructivist approach to European integration addresses this issue of internalization through the process of social learning whereby repeated interactions spawn new interests. The application of social learning within the member states comes from the repeated interactions of their national courts with the ECJ through the preliminary ruling procedure. Preliminary ruling enables national courts to learn the proper way in which EU law can be interpreted and applied. However, social learning by interaction with the ECJ is lost on the member states’ politicians because they are not in direct interaction with the ECJ. Therefore, the greater the position of the judicial system within the national politics of member states, which has undergone social learning with the ECJ, the higher the level of compliance with EU law there will be, furthering legal integration.

Aufgrund des wachsenden Bedarfs an kohärenter Interaktion zwischen dem Europäischen Gerichtshof für Menschenrechte, dem Gerichtshof der Europäischen Union und den Gerichten der EMRK-Mitgliedstaaten, untersucht diese Arbeit die Problematik von Kompetenzkonflikten, die die Glaubwürdigkeit der europäischen und nationalen Gerichtshöfe untergraben und die Effektivität des gerichtlichen Rechtsschutzes in Europa schwächen, und schlägt die Lösungen vor, um Rechtsprechungskonflikte zwischen den Gerichtshöfen zu verringern. Es erfolgt eine Betrachtung der Fragen, wie Inkonsistenzen der gerichtlichen Rechtsprechung der europäischen und nationalen Gerichte vermieden werden können, wie der Beitritt der EU zur EMRK angegangen werden kann und wie das Piloturteilsverfahren des EGMR und nationalen gerichtlichen Überprüfungsverfahren wirksam funktionieren kann. Die Arbeit kommt zu dem Schluss, dass es für die Koordination der Zusammenarbeit zwischen den Gerichten wichtig ist, ihre Interaktionen zu verstärken, indem bewährte Verfahren auf allen Ebenen ausgetauscht werden. Um eine tiefere Integration der Staaten in die europäische und internationale Gemeinschaft zu erreichen und das Risiko von sich widersprechenden gerichtlichen Entscheidungen zu reduzieren, wird von den Mitgliedstaaten erwartet, dass sie ihre Verpflichtungen aus dem EU-Recht und der EMRK verlässlich erfüllen, und die europäischen Gerichtshöfe werden ihrerseits die Möglichkeit eines Eingriffs in die Souveränität der Staaten ausschlieβen lassen. Nur wenn einvernehmlich beschlossene Lösungen angenommen werden, wird eine größere Kohärenz in Rechtsprechung der europäischen und nationalen Gerichtshöfe erreicht und ein einheitliches System zum Schutz der Menschenrechte gewährleistet.<br>In light of the growing need to establish a coherent relationship between the European Court of Human Rights, the Court of Justice of the European Union and the courts of the ECHR member states, this study explores the challenges of jurisdictional competition that undermine the credibility of the courts and weaken the effectiveness of judicial protection of fundamental rights in Europe, and suggests ways to reduce emerging judicial tensions between these courts. It examines how to avoid inconsistencies in judicial practices of the European and national courts, how to approach accession of the EU to the ECHR, and how to ensure effective functioning of the pilot judgment mechanism and national judicial review procedures. It concludes that in order to coordinate cooperation between the courts it is important to strengthen their interactions through adhering to best practices at all levels. To pursue deeper integration of states into the European and international community and minimise the chance of rendering contradicting judgments by the courts, member states are expected to comply faithfully with their obligations under EU law and the ECHR, and the European courts shall exclude the possibility of encroachment on state sovereignty. Only if mutually agreed solutions are adopted will a greater consistency in their case law be achieved and a uniform system of protection of human rights ensured.

Positivist and non-positivist theoretical accounts of the concept or practice of law have debated the role played by values as (possible) features of legal ordering or (possible) conditions of legality. These debates concern whether law is properly understood as a descriptively accessible social fact, or is linked to a discursively accessible realm of 'abstract' normativity. Such debates arguably fail to fully account for the sense in which values operate within the legal order of the European Union, an order which is based upon the realisation of a complex objective, that of European integration. This legal order illustrates that, providing the moral concerns associated with 'rule of law' legal orders are maintained, additional values relating to the achievement of a co-operative political, social or economic enterprise can operate as fundamental or higher legal standards. Union institutional practices, notably those of the Court of Justice, support a widening of the role of values within the theory and practice of law. A comparative method of inquiry, acknowledging diverse theoretical insights regarding law, combined with analysis of case judgments of the Court of Justice provides argumentative and evidential support for this proposition. The Treaty objectives direct the practices of Union and domestic courts (when seized with issues of Union law) in their legality review, 'rights-affirming' and interpretive functions within an institutional account of law and legal practice. The Court's practices highlight institutionally viable expressions of politically sensitive (to Member States) Union values. At the same time these practices illustrate the potential for specific objectives, including those associated with public international Treaties, to form a basic function or value of legal ordering. This proposition is compatible with received theoretical analyses of law while affirming their qualified development.

