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7719 results in Intersentia

Page 292 of 386

  • Chapter 11 - The Zapatista Struggle for the Right to Land: Background, Context and Strategies

  • from PART III - ENFORCEMENT OF TRANSNATIONAL SOCIAL RIGHTS
    • By Judith Schacherreiter, lawyer at Knoetzl Haugeneder Netal Rechtsanwälte GmbH and an external le cturer at the University of Vienna, Department of Comparative, Uniform and Private International Law, Guilherme Leite Gonçalves, Professor of Sociology of Law at Rio de Janeiro State University
  • Edited by Andreas Fischer-Lescano, Kolja Möller
  • Book:
    Transnationalisation of Social Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 June 2016, pp 265-304

  • Summary

    INTRODUCTION

    Land rights are crucial factors in realising social rights. Their violation is a pre-requisite for the capital accumulation which precedes the expansion of capitalism and the emergence of new capitalist formations. According to Karl Marx, money and commodities can be only transformed into capital when the peasant is expropriated from his land, separated from the factors of production, and left with nothing but his labour power to sell freely. In consequence, he is reduced to pauperism. This process is marked by expropriation, robbery and colonisation, all of which involve the integration of local, national or regional actors and areas into the global structures of domination. Such integration transforms the spectrum of the struggle for the right to land: if resistance to the commodification of a particular territory is simultaneously an opposition to transboundary powers, then each peasant movement is part of a global process of critical meaning-making. Not only does this allow for the said movements to develop collective action connected to transnational networks, it also re-interprets the struggle for social rights as a struggle for transnational social rights.

    Under these circumstances, the pressure on land is increasing dramatically. As rural populations grow, cultivated plots are becoming smaller per capita and per household. The decline of the average farm size is combined with landlessness and compounded by erosion and soil depletion. In recent years, export-driven agricultural policies have further increased the pressure on land. In many regions, large-scale plantations have developed for the production of food, energy or cash crops. The switch to biofuels in transport has increased both the competition among the various uses of farmland and the risk that poorer groups will lose access to the very land upon which they depend. Under the heading “ land grabbing”, large-scale land acquisitions have become a contentious topic.

    These trends are linked with the food crises and threaten the right to adequate alimentation, as recognised by Article 25 (1) of the Universal Declaration of Human Rights 1948, and Article 11 of the International Covenant on Economic, Social and Cultural Rights 1966. In addition, they exacerbate conflicts over land and lead to the criminalisation of social movements that defend agrarian reforms from below. As a result, serious human rights violations occur, including the murders of the peasants connected to such activities.

  • Chapter 3 - Normative Perspectives on Transnational Social Rights

  • from PART I - TRANSNATIONAL SOCIAL RIGHTS IN CONTEXT
    • By Georg Lohmann, Professor emeritus of Practical Philosophy at the Ottovon- Guericke University Magdeburg
  • Edited by Andreas Fischer-Lescano, Kolja Möller
  • Book:
    Transnationalisation of Social Rights
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    10 June 2016, pp 49-66

  • Summary

    INTRODUCTION

    The various modes of globalisation have made us conscious of the fact that the inequalities in life chances and increasing poverty are now the problems of a global society. The struggles against discrimination, exclusion and other forms of injustice can no longer solely be aligned within the respective state borders, but must, in order to be successful, (also) be conducted transnationally and globally. Social struggles emerge around concrete and local experiences of injustice. But then, the normative demands and justifications have to address the transnational roots of these injustices, and national actors tend to turn into international actors. Therewith, the framework of social struggles and of normative justification changes. The field ranges from voluntary, humanitarian aid to moral demands of global social justice and the enforcement of transnational social rights. Social rights, which traditionally protect and defend the life chances of citizens in a domestic frame, now need be conceived as transnational social rights and need transnational orientations and justifications. This chapter seeks to determine, from a philosophical point of view, which conceptual and argumentative problems can be found in these normative perspectives.

