This thesis investigates competition law, State aid law and free-movement law in their interaction with Article 11 TFEU’s obligation to integrate environmental protection requirements into all activities and policies of the Union. The Article is formulated in broad and sweeping terms which makes integrating environmental protection requirements complex and context-dependent. The challenge of integrating environmental considerations is further increased as such integration in competition, State aid and free- movement law is different from other areas of EU action. The three areas are the core provisions protecting the internal market by prohibiting certain actions of the Member States and undertakings. Unlike in other areas, the EU is therefore not in the position to develop or design the actions but has to scrutinise the measure according to pre-established parameters. To address this challenge, a novel functional approach to environmental integration is developed. The approach should facilitate a better understanding of environmental integration and in particular its application to competition law, State aid and free-movement law. An important element of this thesis equally the comparison between the three areas of law. It sheds light on conceptual issues that are not only relevant to the integration of environmental protection. The comparison advances the understanding in relation to questions such as how restrictions are defined and how the respective balancing tests are applied. The contribution of this research is therefore twofold. One the one hand, it compares how the different tests in competition, State aid and free-movement law operate, thereby offering opportunities for cross-fertilisation. On the other hand, this comparison and the improvements suggested as a result help to conceptualise environmental integration thereby paving the way for a more transparent and consistent integration of environmental protection in competition, State aid and free-movement law.

This thesis challenges some of the current limits to the grounds for judicial review of legislation accepted by most Canadian jurists. More specifically, it makes a common law-based argument in favour of the priority over legislation of principles which are implied from the Imperial Constitution Acts 1867-1982 and which originally derive from the English constitution – namely implied constitutional principles. The argument faces two main interrelated legal objections: Parliamentary sovereignty and the Framers’ intentions. The first objection is rebutted by arguing that Parliamentary sovereignty possesses an ability to change in a way that can incorporate substantive legal limitations. The most prevalent common law-based theories of change to Parliamentary sovereignty suggest that the courts can authoritatively determine if implied constitutional principles can check legislation. The second objection is rebutted by reference to the notion of progressive interpretation as conceived under Hartian and Dworkinian theories of law and adjudication. Under these theories, progressive interpretation is an aspect of the courts’ best overall interpretation of the constitution, which includes implied constitutional principles. Such progressive interpretation can result in these principles constraining legislative authority. Justification of the progressive interpretation of implied constitutional principles can be based on the rule of law from which derive a number of these principles. One plausible conception of the Canadian rule of law is that it rejects the view that implied constitutional principles can prevail when in conflict with legislation. However, the better conception is that, as an attempt to adapt implied constitutional principles to relevant changes in society and to protect their underlying values, the judiciary should interpret these principles as capable of checking legislation to the extent that they form part of the core content of the rule of law. Such a conception and an operation of implied constitutional principles can properly be explained by Hartian or Dworkinian common law-based progressive interpretation of these principles and by their relationship with legislative authority.

Univ., Diss.--Hamburg, 2005. / Literaturverz. S. XXVII - XLIII.

Zugl.: Basel, Univ., Diss., 2006 / Originally presented as the author's thesis (doctoral) -- Universität Bayreuth, 2006. Includes bibliographical references (p. [416]-464) and index.

There is currently no satisfactory account of how judges of the Supreme Court of India and High Courts in the states are appointed, transferred, impeached or employed postretirement. For a higher judiciary commanding immense public attention, enjoying wide constitutional powers of judicial review, this is a conspicuous gulf in academic literature. This thesis intends to bridge this gulf by providing such an account. Part I extracts the Constituent Assembly Debates pertaining to these four facets of judicial functioning, describes key developments over time and analyses the extant processes in operation today. On this basis it makes three arguments: first, appointments to the higher judiciary and transfer of judges between High Courts follow processes that are indefensible as a matter of constitutional law; second, impeachment operates in an excessively slow and inefficacious manner; third, the pervasiveness of post-retirement employment of judges in government-appointed positions demonstrates inadequate attention to institutional design. Most crucially, each of these four aspects gives rise to significant concerns pertaining to judicial independence, accountability or both. This is not a peculiarly Indian problem— in several countries, the values of judicial independence and accountability have been deemed to be in tension, often irreconcilably. Part II tackles this widely articulated tension by providing a conceptual framework to understand these concepts. Its main argument is that both judicial independence and accountability are necessary for 'an effective judiciary'. Whether indeed the processes governing the four selected facets of judicial functioning in India lead to an effective judiciary is assessed in Part III. Where they are found lacking, appropriate reform is suggested. Such reform is intended to ensure that the selected processes operate in a manner that is justifiable in terms of judicial independence and accountability in principle and is efficacious in practice.