In this article, the author proposes a new approach to the definition of the term “environmental taxes”, taking into account a recent judgement of the Court of Justice of the European Union.<br>En el presente artículo, el autor propone un nuevo enfoque con relación a la definición del término “impuesto ambiental” tomando en consideración a la jurisprudencia del tribunal de Justicia de la unión europea.

Thesis (M.A. in National Security Affairs)--Naval Postgraduate School, September 2003.<br>Thesis advisor(s): Daniel Moran, David S. Yost. Includes bibliographical references (p. 93-102). Also available online.

No<br>This original volume seeks to get behind the surface of political events and to identify the forces which shaped politics and culture from 1680 to 1840 in Germany, France and Great Britain. The contributors, all leading specialists in the field, explore critically how 'culture', defined in the widest sense, was exploited during the 'long eighteenth century' to buttress authority in all its forms and how politics infused culture. Individual essays explore topics ranging from the military culture of Central Europe through the political culture of Germany, France and Great Britain, music, court intrigue and diplomatic practice, religious conflict and political ideas, the role of the Enlightenment, to the very new dispensations which prevailed during and after the French Revolution and the Napoleonic watershed. The book will be essential reading for all scholars of eighteenth-century European history.

My dissertation project seeks to understand when and how do national judges play an active and significant role in how international legal orders do or do not affect their polities. Specifically, I look at when and how British judges play a role in how European Union law through the European Court of Justice and European human rights law through the European Court of Human Rights affect the British polity. These international legal orders contain both vertical and horizontal aspects. Vertical aspects include the highest court and its judges defined by the treaty, which operates as the international, hierarchical authority on the treaty and is tasked with ensuring the compliance of the member states of the treaty. Horizontal aspects include member state courts and judges who interact with other member state courts and judges as equals voluntarily to share an understanding of the law. Britain is interesting because it may seem like a counterintuitive place to find such dynamics. Britain has a strong resistance to international authority, a deeply entrenched idea of Parliamentary Supremacy, and a dualist legal tradition where Parliament translates international law into domestic law prior to its use by the courts, which contributes to a lack of expectation of British judges engaging in international judicial activism, making Britain a hard case. In this context, we should expect that international law only matters to the extent that domestic actors are forced to incorporate it by a strong international legal order with vertical supremacy and unambiguous authority. To the contrary, my dissertation shows that British judges are quite active in many international legal orders in ways that do not merely reflect the degree of established vertical legal authority. Through dynamics that are quite autonomous from British politicians' difficult interactions with international authority, British judges play a very active role in managing and integrating international law into British politics. To see these dynamics and understand how international law has affected British politics, we must pay special attention to horizontal legal integration. Horizontal legal integration occurs when judges intentionally and selectively borrow legal concepts and precedents from other national or international jurisdictions.

This thesis explores the contribution of the US Supreme Court (USSC) and the European Court of Justice (ECJ) in the vertical and horizontal allocation of power. Said differently, it answers the two following questions: How do both Courts draw the line between the realm of politics and judicial process? How do they allocate power between the Union and its component States? After examining standing, the political question doctrine, negative and positive integration and liability in damages on both sides of the Atlantic, it is concluded that both Courts should not always look for “substantive” constitutional benchmarks. The reason lies in that sometimes the latter may turn to be either questions deemed too political for judicial resolution or insufficient to control congressional or Community legislative powers. Additionally, the judicial department should also pay due regard to a “process” review. This type of review would operate at two levels. At first stage, Courts should solve flaws in the procedure by which the political institutions adopt their decisions. For instance, this would be the case where procedures neglect “discrete and insular” minorities, or where they entrench incumbent political majorities. Thus, judicial review would be principled upon understanding “democracy” as an intangible value that cannot succumb to majoritarian pressures. At a second stage, Courts should also examine whether, in their deliberations, political actors pay due account to all interests at stake, particularly, to those not represented in the political process.