    CONCEPTIONAL AND SYSTEMATIC CLARIFICATIONS

    “TRANSNATIONAL SOCIAL RIGHTS” AS HUMAN RIGHTS

    I would like to understand “transnational social rights” as human rights. Frequently, human rights are seen – unfortunately, particularly by moral philosophers – as purely “moral rights” which merely correspond to “moral obligations” for all. This is, in many ways, not just one-sided, but will frequently lead to false and distorting considerations and conclusions. Human rights, properly understood, have three dimensions, which cannot be reduced to one another: a moral, a legal, and a political-historical dimension. They are motivated by historical processing of experiences of grave injustices and crimes against humanity; since the Second World War, international (political-given, legally-constituted and morally-justifiable) human rights, have been accredited in the same way to every human being in virtue of his or her human dignity. Thus, philosophical reflections on human rights should not only methodically emanate from the legal (national and international) human-rights documents, but must also track each other's separate considerations in political and moral terms.

  • Chapter 1 - Introductory Observations

  • from Part I - Sources of European Law and Their Influence on National Private Law
  • Arthur Hartkamp
  • Book:
    European Law and National Private Law
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    26 May 2016, pp 3-28

  • Summary

    SUBJECT OF THIS BOOK: CURRENT EUROPEAN LAW AND PRIVATE LAW

    Any consideration of the influence of European law on national private law (which for the purposes of this book embraces property law and the law of obligations, including contract law and the law on unlawful acts and unjust enrichment, but excludes family law and the law of succession) will obviously focus primarily on the law currently in force, i.e. the treaties (the EU Treaty, the Treaty on the Functioning of the European Union and the EU Charter of Fundamental Rights), secondary legislation, and the case law of the European Court of Justice, which is based on the treaties and secondary legislation. Another important source is the European Convention on Human Rights (ECHR), because this Convention, too, influences matters governed by the general provisions of national private law. This segment of a national private law system – which is gaining in importance – could be referred to as ‘European private law’.

    THE CONCEPT OF EUROPEAN PRIVATE LAW

    In jurisprudence, the term ‘European private law’ does not have an established meaning. It is oft en used in a narrower sense than above, namely when it is taken to include the influence of the law of the European Union on private law but not the influence of the ECHR. Oft en, however, it is used in a wider sense, when it is understood to also include:

  • (a) Rules adopted within the context of the European Union and relating to matters of international procedure and private international law. Such rules were originally adopted in the form of treaties and subsequently transformed into Regulations. See no. 193 below. This book, which is devoted to substantive (private) law, will not deal with the merits of these provisions.

  • (b) Treaties in the field of private law concluded within a broader context than the ‘regional’ European context, where all or virtually all member states of the Union are signatories to such a treaty. The most important of these is the Vienna Sales Convention or CISG (UN Convention on Contracts for the International Sale of Goods, Vienna 1980). Such treaties fall outside the scope of this book, which is limited to private law based on the European Treaties mentioned in no. 1 above.

European Law and National Private Law
  • Effect of EU Law and European Human Rights Law on Legal Relationships between Individuals
  • 2nd edition
  • Arthur Hartkamp
  • Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    26 May 2016
  • Traditionally European law is important for public law. However, it is also increasingly important for private law, that is to say, the legal relationships between individuals. European Law and National Private Law addresses and analyses the various sources of European law in (hierarchical) order, namely the Treaty on the Functioning of the European Union, the general principles of EU law, EU Directives and EU Regulations, as well as the influence of fundamental rights (both the ECHR and the EU Charter) on private law. The nature of each source of law and its significance for and influence on the general part of national private law is discussed. Particular attention is devoted to the review of national private law legislation in the light of European legislation that has direct effect, direct and indirect effect of European law on legal relationships between individuals, ex officio application of European law by the national courts, and interpretation issues arising as a result of the interaction between European law and national law. Further, comparisons are drawn between the different sources of law. The book then concludes with a detailed overview of European Directives that are of particular relevance for general private law. European Law and National Private Law provides a concise introduction to the influence of EU law and the ECHR on legal relationships between individuals - a must read for every lawyer.

