Carri Ginter | University of Tartu (original) (raw)
Papers by Carri Ginter
DOAJ (DOAJ: Directory of Open Access Journals), Aug 31, 2022
Jurista Vards, 2023
General principles of law, treaties, the EU Charter of Fundamental Rights, regulations, directive... more General principles of law, treaties, the EU Charter of Fundamental Rights, regulations, directives, framework decisions and other sources of EU law have their distinctive nature, which is reflected in their effects on legal relationships. This article focuses on the interrelationship between national and EU law, primarily focusing on the various impacts of directives and framework decisions. The Court of Justice of the European Union (CJEU) has clarified that directives may, in certain situations, have both a vertical direct effect and, in some limited cases, also a de facto incidental horizontal direct effect on a legal relationship. In addition, directives can have a decisive role in interpreting national law. These tools to deal with national and EU law inconsistencies are analysed in detail. The chapter aims to establish a comprehensive understanding of the topic and add the Estonian perspective by providing an insight into the practice of the Estonian courts, which has so far n...
National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law, 2019
The report informs that due to historical ties to the German legal culture, the most influential ... more The report informs that due to historical ties to the German legal culture, the most influential model for reconstruction of the Estonian legal order after the restoration of independence was German law, including when drafting the 1992 Constitution. However, with regard to EU law, a different approach was chosen: a
Juridica International
The European Commission has initiated infringement proceedings against virtually half of the Memb... more The European Commission has initiated infringement proceedings against virtually half of the Member States, accusing many of, inter alia, failing to take the necessary measures to ensure that racist and xenophobic hate crimes are effectively criminalised. The article looks at the right of a Member State to limit prosecution for incitement of violence or hatred to acts that are carried out in a manner likely to disturb the public order. The authors argue that application of the ‘risk to public order’ criterion if interpreted appropriately, will in most cases reduce the threat of ‘taking it too far’. They argue also that there is a risk of confusion between ‘public order’ and ‘public nuisance’, due to the national criminal courts being more familiar with the latter. This could lead to unreasonably loose application of criminal punishments and pose a risk breaching the nullum crimen nulla poena sine lege certa principle. Perhaps because of having suffered censorship and absence of fund...
Baltic Yearbook of International Law Online
General principles of law, treaties, the EU Charter of Fundamental Rights, regulations, directive... more General principles of law, treaties, the EU Charter of Fundamental Rights, regulations, directives, framework decisions and other sources of EU law have their distinctive nature, which is reflected in their effects on legal relationships. This article focuses on the interrelationship between national and EU law, primarily focusing on the various impacts of directives and framework decisions. The Court of Justice of the European Union (CJEU) has clarified that directives may, in certain situations, have both a vertical direct effect and, in some limited cases, also a de facto incidental horizontal direct effect on a legal relationship. In addition, directives can have a decisive role in interpreting national law. These tools to deal with national and EU law inconsistencies are analysed in detail. The chapter aims to establish a comprehensive understanding of the topic and add the Estonian perspective by providing an insight into the practice of the Estonian courts, which has so far n...