The European Convention on Human Rights (ECHR) – supervised by the European Court of Human rights (ECtHR) – coexists with other normative (human rights) instruments that have been created at the national, regional, and international level, both by State and non-State actors. The ECHR represents one legal piece of this normative ‘jungle’, characterized by legal ‘fragmentation’. Whereas a lot is said about the negative aspects of this diverse world, this doctoral thesis aims to focus on its positive sides. To support its interpretation and application of the ECHR, the Strasbourg Court makes reference to a diverse range of instruments other than the ECHR, which we call external instruments. The Grand Chamber-case of Demir and Baykara v. Turkey of 12 November 2008 provides a rare overview of the characteristics of this ‘referencing practice’. In this judgment, the Court included a separate heading to specifically explain its interpretative use of international law, discussing the legal basis as well as the type of instruments that it considers relevant. Two major conclusions follow from the Court’s explanations: firstly, it puts external referencing in the light of some rules on interpretation provided in the Vienna Convention on the Law of Treaties (VCLT) (particularly in Article 31 paragraph 3 (c) VCLT); secondly, it stresses that soft and non-ratified external instruments might equally offer support for (evolutively) interpreting the ECHR. These statements are controversial; the Court has been criticized for misinterpreting the rules of the VCLT, for not well justifying its references as well as for exceeding its powers by incoherently relying on (non-binding) external materials for interpretative purposes.The case of Demir and Baykara v. Turkey left many questions open in respect of the importation of external instruments. There is some confusion about the functions and the weight of (non-binding) external instruments in legal reasoning. In addition, the justificatory arguments developed in this case lack precision and persuasiveness. Addressing these gaps, this study firstly offers an elaborate ‘mapping’ of the usage of external instruments by the ECtHR. For that purpose, all references in each Grand Chamber-case since Demir and Baykara v. Turkey of 12 November 2008 (until the end of 2015) have been analyzed and categorized. Secondly, this work develops arguments to better justify the Court’s practice of using external instruments. Both from a legality and a users’ perspective, this thesis demonstrates how external referencing may (under certain conditions) be a valid method to give meaning to the provisions in the ECHR. The ‘mapping’ of the referencing practice demonstrates that, to support the interpretation and application of the Convention in the ‘law’-section of the decision, external instruments have been invoked by the Grand Chamber in almost 70 percent of the examined cases. This interpretative technique covers a wide variety of instruments, diverging according to their origin as well as to their scope ratione materiae, ratione personae and ratione loci. The legal status of the instruments constitutes an additional root of diversity; the ECtHR imports legal instruments that have been ratified by the Member States, instruments that have not been ratified by some of the Member States and/or by the respondent State, soft instruments created by politically (non-)representative bodies, and finally, case law developed by other (quasi-)judicial bodies. The Grand Chamber references these instruments for different purposes: to dismiss their content, to establish interpretative rules, to support the interpretation of notions and requirements of the Convention, to enable the creation of harmony between the Convention and external legal requirements, or to consider a State’s freedom of manoeuvre when applying the ECHR. An example of a contested – but rather rare – usage of external instruments consists of comparing a mixture of binding and non-binding instruments in order to progressively evolve (and change) the Court’s case law. Overall, however, the Grand Chamber adopts a rather traditional approach to its interpretative ‘sources’, not according to non-binding instruments an independent decisive weight.In the Grand Chamber cases issued after Demir and Baykara v. Turkey, the Court did not undertake efforts to further justify and explain its referencing practice. In our view, two provisions might nonetheless operate as valuable vehicles to enhance the legality of some references. It concerns, more particularly, Article 31 paragraph 3 (c) VCLT, inciting the Court to take into account external applicable norms, and Article 53 ECHR, offering a ‘safeguard’ for human rights. Article 31 paragraph 3 (c) VCLT is regularly used by the Court in connection to the method of ‘harmonious interpretation’, accommodating the obligations of the ECHR with external obligations (that risk to conflict with the Convention). We agree that Article 31 paragraph 3 (c) VCLT – covering a principle of ‘systemic integration’ – offers a legal basis for a coordinative integration of external applicable requirements. Some caution is nonetheless required; the creation of convergence between the ECHR and external legal domains should not supersede the aim of effective and progressive human rights protection. Therefore, when a conflict arises between the ECHR and an external provision, this should be clearly acknowledged instead of being artificially ignored under a pretext of ‘harmonisation’ and ‘anti-fragmentation’. Subsequently, the conflict should be solved by means of ‘hierarchical integration’ (giving precedence to human rights law) rather than by ‘coordinative integration’.Although the Court references Article 31 paragraph 3 (c) VCLT to support harmonious interpretation between the ECHR and external instruments outside the human rights domain, this case law study demonstrates that it does generally not cite this provision in respect of references to human rights catalogues other than the ECHR. For that reason, a criticism claiming that the Court misuses Article 31 paragraph 3 (c) VCLT to expand the ECHR on the basis of external higher human rights provisions, largely misses ground. This does not mean, however, that Article 31 paragraph 3 (c) VCLT has no relevance in respect of the importation of other human rights catalogues. Although this does not accord with the Court’s general practice, we are of the opinion that Article 31 paragraph 3 (c) VCLT mandates the Court to integrate (higher) protection standards