  • Chapter 5 - Regulations and Private Law

  • from Part I - Sources of European Law and Their Influence on National Private Law
  • Arthur Hartkamp
  • Book:
    European Law and National Private Law
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    26 May 2016, pp 165-172

  • Summary

    CONCEPT OF AN EU REGULATION

    Traditionally, EU legislative measures in the field of general private law are taken in the form of directives. Pursuant to Article 115 TFEU a directive is the required legal form for measures concerning the approximation of such national laws, regulations or administrative provisions of the member states as ‘directly affect the establishment or functioning of the internal market’. Some of the earliest private law directives (product liability, doorstep selling, credit agreements for consumers) are based on this article. Measures concerning the approximation of national laws and regulations of member states ‘which have as their object the establishment and functioning of the internal market’ may be taken by both directives and regulations, so Article 114 TFEU provides. Most of the directives in the field of consumer protection are based on this article; see Article 169(3) TFEU. This policy is based on paragraph 6 of the Protocol on the application of the principles of subsidiarity and proportionality, which provides that ‘other things being equal’, directives should be preferred to regulations. So it is conceivable that the Commission will in the future choose the legal form of a regulation. This would relegate to the past most of the problems of transposing EU law into national legislation and of harmonious interpretation: a regulation is a law, which is directly binding on citizens, the institutions of the EU and the member states. See also no. 162 above.

    REGULATIONS IN THE FIELD OF PRIVATE LAW

    There are EU regulations which, among other things, regulate matters belonging to general private law, for example the regulations in the field of payments. Regulation 1103/97 regulates the introduction of the euro and includes provisions for conversion in existing contracts. According to the ECJ (Verbraucher-Zentrale Hamburg, C-19/03, and Estager, C-359/05) this regulation gives expression to two general principles of law, namely the necessity of safeguarding legal certainty for citizens upon the transition to the euro and the related necessity of not affecting the continuity of contracts and other legal instruments by the introduction of a new currency. See also no. 136 above. On these grounds a provider of mobile telephony was refused permission to round off the price per minute to a whole eurocent upon the conversion of German marks into euros, since this would result in a significant cost increase for consumers.

  • Chapter 2 - The Tfeu and Private Law

  • from Part I - Sources of European Law and Their Influence on National Private Law
  • Arthur Hartkamp
  • Book:
    European Law and National Private Law
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    26 May 2016, pp 29-94

  • Summary

    INFLUENCE OF EU LAW ON NATIONAL PRIVATE LAW: INTRODUCTORY OBSERVATIONS

    We have seen in Chapter 1 that EU law produces direct effect in the domestic legal systems of the member states and that it has precedence in these legal systems over conflicting domestic legislation. Insofar as the provisions of EU law are suitable for having direct effect, individuals can invoke them before their national courts and thus assert their right to the application of those provisions in cases in which national provisions laid down by law, regulation or administrative action conflict with EU law. A provision is suitable for having direct effect when it is unconditional and sufficiently precise, which means that it must be clearly worded and not conditional upon an implementing measure to be enacted by an institution of the EU or a member state with respect to which there is a margin of discretion. The fact that a provision is laid down in the form of a treaty obligation imposed on the member states does not in itself preclude direct effect.

    Direct effect can be ‘vertical’ or ‘horizontal’. Direct horizontal effect of treaty provisions was the subject of an introductory explanation in no. 12 ff. above and will be discussed in greater detail in section 3 of this chapter (no. 42 ff.).

    REVIEW OF LEGALITY OF NATIONAL PRIVATE LAW MEASURES

    Before dealing with direct horizontal effect, I will first, in section 2 (no. 31 ff.), discuss to what extent individuals can rely on the TFEU provisions on the freedoms to argue that national private law legislation is contrary to those provisions. Usually, EU provisions are invoked in disputes between an individual and the state, but it may also happen in disputes between two individuals. Member states must act in accordance with EU law, which implies among other things that they cannot issue and maintain legislation in contravention of EU law. If there is a dispute over whether a domestic legislative act conflicts with a provision of EU law that has direct effect in the sense discussed in no. 9, individuals may submit the dispute to the courts for a decision.