Käesolev dokument on hindamisraport, mis sünteesib avaliku konsultatsiooni käigus kogutud tagasis... more Käesolev dokument on hindamisraport, mis sünteesib avaliku konsultatsiooni käigus kogutud tagasisidet ning hinnanguid, parandus-ja täiendusettepanekuid Vabariigi Valitsuse poolt 22.09.2011 kinnitatud "Eesti Euroopa Liidu poliitika 2011-2015" eelnõule. Avalikule konsultatsioonile suunati eelnõu 23. septembril 2011, konsultatsioon oli avatud kuni 11. oktoobrini; hiljem pikendati avalikku konsultatsiooniperioodi 18. oktoobrini. Riigikantselei kaasas Tartu Ülikooli Euroopa Kolledži "Eesti EL-poliitika 2011-2015" koostamise lõpufaasi, saamaks konsultatsiooniperioodil eelnõule tagasisidet ka ülikoolidelt ja uurimiskeskustelt. Saamaks sisendit ning hindamaks Vabariigi Valitsuse koostatud eelnõud, valmistas TÜ Euroopa Kolledž ette poliitikavaldkonda käsitlevad konsultatsiooniseminarid ning korraldas e-maili-põhise tagasisidestamise. Kogu protsessi tulemusena valmis kolm valdkondlikku raportit ja üks üldraport. Käesolev raport sisaldab hinnangut, kommentaare ja konkreetseid täiendusettepanekuid justiits-ja siseküsimusi käsitlevale peatükile nimetatud eelnõus. Raport konsolideerib nii aruteluseminaril kõlanud, kirjalikult laekunud kui ka raporti koostanud ekspertide ettepanekuid. *** Sise-ja justiitsküsimustes on seoses Lissaboni lepingu jõustumisega toimunud põhimõttelisi muudatusi, kus mitmed seni valitsustevahelised valdkonnad on muutunud ühenduse meetodiks. Antud raport on koostatud järgmiseid asjaolusid silmas pidades: • raporti koostajatel ei olnud täit teavet teiste liikmesriikide positsioonidest selles poliitikavaldkonnas, seetõttu ei ole võimalik hinnata, kuivõrd realistlik on poliitika ja täpsema tegevuskava teostatavus kogu ulatuses; • raporti koostajate jaoks tekitas küsimusi eelnõus püstitatud eesmärk-on see Eesti poliitika väljatöötamine mõjutamaks selle valdkonna arenguid Eestile soodsamas suunas või lihtsalt kohandumine juba olemasoleva kokkulepitud Euroopa Liidu integratsiooni raamistikuga; • raporti koostajad on pidanud vajalikuks alustada iga punkti üldisema poliitilise suunise defineerimisega, millele järgneb konkreetsem tegevusettepanek. Dokument peaks sisaldama Eesti poolt väljapakutud arenguid ja eesmärke juba olemasolevas kokkulepitud EL integratsiooni raamistikus ning kirjeldama Eesti huvisid, olenemata sellest, mis on päevakorral.
This paper addresses a current issue regarding the increasing problem of a decreasing cattle popu... more This paper addresses a current issue regarding the increasing problem of a decreasing cattle population in the Polish Carpathians. The problem exacerbated after 1990, as a result of changes in prices of the means of production and agricultural products. It intensified even further after Poland joined the EU. The decrease in cattle population is observed in all districts in the Carpathians. This article includes a diagnosis of four such districts: two with the highest decrease (Łańcut:-67.0% and Sucha:-52.6%) and two with the smallest decrease in cattle population (Bieszczdy:-8.1% and Wadowice:-11.5%). Expert assessments were used to this end. The article includes a definition and analysis of the deanimalisation process and an indication of the consequences of this process in agriculture, in the local environment and in the broadly understood ecological context. It follows from the research that favourable natural conditions, good for breeding ruminants, largely determine high cattle density but, at the same time, these conditions do not impact the decrease in the cattle population to such an extent. The decrease is related to the low concentration of herds, generational changes and the disappearance of local dairy markets. As a result of progressing deanimalisation, abandoned meadows and pastures, as well as part of arable lands, are being permanently lost. Instead, these lands become overgrown with invasive plant species and shrubbery.
European Procurement & Public Private Partnership Law Review, 2018
The article explores the preconditions for excluded tenderer's locus standi. It is common... more The article explores the preconditions for excluded tenderer's locus standi. It is commonly accepted that a chance at a new procurement can serve as grounds for granting the right to challenge the buyer’s decisions. This article focuses on the specifics of a situation where the buyer has made a decision to exclude the review-seeking tenderer and aims to clarify the point at which their rights to request for review of the decisions of the contracting authority should terminate. Pro tempore this point seems to be the time when the decision to exclude the tenderer becomes final. A specific set of facts from the procurement of trams for the City of Tallinn is used to demonstrate that at times this may lead to a race between judges. This makes the right to seek a review a matter of chance and not of law. Giving precedence to the time of filing a request for review is more in harmony with the Remedies Directives. In certain jurisdictions the principles of equivalence and effectiveness could be used to achieve this. If, in most cases, the national courts check the right to file a claim at the time of filing of the claim and not later, such treatment could be extended to requests for review filed by excluded tenderer's.
