Interview - Programme Silfur Egils 17.4.2011

Some ideas that were covered in the interview and some others that came afterwards on the necessary balance between fundamental rights vs. (monetary) market that must be done urgently in Europe

1. Presentation of the book "Indignez-vous": A growing grass-roots movement calling for action in France.

From indignation to action - calls for a pacific revolution - calls for action and hope from civil society in France

Book written by Stephane Hessel 93 years - 1,7 million copies sold in France - translated into 20 languages - calling for pacific activism against the erosion of our modern democratic systems -His message: Resist as the heros from the Resistance did to defend the values of Europe that we have so hard fought for.

The program that the Resistance brought to France in the 1950s:

- Social Security and health insurance for all citizens

- Pension rights for elderly people

- Energy sources, electricity and gas and big banks and insurance companies under public ownership (national control)

- Fundamental rights for all citizens

Resistance goals in France 1940s: a real economic and social democracy where financial and economic elites do not direct our society, where general interest prevails over private interest and the result of the workers´ efforts prevails over money power. A real democracy where the press is independent and education is free and universal.

2. The "revolution in the books" travels to Spain and becomes (R)evolution

Book - "Reacciona" - Spain- published this week

Important leaders of Spanish society call Spaniards into pacific (r)evolution - It is time to act, to participate and be actors of our destiny - Do not give up - just wake up and react!

José Luis Sampedro - Professor of Economics - 93 Federico Mayor Zaragoza - Former General Director of Unesco Baltasar Garzón - leader in the application of the doctrine of universal jurisdiction when human crimes are committed and others....

The book "Reacciona" is a collection of different essays written by different people. Their message: It is time for a genuine democracy, time has come to act. We need to understand that our system is sick. There must be another way out of the crisis rather than the one based on neoliberalism. The crisis is not economic, the crisis is political, the crisis is within ourselves..... our way of living in the Western world where money and profit (monetary market) is value number one.

Different themes of the book "Reacciona"

On the crisis: Europe is in comma, showing apathy before big problems. Nations have left the speculative economy become the main activity promoting thus drugs, weapons, illegal traffic of persons. Tax heavens and banking secrecy remain intact. Democratic values are ignored. Why do we have to save the banks and financial institutions that created the crisis and sacrifice our socio-economic rights?

On the political system: why democratic values and ethics and social justice are substituted by the market?

On the economic system: Why do we need to privatize our best companies, the most essential resources for our societies (water, oil, electricity to name a few) and give them to an oligarchy?

Their agenda: We need a new social contract where we invest the most in education and critical thinking and where the mass media take their due responsibility in full independence. Political parties do not represent anymore the civil society, they fight for their own self-preservation goals..... The young generation has been cheated living under misery conditions and still working. Spain will see a new 1968 revolution where the civil society will have an important role. Spaniards need not to dispair: the priority number one must be education. Face to fear, individualism, and lack of political reform: we need to change our values, we need to build a better future. Lets rediscover the power of thoughts, our imagination, values and utopias...

Some important messages from Federico Mayor Zaragoza

The difference between evolution and revolution lies in the "r" - R as our responsibility - Lets change the weapons for dialogue - lets call for the dignity of all human beings ... lets build a new future where economy is not based on war and speculation.... Cannot we build a system not based on money but on human and natural resources? where we invest in people rather than on capital?

Ideas and calls for ethical banking (Triodos - Holland and Spain) but first we must change ourselves. If we only request profit, banks will go into the profits of war (the most profitable business of all - big profits for them and life losses for society).

Listen also to the inspiring conference "Dinero y Consciencia" by the Subdirector of Triodos Bank in Spain Joan Melé at the Escuela de Organización Industrial (May 2010) http://www.eoi.es/mediateca/video.php?videoid=308&PHPSESSID=6dc19fb93dc7887c4b701cfb4771d549

3. A personal reflexion on the book. Are we witnessing the decline of the Western civilization as Spengler predicted in 1918? Link to Spengler´s civilization model (and other similar theories - Toynbee) to be found in

http://en.wikipedia.org/wiki/Spengler%27s_civilization_model

http://en.wikipedia.org/wiki/Social_cycle_theory

http://en.wikipedia.org/wiki/The_Decline_of_the_West

http://en.wikipedia.org/wiki/Arnold_J._Toynbee

Are we witnessing the latest stages of a nature rise and fall of our Western world? Are we moving from the autumn to the winter of our civilization?

