European Procedural Law Research Papers (original) (raw)

A series of seminar in preparation of the Pax Moot 2022

The Court of Justice of the European Union has taken a restrictive approach when interpreting the standing requirements applicable to private parties wanting to challenge EU legal measures. Some change was introduced by the Lisbon Treaty,... more

The Court of Justice of the European Union has taken a restrictive approach when interpreting the standing requirements applicable to private parties wanting to challenge EU legal measures. Some change was introduced by the Lisbon Treaty, but access to the court remains overly restricted for private parties. The European Union is by far the most successful regional integration community there is, and has been simulated extensively. This article seeks to explore and compare the standing requirements applicable to private parties before the CJEU and other regional courts – to see if the CJEU has something to learn from the others.

The need for cross-border cooperation in family matters in the European Union was identified and politically expressed already in the 1990s. The first legislative act adopted in this field was the Brussels II Regulation of 2000. It... more

The need for cross-border cooperation in family matters in the European Union was identified and politically expressed already in the 1990s. The first legislative act adopted in this field was the Brussels II Regulation of 2000. It unified, on the EU level, the rules on international jurisdiction and the recognition and enforcement of judgments in matrimonial matters and parental responsibility. In 2021, six EU regulations are in use in this field. In 2022, the second recast of the Brussels II Regulation will enter into application. Beside the mentioned cross-border procedural rules, the regulations also bring unified choice of law rules, while other EU regulations in the field of private international law enable simplified cross-border service of documents and taking of evidence.
The number of unified rules in cross-border family disputes is thus growing, which enhances legal certainty of the European families. However, the fragmented regulation and different temporal and territorial scopes of application of the “family regulations” result in a complex mosaic of rules, which is often unclear and difficult to apply. The paper aims to present a wholesome view of the legislation in force and provides information on the interplay among different regulations. Thus, it strives to enhance a rapid and correct application of this legislation, which is of crucial importance for European citizens. The paper also emphasises the importance of the broader context of the EU cooperation in family matters, namely the EU private international law in general, and of the international treaties in family law, especially the Hague conventions.

Postępowanie podatkowe uznać należy za wadliwe, jeśli pominięto w nim, objęty żądaniem strony, dowód ze świadka wskazanego przez stronę, na tej jedynie podstawie, iż według opinii administracji podatkowej zeznanie świadka byłoby z... more

Postępowanie podatkowe uznać należy za wadliwe, jeśli pominięto w nim, objęty żądaniem strony, dowód ze świadka wskazanego przez stronę, na tej jedynie podstawie, iż według opinii administracji podatkowej zeznanie świadka byłoby z pewnością tendencyjne. Pogląd ten nie dotyczy jednak sytuacji, w których okoliczności objęte przedmiotem postępowania stwierdzone zostały w sposób wystarczający innym dowodem.
Negatywnie z punktu widzenia realizacji zasady swobodnej oceny dowodów należy odnieść się do przypadków, w których stronę pozbawia się udziału w postępowaniu podatkowym, np. z uzasadnieniem, że jej uczestnictwo w przeprowadzeniu dowodu nie jest konieczne. Jest to niezgodne z dyspozycją art. 190 § 2 O.p. Strona musi mieć, w myśl art. 192 Ordynacji, zagwarantowaną możliwość wypowiedzenia się co do przeprowadzonych dowodów. Natomiast skutkiem procesowym niezachowania tego rodzaju wymogów jest fakt, iż żadna okoliczność faktyczna ustalona bez udziału strony nie może być uznana za udowodnioną. Dlatego naruszenie zasady wyrażonej w art. 192 może być podstawą wznowienia zakończonego ostateczną decyzją postępowania podatkowego.

National time limits for challenging the administrative actions have been often reviewed by the Court of Justice of the European Union for their compliance with the principles of equivalence and effectiveness. In the recent Uniplex... more

National time limits for challenging the administrative actions have been often reviewed by the Court of Justice of the European Union for their compliance with the principles of equivalence and effectiveness. In the recent Uniplex ruling, the Court reviewed the requirement, provided by English law, that claims arising in the framework of public contracts be brought ‘promptly’. After a short introduction to the facts at stake in Uniplex, the requirement of ‘promptness’ and the criticisms which arose in this respect are analysed. Thereafter, the Court’s ruling in Uniplex is discussed.

On 20th November 2017, the II Oxford Symposium on Comparative International Commercial Arbitration will took place at Wolfson College – University of Oxford. This conference brought together specialists from the Americas and Europe to... more

On 20th November 2017, the II Oxford Symposium on Comparative International Commercial Arbitration will took place at Wolfson College – University of Oxford. This conference brought together specialists from the Americas and Europe to discuss key issues in international commercial arbitration from a comparative perspective.