International Comparative Jurisprudence, 2016
The authors explore different models of transfer of industrial property on a comparative basis. T... more The authors explore different models of transfer of industrial property on a comparative basis. The article demonstrates that these models differ on a country level and several models may be in use in one legal system. The authors analyze strengths and weaknesses and legal implications of these models in the three Baltic States both at the regulatory level and at the practical level through case studies. The authors conclude that would be preferable to use the model under which the register is vested with negative publicity and the transfer of ownership of industrial property is not made dependent on its recordation.
The inconsistent regulation of concessions at the EU level is a frequent subject of discussion. T... more The inconsistent regulation of concessions at the EU level is a frequent subject of discussion. The core of the concern is that different member states have absent or conflicting rules with regards to concessions, causing legal uncertainty and obstacles to trade. Concessions are an important tool for delegating public functions to private sector players and thus, prima facie, deal with relationships of significant public interest. Any lack of clarity may cause serious problems to private as well as public interests. Unclear formulation of the legal nature of the tendered contract may constitute a violation of the general principles of procurement, including equal treatment.4 A failure to differentiate between public and private law concessions may implicate both the validity of the contract award and the rights of parties in the course of performing the contract.. This article addresses the dual national regulation of concessions, and seeks to identify the critical effects of such a...
The article highlights a partial inconsistency between Estonian case law on one and national and ... more The article highlights a partial inconsistency between Estonian case law on one and national and EU competition law on the other hand. The relatively gloomy picture is softened by a landmark case introducing Commission method of analysis in practice of the Estonian Competition Authority (“ECA”).
Summary Even many years after the restoration of independence in Estonia state liability was regu... more Summary Even many years after the restoration of independence in Estonia state liability was regulated by provisions in the Estonian SSR Civil Code. It was only on 2 May 2001 that the State Liability Act was passed, and this entered into force on 1 January 2002. This Act stipulates the bases of and procedure for the protection and restoration of rights violated upon the exercise of powers of public authority and performance of other public duties and compensation for damages caused. Traditionally, the bases of compensation for ...
Summary According to the case-law of the European Court of Justice, the primary objective of EU p... more Summary According to the case-law of the European Court of Justice, the primary objective of EU public procurement rules is the free movement of services and open and fair competition in the member states. According to § 1 of the Public Procurement Act, the ...
Summary Division 2 of Chapter 2 of the Law of Obligations Act “Standard Terms” opens a new page i... more Summary Division 2 of Chapter 2 of the Law of Obligations Act “Standard Terms” opens a new page in the history of the Estonian legal system. The provisions regarding standard terms were drafted based on Directive 93/13/ECC. The author analyses whether the principles of the Directive have been successfully transposed into the Law of Obligations Act or whether additional provisions are still needed. The author focuses on the concepts of consumer contract and standard terms, including unfair contract terms, as defined in the ...
EUROPEAN COMPETITION LAW REVIEW, 2004
EUROPEAN COMPETITION LAW REVIEW, 2007
National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law, 2019
The report informs that due to historical ties to the German legal culture, the most influential ... more The report informs that due to historical ties to the German legal culture, the most influential model for reconstruction of the Estonian legal order after the restoration of independence was German law, including when drafting the 1992 Constitution. However, with regard to EU law, a different approach was chosen: a blanket clause in a self-standing constitutional act that suspends the Constitution, in order to give full supremacy to EU law. The Supreme Court and its Constitutional Review Chamber have adopted an unconditionally EU-friendly approach. However, the report documents the widespread concerns that have emerged amongst Estonian lawyers with regard to setting aside the Constitution, as well as the practical difficulties in constitutional adjudication by the Supreme Court. The tensions peaked in the process of ratification of the ESM Treaty, which was approved by 11 judges against 8, with the latter submitting strongly worded dissenting opinions expressing concerns about the ...
