Commitments in Phase One Merger Proceedings: The Commission´ s Power to Accept and Enforce Phase ... more Commitments in Phase One Merger Proceedings: The Commission´ s Power to Accept and Enforce Phase One Commitments. Morten Petersen Broberg Common Market Law Review Vol. 34, No. 4, 845-866, unknown, 1997. ...
Price: DKK 25.00 (VAT included) DIIS publications can be downloaded free of charge from www.diis.... more Price: DKK 25.00 (VAT included) DIIS publications can be downloaded free of charge from www.diis.dk AcKNOWlEDGEMENT The author is grateful to senior researcher Ole Therkildsen, Danish Institute for International Studies, and to Dr. Dimitry Kochenov, Groningen University, for succinct comments to a draft of the paper as well as for comments from participants at the two panels at the 2010 UACES conference in Brugge where the paper was first presented. The usual disclaimer applies.
According to Article 267 of the Treaty on the Functioning of the European Union (TFEU), Member St... more According to Article 267 of the Treaty on the Functioning of the European Union (TFEU), Member State courts may – and sometimes must – refer questions on the interpretation or validity of EU legal measures to the Court of Justice of the European Union for a binding preliminary ruling. But what are the consequences if a Member State court fails to make a preliminary reference in a situation where it was legally obliged to do so? The article shows that such failure may constitute an infringement of the right to a fair trial as laid down in Article 6(1) of the European Convention of Human Rights. It may also form the basis for a claim for damages under EU law. Moreover, it may instigate the European Commission to institute infringement proceedings against the Member State in question. Finally, in some situations, a failure to make a preliminary reference may affect the validity of the Member State court’s judgment, and there may also be a requirement on Member State administrative auth...
EU diplomats consider the Caribbean countries to be allies and therefore expect these countries t... more EU diplomats consider the Caribbean countries to be allies and therefore expect these countries to support the EU in international affairs-but they find that this support has been waning in recent years. Caribbean diplomats and politicians do not share the European viewpoint. Rather, they take the view that the EU has forgotten its Caribbean allies and instead channels its attention and funding towards Sub-Saharan Africa. This article examines to what extent this asserted 'rift' really signals a profound change in the EU-Caribbean relations.
Broberg and Fenger on Preliminary References to the European Court of Justice
Chapter 7 concerns the situation where the national court has discretion in its decision as to wh... more Chapter 7 concerns the situation where the national court has discretion in its decision as to whether or not it should refer a preliminary question to the Court of Justice. It analyses (1) the different criteria that form the basis for the national court’s discretionary decision, (2) to what extent EU law interferes with that discretion, and (3) at what time in the proceedings it is best to make a preliminary reference. The chapter first identifies the different criteria that in general form the basis for the national court’s decision as to whether or not it should make use of the preliminary reference procedure. It then deals with the particular situation where a similar question is already pending before the Court of Justice or where the national court has a cluster of parallel cases before it and must decide whether to make a preliminary reference in all cases or only in one or a few test cases. Next, it discusses to what extent a national court not sitting as a court of last in...
Broberg and Fenger on Preliminary References to the European Court of Justice
Chapter 7 concerns the situation where the national court has discretion in its decision as to wh... more Chapter 7 concerns the situation where the national court has discretion in its decision as to whether or not it should refer a preliminary question to the Court of Justice. It analyses (1) the different criteria that form the basis for the national court’s discretionary decision, (2) to what extent EU law interferes with that discretion, and (3) at what time in the proceedings it is best to make a preliminary reference. The chapter first identifies the different criteria that in general form the basis for the national court’s decision as to whether or not it should make use of the preliminary reference procedure. It then deals with the particular situation where a similar question is already pending before the Court of Justice or where the national court has a cluster of parallel cases before it and must decide whether to make a preliminary reference in all cases or only in one or a few test cases. Next, it discusses to what extent a national court not sitting as a court of last in...
With the 2015 Paris Agreement, ‘loss and damage’ (L&D) was introduced into the unfccc treaty fram... more With the 2015 Paris Agreement, ‘loss and damage’ (L&D) was introduced into the unfccc treaty framework as a new, third substantive area of climate change law. Both before and after its adoption, this new area has been subject to much contention—and this is reflected in a high degree of uncertainty surrounding its interpretation. This article examines the definition of L&D and the types of impact covered by the notion. It also examines the relationship of L&D with mitigation and adaptation, as well as the instruments that are covered by it. Finally, the article considers the controversial issue of who can invoke L&D—and against whom.