Politics

From stage 1. Domination of Money ("Democracy"). From Economic powers permeating the political forms and authorities to

through stage 2 . Formation of Caesarism. Victory of force-politics over money. Increasing primitiveness of political forms. Inward decline of the nations into a formless population (the mass) and then.....

towards stage 3. Maturing of the final form. Private and family policies of individual leaders. The world as spoil. Historyless stiffening and enfeeblement even of the imperial machinery, against young peoples eager for spoil, or alien conquerors. Primitive human conditions slowly thrust up into the highly-civilized mode of living

4. The decline and decadence of Europe: Europe must reform or die.......

European leaders such as Felipe González and Jacques Delors are also calling for radical reform warning about decline and decadence otherwise

4.1. Felipe Gonzalez - chairman of group of senior wise men/women who did a Report for the EU - Project Europe 2030 Europe must reform itself radically, otherwise it will loose its influence in the world and it will sacrifice its social model. To be or not to be, that is the question

Summary of the Report on the EU 2010 done by the Wise Men/Europe: Europe is faced with a situation where it needs to make important choices. if these choices are not made today (2010) it will sleep into decadence and it will become irrelevant in the world. Europe stands at a crucial time in history. Do we want to change the world or be passive witnesses? We need a competitive and social market economy, social cohesion and environmental protection, promoting democracy and dialogue with citizens. It is change or die. Today.

4.2. "Europe must plan a reform, not a pact", Jacques Delors, interview with Financial Times 3rd March 2011.

Jacques Delors in another interview with Master students graduating at the Sorbonne University (Master of European Studies) 2010

Students ask: "Monsieur Delors, Do you think that the Lisbon Treaty will revitalize Europe?"

Reply. "No, those in charge are too selfish. We do not have the right leaders. If Europe wants to progress it will need the right people with the right motivation."

5, Lets be positive rather than pessimistic: we have the knowledge and the means to understand the world we live in. We can take change both at local and international level. The civil society has the greatest power to change the world through pacific activism, evolution and hope.

Priority number one is education.

To be educated is simply to understand the world that you live in. We, the generation that has brought the crisis, have the moral obligation to provide young people with the intellectual skills and the knowledge to solve the problems we have created as we are incapable of by definition (quoting Einstein). In this context, to restrict the budget dedicated to education is simply the best way to assure the decadence of our society.

As a generation of people in exile taught me in my youth (those left Cuba in the 60s and 70s) education is the only investment for the future that nobody can deprive you of. Add dignity to it as nobody can deprive you either from your dignity without your consent (Leonor Roosevelt).

6. Some interesting ideas on the reform of the financial system and ethical banking in Iceland to be followed at IFRI – Icelandic Financial Reform Initiative www.ifri.is

7.Link all these ideas to the necessary change needed to make our civilization sustainable for the planet Earth. Some interesting movies recommended

An inconvenient truth - Al Gore

The eleventh hour - produced by L. Di Caprio

Planet Earth - BBC

Kóngar - Eyjarbakka -Iceland

Home - Yann Yves Bertrand ......

Gleðilega páska!

Quiebra moral economía de mercado. Artículo El País 18.4.2011

Si la política no recobra su autonomía frente a los mercados financieros y la sociedad no es capaz de manifestar su indignación, no habrá límites a la especulación, la volatilidad financiera y la desigualdad Link http://www.elpais.com/articulo/opinion/Quiebra/moral/economia/mercado/elpepiopi/20110418elpepiopi_12/Tes

World Consumer Rights Day: making financial services fairer for European consumers

15 March is World Consumer Rights Day

 In 2011, Consumers International – a global federation of consumer groups – is celebrating the occasion by campaigning for fairer financial services. The European Commission fully supports this objective and is acting on all fronts to give EU consumers a fairer deal in financial services.

Commenting on the occasion, the Internal Market Commissioner Michel Barnier said:

"Financial markets should be at the service of citizens, not the other way around. Europe must make financial services more fair and transparent for consumers everywhere in Europe. This means getting the information you need to make the right decision when taking out a mortgage, making it easy to transfer money from your account to another EU country or getting your money back from your current account if your banks fails."

A lot has been achieved over the last 12 months: the new European supervisory authorities for banks, insurers and markets have started their work and will safeguard consumers from high-risk or toxic financial products. New rules for hedge funds and other alternative investors have been adopted to make sure that they handle assets on behalf of pension funds and other investors in all transparency and responsibility. Also, new rules will apply from 1 July that will give investors the information they need to make the right investment decisions for them.