applicable in all Member States of the Council of Europe. In other words, the ideal of ‘systemic integration’ is not only relevant in relation to the landscape of (general) international law, but should also permeate the domain of human rights law. As a harmonizing principle, it is supposed to encourage the Court to take account of ratified external human rights catalogues, including their authoritative interpretation by external monitoring bodies. Article 53 ECHR supports this argument too. This provision offers a human rights safeguard ensuring peaceful coexistence between the ECHR and higher protection standards. The message of Article 53 ECHR towards the Strasbourg judges is twofold. In its procedural dimension, the Court should use it directly, to sanction a State that, on the national level, did not give precedence to the highest applicable human rights standard. In its substantive dimension, this provision has effects similar to those of Article 31 paragraph 3 (c) VCLT. When higher and binding human rights standards are applicable in all Member States, Article 53 ECHR obliges the Court to substantively integrate them into its interpretation of the ECHR. In addition, we argue that Article 53 ECHR offers a symmetric human rights safeguard, preventing a downward evolution of the ECHR on the basis of external human rights instruments offering lower standards. The proposed interpretation of Article 53 ECHR is innovative, yet controversial; so far, the Court has not used it in this manner. In line with Articles 31 paragraph 3 (c) VCLT and 53 ECHR, we argue that external instruments, under certain conditions, exercise a binding authority. Apart from that, referencing could be exercised in an optional manner, for instance in order to support argumentative purposes such as ‘evolutive’, ‘practical and effective’, and ‘autonomous’ reasoning and/or the establishment of a ‘margin of appreciation’. Essentially, these interpretation principles are covered by a holistic reading of the rules of the VCLT. A concept that catches well a combined reading of the rules of the VCLT, without losing sight of the specificity of human rights law, is the search for ‘opinio juris under the treaty’. Under this interpretative framework, an emerging or an ambiguous State consensus may suffice to develop a dynamic interpretation of the ECHR, provided that the incomplete consensus is confirmed by an opinio juris. To establish an emerging or ambiguous State consensus, ‘hard’ and ratified legal instruments (of national or international origin) are of particular relevance. In addition, a wide variety of (non-binding) external instruments might be useful to demonstrate the opinio juris. Besides legal provisions, some other, less formal, users’ arguments may validate some aspects of the referencing practice. The usage of external human rights catalogues – possibly containing higher protection standards, rights of other ‘generations’, or more specialized and specific provisions – contributes to the creation of human rights that are effective, universal and indivisible. This serves the rights holders who have an interest in equal treatment by a law that operates as a ‘ius gentium’, and in an adjudication process that does justice to all specificities of their identity and lived experiences. In addition, referencing could contribute to progressively evolve the protection of human rights. The referencing practice also enhances the coherence of the system, which is beneficial for ‘legal certainty’ vis-à-vis all users of human rights. Moreover, external referencing may contribute to a more nuanced and ‘shared’ decision-making, inspired by the positions and insights of various actors. Indeed, by means of comparative law, judges can build a dialectic network of mutual influences and communicative enrichment on a global scale. When we acknowledge that it is the Court’s task to translate pluralism in balanced outcomes and to canalize the different interests underlying a case, the importation of external views from across the globe may help the Court is assuming that responsibility. The Strasbourg judges find particularly valuable tools in external instruments. Not only could their usage enhance the procedural economy and the deformalization of the decision-making process, external citations may also make a reasoning more convincing and authoritative towards the audience. However, these benefits only play to the extent that external referencing is transparent, consistent and systematically relies on a solid legal framework.To optimize the justification of the referencing practice, this doctoral thesis recommends the Court to better embed its external citations in both formal and informal arguments. We have done several suggestions as to how such arguments might be developed in practice. Their use could boost the valid usage of external instruments, which, under certain conditions, offers good opportunities for a persuasive interpretation and application of the ECHRWe started our research with a sketch of the present normative environment; it is disordered and can be metaphorically compared to a jungle. The Strasbourg judges walk through this area and use lianas to make connections between all elements that compose this forest. Through their referencing practice, they communicate, learn, and argue. In an ecosystem, all organisms are dependent on one another; they cannot survive in isolation. Following the rules of nature, the organisms mutually profit from each other’s existence and finally, provide each other with oxygen. In order to be good rangers in this jungle, the Strasbourg judges should recognize and acknowledge the existence and the value of all the other organisms. In addition, to ensure a high degree of balance in the ecosystem, they should keep an eye both on the system’s rules (legality) and on the views and interests of those that benefit from the system (the users of human rights). By handling the lianas in such manner, the Court contributes to more coherence of the system (combating ‘fragmentation’) and caters for the users’ needs. This does not mean that one day, the jungle will be turned into a nicely organized cornfield. Some diversity in global times is inevitable and necessary. After all, it is the chaotic context that offers us tools to advance the law, to persuade the public, etc. The art is not to replace pluralism by unity, but to find a balance between divergence and convergence by creating a form of justice that is shared by all.<br>Doctorat en Sciences juridiques<br>info:eu-repo/semantics/nonPublished