DOAJ (DOAJ: Directory of Open Access Journals), Aug 31, 2022
Jurista Vards, 2023
General principles of law, treaties, the EU Charter of Fundamental Rights, regulations, directive... more General principles of law, treaties, the EU Charter of Fundamental Rights, regulations, directives, framework decisions and other sources of EU law have their distinctive nature, which is reflected in their effects on legal relationships. This article focuses on the interrelationship between national and EU law, primarily focusing on the various impacts of directives and framework decisions. The Court of Justice of the European Union (CJEU) has clarified that directives may, in certain situations, have both a vertical direct effect and, in some limited cases, also a de facto incidental horizontal direct effect on a legal relationship. In addition, directives can have a decisive role in interpreting national law. These tools to deal with national and EU law inconsistencies are analysed in detail. The chapter aims to establish a comprehensive understanding of the topic and add the Estonian perspective by providing an insight into the practice of the Estonian courts, which has so far n...
National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law, 2019
The report informs that due to historical ties to the German legal culture, the most influential ... more The report informs that due to historical ties to the German legal culture, the most influential model for reconstruction of the Estonian legal order after the restoration of independence was German law, including when drafting the 1992 Constitution. However, with regard to EU law, a different approach was chosen: a
Juridica International
The European Commission has initiated infringement proceedings against virtually half of the Memb... more The European Commission has initiated infringement proceedings against virtually half of the Member States, accusing many of, inter alia, failing to take the necessary measures to ensure that racist and xenophobic hate crimes are effectively criminalised. The article looks at the right of a Member State to limit prosecution for incitement of violence or hatred to acts that are carried out in a manner likely to disturb the public order. The authors argue that application of the ‘risk to public order’ criterion if interpreted appropriately, will in most cases reduce the threat of ‘taking it too far’. They argue also that there is a risk of confusion between ‘public order’ and ‘public nuisance’, due to the national criminal courts being more familiar with the latter. This could lead to unreasonably loose application of criminal punishments and pose a risk breaching the nullum crimen nulla poena sine lege certa principle. Perhaps because of having suffered censorship and absence of fund...
Baltic Yearbook of International Law Online
General principles of law, treaties, the EU Charter of Fundamental Rights, regulations, directive... more General principles of law, treaties, the EU Charter of Fundamental Rights, regulations, directives, framework decisions and other sources of EU law have their distinctive nature, which is reflected in their effects on legal relationships. This article focuses on the interrelationship between national and EU law, primarily focusing on the various impacts of directives and framework decisions. The Court of Justice of the European Union (CJEU) has clarified that directives may, in certain situations, have both a vertical direct effect and, in some limited cases, also a de facto incidental horizontal direct effect on a legal relationship. In addition, directives can have a decisive role in interpreting national law. These tools to deal with national and EU law inconsistencies are analysed in detail. The chapter aims to establish a comprehensive understanding of the topic and add the Estonian perspective by providing an insight into the practice of the Estonian courts, which has so far n...
