1 Abstract (in English langugage) In the presented dissertation thesis I tried to argue that if we want to apply the principle of proportionality correctly in case of a collision of fundamental rights or in case of a collision between a fundamental right and a countervailing interest, it is not sufficient only to refer to this principle within the argumentation. On the contrary, it is necessary to recognize a structure of this principle and to apply its components. In order to recognize the structure and components of the proportionality principle, it is necessary to understand the role and effects of human rights in legal orders. I assume that theoretical backgrounds of this principle contribute to the better understanding of the objective tension between the individual's autonomy and general will of the society. Another important aspect in the correct application of this principle is the institutional balance between the legislature and the judiciary and overcoming of the "counter-majoritarian problem". In the contemporary, not only Czech, but also foreign practice we may observe lots of examples in which courts do not pay appropriate attention to the proportionality principle. When solving hard cases, sometimes they made only a reference to this principle without further elaboration. From the...

The public sector is a major purchaser of goods and services. By setting requirements for environmental and social considerations in public procurement, an authority has the possibility to use consumer power to influence the actors in a market. The purpose of this paper is to investigate public procurement of textile products in a municipality, in order to gain knowledge about factors that may be important for the use of environmental and social criteria. Håkan Hydén´s (professor in sociology of law) norm model was used as the basis of the analysis, where the conduct was investigated along three dimensions of the norm – willingness, knowledge and system conditions – in order to identify underlying factors that can influence the process. The results – analyzed by using interviews and documents – show that the procurer's willingness, motivation and knowledge are important factors in this context, as well as the political priority of the municipality. Procurers gain knowledge in this area to a large extent through networking with other actors. The possibilities to be able to verify the criteria are important. Verification of requirements is problematic because the municipality, as a public actor, is far from the production in the textile production chain. Lack of knowledge, in the form of mapping the textile production, prevents the development of criteria for best available technique. However, demands on manufacturing can be set indirectly by asking for some eco-labels (or equivalent) as verification. Furthermore, system conditions in terms of rules in the public procurement legislation set the framework for the procurement process. / Chemicals in textiles: Managing environmental and health risks from products with complex product chains

The child and the youth are the overall national properties. Constructing a safe growth and social environment is the first priority to safeguard its rights and interests. Our country in view of the child-youth rights' and interests' safeguard can be seen in the Criminal Law, the Civil Law, the Youth-Event Processing Law,the Child and Youth Sexual Transaction Prevention Act, and the Children and Youth Welfare Act . However, this article aims on ¡§the child-youth sex trade prevention regulations¡¨ in view of the country and ¡§the Children and Youth Welfare Act¡¨ relevant stipulation, examining the country in regard to promote the positive body-and-mind development of the child and the youth, safeguard its rights and interests, promote its welfare, fulfill the goal of ¡§child and youth¡¦s best interests¡¨, by using the family-care pattern compulsory devices, achieves by the protection placement mechanism's implementation method, therefore, to finally examine whether the goal and the methods used meet the proportional principle. This article examines and discusses the foundation of the child and the youth law standard, the legislative reasons and impetus process of child and the Child and Youth Sexual Transaction Prevention Act and the Children and Youth Welfare Act. It compares the relationships between the mechanism of child-and-youth placements and the proportional principle of these two regulations, and therefore, to propose the defects that our country has presented nowadays and provide suggestions and new directions for the government as a reference to emend the law and social workers to implement the child-youth protection placement in a better way in the future.

Disclosure of salaries of public authority employee - abstract This thesis is concerned with the issues of legal interpretation of key provision of Act No. 106/1999 Coll. on free access to information relating to disclosure of salaries of public authority employee. The thesis introduction is focused on the constitutional aspects of the right to information and the right to privacy. It is also focused on the collision of these two fundamental rights. The following chapter examines the disclosure of salaries of public authority employee regulation and discovers and expounds the intended meaning of this regulation by the principles and rules of standard methods of interpretation, especially lingual interpretation, systematical interpretation, historical interpretation and teleological interpretation. This chapter provides the lingual meaning of key provision of Act No. 106/1999 Coll. on free access to information, presents brief look at relationship between the disclosure of salaries of public authority employee regulation and other norms and legal acts of the European Union and finally finds the content, sense and purpose of the regulation from both subjective (historical) and objective (teleological) point of view. This chapter also deals with case law analysis. The focal discussion point of this thesis is...