The dissertation explores the principle of proportionality as an instrument deriving from the notion of "democratic society" and applied by the European Court of Human Rights (ECtHR) in order to establish whether national institutions succeeded in striking a fair balance between the conflicting Convention rights or between competing individual and public interests. In the first chapter, after presenting the origins of the principle, the development of a three-tiered proportionality test and its dissemination, the main parameters relevant for the analysis of this principle are identified and the main issues of academic discussion concerning the application of proportionality by the ECtHR are revealed. The second chapter explores the evolution of the application of the proportionality principle in the case law of ECtHR and reveals the main features of proportionality test as applied in the early practice of Convention institutions. The third chapter deals with the interaction of the principles of proportionality and subsidiarity, in particular examining the impact of margin of appreciation doctrine upon the proportionality assessment conducted by the ECtHR and analysing the contents and interplay of the factors determining the width of the margin of appreciation. The forth chapter explores both commonalities and peculiarities of the application of proportionality principle in the context of different Convention rights and exposes the main criteria relevant to the balancing... [to full text]<br>Disertacijoje nagrinėjama proporcingumo principo, kaip iš demokratinės visuomenės idėjos kylančio instrumento, Europos Žmogaus Teisių Teismo (EŽTT) pasitelkiamo siekiant nustatyti, ar nacionalinės institucijos išlaikė teisingą pusiausvyrą tarp konkuruojančių Žmogaus teisių ir pagrindinių laisvių apsaugos konvencijos (Konvencijos) ginamų teisių ar tarp Konvencijos teisių ir viešų interesų, sampratos ir taikymo praktikos problematika. Pirmoje disertacijos dalyje, aptarus proporcingumo principo kilmę, trinario proporcingumo tyrimo modelio susiformavimą ir sklaidą, apsibrėžiami svarbiausi proporcingumo tyrimui reikšmingi parametrai ir atskleidžiama EŽTT taikomo proporcingumo principo sampratos problematika mokslinėje literatūroje. Antroje dalyje nagrinėjama proporcingumo principo taikymo EŽTT praktikoje raida ir plėtra, identifikuojami pagrindiniai ankstyvojoje Komisijos ir Teismo praktikoje taikyto proporcingumo testo bruožai. Trečioje dalyje tiriama proporcingumo principo sąveika su subsidiarumo principu, atskleidžiamas vertinimo laisvės doktrinos poveikis EŽTT atliekamam proporcingumo vertinimui, tiriami vertinimo laisvės apimtį lemiantys kriterijai ir jų sąveika. Ketvirtoje dalyje analizuojama proporcingumo principo taikymo praktika skirtingų Konvencijos ginamų teisių kontekste, atskleidžiant tiek bendruosius principo taikymo bruožus, tiek ir Teismo taikomos priežiūros intensyvumo nulemtus proporcingumo testo ypatumus. Paskutinėje dalyje EŽTT taikomas balansavimu grindžiamas... [toliau žr. visą tekstą]