Conditions of admissibility constitute a peculiar field of law in the procedural law of judicial bodies set up by international treaties. They are of such importance that international judicial bodies must examine them ex officio, thus... more

Conditions of admissibility constitute a peculiar field of law in the procedural law of judicial bodies set up by international treaties. They are of such importance that international judicial bodies must examine them ex officio, thus independently of any contention by the parties. Failure to comply with a condition of admissibil-ity means that there will not be an examination of the merits of the case. The Court of Justice of the European Union has developed a very detailed doctrine on conditions of admissibility. The first condition of admissibility encountered by the Court of Justice of the European Union refers to the procedural time-limits for initiating judicial proceedings (the dies ad quem). As regards the action for annulment, there are three starting points under the sixth paragraph of Article 263 of the Treaty on the Functioning of the European Union (TFEU), namely: the publication; the notification ; and the day on which the contested measure came to the knowledge of the plaintiff. Keywords Court of Justice of the European Union-direct actions-action for annulment-conditions of admissibility-absolute bars to proceedings-procedural time-limits-publication-notification-day on which the contested measure came to the knowledge of the plaintiff LAPE_015_01_152-170-F5-Sladic.indd 152 2/3/2016 4:21:05 PM

The aim of this article is to examine whether the Treaty of Lisbon would fill the perceived gap in the system of judicial protection of the Community legal order. First, a brief description of the long-standing requirements for access of... more

The aim of this article is to examine whether the Treaty of Lisbon would fill the perceived gap in the system of judicial protection of the Community legal order. First, a brief description of the long-standing requirements for access of private parties to the Community courts are provided. Subsequently, the rationale underlying the ECJ’s restrictive approach to direct actions and its reliance on the preliminary ruling procedure are examined, and the criticisms to this approach are highlighted. In the second part, the changes to the current requirements of standing for private parties introduced by the Treaty of Lisbon are analysed and the potential consequences of these changes are discussed. The analysis concludes that, while the Treaty of Lisbon contains some improvements, significant gaps still remain in the system of protection of private applicants’ rights in the European legal order.

The article deals with the covenant not to sue, the promise not to file a lawsuit. From the evolution of the topic since its origins, the paper discusses the nature (if from substantive or procedural law), the object and effects of such a... more

The article deals with the covenant not to sue, the promise not to file a lawsuit. From the evolution of the topic since its origins, the paper discusses the nature (if from substantive or procedural law), the object and effects of such a legal transaction, exploring the legal theory underlying these clauses. And then the article approaches the statutes in Brazilian Law that expressly provide for covenants not to sue.

Although compliance with the founding values is presumed in its law, the Union is now confronted with persistent disregard of these values in two Member States. If it ceases to be a union of Rule-of-Law-abiding democracies, the EU is... more

Although compliance with the founding values is presumed in its law, the Union is now confronted with persistent disregard of these values in two Member States. If it ceases to be a union of Rule-of-Law-abiding democracies, the EU is unthinkable. Purely political mechanisms to safeguard the Rule of Law, like those in Article 7 TEU, do not work. Worse still, their existence has disguised the fact that the violations of the values of Article 2 TEU are also violations of EU law. The legal mechanisms tried thus far, however, do not work either. The fundamental jurisprudence on judicial independence and irremovability under Article 19(1) TEU is a good start, but it has been unable to change the situation on the ground. Despite ten years of EU attempts at reining in Rule of Law violations and even as backsliding Member States have lost cases at the Court of Justice, illiberal regimes inside the EU have become more consolidated. More creative work is needed to find ways to enforce the values of Article 2 TEU more effectively. Taking this insight, we propose to turn the EU into a militant democracy, able to defend its basic principles, by using the traditional tools for the enforcement of EU law in a novel manner. We demonstrate how te familiar infringement actions-both under Article 258 and 259 TFEU-can be adapted as instruments for enforcing EU values by bundling a set of specific violations into a single general infringement action to show how a pattern of unlawful activity rises to the level of being a systemic violation. A systemic violation, because of its general and pervasive nature, in itself threatens basic values above and beyond violations of individual provisions of the acquis. Certified by the Court of Justice, systemic violation of EU law should call for systemic compliance that would require the Member State to undo the effects of its attacks on the values of Article 2. The use of Article 260 TFEU to deduct fines from EU funds due to be received by the troubled Member State would provide additional incentives for systemic compliance. We illustrate this proposed militant democratic structure by explaining and critiquing what the Commission and Court together have done to reign in the governments of Hungary and Poland so far and then showing how they can do better.