The Impacts of Mass Surveillance on Fundamental Human Rights Abstract In this thesis I mainly deal with instruments of mass surveillance, which were recently revealed to the public by American IT specialist Edward Snowden. A considerable part is also devoted to Directive 2006/24 / EC of the European Parliament and of the Council, which at the time obliged Member States to adopt legislation providing for the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks. I also deal with the current form of its transposition into the Czech legal order. The purpose of this thesis is to assess if these instruments of mass surveillance meet the conditions of admissibility of measures limiting fundamental human rights, especially the right to privacy. I have understood the content of these conditions on the basis of the interpretation of relevant laws and international treaties on human rights, or their commentaries and relevant case law. This has led to the assessment of the accordance of these instruments with the principle of proportionality or the application of the proportionality test in its various forms. The concept of my thesis is therefore to be understood as a conflict of two interests, namely the...

Whenever states’ rights to regulate and investor’s interests conflict with each other it is an unsolved question in investment treaty arbitration how one should balance those two positions. In particular, it is indefinite where to draw the line at what point states can actually exercise their rights without unlawfully violating the investor’s interests. A solution for this issue might be the proportionality test or analysis. Over the years, several tribunals approached proportionality, but took very different paths to understand and apply this legal concept. Especially, if one considers proportionality from its root in European and German law, some applications in investment treaty arbitration create confusion. Originating from a fixed methodological approach in the background of justifications of state measures, tribunals use proportionality in the process of defining and determining in contrast to the justification, as one would expect. Thus, it remains questionable which of those approaches is correct or if there is rather one correct application of proportionality in the context of investment treaty arbitration. This work argues in favour of proportionality being a legal concept which originates from German and European jurisprudence and migrated to international law. In international law it was established as a legal principle and subsequently adopted, inter alia, in investment treaty arbitration. Nevertheless, tribunals should be more careful when using proportionality. Especially, when naming and transferring a particular legal construct, it should not be used out of context. This endangers an award’s persuasiveness and furthers the fragmentation in international investment law. Tribunals should only refer to the ‘principle of proportionality’ or a ‘proportionality test/analysis’ when they actually apply it. And this application requires the concept to be used in the background of justification and not determination. Furthermore, the three/four significant steps must be followed in order to obtain the aimed proportional result.