Cette thèse s'inscrit dans un mouvement de reconnaissance de l'importance accrue de l'institution judiciaire, et de questionnement actuel sur la légitimité démocratique du juge. Dans ce cadre, elle enquête sur le rôle, dans la fonction et la pratique judiciaire, de l'opinion publique, largement considérée comme un élément de légitimité démocratique. Pour obtenir un éclairage plus complet sur cette question, une approche comparative est adoptée et appliquée à l'œuvre protectrice d'une cour nationale constitutionnelle et d'une cour internationale dans le domaine des droits et des libertés : la Cour suprême des États-Unis et la Cour européenne des droits de l'Homme. Le raisonnement suivi est le suivant. Au niveau théorique, il s'agit de clarifier le concept protéiforme d'«opinion publique» et d'établir les différentes sources de la légitimité judiciaire, afin de déterminer si l'opinion publique peut en faire partie. Au niveau procédural, l'étude se penche sur la pratique judiciaire des deux cours, les différentes règles et pratiques qui permettent d'impliquer directement ou indirectement le public dans le processus judiciaire, que ce soit les parties, les tierces-parties, ou les médias. On se penche enfin sur la substance des décisions de justice, qui révèlent la manière dont les juges conçoivent le rôle de l'opinion publique dans la démocratie et dans l'évolution judiciaire des droits et libertés. L'étude de la substance des décisions se concentre d'une part sur la relation entre opinion publique et démocratie dans la protection de la liberté d'expression, et d'autre part sur le rôle de l'opinion publique dans l'évolution des droits des personnes homosexuelles<br>This dissertation is part of a larger movement, both national and international, acknowledging the growing importance and inquiring about the democratic legitimacy of judicial institutions. In looking at the judicial office and its practice, it investigates the role of public opinion, largely considered an element of democratic legitimacy. To obtain a more complete perspective on judicial institutions and public opinion, a comparative approach is adopted and the United States Supreme Court, and the European Court of Human Rights are examined. This study adopts the following reasoning. At a theoretical level, it attempts to clarify The multifaceted concept of “public opinion” and to establish the different sources of judicial legitimacy, in order to determine whether public opinion can be considered such a source. At a process level, the study inquiries about the judicial practice of both courts, and the different rules and practices that allow for a direct or indirect involvement of the public, whether parties, third-parties, or the media. It then studies the substance of judicial decisions, which reveal judges' conception of the role of public opinion in democracy and in the judicial evolution of rights and liberties. The content-study of judicial decisions focuses on first on the relationship between public opinion and democracy in the protection of freedom of expression and second on the rote of public opinion in the evolution of the rights of homosexual persons