This article examines how the introduction of a specific provision on loss and damage (L&D) in th... more This article examines how the introduction of a specific provision on loss and damage (L&D) in the Paris Agreement affects the construction of provisions on 'mitigation' and 'adaptation' as established within the treaty framework of the United Nations Framework Convention on Climate Change (UNFCCC). It shows that the establishment of L&D at treaty level has created a legal basis for finding 'responsibility' for adverse consequences that can be attributed to the failure to fulfil UNFCCC obligations as laid down in the provisions on mitigation and adaptation. This, it argues, strengthens the legal basis for pursuing remedies aimed at reparation for these consequences, such as the establishment of climate change funds and of insurance solutions. Moreover, it demonstrates that prior to establishing L&D at treaty level, L&D issues and measures (such as the Warsaw International Mechanism) were treated in legal terms within the framework of adaptation. However, with the adoption of the Paris Agreement, L&D has been given its own legal basis and therefore L&D issues and measures must henceforth be treated within this new framework. Key policy insights. The provisions on mitigation and adaptation in the UNFCCC may be re-interpreted in light of Article 8 of the Paris Agreement so as to instil a legal responsibility in the UNFCCC provisions on mitigation and adaptation.. The limits of 'adaptation' must be redefined in light of the adoption of the Paris Agreement and the introduction of L&D as a third pillar of international climate change law.
When it comes to coordinating the fight against contagious diseases, the WHO is the most importan... more When it comes to coordinating the fight against contagious diseases, the WHO is the most important international actor. This article presents the International Health Regulations 2005; the WHO’s legal basis for coordinating the work to counter transboundary contagious diseases. Whereas in principle the International Health Regulations 2005 vest in the WHO the power to ensure a coordinated response against these diseases, in practice experiences show that, as a general rule, states only half-heartedly follow WHO recommendations. This article argues that there are three important reasons why the WHO’s fight against transboundary contagious diseases has not been successful and it puts forward proposals for ways of remedying these weaknesses.
When a case, that is pending before a national court in one of the Member States of the European ... more When a case, that is pending before a national court in one of the Member States of the European Union, requires a decision on the interpretation or validity of an EU legal measure, the national court can seek a preliminary ruling on the matter from the European Court of Justice before deciding the main action. In its preliminary ruling, the European Court of Justice establishes authoritatively the interpretation or validity of the relevant EU legislation. When EU law plays a role in commercial arbitration it may be very useful for arbitration tribunals to have access to the preliminary reference procedure. However, according to the Treaty on the Functioning of the European Union, only ‘a court or tribunal of a Member State’ can make a preliminary reference and this notion does not include commercial arbitration tribunals. In order to give arbitration tribunals access to the preliminary reference procedure Denmark has introduced a scheme which allows them to ask the ordinary Danish ...
Commitments in Phase One Merger Proceedings: The Commission´ s Power to Accept and Enforce Phase ... more Commitments in Phase One Merger Proceedings: The Commission´ s Power to Accept and Enforce Phase One Commitments. Morten Petersen Broberg Common Market Law Review Vol. 34, No. 4, 845-866, unknown, 1997. ...
Price: DKK 25.00 (VAT included) DIIS publications can be downloaded free of charge from www.diis.... more Price: DKK 25.00 (VAT included) DIIS publications can be downloaded free of charge from www.diis.dk AcKNOWlEDGEMENT The author is grateful to senior researcher Ole Therkildsen, Danish Institute for International Studies, and to Dr. Dimitry Kochenov, Groningen University, for succinct comments to a draft of the paper as well as for comments from participants at the two panels at the 2010 UACES conference in Brugge where the paper was first presented. The usual disclaimer applies.
According to Article 267 of the Treaty on the Functioning of the European Union (TFEU), Member St... more According to Article 267 of the Treaty on the Functioning of the European Union (TFEU), Member State courts may – and sometimes must – refer questions on the interpretation or validity of EU legal measures to the Court of Justice of the European Union for a binding preliminary ruling. But what are the consequences if a Member State court fails to make a preliminary reference in a situation where it was legally obliged to do so? The article shows that such failure may constitute an infringement of the right to a fair trial as laid down in Article 6(1) of the European Convention of Human Rights. It may also form the basis for a claim for damages under EU law. Moreover, it may instigate the European Commission to institute infringement proceedings against the Member State in question. Finally, in some situations, a failure to make a preliminary reference may affect the validity of the Member State court’s judgment, and there may also be a requirement on Member State administrative auth...
EU diplomats consider the Caribbean countries to be allies and therefore expect these countries t... more EU diplomats consider the Caribbean countries to be allies and therefore expect these countries to support the EU in international affairs-but they find that this support has been waning in recent years. Caribbean diplomats and politicians do not share the European viewpoint. Rather, they take the view that the EU has forgotten its Caribbean allies and instead channels its attention and funding towards Sub-Saharan Africa. This article examines to what extent this asserted 'rift' really signals a profound change in the EU-Caribbean relations.