Made available in DSpace on 2017-06-01T18:17:56Z (GMT). No. of bitstreams: 1 Andre de Albuquerque Garcia.pdf: 1069399 bytes, checksum: 6e6125cda92a42909f8cc282ccad6c00 (MD5) Previous issue date: 2007-08-13 / The work approaches the issues related to urgency injunctions on the constitutional judicial review, specially those related to its process, as well as to its doctrine, precedents and legal treatment. Initially, it focuses on the brazilian constitutional jurisdiction, framework on which the constitutional judicial review is inserted, and it intends to analyze the juridical nature and effects caused by anticipation of effects of jurisdictional injunctions on legal proceeding. Study supported on juridical doctrine and precedents related to lawsuits on which seems feasible the employ of urgency injunctions, such as the generic direct action of unconstitutionality and the claim of violation of fundamental rule of law / O trabalho versa sobre a disciplina relativa à tutela de urgência no controle concentrado de constitucionalidade, especialmente em seus desdobramentos de natureza processual, seu tratamento legal, doutrinário e jurisprudencial. Enfoca inicialmente a jurisdição constitucional brasileira, contexto no qual se insere o controle concentrado de constitucionalidade e visa a analisar a natureza jurídica e os efeitos decorrentes da concessão da antecipação dos efeitos da tutela jurisdicional no bojo dos procedimentos. Estudo baseado em dados doutrinários e jurisprudenciais circunscrito às ações concentradas em que se afigura possível o emprego de medidas liminares, a saber, a ação direta de inconstitucionalidade genérica, a ação declaratória de constitucionalidade e a argüição de descumprimento de preceito fundamental

This dissertation analyses the ability of Chinese lawyers to use administrative litigation to protect individuals and groups from an authoritarian state that frequently infringes on their rights. These plaintiffs fill administrative courts in China, opposing the overzealous tactics of police, challenging the expropriation of their land, and disputing the seizure and demolition of their homes. Empirically, it relies on several unique data sources in a mixed-methodological approach. Qualitative and small-n quantitative data from 126 interviews with a random sample of Chinese lawyers and 52 additional interviews are supplemented by documentary sources. These findings are then tested against official data and a large survey of Chinese lawyers. This research demonstrates that administrative litigation is part of a polycentric authoritarian system that helps the Chinese state to monitor its agents, allows limited political participation, and facilitates economic development (Chapter One). By giving ordinary Chinese a chance to hold their local governments accountable in court, administrative litigation represents a significant step towards rule of law, but its limited scope means that it has not been accompanied by dramatic liberalisation (Chapter Three). In part, this is because the most prolific and successful administrative litigators are politically embedded lawyers, insiders who challenge the state in court but eschew the most radical cases and tactics (Chapter Four). The tactics that allow politically embedded lawyers to successfully litigate administrative cases rely on and contribute to China’s polycentric authoritarianism by drawing in other state, quasi-state, and non-state actors (Chapter Five). Multinationals in China are largely failing to contribute to the development of China’s legal system because they readily accept preferential treatment from the Chinese state as an alternative to litigation (Chapter Six). While administrative litigation bolsters China’s polycentric authoritarianism in the short term, it offers tremendous potential for rationalisation, liberalisation, and even democratisation in the long term.