We will shortly table robust rules for consumer protection when buying mortgages, and we will introduce new laws establishing a universal right to a basic bank account as well as measures to curtail risky investment products for consumers. Meanwhile, our efforts to making financial markets more transparent and responsible will continue: from the stock exchange floor to the board room."

Commissioner for Health and Consumers John Dalli said:

"In recent years, millions of consumers failed to get information and advice which they could understand in relation to their investments. As a result, many made poor investment choices and lost large parts of their savings. This caused a lot of pain in consumers' lives and seriously undermined people's confidence in the financial markets.

Our studies have revealed that consumers are often overpaying for their basic financial services and do not always get effective redress they deserve.

The European Commission has not been passive in the face of this.

For basic financial services, such as current bank accounts, we are working to make sure that contracts make sense for consumers, contain clear information that they can understand and clearly show all the fees and charges. We want consumers to be confident that they can understand and compare the cost of their daily banking services so that they do not pay more than they should. We also want to make it easy for consumers to switch to a better and cheaper bank account if they so wish.

We also want to restore investors' confidence. Following the same model that we have introduced for consumer credit contracts, we have new rules which require the information for investors to be simple and comparable, so that contracts are understood by consumers. They will now have a straightforward sheet of two pages only which will enable them to clearly understand and compare costs, risks and potential yields.

Finally, we are working hard to make out-of-court resolution of consumer disputes faster, more effective and more easily available in the EU. Bodies which help consumers resolve their disputes related to financial services already exist, but we want to help boost their efficiency and coverage. We are now consulting the public on the best EU-wide approach to this".

Background:

World Consumers Day is celebrated each year to mark the historic address made by US President John F. Kennedy on 15 March 1962, in which he was the first world statesman to set out a vision of consumer rights and recognise the importance of consumers as a group.

Internal Market: Financial Services

http://ec.europa.eu/internal_market/top_layer/index_24_en.htm

Consumer Affairs: Financial Services

http://ec.europa.eu/consumers/rights/fin_serv_en.htm

 

Services of general interest - Rules of the EU

Guide to the application of the European Union rules on state aid, public procurement and the internal market to services of general economic interest, and in particular to social services of general interest

 http://ec.europa.eu/social/main.jsp?langId=en&catId=89&newsId=977&furtherNews=yes

New guide to help public authorities to provide high quality and efficient services of general interest.

The guide provides guidance as to how the Member States may finance services of general interest in compliance with State aid rules. It states clearly that the rules are not about imposing a particular model of the organisation of public services, but about ensuring that the funding provided does not go beyond what is necessary. It answers questions raised by various stakeholders on the entrustment of services of general interest to external providers and on the calculation of the compensation due to these providers.

The new guide addresses, in a user-friendly manner, the definition of an important terminology such as: service of general interest, general interest or act of entrustment.

The document further explains that public authorities can use public procurement rules and, at the same time, ensure quality, innovation, continuity and comprehensiveness of social services. It also clarifies the conditions under which the provision of social services can be limited to non-profit providers.

Finally, the document provides specific guidance on the application of the Internal Market rules, and of the Services Directive, to social services. It also highlights that the application of this Directive does not prevent Member States from regulating, or from continuing to regulate, social services in order to guarantee their accessibility and quality.

Fundamental values and law: back to basics

“Few institutions reveal the temper of our times as clearly as judicial review of the constitutionality of legislation. […] Written constitutions, and the subordination by the courts of statutory law to those constitutions, represent innovations with deep philosophical roots. From the earliest times men have sought to create or discover a hierarchy of laws and to guarantee this hierarchy. Indeed, this search is one aspect of man´s never ending attempt to find something immutable in the continous change which is his destiny.

Laws change, but the Law must remain, and with it the fundamental values; a law which contravenes that Higher Law is not a law at all”.

Cappelletti, M., Judicial Review in the Contemporary World, Bobbs-Merril Company, New York, 1971, at p. vii.

The EU to vet foreign investments from firms outside the EU that may represent "a danger"

From Economist this week:

"Even a largely pro-market body like the European Commission, which regards abolishing trade barriers inside Europe as a sacred task, is starting to make protectionist noises about China. Antonio Tajani, the industry commissioner, has called for the EU to vet foreign investments that may “represent a danger”. This was prompted by the (failed) attempt by a shadowy Chinese company to take over a Dutch maker of fibre-optic cables."