Made available in DSpace on 2016-04-26T20:23:08Z (GMT). No. of bitstreams: 1 Ricardo Pereira de Freitas Guimaraes.pdf: 1179917 bytes, checksum: 6a0048dca1084bcb3bb9c594a2d9bce7 (MD5) Previous issue date: 2014-08-29 / The present study aims to elucidate some extent about the principle of proportionality inserted in a contributory process of solving social conflicts in the procedural context. To attempt an approximation of its use safely we move first seeking their historical origin, which was mainly in Germany, starting with discussions occurred between the leading scholars of the subject, especially philosophers and students of law like Robert Alexy and Ronald Dworkin. Advance our purpose in trying to demonstrate that the advancement of social relations - both in its today's globalized texture as the birth of new social relations every day, especially in labor law - does not allow more in aall circumstances the application of the simply positivism, the society cries out for an immediate response, which can occur in certain circumstances by applying the principle of proportionality, in particular when dealing with fundamental rights, now entering in a post-positivist view. We try to exemplify through national and international decisions with individual cases the correct application of the principle, not with a critical tone, but in order to present an overview of its applicability within the contours developed at the Work. We point to situations that are already present on the day of the Labour Court regarding collisions of fundamental rights, showing the position of national and International scholars. We present a historical development of constitutional rights related to labor law, still trying to show that some questions on a simple subsumption of the fact in the norm does not present enough to solve the current social relationships in the field of labor law, especially when involved fundamental constitutional rights. 10 We venture to some extent, to question the applicability of certain principles relaciones between employee X employer relationship, to its current incompleteness for any situation. We also Question in a pontual and exemplary manner some decisions of the Superior Labor Court, which in our experience, do not reflects in a rigjt wau the principle of proportionality because the movement said constitutionalization of rights. The result of the work leads us to thinking that there is clearly a need for a breakthrough, especially in how to interpret the collision of fundamental rights for accurate delivery of relief sought by society in conflict zones of such rights / O Presente estudo tem como objetivo elucidar em certa medida a aplicação do princípio da proporcionalidade inserido num processo contributivo de solução de conflitos sociais no contexto processual. Para tentar uma aproximação de sua utilização com segurança, avançamos primeiramente buscando sua origem histórica, que se deu principalmente na Alemanha, partindo posteriormente para os debates ocorridos entre os principais estudiosos do tema, sobretudo filósofos e estudiosos do direito, como Robert Alexy e Ronald Dworkin. Avançamos no nosso propósito tentando demonstrar que o avanço das relações sociais - tanto pela sua textura hoje globalizada como pelo nascimento de novas relações sociais a cada dia especialmente no direito do trabalho não permite para toda e qualquer circunstância a aplicação do dito positivismo simplesmente, ou seja, clama a sociedade por uma resposta imediata, o que pode se dar em determinadas circunstâncias pela aplicação do princípio da proporcionalidade, em especial, quando tratamos de direitos fundamentais, já inserindo uma visão pós-positivista. Tentamos exemplificar através de decisões nacionais e internacionais de casos concretos a correta aplicação do princípio, não com tom de crítica, e sim, no intuito de apresentar uma visão de sua aplicabilidade dentro dos contornos desenvolvidos no Trabalho. Pontuamos algumas situações que já se apresentam no dia a dia da Justiça do Trabalho quanto às colisões de direitos fundamentais, apresentando o posicionamento de doutrinadores nacionais e internacionais. Apresentamos uma evolução histórica dos direitos constitucionais vinculados à seara trabalhista, tentando demonstrar ainda, que em algumas questões uma simples subsunção de fato à norma não se apresenta suficiente para solucionar os atuais relacionamentos sociais no campo do 8 direito do trabalho, especialmente quando envolvidos direitos constitucionais fundamentais. Atrevemo-nos em certa medida, a questionar a aplicabilidade de alguns princípios propalados no relacionamento empregado X empregador, no sentido de sua atual incompletude para toda e qualquer situação. Questionamos de forma pontual e exemplificativa alguns verbetes do Tribunal Superior do Trabalho, que no nosso sentir, não atendem em tempo e modo a aplicação do princípio da proporcionalidade em razão do movimento dito constitucionalização dos direitos. O resultado do trabalho nos leva ao raciocínio que há evidente necessidade de um avanço, especialmente na forma de interpretar a colisão dos direitos fundamentais para a correta entrega da tutela buscada pela sociedade nas zonas de colisão desses direitos

The transfer system was created in order to control player movement between football clubs and has existed since the late nineteenth century. During the negotiation of today’s transfer rules FIFA, UEFA and the Commission found that a breach of contract during the season could upset the balance of competition and therefore should be restricted. It was considered necessary to strengthen the contractual stability and to apply a special rule to preserve the regularity and proper functioning of competition. This was done by the means of a provision stipulating that a football player only can be registered to play with a national association during one of the two registration periods per year, generally known as the transfer windows. Sport has never been included in the formal structures of the European Union and the regulation of sport has instead materialized through verdicts from the European Court of Justice. One of the most influential statements emerging from the Court is that sport is subject to Community law in so far it constitutes an economic activity. Consequently, if the activity is economic there is a risk that it infringes EU law. The purpose of this master thesis is to examine the FIFA transfer window system and to determine whether it violates Article 39 and/or Article 81 EC. The transfer windows, a regulation strengthened by the ECJ in the case of Lehtonen, restrict the ability of players to seek alternative employment and could therefore be regarded as a violation of the free movement of workers. In order to trigger the Treaty provisions guarding the right of freedom of movement the person in question must be a national of a Member State of the European Union and the activity must have a territorial dimension beyond the borders of a single Member State of the European Union. The person in question must also be engaged in some kind of economic activity. It is, however, clear that football players who are members of the European Union and are applying for a job in another Member State, and are performing at a certain level, fulfil these requirements. Footballers should therefore be considered as workers within the meaning of Article 39 EC and the prohibition of discrimination contained in that article which catches non-discriminatory private collective measures, such as the transfer system, invented by regulatory bodies like FIFA and UEFA. When considering the FIFA “windows system” it is clear that it is liable of restricting the ability of players to seek alternative employment in another Member State and should therefore be regarded as a violation of Article 39 EC. Nevertheless, restricted transfer periods have been found by the ECJ to be objectively justified as having sporting benefits in the Belgian Basketball league. It is, however, likely that the “window system”, as it operates in European football, goes beyond what is necessary to achieve team and player contract stability since it is too restrictive and somewhat redundant. Consequently, the FIFA transfer windows do not comply with the requirements of the principle of proportionality and should therefore, if challenged, be regarded as a violation of Article 39 EC. The use of transfer windows in European football can also be considered to be an issue for competition law and in particular Article 81 EC. The article prohibits all agreements between undertakings that restrict competition and affect trade between Member States and has the objective to protect consumers, enhance their welfare and to facilitate the creation of a single European market. The ECJ has, however, acknowledged a certain type of sporting rule that, even though it restricts competition, will be granted immunity from Article 81 EC. The FIFA “windows system” should not be regarded as such a rule since it does not fulfil the required conditions. The transfer windows do little for the competitive balance within the European football. It may be argued that it preserves the appeal and the unpredictability of the finishing stages of a championship. However, they also prevent clubs from developing their economic activity and restrict the free play of the market forces of supply and demand. Furthermore, the “windows system” hinders certain clubs from raising the quality of their sporting performance since clubs in minor leagues with a closed window are losing their best players to clubs in a better league with an open window, without being able to replace them. All of this affects the small and economically weak clubs and strengthens the position of the financially strong clubs. As a result a few strong clubs will, contrary to the best interest of consumers, continue to dominate European football. The FIFA regulation of transfer windows is therefore likely to fall under Article 81(1) EC. It is unlikely that the pro-competitive benefits of the FIFA transfer windows outweigh its restrictive effects since it is improbable that they would be considered the least restrictive means of creating these benefits. Subsequently, the FIFA “windows system” would not qualify for an exemption under Article 81(3) EC and should, if challenged, be void under Article 81(2) EC.