This thesis asks how manifestation of religious belief by religious individuals can best be protected in English law. It is particularly concerned with the protection available to religious individuals in the public sphere. This thesis assesses the current state of protection under religious freedom and religious discrimination models, before considering the potential for increasing protection by reconceptualising the right to manifest religious belief as an aspect of freedom of expression. This thesis asks whether the practical and conceptual limitations of a religious freedom model, and Article 9 of the European Convention on Human Rights (ECHR) in particular, can be overcome by reliance on alternative modes of protection, namely religious discrimination protections in domestic, Convention, and EU law, or through litigating religious manifestation claims as freedom of expression cases under Article 10 of the ECHR. The difficulty of communicating the harm in being denied the ability to manifest religious beliefs publicly is a key limitation of both religious freedom and religious discrimination models. Similarly, this thesis highlights the difficulty in assessing what weight should be attributed to such religious harm within a proportionality exercise balancing the rights of religious individuals with the rights and interests of other parties. The analysis in this thesis draws primarily upon the sources of law which shape domestic English law in this area, namely the ECHR and European Union law. However, this thesis also considers foreign precedent and case law from the United States in particular. This thesis contends that no one model can address the range of cases where manifestation of religious beliefs arise, and that litigants should be able to draw from religious freedom, religious discrimination, and freedom of expression protections depending on the nature of their case.

Made available in DSpace on 2016-04-26T20:22:22Z (GMT). No. of bitstreams: 1 Eduardo Bichir Cassis.pdf: 958622 bytes, checksum: f00aef8645313285c7590b554a09fe28 (MD5) Previous issue date: 2013-11-05 / Generally speaking, the study is outlined in two phases, with the first plan to delimit the object from the overview of Civil law until the central object of the dissertation: the credit transaction contract comes due; in turn, the second stage justifies the importance of judicial review of such contracts by breaking the base of legal business, surpassing the requirements for the application of the theory of oversights. The research supports the right of social relations, resulting in the parameter effectivity of private law and the protection of civil liberties, addressing the private legal relationships and the dignity of the human person. Deals with the transformation in paradigm of Civil law, i.e. the despatrimonialização resulting from the making of intersubjective relations. A result of this new vision in Hatcher, touches of Oversights, in conclusion, further, that in the present day, for the judicial review of contracts, their requirements have already been overcome. The new civil Constitution order allows to interpret the direct application of the provisions of the Federal Constitution in exceptional character, provided that there are shortcomings in the standards that make up the open system of Civil law. This is because the principles and general clauses allow the interpretation of the system and enable contours and limits established by the system itself. Civil contracts negotiating relations are mandatory and sustain the economic system. Is that solidarity and the normative dirigisme have joined economic relations and, therefore, the parties no longer have antagonistic interests and the need to work cooperatively. With this vision, the analysis becomes a credit transfer agreements, which influence the movement of wealth, possessing umbilical relationship with the guarantee of a decent life. More precisely, this study tackles the credit assignment due for payment and the systematic recently amended by constitutional c. Supreme Court. The second phase of the work part of the contract of assignment of credit for payment of bringing arguments for their judicial review, preserving the balance between the parties, for the use of general clauses and principles of constitutional civil (private autonomy, consensus, relativity of contracts, mandatory conservation covenants, strength, solidarity, equality, good faith and social function). Indeed, deviates from the application of the theory of oversights in the present day, since the revision of the contract is justified by changing the base of legal business, being that the main ground of review must be based on the social function of the contract. With these aspects, the dissertation justifies his academic significance and invites the reader to rethink old ways through a new look, oxygenated by critical constructivism and ruled by a line of social function of contracts, all to keep in mind the balance between the Contracting Parties / Em linhas gerais, o estudo é traçado em duas fases, sendo que a primeira pretende delimitar o objeto partindo da visão geral do Direito Civil até chegar ao objeto central da dissertação: o contrato de cessão de crédito oriundo de precatório; por sua vez, a segunda fase justifica a importância da revisão judicial de tais contratos pela quebra da base do negócio jurídico, superando os requisitos para a aplicação da teoria da imprevisão. A linha de pesquisa respalda-se no Direito das relações sociais, tendo por parâmetro a efetividade do Direito privado e a tutela das liberdades civis, abordando as relações jurídicas privadas e a dignidade da pessoa humana. Aborda-se a transformação no paradigma do Direito Civil, isto é, a despatrimonialização decorrente da funcionalização das relações intersubjetivas. Fruto dessa nova visão toca-se no nascedouro da Teoria da Imprevisão, concluindo-se, mais adiante, que nos dias atuais, para a revisão judicial de contratos, seus requisitos já foram superados. A nova ordem civil constitucional possibilita ao interprete a aplicação direta dos preceitos da Constituição Federal em caráter excepcional, desde que haja lacuna nas normas que compõem o sistema aberto do Direito Civil. Isso porque os princípios e as cláusulas gerais permitem a interpretação do sistema e possibilitam contornos e limites estabelecidos pelo próprio sistema. Os contratos civis decorrem de relações negociais obrigacionais e sustentam o sistema econômico. É que a solidariedade e o dirigismo normativo passaram a integrar as relações econômicas e, por isso, as partes deixaram de possuir interesses antagônicos e passaram a ter necessidade de atuação cooperativa. Com essa visão, a análise se converte aos contratos de cessão de crédito, os quais influenciam na circulação de riquezas, possuindo umbilical relação com a garantia de uma vida digna. Mais precisamente, o estudo aborda a cessão de crédito decorrente de precatório e a sistemática constitucional, recentemente alterada pelo C. Supremo Tribunal Federal. A segunda fase do trabalho parte do contrato de cessão de crédito decorrente de precatório trazendo argumentos que justificam a sua a revisão judicial, preservando o equilíbrio entre as partes, pela utilização das cláusulas gerais e alguns princípios de civil constitucional (autonomia privada, consensualismo, relatividade dos contratos, força obrigatória dos pactos, conservação, solidariedade, igualdade, boa-fé e função social). Com efeito, afasta-se a aplicação da teoria da imprevisão nos dias atuais, pois a revisão do contrato é justificada pela alteração da base do negócio jurídico, sendo que o principal fundamento da revisão deverá estar pautado na função social do contrato. Com essas vertentes, a dissertação justifica seu significado acadêmico e convida o leitor a repensar as velhas formas através de um novo olhar, oxigenado pelo construtivismo crítico e pautado pela linha-mestra da função social dos contratos, tudo no sentido de manter presente o equilíbrio entre as partes contratantes