 

See article here by the columnist Charlemagne:

Mr China goes shopping

China’s buying spree raises hope, and fear in Europe

 http://www.economist.com/node/17902635

 

 

Infringement of European law (EU and EEA law). Judicial decisions. Case Þór Kolbeinsson vs. The Icelandic State

 

A good researcher of European law has pointed to me a very interesting EFTA Court judgment, Þór Kolbeinsson vs. The Icelandic State, in connection with the topic:

 

Judicial Infringements of European Law Attributable to National Courts.

The judgment can be accessed here in English and in Icelandic. 

The Norwegian State had argued in the case rule of EU State liability for breaches of European law (Köbler) could not work in the EEA legal order.

 

In para 70 the Norwegian State argued:

 

In the alternative, the Norwegian Government argues that unlike EU law,

where decisions by national courts can lead to liability for the State for

incorrect application of EU law, see Case C-224/01 Köbler [2003] ECR

I-10239, EEA law provides no basis for State liability for incorrect

application of EEA law by national courts. The Norwegian Government argues

that in the EU, State liability for decisions by national courts must be

seen as a kind of sanction against national courts of last instance

breaching their duty to request preliminary rulings on the interpretation

of EU law. As there is no such duty under EEA law, there can be no State

liability for incorrect application of EEA law by national courts.

The EFTA Surveillance Authority had submitted that the principles established by the ECJ in Köbler, cited above, with regard to EU law also apply under EEA law. This means that an EEA State is liable for breach of EEA law by its courts provided that EEA law has been “manifestly infringed”, see Köbler, paragraph 53. This is a higher threshold than the criterion of a “sufficiently serious breach” which applies in other cases.

 

The EFTA Court rejects the Norwegian argument in para 77 and draws a paralell with Köbler:

 

The Court notes that it must answer the second question based on the

premise spelled out by the national court, namely that the infringement of

EEA law, if indeed there is any, has been caused by incorrect

implementation of EEA law, i.e. a breach on the part of the legislature.

The issue of State liability for losses resulting from incorrect

application of EEA law by national courts falls outside the scope of this

question. The Court observes, however, that if States are to incur

liability under EEA law for such an infringement as alleged by the

Plaintiff, the infringement would in any case have to be manifest in

character, see for comparison Köbler, cited above, paragraph 53.

 

It is clear from now on that the Köbler doctrine (State liability for Judicial  Infringements of European Union Law) also applies in the EEA legal order.

 

National Courts are not exempted from applying correctly EU and EEA law.

 

Infringements of European Law. Judicial Decisions of a National Supreme Court.

In the recent years this reluctance of the Court of Justice of the European Union to reply to the challenges of some national courts has began to give way to another approach: the declaration by the ECJ that State liability would also be applicable for judicial breaches of European law (case Köbler[1]) and the possibility of direct actions against the recalcitrant state started by the Commission by means of infringement actions (cases Traghetti del Mediterraneo[2] and Commission v. Spain[3]).

The Court of Justice  handed down a significant judgment in the case C-154/08 Commission v. Spain ruling that an error of law made by a national Supreme Court can constitute an infringement of European law. Consequently, the Commission can institute proceedings against that member State. As a commentator has put it (www.adjudicatingeurope.com):

 "This practically entails that the Commission can bring a Member State to Luxembourg once a national court of last instance closes a case and gets it wrong. "

 An interesting question is whether this doctrine will be imported to the EEA legal order as well by the EFTA Surveillance Authority and the EFTA Court due to the necessary homogeneity between EU law and EEA law.

 

---------------

A Master´s thesis I strongly recommend on the subject

 

http://skemman.is/handle/1946/4958

 Titill

Judicial Infringements of European Union Law Attributable to National Courts. State liability, remedies for individuals, infringement procedure and the erosion of the principles of legal certainty and res judicata

Höfundur

• Erling Daði Emilsson

Leiðbeinandi

• Maria Elvira Mendez Pinedo

Efnisorð

• Lögfræði
• Evrópuréttur
• Dómstólar
• Ríkisvald

Útdráttur

Through the years the European Court of Justice has by means of judicial activism transformed the EU legal settlement, providing remedies and principles to effectively tackle violations of EU law attributable to Member States’ legislative and executive authority. In this sense, Member States’ judiciaries have maintained their traditionally privileged position as independent and impartial actors in a democratic state, providing the means for the society to put an end to legal disputes, regardless whether one considers a given decisions to be right or wrong. Recently, however, the ECJ has embarked on a new area of jurisprudence, often with limited appreciation from the academic and legal profession, bringing possibilities of remedying judicial infringements of EU law attributable to national courts. This jurisprudence has affected national courts’ decisions, even decisions handed down by Supreme Courts and constitutional courts, as decisions that infringe EU law are, under certain circumstances, no longer under the protective wings of time-honored principles, such as the principles of legal certainty and res judicata.