O artigo estuda as claims resolution facilities, entidades de infraestrutura específica criadas para dar cumprimento a acordos (TACs por exemplo) ou decisões em ações coletivas, explorando seus limites e possibilidades de aplicação no... more

O artigo estuda as claims resolution facilities, entidades de infraestrutura específica criadas para dar cumprimento a acordos (TACs por exemplo) ou decisões em ações coletivas, explorando seus limites e possibilidades de aplicação no direito brasileiro.

this text examines art. 6, §7-B of Law 11.101/2005, dependent on Law 14.112/2020, which provides for a specific form of judicial cooperation between the judges of tax execution lawsuit and judicial reorganization lawsuit when in the first... more

this text examines art. 6, §7-B of Law 11.101/2005, dependent on Law 14.112/2020, which provides for a specific form of judicial cooperation between the judges of tax execution lawsuit and judicial reorganization lawsuit when in the first it is determined the practice of acts of constriction in the face of the company in crisis. It seeks to pre-sent criteria for the interpretation and application of the legal provision considering the exception to the rule of suspension of proceedings brought in the face of the debtor (stay period) of the tax executions.

The focus of the article is to explore the meaning and the consequences of the new standing provision introduced by the Lisbon Treaty, trying to identify concrete situations where the new provision has made it easier to challenge an EU... more

The focus of the article is to explore the meaning and the consequences of the new standing provision introduced by the Lisbon Treaty, trying to identify concrete situations where the new provision has made it easier to challenge an EU measure. Specifically, the focus will be placed on the position of environmental non-governmental organizations attempting to challenge EU measures taken in the field of environmental law.

Since approval of the EU General Data Protection Regulation (GDPR) in 2016, it has been widely and repeatedly claimed that a 'right to explanation' of decisions made by automated or artificially intelligent algorithmic systems will be... more

Since approval of the EU General Data Protection Regulation (GDPR) in 2016, it has been widely and repeatedly claimed that a 'right to explanation' of decisions made by automated or artificially intelligent algorithmic systems will be legally mandated by the GDPR. This right to explanation is viewed as an ideal mechanism to enhance the accountability and transparency of automated decision-making. However, there are several reasons to doubt both the legal existence and the feasibility of such a right. In contrast to the right to explanation of specific automated decisions claimed elsewhere, the GDPR only mandates that data subjects receive limited information (Articles 13-15) about the logic involved, as well as the significance and the envisaged consequences of automated decision-making systems, what we term a 'right to be informed'. Further, the ambiguity and limited scope of the 'right not to be subject to automated decision-making' contained in Article 22 (from which the alleged 'right to explanation' stems) raises questions over the protection actually afforded to data subjects. These problems show that the GDPR lacks precise language as well as explicit and well-defined rights and safeguards against automated decision-making, and therefore runs the risk of being toothless. We propose a number of legislative steps that, if taken, may improve the transparency and accountability of automated decision-making when the GDPR comes into force in 2018.

The dissertation provides a theoretical view of the practice of the principle of equivalence and effectiveness. In respect of the equivalence criteria I will examine – among others – the way two procedural provisions could be equivalent.... more

The dissertation provides a theoretical view of the practice of the principle of equivalence and effectiveness. In respect of the equivalence criteria I will examine – among others – the way two procedural provisions could be equivalent. What can be compared and by which criteria should the matter be evaluated? What makes a procedural rule less favourable? The principle of effectiveness also needs more evaluation: what makes the enforcement of EU law impossible in practice and excessively difficult? What kind of – subjective and objective – criteria should be examined to assess the issue? What is the role of the national judge in this matter? Are there any limits to the enforcement of EU law, and if so, what are they?

Civil Procedure Review, v. 10, n. 3, 2019

Etude analytique de la jurisprudence de la Cour de justice relative à l'invocabilité des accords internationaux

The article analyses the limits of res judicata in the French, Italian and Belgian legal systems, with references to the German and English systems. The changes in the case-law of these countries are conditioned by the unstable... more

The article analyses the limits of res judicata in the French, Italian and Belgian legal systems, with references to the German and English systems. The changes in the case-law of these countries are conditioned by the unstable equilibrium between several fundamental principles, such as contradiction, legal certainty, party disposition, procedural economy, fairness, and the relations between civil proceedings and substantive law. The necessity to safeguard the stability of judgments (e.g. claim preclusion and issue preclusion) and to save judicial resources at all costs creates reciprocal influences between the different systems. These influences are essential not only in foreseeing the possible evolutions of these procedural models, but also from the perspective of the European Code of Civil Procedure imagined by the European Parliament, which tasked the Commission with presenting a legislative proposal regarding the shared minimum standards for civil proceedings. According to the Parliament, these standards should constitute the core of the future Code.
The abandonment of the Eventualmaxime and the introduction even in France and in Belgium of the principle of orality on the one hand and the application of the preclusion of Zeuner, although in an improper manner, in Italy, Germany and Austria on the other hand may pave the way for the construction of the said European Code starting from an indispensable unitary notion of the “subject matter of the litigation".