This thesis investigates whether institutional journalism should receive special treatment at the hands of the law. Special treatment encompasses the affording of benefits to and the imposition of liabilities on journalistic institutions and the individuals who work for them. The arguments against special treatment are pragmatic and theoretical: pragmatic arguments emphasise, inter alia, the difficulty of providing a definition of journalism, and theoretical arguments emphasise the difficulty in explaining why special treatment can be coherent. The former can be addressed by describing how special treatment is already afforded to institutional journalism, both liabilities and benefits, to individuals and institutions, and showing that some of the problems foreseen by the pragmatic arguments have not proved as difficult as they appear. The arguments that special treatment is incoherent can be addressed by arguing that the credibility and assessability of institutional journalism still provide a prima facie rationale for special treatment irrespective of the rise of public speech on the Internet, when combined with the integral nature of journalism to democracy. Two basic arguments are advanced why this is so. The first, the free speech values argument, is a consequentialist account that holds that special treatment is appropriate when (or because) institutional journalism contributes to free speech values. It is attractive, but presents difficulties, both when considered in the abstract and when applied to the free speech value of democracy. The second, a rights-based argument, based on the notion that freedoms of speech and of the Press are distinguishable, can be based on either on Dworkin’s theory of rights as trumps or Raz’s theory of rights as interests. Raz’s account is preferable, as it complements the free speech values thesis in explaining the coherence of special treatment.