This thesis is a study on the case-law of the ECJ that composes this creative jurisprudence and the effects it has had and will have.

As for the structure of this thesis, it is organized in four parts. Part I of this thesis features a brief overview of the European procedural law. Part II will focus on the case-law of the ECJ regarding the expansion of the EU law remedy of State liability to breaches attributable to national courts of last instance. This entails that individuals can sue the State for or damages for breach of EU law attributable to national court’s decisions. In Part III we will study the Commission enrollment in tackling non-compliance of national courts, and thus securing the effectiveness of EU law. Parallel to the case-law of the ECJ, expanding the principle of State liability to breaches attributable to national courts, the Commission has taken its role as “guardian of the Treaties” to the next level by instigating infringement procedures, against judicial infringements attributable to national courts. Finally, in Part IV we will examine a certain trend in the Court’s case-law, in which the ECJ both creates a remedy and obliges national courts to set aside national provisions of procedural conditions, in connection with breaches of EU law attributable to national courts. The consequence of this trend is the erosion of the principles of legal certainty and res judicata for judicial decisions, under certain circumstances.

 

 

[1] Case C-224/01 Gerhard Köbler v. Republik Österreich [2003] ECR I-10239.

[2] ECJ, Case C-173/03, Traghetti del Mediterraneo SpA in Liquidation v. Italian Republic [2006] ECR I-5177.

[3] ECJ, Case C-154/08 Commission vs. Spain, judgment of 12 November 2009 [2009] not yet reported, only available in Spanish, French and other languages.

 

 

On the dual nature of law ( formal and substantive dimensions) plus a third dimension of legitimacy

To explain the formal and substantive dimension of law I will refer to an article from a famous scholar in the field of European Law

 

Avbelj, M., “The EU and the Many Faces of Legal Pluralism. Towards a Coherent or Uniform EU Legal Order?, Croatian Yearbook of European Law and Policy, 2006, vol. 2, pp. 377-391.

 

On the dual nature of law – pp. 387-389

 

"IV. Dual Nature of Law

 

It has been submitted that globalisation and its phenomena, and perhaps most notably the emergence of the European Union, have challenged the traditional understanding of law, even to the degree that an entire shift of the paradigm of law is said to be required. However, while we generally share the beliefs of these paradigm-shifters, we are nevertheless convinced that despite the fundamental changes in the environment in which the law is embedded, the law still remains the cornerstone of modern society due to some of its intrinsic qualities that emanate from its dual nature.

 

Speaking about the dual nature of law, we refer to the formal and substantive dimensions of its existence. This is a very well-known issue that has historically divided lawyers, roughly speaking, between the proponents of positive law, i.e. legal positivists that have focused on and promoted the formal conception of law, and the proponents of natural law in various forms who have emphasized the substantive conception of law. As the following discussion will show, the two accounts of law - formal and substantive - cannot be taken separately or even antagonistically. Rather, they have to be fused in the so-called integrated conception of law.

 

From the purely formal understanding of law, the purpose of legal regulation in society is the maintenance of order based on legal rules that their addressees should be able to comprehend and according to which their actions should be guided. For the formal conception of law, it is thus indispensable that valid legal rules are promulgated in a correct manner by a competent body, that they are of prospect temporal validity and that they are clear and identifiable so that the addressees of these legal rules which confer rights and impose duties know how to conduct themselves in order to remain in compliance with the law. Non-compliance with legal rules is, according to the formal conception of law, the only justified reason for sanctions (coercion) imposed on the individual. Sanctions can be imposed only by independent courts to which every- body must have equal access. In essence, the formal conception of law is about certainty: individuals have to know who adopts the law, what their rights and duties are according to the law, and who adjudicates the cases of conflict and non-compliance.