The prospect of a justification defence in cases of direct sex discrimination is universally criticised by academic commentators on the ground that it would subvert the goal of equality that underlies sex discrimination and equal treatment legislation. At the outset the thesis examines the differences between the sexes, how these differences can be used to explain the distinction between direct and indirect sex discrimination and considers various concepts of equality. Building on various elements of the existing justification defences for indirect sex discrimination and disability discrimination, this thesis constructs a model justification defence. The impact on equality of such a defence is assessed by reference to the main existing legislative exceptions for direct sex discrimination and various judicial exceptions that have been created, in the main, by the European Court of Justice. Further, the thesis considers whether the blanket prohibition against the use of sex stereotypes is warranted and the extent to which they might be permitted under the model defence. The conclusions reached are that criticism of the potential defence is overstated. Rather than undermining the goal of sex equality, such a defence could in fact enhance the degree of legal protection as long as the criteria of the defence are stringently drawn. Indeed, in relation to some areas of direct sex discrimination, for example pregnancy and maternity, the introduction of such a defence could enhance the degree of equality. Moreover, the introduction of such a defence could introduce a greater degree of openness and clarity into this complex area of law.

The full abstract for this thesis is available in the body of the thesis, and will be available when the embargo expires.<br>Arts, Faculty of<br>Art History, Visual Art and Theory, Department of<br>Graduate

Extraterritoriality at the ECtHR appears to create a paradox. On the one hand, it is limited in space, time, purpose and remedies, through its state membership, individual application process, the terms of the ECHR, and restricted enforcement and influence on general international policy. On the other, it appears to be an indispensable refuge for individuals who are victim to the most flagrant denials of justice happening on a global scale. The ECtHR finds itself an avenue for redress in historical events of global significance such as the NATO bombing and UN administration of Kosovo, the US-UK occupation in Iraq, extraordinary rendition procedures and the interception of migrant boats at sea. This thesis embraces the paradox of extraterritoriality at the ECtHR. Putting forward a normative framework, the thesis clarifies the nature of extraterritoriality at the ECtHR and investigates the extent to which the ECtHR adopts a single normative frame. Existing theories fail to capture the nature of extraterritoriality in the ECtHR’s operation. This thesis offers a global constitutionalist approach to deduce a model for extraterritoriality. Using a normative global constitutionalist frame, in particular democratic accountability and the rule of law, the thesis examines the extent to which the ECtHR adopts such an approach. Translating the requirements of normative global constitutionalism into doctrinal indicators, it examines whether the ECtHR operates within a global constitutionalist frame in extraterritoriality decisions. Alongside this examination, the thesis queries the function and purpose of extraterritoriality and its relationship with other international legal concepts. It questions models that rely on state jurisdiction and attribution to determine their extraterritorial reach, exposing extraterritoriality as performing a separate function. It ultimately unravels the paradox of extraterritoriality through a global constitutionalist explanation.

This thesis sets out an argument against the present interpretation of the concept of autonomy under the European Court of Human Rights (the ECtHR) Article 8 jurisprudence and proposes a new reading of the concept that is rooted in an acknowledgment and appreciation of human interdependence. Following the prevailing political, legal and socio-cultural ideas and ideals about autonomy, the ECtHR has chosen to furnish its recent Article 8 case law according to the values characteristic of the notion of individual autonomy – independence, selfsufficiency, and the ability to conduct one’s life in a manner of one’s own choosing. Adopting this individualistic view on autonomy, the ECtHR sets normative standards for behaviour that the thesis challenges as being detrimental for the quality of interpersonal relationships. The work draws on sociological theory to argue that in modern individualised societies people are increasingly tied to each other – one has to be socially sensitive and to be able to relate to others and to obligate oneself, in order to manage and organise the complexities of everyday life. This also means that there are attendant obligations between individuals to be sensitive towards, and care for, each other. It is argued that an effective exercise of one’s autonomy becomes necessarily dependent on the existence of caring and trusting relationships. This in turn requires the ECtHR to adopt an appropriate conceptualisation of autonomy that embraces this knowledge and gives full effect to it. The concept of caring autonomy is proposed as a replacement for an individualistic concept of autonomy. It will be argued that this concept captures better the essentiality of human interdependence and the morality it calls for. The implications of this for the future direction of the ECtHR jurisprudence are also considered.

The protection of fundamental rights by the Court of Justice of the EU ("CJEU") is no longer a marginal issue, but is the central legal and political issue of coming years, to which all roads in EU scholarship lead back. The objective of this thesis will be to trace the evolution of the CJEU's jurisprudence, from the application of the general principles to the CJEU's interpretation of the EU Charter of Fundamental Rights, in a bid to discern the proficiency of the CJEU's methodology. Along the course of this enquiry, the thesis seeks to explicate judicial developments, rules and techniques governing the CJEU's review of EU legislative and administrative action, as well as Member State action when executing EU policy objectives and when derogating from EU law obligations, for compliance with fundamental rights. Interlocking themes addressed include: the nature and function of fundamental rights; the enforcement of fundamental rights in the context of the internal market; the horizontal application of fundamental rights; and the elements of interpretation shaping adjudication. Binding these themes together is the scope and method of fundamental rights protection. Eschewing any notion of a grand narrative, it will be shown that the CJEU's case law and method defy being classified as a natural and linear progression from dark to light, or novice to expert judicial control, in that the CJEU's initial blueprint for resolving fundamental rights cases has been largely unaltered by constitutional developments.