<p>The transfer system was created in order to control player movement between football clubs and has existed since the late nineteenth century. During the negotiation of today’s transfer rules FIFA, UEFA and the Commission found that a breach of contract during the season could upset the balance of competition and therefore should be restricted. It was considered necessary to strengthen the contractual stability and to apply a special rule to preserve the regularity and proper functioning of competition. This was done by the means of a provision stipulating that a football player only can be registered to play with a national association during one of the two registration periods per year, generally known as the transfer windows.</p><p>Sport has never been included in the formal structures of the European Union and the regulation of sport has instead materialized through verdicts from the European Court of Justice. One of the most influential statements emerging from the Court is that sport is subject to Community law in so far it constitutes an economic activity. Consequently, if the activity is economic there is a risk that it infringes EU law. The purpose of this master thesis is to examine the FIFA transfer window system and to determine whether it violates Article 39 and/or Article 81 EC.</p><p>The transfer windows, a regulation strengthened by the ECJ in the case of <em>Lehtonen</em>, restrict the ability of players to seek alternative employment and could therefore be regarded as a violation of the free movement of workers. In order to trigger the Treaty provisions guarding the right of freedom of movement the person in question must be a national of a Member State of the European Union and the activity must have a territorial dimension beyond the borders of a single Member State of the European Union. The person in question must also be engaged in some kind of economic activity. It is, however, clear that football players who are members of the European Union and are applying for a job in another Member State, and are performing at a certain level, fulfil these requirements. Footballers should therefore be considered as workers within the meaning of Article 39 EC and the prohibition of discrimination contained in that article which catches non-discriminatory private collective measures, such as the transfer system, invented by regulatory bodies like FIFA and UEFA.</p><p>When considering the FIFA “windows system” it is clear that it is liable of restricting the ability of players to seek alternative employment in another Member State and should therefore be regarded as a violation of Article 39 EC. Nevertheless, restricted transfer periods have been found by the ECJ to be objectively justified as having sporting benefits in the Belgian Basketball league. It is, however, likely that the “window system”, as it operates in European football, goes beyond what is necessary to achieve team and player contract stability since it is too restrictive and somewhat redundant. Consequently, the FIFA transfer windows do not comply with the requirements of the principle of proportionality and should therefore, if challenged, be regarded as a violation of Article 39 EC.</p><p>The use of transfer windows in European football can also be considered to be an issue for competition law and in particular Article 81 EC. The article prohibits all agreements between undertakings that restrict competition and affect trade between Member States and has the objective to protect consumers, enhance their welfare and to facilitate the creation of a single European market. The ECJ has, however, acknowledged a certain type of sporting rule that, even though it restricts competition, will be granted immunity from Article 81 EC. The FIFA “windows system” should not be regarded as such a rule since it does not fulfil the required conditions.</p><p>The transfer windows do little for the competitive balance within the European football. It may be argued that it preserves the appeal and the unpredictability of the finishing stages of a championship. However, they also prevent clubs from developing their economic activity and restrict the free play of the market forces of supply and demand. Furthermore, the “windows system” hinders certain clubs from raising the quality of their sporting performance since clubs in minor leagues with a closed window are losing their best players to clubs in a better league with an open window, without being able to replace them. All of this affects the small and economically weak clubs and strengthens the position of the financially strong clubs. As a result a few strong clubs will, contrary to the best interest of consumers, continue to dominate European football. The FIFA regulation of transfer windows is therefore likely to fall under Article 81(1) EC.</p><p>It is unlikely that the pro-competitive benefits of the FIFA transfer windows outweigh its restrictive effects since it is improbable that they would be considered the least restrictive means of creating these benefits. Subsequently, the FIFA “windows system” would not qualify for an exemption under Article 81(3) EC and should, if challenged, be void under Article 81(2) EC.</p>