 

The advocates of the substantive conception of law recognize the importance of certainty, which legal positivists posit as the paramount value, but they go further in their quest by raising the question of good and bad law. For legal formalists, this question pertains to theories of social and political justice, which are, of course, not unimportant, but which are methodologically unnecessary and even inappropriate for the formal conception of law and should therefore be excluded from its ambit. On the other hand, the appropriate theory of justice embedded in law constitutes the core of the substantive conception of law. The substantive conception of law is therefore not just about certainty, but about the certainty in the allocation of rights and duties between individuals and the public authority that fits best the chosen conception of justice of a particular community.

 

Neither of the two conceptions of law can stand in isolation from the other. An exclusively formalist approach without substantive justice would soon turn certainty into oppression, whereas an exclusively substantive approach without formal means to contain and check the claims to an appropriate conception of justice would sooner or later turn justice into injustice and arbitrariness. Since to be valid law has to be effective (certainty and coercion) and legitimate (justice), the only viable conception of law is an integrated conception that merges the formal and the substantive. According to the latter, the role of the law is to provide certainty in the allocation of rights and duties that fits best the chosen conception of justice within the respective community."

 

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Comment to the article by M. Avbelj

 

I agree with the dual nature of law based both on formal and substantive requirements. When only one dimension of law is considered,  the results may lead to injustice, uncertainty and opression. But there is another philosophical school -unknown for the anglosaxon literature- that argues that in fact there is a triple dimension of law, one where norms have to complied not only with the formal and substantive dimension but also with a third pillar of legitimacy:

 

-       legality-validity (importance of certainty as legal positivists defend)

-       justice (importance of fundamental rights, ethics and social justice as advocates of substantive law defend)

-       legitimacy ( importance of sociology or support for the effective use of legal coercion or force by the State against the ultimate holders of sovereignty, the people).

 

I was educated in this school represented in Spain by the Dean of the Faculty of Law of the University Complutense of Madrid, Prof. of Legal Philosophy José Iturmendi  Morales.* For this school, Law, Justice and People are intrinsically related. When one pillar fails or is violated, law does not qualify as such and the legal order is replaced by legal disorder. It is in this context that the concept of civil desobedience comes into the picture . Iturmendi is a professor who has encouraged legal thinking and research on civil disobedience  in a generation of Spanish lawyers so that law is not misused.

 

On civil desobedience

 

 See the website of the Stanford Encyclopedia of Philosophy

 

http://plato.stanford.edu/entries/civil-disobedience/

 

In Spain - University Complutense de Madrid

 

Following this line or research, we find recently Prof. of Legal Philosophy of the University Complutense María José Falcón y Tella, author of the book on civil desobedience: La desobediencia civil . Madrid. Marcial Pons, 2000 who worked on this research project at several universities such Harvard University, Köln, Frankfurt and Rome (La Sapienza). This research was supported by the Ministry of Education and Science of Spain.

 

 

Link to the books by Prof. Falcón y Tella

 

http://www.unilibro.es/find_buy_es/result_scrittori.asp?scrittore=FALCON+Y+TELLA%2C+MARIA+JOSE&idaff=0

 

Her article on civil desobedience

http://revistas.ucm.es/der/02120364/articulos/ANDH0000110037A.PDF

 

Her bibliography on civil desobedience on which her book published in 2000 relies

 