Käesolev dokument on hindamisraport, mis sünteesib avaliku konsultatsiooni käigus kogutud tagasis... more Käesolev dokument on hindamisraport, mis sünteesib avaliku konsultatsiooni käigus kogutud tagasisidet ning hinnanguid, parandus-ja täiendusettepanekuid Vabariigi Valitsuse poolt 22.09.2011 kinnitatud "Eesti Euroopa Liidu poliitika 2011-2015" eelnõule. Avalikule konsultatsioonile suunati eelnõu 23. septembril 2011, konsultatsioon oli avatud kuni 11. oktoobrini; hiljem pikendati avalikku konsultatsiooniperioodi 18. oktoobrini. Riigikantselei kaasas Tartu Ülikooli Euroopa Kolledži "Eesti EL-poliitika 2011-2015" koostamise lõpufaasi, saamaks konsultatsiooniperioodil eelnõule tagasisidet ka ülikoolidelt ja uurimiskeskustelt. Saamaks sisendit ning hindamaks Vabariigi Valitsuse koostatud eelnõud, valmistas TÜ Euroopa Kolledž ette poliitikavaldkonda käsitlevad konsultatsiooniseminarid ning korraldas e-maili-põhise tagasisidestamise. Kogu protsessi tulemusena valmis kolm valdkondlikku raportit ja üks üldraport. Käesolev raport sisaldab hinnangut, kommentaare ja konkreetseid täiendusettepanekuid justiits-ja siseküsimusi käsitlevale peatükile nimetatud eelnõus. Raport konsolideerib nii aruteluseminaril kõlanud, kirjalikult laekunud kui ka raporti koostanud ekspertide ettepanekuid. *** Sise-ja justiitsküsimustes on seoses Lissaboni lepingu jõustumisega toimunud põhimõttelisi muudatusi, kus mitmed seni valitsustevahelised valdkonnad on muutunud ühenduse meetodiks. Antud raport on koostatud järgmiseid asjaolusid silmas pidades: • raporti koostajatel ei olnud täit teavet teiste liikmesriikide positsioonidest selles poliitikavaldkonnas, seetõttu ei ole võimalik hinnata, kuivõrd realistlik on poliitika ja täpsema tegevuskava teostatavus kogu ulatuses; • raporti koostajate jaoks tekitas küsimusi eelnõus püstitatud eesmärk-on see Eesti poliitika väljatöötamine mõjutamaks selle valdkonna arenguid Eestile soodsamas suunas või lihtsalt kohandumine juba olemasoleva kokkulepitud Euroopa Liidu integratsiooni raamistikuga; • raporti koostajad on pidanud vajalikuks alustada iga punkti üldisema poliitilise suunise defineerimisega, millele järgneb konkreetsem tegevusettepanek. Dokument peaks sisaldama Eesti poolt väljapakutud arenguid ja eesmärke juba olemasolevas kokkulepitud EL integratsiooni raamistikus ning kirjeldama Eesti huvisid, olenemata sellest, mis on päevakorral.
This paper addresses a current issue regarding the increasing problem of a decreasing cattle popu... more This paper addresses a current issue regarding the increasing problem of a decreasing cattle population in the Polish Carpathians. The problem exacerbated after 1990, as a result of changes in prices of the means of production and agricultural products. It intensified even further after Poland joined the EU. The decrease in cattle population is observed in all districts in the Carpathians. This article includes a diagnosis of four such districts: two with the highest decrease (Łańcut:-67.0% and Sucha:-52.6%) and two with the smallest decrease in cattle population (Bieszczdy:-8.1% and Wadowice:-11.5%). Expert assessments were used to this end. The article includes a definition and analysis of the deanimalisation process and an indication of the consequences of this process in agriculture, in the local environment and in the broadly understood ecological context. It follows from the research that favourable natural conditions, good for breeding ruminants, largely determine high cattle density but, at the same time, these conditions do not impact the decrease in the cattle population to such an extent. The decrease is related to the low concentration of herds, generational changes and the disappearance of local dairy markets. As a result of progressing deanimalisation, abandoned meadows and pastures, as well as part of arable lands, are being permanently lost. Instead, these lands become overgrown with invasive plant species and shrubbery.
European Procurement & Public Private Partnership Law Review, 2018
The article explores the preconditions for excluded tenderer's locus standi. It is common... more The article explores the preconditions for excluded tenderer's locus standi. It is commonly accepted that a chance at a new procurement can serve as grounds for granting the right to challenge the buyer’s decisions. This article focuses on the specifics of a situation where the buyer has made a decision to exclude the review-seeking tenderer and aims to clarify the point at which their rights to request for review of the decisions of the contracting authority should terminate. Pro tempore this point seems to be the time when the decision to exclude the tenderer becomes final. A specific set of facts from the procurement of trams for the City of Tallinn is used to demonstrate that at times this may lead to a race between judges. This makes the right to seek a review a matter of chance and not of law. Giving precedence to the time of filing a request for review is more in harmony with the Remedies Directives. In certain jurisdictions the principles of equivalence and effectiveness could be used to achieve this. If, in most cases, the national courts check the right to file a claim at the time of filing of the claim and not later, such treatment could be extended to requests for review filed by excluded tenderer's.
