Suchergebnisse

Wholly apart from the questions of whether and under what circumstances major coercion is permissible under international law and whether minor coercion, including threats, is lawful, there is a broad and deep national consensus that the United States should continuously develop a military capacity sufficient for a range of contingencies and maintain it in a state of readiness. The consensus has been far less certain with regard to who will decide, and how, to initiate and use this capacity, at varying intensities. The original terms of the Constitution have been invoked by partisans of opposing views, but debate in those terms has proved inconclusive. Behind the legal bickering, a complex, but unstated, operational code has developed, allocating competence to initiate, direct and terminate different types of coercion among the branches. Parts of the operational code are clear and relatively stable over time. Other parts are less certain and can be projected only with qualifications, reservations or contingencies.

Although the establishment of competition rules forms part of the EU's exclusive competences, the application and enforcement of those rules has always been shared consistently between the EU and its Member States.The sharing of enforcement powers is conceptualised traditionally as a delegation of the exercise of exclusively conferred competences. The Court of Justice of the European Union's case law in the context of EU antitrust law enforcement nevertheless raises profound questions as to the overall tenability of this delegation framework in this particular field of EU exclusive competence.This contribution argues the traditional exclusive competences narrative indeed fails to grasp the system of shared enforcement powers underlying EU antitrust law. Seeking to make sense of the realities of that system in light of EU competence doctrines, it explores the constitutionality of legal policy strategies enabling a more explicit recognition of shared competences principles as an inherent part of this EU exclusive competence domain.

A ZLRev article on the role of judges and other legal practitioners in African societies. ; Judges and legal practitioners, both public and private, in independent African countries have clamored and continue to clamor, not only for societal recognition and acceptance of the hallowed ideal of "independence of the judiciary", but also for societal recognition and acceptance that judges and legal practitioners are, and should be, collectively the custodians of justice, law and good order in society.

A doctrine of uncertain scope and application -- The Human Rights Act 1998 and the separation of powers -- The Strasbourg influence -- Justiciability -- Deference and proportionality -- Statutory interpretation and declarations of incompatibility -- Developing the common law and the meaning of 'the convention rights' -- The independence of the judiciary -- Towards constitutional separation -- Descriptive or substantive principles of separation?

"To what extent does and should the EU internal market law limit the regulatory autonomy of its Member States? This books answers the question by exploring case law regarded as sensitive from a national point of view and assessing the legitimacy of the principles underpinning the EU constitutional order. Four case studies: healthcare, education, collective labour law and gambling, show how this autonomy works in practice. This allows the author to shine a light on constitutional imbalances. The book goes further, suggesting interpretative solutions to address these imbalances. An exciting and important new work which enhances our understanding of the limits on the internal market."--

One view among the judiciary in Hong Kong is that courts should defer to the government's position in adjudicating the constitutionality of policies, because courts are institutionally and constitutionally unequipped to pass judgment on policy issues. Using W v Registrar of Marriages as an example, this article examines some of the commonly cited institutional and constitutional reasons for deference, and argues that these reasons do not, generally speaking, provide valid grounds for Hong Kong courts to defer. ; published_or_final_version

This article argues that the Union's experience of tackling increasingly complex socio-economic and geopolitical problems has revealed certain limitations in our well-established legal understanding of the principle of conferral. Our current legal approach to verifying the existence of Union competence focuses almost entirely on the relationship between each and every discrete and individual Union measure, on the one hand, and its purported legal basis or bases under the Treaties, on the other hand. That approach offers only limited recognition to the particular demands imposed on Union policymaking by challenges of formidable scale, complexity and often urgency – demanding solutions based on multi-faceted, multi-component, and highly integrated regulatory packages. Such legal diffidence can generate a range of tensions: further complicating an already difficult negotiating process; interfering in or even altogether unpicking delicate political compromises; forcing the Union institutions towards suboptimal policy responses or exposing them to allegations of "competence creep"; and raising difficult questions about the estranged legitimacy claims of robust constitutional law versus effective public governance. That analysis invites us to reflect critically on the performance, merits and limits of the current Treaty frameworkgoverning attributed Union powers, not least by suggesting some potential adaptations and reforms that might help ameliorate such tensions.

AbstractHow is it that regardless of the reforms introduced by the Lisbon Treaty to better contain European integration in areas of core state powers, 'competence creep' can continue? What is the underlying cause? And why is it problematic? This article proposes answers to these questions through a systematic (re‐)conceptualization of the problem of 'competence creep', arguing that it results from the cross‐cutting governance that is the legal Leitmotif of European integration as well as from 'two‐level games' of national governments, and that it is problematic from the viewpoint of democratic legitimacy. However, it argues that the one form of competence creep that is most commonly understood as the core problem, and on which most reforms have focused, namely indirect legislation in areas of Member State competence, is actually the least worrying type of covert integration; negative and parallel integration, soft law and co‐ordination are all far more problematic.

This paper analyses the powers and competences of the EU to standardise public sector accounting of the member states and to take other EU action in the field of public sector accounting. We argue that public sector accounting forms part of the administrative organisation of the member states that is not a core EU competence. EU initiatives such as the European Public Sector Accounting Standards project, which aim to increase transparency and comparability, therefore need to follow the rules set out for administrative matters in general. The study reveals on the one hand that EU actions are essentially limited to voluntary cooperation and influences of other policy areas. But on the other hand, it shows that they do not need to be limited to the initiatives currently driven by Eurostat. Points for practitioners The future of the European Public Sector Accounting Standards project is uncertain. However, it is very unlikely that it will take the shape of a top-down set of readymade EU accounting standards that will force public administrations to adjust their inner workings. Public sector accounting is not (yet) a (typical) European policy, but simply a national one that the EU can support. The EU initiative can be considered as an opportunity for collaboration and knowledge sharing on how to increase transparency of public sector accounting.