FALCÓN Y TELLA, MARÍA JOSé: El argumento analógico en el Derecho. Madrid. Civitas. 1991. Prólogo de José Iturmendi Morales./ Concepto y fun- damento de la validez del Derecho, Madrid, Civitas, 1994. Prólogo de François Ost. Trad. al portugués por Stefani Borba de Rose Trunfo. Brasil. Triángulo. 1998. Trad. al inglés por Peter Muckley. /«Algunas consideraciones acerca de la desobediencia civil», en VVAA: Guerra, Moral y Derecho, Madrid, Actas, 1994, pp. 215-257. / «Constitución española de 1978 y Estado social y democrático de Derecho», en VVAA: «El Estado de Derecho en la España de hoy», Madrid, Ac- tas, 1996, pp. 169-237./ «Should we obey the unjust law? The question of civil disobedience», en Indian Socio-Legal Journal, vol. XXIII, 1997, pp. 11-37./ «La dé- sobéissance civile», en Revue Interdisciplinaire D’Études Juridiques, 39, 1997, pp. 27-67. / «Los precedentes de la desobediencia civil en el mundo griego», en Revista de la Facultad de Derecho de la Universidad Complutense de Madrid, no 90, 1998, pp. 67-87. / «Principal realist theories of efficacy and obedience to the law», en el Indian Socio-Legal Journal, vol. XXV, no 1 y 2, 1999, pp. 21-41./ «Legal validity and obedience to the law», en el Indian Socio-Legal Journal, vol. XXV, no 1 y 2, 1999, pp. 89-101. / «La desobediencia civil como derecho», en Ca- dernos de Direito da UNIGRANRIO. Universidade do Grande Rio. Brasil. 1999, 1, pp. 15-29. / «Desobediencia civil y derecho de asilo», en Revista Hispano-Cubana, no 6, 2000, pp. 159-165. /«Legal validity and civil disobedience», India In- dian Institute of Comparative Law, dirigido por el profesor Agrawal 2000./ «La desobediencia civil y la Constitución española de 1978: ¿Un derecho a la desobediencia?», en prensa en el Libro Homenaje a Pablo Lucas Verdú. / «El desobediente civil ante el Derecho penal», en prensa en el Libro Homenaje a Antonio Hernández Gil. / «Legal justification for civil disobedience», Ponencia presentada al Congreso Mundial de Filosofía del Derecho, celebrado en Nueva York, del 23 al 30 de junio de 1999, en prensa. «Legal justification for civil disobedience. Is it possible?», en prensa en el Indian Socio-Legal Journal. 2000./ «¿Un derecho a desobedecer la ley por analogía? Ensayo de una justificación jurídica de la desobediencia civil a través del argumento analógico», en prensa en la Antología so- bre Derechos Humanos. Ayuntamiento de Tlanleplanta de Baz (Méjico)./ «Gue- rra, Moral y Derecho: sobre la justificación de la guerra» y «La objeción de con- ciencia y la insumisión como formas de desobediencia al Derecho», ambos artículos en prensa en Cadernos de Direito da UNIGRANRIO/ «Principales conséquences à propos de la possibilité de parler d’un droit à la désobéissance ci- vile sur le plan juridique», en prensa en la Revue Interdisciplinaire d’Études Ju- ridiques.[...] Sobre el tema se encuentran actualmente bajo nuestra dirección en la Universidad Complutense algunas tesis doctorales, como la de Stefani Borba de Rose Trunfo o la de Carmen Saez Cabrera. Mantenemos igualmente contactos con la profesora del University College of London y la Université Paris XIII, Sophie Turenne, especialista por su tesis doctoral en el tema de la desobediencia civil, desde sus años de estudio en el Keble College de Oxford.

 

From the same professor, Book "El ciudadano frente a la ley" (The citizen against the law) Ciudad Argentina, 2004.

Tanto los más conservadores como los más liberales suelen estar de acuerdo en el hecho de que tal vez un individuo no hace mal en determinadas circunstancias en violar la ley injusta. El desacuerdo se manifiesta en torno a las diversas respuestas que el Estado debería dar al gesto del desobediente. En la presente obra, de una forma clara y amena, se pasa revista a las principales formas de protesta ciudadana y estatal frente a normas ilegítimas. Se aborda el estudio en profundidad de temas de gran actualidad, como la desobediencia civil, la objeción de conciencia, la huelga, los delitos, el derecho de asilo, la revolución, el terrorismo, la rebelión, la resistencia, etc. se trata también la cuestión de la guerra en sus diversas manifestaciones, desde la guerra santa a la guerra en la actualidad, y se intenta ver en qué medida es posible justificar o no estas infracciones normativas. El libro sigue un enfoque a la vez jurídico, político y moral, y se acompaña de una exhaustiva bibliografía a pie de página. Recomendamos su lectura a todos aquellos que estén interesados en temas de obediencia y desobediencia a la ley y, en general, de Filosofía Política.

 

*Research recently done by Prof. Iturmendi Morales:

 

Sus publicaciones versan, fundamentalmente, sobre Teoría del Derecho y Sociología Jurídica. Entre las más recientes (posteriores a 1995) cabe señalar: "Acerca de Rudolf von Ihering (1818-1892) y el sistema de los juristas romanos" (1995), el prólogo a la traducción española del libro de François Ost "El sistema Jurídico entre orden y desorden" (1997), diversas publicaciones sobre Deontología, como "Deontología, función social y responsabilidad de las profesiones jurídicas" (1998), y también sobre Derechos Humanos, como la traducción al castellano y notas del articulo de Amartya Kumar Sen "Democracia y desarrollo. Derechos del hombre y diferencias culturales".