Broberg and Fenger on Preliminary References to the European Court of Justice
Chapter 7 concerns the situation where the national court has discretion in its decision as to wh... more Chapter 7 concerns the situation where the national court has discretion in its decision as to whether or not it should refer a preliminary question to the Court of Justice. It analyses (1) the different criteria that form the basis for the national court’s discretionary decision, (2) to what extent EU law interferes with that discretion, and (3) at what time in the proceedings it is best to make a preliminary reference. The chapter first identifies the different criteria that in general form the basis for the national court’s decision as to whether or not it should make use of the preliminary reference procedure. It then deals with the particular situation where a similar question is already pending before the Court of Justice or where the national court has a cluster of parallel cases before it and must decide whether to make a preliminary reference in all cases or only in one or a few test cases. Next, it discusses to what extent a national court not sitting as a court of last in...
Broberg and Fenger on Preliminary References to the European Court of Justice
Chapter 7 concerns the situation where the national court has discretion in its decision as to wh... more Chapter 7 concerns the situation where the national court has discretion in its decision as to whether or not it should refer a preliminary question to the Court of Justice. It analyses (1) the different criteria that form the basis for the national court’s discretionary decision, (2) to what extent EU law interferes with that discretion, and (3) at what time in the proceedings it is best to make a preliminary reference. The chapter first identifies the different criteria that in general form the basis for the national court’s decision as to whether or not it should make use of the preliminary reference procedure. It then deals with the particular situation where a similar question is already pending before the Court of Justice or where the national court has a cluster of parallel cases before it and must decide whether to make a preliminary reference in all cases or only in one or a few test cases. Next, it discusses to what extent a national court not sitting as a court of last in...
With the 2015 Paris Agreement, ‘loss and damage’ (L&D) was introduced into the unfccc treaty fram... more With the 2015 Paris Agreement, ‘loss and damage’ (L&D) was introduced into the unfccc treaty framework as a new, third substantive area of climate change law. Both before and after its adoption, this new area has been subject to much contention—and this is reflected in a high degree of uncertainty surrounding its interpretation. This article examines the definition of L&D and the types of impact covered by the notion. It also examines the relationship of L&D with mitigation and adaptation, as well as the instruments that are covered by it. Finally, the article considers the controversial issue of who can invoke L&D—and against whom.
This article examines how the introduction of a specific provision on loss and damage (L&D) in th... more This article examines how the introduction of a specific provision on loss and damage (L&D) in the Paris Agreement affects the construction of provisions on 'mitigation' and 'adaptation' as established within the treaty framework of the United Nations Framework Convention on Climate Change (UNFCCC). It shows that the establishment of L&D at treaty level has created a legal basis for finding 'responsibility' for adverse consequences that can be attributed to the failure to fulfil UNFCCC obligations as laid down in the provisions on mitigation and adaptation. This, it argues, strengthens the legal basis for pursuing remedies aimed at reparation for these consequences, such as the establishment of climate change funds and of insurance solutions. Moreover, it demonstrates that prior to establishing L&D at treaty level, L&D issues and measures (such as the Warsaw International Mechanism) were treated in legal terms within the framework of adaptation. However, with the adoption of the Paris Agreement, L&D has been given its own legal basis and therefore L&D issues and measures must henceforth be treated within this new framework. Key policy insights. The provisions on mitigation and adaptation in the UNFCCC may be re-interpreted in light of Article 8 of the Paris Agreement so as to instil a legal responsibility in the UNFCCC provisions on mitigation and adaptation.. The limits of 'adaptation' must be redefined in light of the adoption of the Paris Agreement and the introduction of L&D as a third pillar of international climate change law.
When it comes to coordinating the fight against contagious diseases, the WHO is the most importan... more When it comes to coordinating the fight against contagious diseases, the WHO is the most important international actor. This article presents the International Health Regulations 2005; the WHO’s legal basis for coordinating the work to counter transboundary contagious diseases. Whereas in principle the International Health Regulations 2005 vest in the WHO the power to ensure a coordinated response against these diseases, in practice experiences show that, as a general rule, states only half-heartedly follow WHO recommendations. This article argues that there are three important reasons why the WHO’s fight against transboundary contagious diseases has not been successful and it puts forward proposals for ways of remedying these weaknesses.
When a case, that is pending before a national court in one of the Member States of the European ... more When a case, that is pending before a national court in one of the Member States of the European Union, requires a decision on the interpretation or validity of an EU legal measure, the national court can seek a preliminary ruling on the matter from the European Court of Justice before deciding the main action. In its preliminary ruling, the European Court of Justice establishes authoritatively the interpretation or validity of the relevant EU legislation. When EU law plays a role in commercial arbitration it may be very useful for arbitration tribunals to have access to the preliminary reference procedure. However, according to the Treaty on the Functioning of the European Union, only ‘a court or tribunal of a Member State’ can make a preliminary reference and this notion does not include commercial arbitration tribunals. In order to give arbitration tribunals access to the preliminary reference procedure Denmark has introduced a scheme which allows them to ask the ordinary Danish ...
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