Made available in DSpace on 2014-12-17T14:27:25Z (GMT). No. of bitstreams: 1 OlavoHAFA_DISSERT.pdf: 5540509 bytes, checksum: de7ce1cde3b42e9a71ac66c35803de27 (MD5) Previous issue date: 2013-08-30 / As subst?ncias entorpecentes acompanham a humanidade desde o in?cio da civiliza??o. No entanto, v?rias delas foram consideradas proscritas ao longo do tempo. Seu combate foi inaugurado na comunidade internacional a partir do come?o do s?culo XX. No in?cio, tinha o cond?o eminentemente moral, porquanto a proibi??o encerrava, por princ?pio, a prote??o da ?tica amea?ada pelo padr?o desviado do consumo de estupefacientes. Na d?cada de 1970, a guerra contra as drogas, express?o cunhada nesse per?odo, evoluiu para se tornar o meio pelo qual o consumo seria mitigado. Dez anos mais tarde, ante ? impossibilidade de sucumbir o narcotr?fico, passou a ser um fim em si mesma o novo argumento para os esfor?os militares dos Estados Unidos da Am?rica. A criminaliza??o das subst?ncias entorpecentes consideradas il?citas ? fundamento jur?dico da guerra contra as drogas. Esse modelo proibicionista encontra argumento no direito penal do inimigo, segundo o qual o Estado pode, em situa??es que exponham a coletividade a grave perigo, negar ? determinada categoria de criminosos (os inimigos) as garantias inerentes ao direito penal, cabendo-lhes apenas a coa??o estatal. Mesmo tendo consumido trilh?es de d?lares, encarcerado aos milh?es e custado a vida de milhares de pessoas, pode-se dizer que a guerra contra as drogas n?o reduziu a oferta e o consumo de subst?ncias entorpecentes consideradas il?citas, nem mitigou os danos delas decorrentes pelo contr?rio, tornou-se um problema de seguran?a p?blica. Assim, imp?e-se a verifica??o da constitucionalidade da norma penal que fundamenta a guerra contra as drogas, sob pondera??o do princ?pio da proporcionalidade. Referido postulado cobra que a norma seja adequada, cumprindo a finalidade pretendida, necess?ria, n?o havendo meio menos gravoso ? obten??o do mesmo fim, e proporcional, estrito senso, que a san??o imposta ao indiv?duo seja equivalente ao dano que se quis prevenir. Em mat?ria penal h? de se incluir um outro elemento, a ponderar se as consequ?ncias da proibi??o em mat?ria penal, por si s?, s?o mais graves que os consect?rios dos fatos que se pretendem proibir - exige-se que a lei seja socialmente menos ofensiva. A norma penal que fundamenta a guerra contra as drogas n?o se mostrou h?bil a mitigar os danos sociais delas decorrentes sendo, por isso, inadequada. Existem meios alternativos ? criminaliza??o mais eficientes ? esse objetivo, pelo que se faz desnecess?ria. Na medida em que estupefacientes mais nocivos ? coletividade s?o considerados l?citos, a criminaliza??o de drogas menos danosas se mostra desproporcional. E, uma vez que dela resultam graves danos ? sociedade, n?o atende ao crit?rio da menor ofensividade social. ?, portanto, inconstitucional