Abuse of rights in EU Law - Conclusions from L. Cerioni

 Highlights from the article. Please note that the Court of Justice in its jurisprudence usually refers to intra-EU operations (company in one Member State A moving to another Member State B). Because the internal market is the general principle, the test that national legislation must pass is strict.

The ECJ has never ruled, to the best of my knowledge, on abuse of rights (freedom of establishment) or abuse of EU law by a non-EU company from outside the EU/EEA. In my view, the test that national legislation would have to pass in order to prevent abuse of rights is not as high if there is no genuine economic activity within the European territory and the purpose of the national legislation is non-economic but rather the protection of the public interest.

 

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The case-law from the ECJ (ruling Cadbury Swcheppes) shows that:

 A genuine economic activity is required in order to benefit from the freedom of establishment. The objective factors which must be demonstrated
relate to the existence of the subsidiary in terms of premises, staff and equipment. 

The ECJ clearly specified that “letter-box” or “front” subsidiaries are not covered by the Treaty provisions on the right of establishment. Its importance from the tax law viewpoint lies in the circumstance that – by making reference to this case of  subsidiaries not carrying on genuine economic activities – the ECJ explained the meaning of the expression “wholly artificial arrangements”, that it had already used in several previous tax law rulings.

Cadbury Schweppes thus showed the application of the same test (including the subjective and the objective elements) for identifying the abusive practices from one area of EU law to another, and clarified that, in the field of tax law, wholly artificial arrangements – such as the setting up in other Member States of subsidiaries not carrying on genuine economic activities - are synonymous of abuse. 

As the purpose of the freedom of establishment is to make it possible a genuine economic interpenetration within the internal market, a wholly artificial arrangement which does not lead to this integration cannot benefit from the freedom of establishment.

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From this viewpoint, it might well be submitted that, when the exercise of fundamental freedoms is at stake, there is simply an application of the “rule of reason test” which has been elaborated by the ECJ case-law in the landmark Cassis de Dijon ruling in the area of free movement of goods:
specifically, this tests consists of recognising that there are overriding reasons of public interest which can justify restricting the use of fundamental freedoms, and a “rule of reason” test would be used, for this purpose, to protect the financial interest of Member States  in cases of wholly artificial arrangements, by regarding these arrangements as abusive.                                

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In the present work, it has therefore been stressed that the existence of the
prejudice (to either Member States' financial interests or the general public interest or to specific interests)  makes it possible to find a unitary notion from both the perspective of the types of conduct involved and the perspective of the different areas, and that this aspect is bound to be the ultimate outcome in cases of artificial conduct (i.e., of creation of the formal conditions for obtaining benefits without the underlying required economic substance or resort to freedoms without genuine economic integration). 

   
As a result, taking the concept of abuse of rights developed by the ECJ case-law, and capable of being regarded as a general principle (with a sui generis aspect), which has been here analysed with particular regard to the areas of company law and tax law, together with the concept embodied in Art. 54 of the Charter of Fundamental Rights,  a conclusion seems to be inevitable. 

Specifically, it can be concluded that the two concepts – due to the fact that they differ from each other not in the substance, but only from the viewpoint of the scope of rights embraced and from the viewpoint of the actors of the conduct under consideration – are complementary to one other in ensuring that, within the framework of the EU legal order on its whole, rights of whatever nature can be abused by neither public bodies nor right holders.   

Please use this identifier to cite or link to this item:

http://bura.brunel.ac.uk/handle/2438/4141

Title:	The “abuse of right” in EU company law and EU tax law: A re-reading of the ECJ case-law and the quest for a unitary notion
Authors:	Cerioni, L
Keywords:	EU company law EU tax law
Issue Date:	26-Feb-2010
Abstract:	This article discusses whether, in light of the developments of the ECJ case-law in different areas, and in particular in the areas of EU company law and EU tax law, it is possible to identify a unitary concept of “abuse of rights” in EU law, and whether the prohibition of abuse of right based on such concept has reached the status of “general principle” of EU law. Through a re-reading of the ECJ case-law, it is argued that it is possible to identify a unitary concept of abuse of rights, and that the prohibition of abuse of rights could be described in terms of a “general principle with a sui generis aspect”, which general principle, in the author’s view, should be seen as complementary to the prohibition of abuse of rights spelt out in Art. 54 of the Charter of Fundamental Rights for consistency of the (post-Lisbon Treaty) EU legal order.
URI:	http://bura.brunel.ac.uk/handle/2438/4141
Appears in Collections:	Brunel Law School Research Papers Law