  • Chapter 6 - Fundamental Rights and Private Law

  • from Part I - Sources of European Law and Their Influence on National Private Law
  • Arthur Hartkamp
  • Book:
    European Law and National Private Law
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    26 May 2016, pp 173-208

  • Summary

    INTRODUCTORY OBSERVATIONS

    THE ECHR AND THE ECtHR

    This chapter will first deal with the protection of fundamental rights provided by the European Convention on Human Rights and Fundamental Freedoms (ECHR)in particular its importance for private law. The development of the protection of fundamental rights within the European Union and its relevance for private law will be discussed in section 4 of the chapter (no. 231a below). In 1950, in Rome and under the auspices of the Council of Europe that was established in 1949, the ECHR was made. The contracting parties secure to everyone within their jurisdiction the rights and freedoms defined in the Convention and in the protocols that have subsequently been added. The ultimate review of compliance with this obligation is vested in the European Court of Human Rights (ECtHR), which is established in Strasbourg. On a relatively modest but increasing scale, the ECHR is also relevant in the field of general private law.

    The rights which the ECHR ensures will be respected by the authorities are a number of traditional human rights, e.g. the right to life, the right to be protected from torture and slavery, the right to liberty and security, the right to a fair trial, the right to respect for private life, and the right to freedom of religion, expression and assembly. In practice, most of the rights are relevant to criminal law: approximately two-thirds of the cases decided in Strasbourg relate to criminal law. With regard to private law cases the ECHR is mainly relevant to the law of persons and family law, and the law of civil procedure. However, some of the rights protected by the Convention are indirectly also relevant to general private law (the law of property, contract and unlawful acts), for example Article 6 ECHR (right to a fair trial) and Article 8 ECHR (right to respect for private life). More important, because directly relevant, is Article 1, Protocol No. 1, which pertains to the right to own property. In the following I will mention examples from the case law of the European Court of Human Rights relating to these articles.

    The observance of the engagements undertaken by the contracting states is ensured by the European Court for Human Rights in Strasbourg (ECtHR).

  • Chapter 4 - Directives and Private Law

  • from Part I - Sources of European Law and Their Influence on National Private Law
  • Arthur Hartkamp
  • Book:
    European Law and National Private Law
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    26 May 2016, pp 135-164

  • Summary

    INTRODUCTION

    A great deal of European (private) law is embodied in secondary European legislation, that is, in directives and regulations. A regulation ‘shall be binding in its entirety and directly applicable in all Member States’ (Art. 288(2) TFEU). So it has direct effect with respect to anyone to whom it is addressed, regardless of whether it is a public body or an individual. In the wording of the ECJ (Prosciutto di Parma, C-108/01, paragraphs 87–89):

    ‘a regulation (…) creates not only rights but also obligations for individuals, on which they may rely against other individuals before national courts. Nevertheless, the requirement of legal certainty means that Community rules must enable those concerned to know precisely the extent of the obligations which they impose on them’.

    A directive, on the other hand,

    ‘shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods’ (Art. 288(3) TFEU).

    Regulations will be discussed in the next chapter.

    This chapter is devoted to directives in the area of general private law (excluding family law and the law of succession). I will deal in turn with the operation of directives in private law (section 2), with the general aspects of the directives that are relevant to private law (section 3) and with some interpretation issues (section 4). The substance of the directives referred to here is briefly summarised in Chapter 7 (no. 235 ff.).

    I will not discuss the possible legal bases for directives in the TFEU. I have only one observation on the subject.

    Practically all directives in the area of general private law are based on Article 95 EC (formerly Art. 100A EC, currently Art. 114 TFEU); some older directives (product liability, doorstep selling, commercial agency and consumer credit) are based on Article 94 EC (formerly Art. 100 EC, currently Art. 115 TFEU). These treaty provisions regulate the approximation of such laws, regulations or administrative provisions of the member states ‘as directly affect the establishment or functioning of the internal market’ (Art. 115 TFEU) or as ‘have as their object the establishment and functioning of the internal market’ (Art. 114 TFEU), respectively.