International Comparative Jurisprudence, 2016
The authors explore different models of transfer of industrial property on a comparative basis. T... more The authors explore different models of transfer of industrial property on a comparative basis. The article demonstrates that these models differ on a country level and several models may be in use in one legal system. The authors analyze strengths and weaknesses and legal implications of these models in the three Baltic States both at the regulatory level and at the practical level through case studies. The authors conclude that would be preferable to use the model under which the register is vested with negative publicity and the transfer of ownership of industrial property is not made dependent on its recordation.
The inconsistent regulation of concessions at the EU level is a frequent subject of discussion. T... more The inconsistent regulation of concessions at the EU level is a frequent subject of discussion. The core of the concern is that different member states have absent or conflicting rules with regards to concessions, causing legal uncertainty and obstacles to trade. Concessions are an important tool for delegating public functions to private sector players and thus, prima facie, deal with relationships of significant public interest. Any lack of clarity may cause serious problems to private as well as public interests. Unclear formulation of the legal nature of the tendered contract may constitute a violation of the general principles of procurement, including equal treatment.4 A failure to differentiate between public and private law concessions may implicate both the validity of the contract award and the rights of parties in the course of performing the contract.. This article addresses the dual national regulation of concessions, and seeks to identify the critical effects of such a...
The article highlights a partial inconsistency between Estonian case law on one and national and ... more The article highlights a partial inconsistency between Estonian case law on one and national and EU competition law on the other hand. The relatively gloomy picture is softened by a landmark case introducing Commission method of analysis in practice of the Estonian Competition Authority (“ECA”).
Summary Even many years after the restoration of independence in Estonia state liability was regu... more Summary Even many years after the restoration of independence in Estonia state liability was regulated by provisions in the Estonian SSR Civil Code. It was only on 2 May 2001 that the State Liability Act was passed, and this entered into force on 1 January 2002. This Act stipulates the bases of and procedure for the protection and restoration of rights violated upon the exercise of powers of public authority and performance of other public duties and compensation for damages caused. Traditionally, the bases of compensation for ...
Summary According to the case-law of the European Court of Justice, the primary objective of EU p... more Summary According to the case-law of the European Court of Justice, the primary objective of EU public procurement rules is the free movement of services and open and fair competition in the member states. According to § 1 of the Public Procurement Act, the ...
Summary Division 2 of Chapter 2 of the Law of Obligations Act “Standard Terms” opens a new page i... more Summary Division 2 of Chapter 2 of the Law of Obligations Act “Standard Terms” opens a new page in the history of the Estonian legal system. The provisions regarding standard terms were drafted based on Directive 93/13/ECC. The author analyses whether the principles of the Directive have been successfully transposed into the Law of Obligations Act or whether additional provisions are still needed. The author focuses on the concepts of consumer contract and standard terms, including unfair contract terms, as defined in the ...
EUROPEAN COMPETITION LAW REVIEW, 2004
EUROPEAN COMPETITION LAW REVIEW, 2007
National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law, 2019
The report informs that due to historical ties to the German legal culture, the most influential ... more The report informs that due to historical ties to the German legal culture, the most influential model for reconstruction of the Estonian legal order after the restoration of independence was German law, including when drafting the 1992 Constitution. However, with regard to EU law, a different approach was chosen: a blanket clause in a self-standing constitutional act that suspends the Constitution, in order to give full supremacy to EU law. The Supreme Court and its Constitutional Review Chamber have adopted an unconditionally EU-friendly approach. However, the report documents the widespread concerns that have emerged amongst Estonian lawyers with regard to setting aside the Constitution, as well as the practical difficulties in constitutional adjudication by the Supreme Court. The tensions peaked in the process of ratification of the ESM Treaty, which was approved by 11 judges against 8, with the latter submitting strongly worded dissenting opinions expressing concerns about the ...
Kommentaarid ja täiendusettepanekud “Eesti Euroopa Liidu poliitika 2011-2015” eelnõule justiits- ja siseküsimustes, Nov 2011