  • Chapter 3 - General Principles of EU Law and Private Law

  • from Part I - Sources of European Law and Their Influence on National Private Law
  • Arthur Hartkamp
  • Book:
    European Law and National Private Law
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    26 May 2016, pp 95-134

  • Summary

    GENERAL PRINCIPLES OF EU LAW

    In its case law, the Court of Justice has developed a large number of general principles of Community law, currently EU law. These are fundamental principles of justice of the EU and its member states (cf. AG Trstenjak, opinion in Audiolux, C-101/08, point 70), ‘deeply rooted principles without which a civilised society would not exist’. They have a general, comprehensive character that is inherent in general principles of law. According to recent case law of the ECJ they have a constitutional nature or constitutional status (Audiolux, paragraph 63; NCC, C-174/08, paragraph 42). They belong to primary law, which means they are on an equal footing with the treaties.

    In Audiolux the ECJ gave an insight into the considerations that play a role when recognising a general principle of EU law. The ECJ was dealing with the question whether EU law includes a general principle of equal treatment of shareholders, which in the case under consideration would have meant that if one of the large shareholders acquired the company, a small number of minority shareholders would be entitled vis- à-vis this large shareholder to receive the same price for their shares as was received by other large shareholders. The ECJ answered the question in the negative, because secondary EU legislation contained insufficient grounds for such a rule protecting shareholders and because it was an issue regarding which various means were available for ensuring such protection which the legislature was in a better position to weigh than the courts – also in the light of the principle of legal certainty. The ECJ further held that the proposed principle was characterised by a degree of detail that required further legislation.

    FUNCTIONS OF THE GENERAL PRINCIPLES OF EU LAW

    The ECJ has held itself competent to develop general principles of EU law pursuant to Article 220(1) EC (currently the second sentence of Art. 19(1) TEU), which imposes a duty on the ECJ to ensure that in the interpretation and application of the treaties ‘the law is observed’. The principles have a largely public law bias, which is not surprising given the socio-economic and administrative background of European cooperation.

    General principles of Union law are held to possess three or four functions. They play a role in interpreting provisions of written law, in supplementing gaps in the law and in assessing the legality of legislative or administrative acts.

  • Preface

  • Arthur Hartkamp
  • Book:
    European Law and National Private Law
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    26 May 2016, pp v-vi

  • Summary

    This volume aims to present a concise introduction to the interaction of European law and national private law. The various sources of European law are discussed in sequence: the TFEU, the general principles of Union law, directives, regulations, the EU Charter and the ECHR. For each source I indicate the nature and form of its significance for national private law. Particular attention is devoted to the review of national private law legislation against European legislation that has direct effect, to direct effect of European law on legal relationships between individuals, to indirect effect of European law on the same legal relationships via the open standards of national law, and to interpretation issues arising as a result of the interaction between European law and national law.

    Since the first edition of this book (2012), which was reviewed by Norbert Reich in ZEuP 2014, pp. 446–448, academic discussion on European private law has increased in volume and in depth. The bibliography at the end of this book mentions five collections of essays which bear testimony to that development: General Principles of EU Law and European Private Law; The Involvement of EU Law in Private Law Relationships; Constitutionalization of European Private Law; Pluralism and European Private Law; and The Influence of EU Law on National Private Law. Some other books worth mentioning are Norbert Reich, General Principles of EU Civil Law, and Norbert Reich, Hans-W. Micklitz, Peter Rott and Klaus Tonner, European Consumer Law. This survey is limited to books in the English language.

    As these titles show, one of the reasons for the lively academic discourse is the fact that the general principles of EU law and the EU Charter of Fundamental Rights, the latter of which entered into force in 2009, have rapidly gained in importance for private law, even if the contours of that influence are by no means clear as yet. The relevance of fundamental rights for EU private law is discussed in Chapters 3 and 6 of this volume.

    The ECJ case law on subjects relevant for private law flows lavishly. In this edition nearly fifty new judgments are reported. Moreover, there are several new directives and regulations on private law related subjects.

Page 292 of 386