Suchergebnisse

The author of the dissertation "Effect of the European Union Directives: Aspects of Ensuring the Principle of Legal Certainty" analyses the doctrines of the effect of EU directives formulated by the Court of Justice of the European Union, identifies problems of their application in national court proceedings and provides suggestions regarding alternative regulation of the effect of directives. The research analyses the compliance of the rules on the effect of EU directives with the formal (predictability) and material (acceptability) aspects of legal certainty. The author carries out also an evaluation of the compliance of the norms of the Lithuanian civil and administrative procedure that are significant for ensuring the effectiveness of directives in national courts with the principle of legal certainty. The author arrives at a conclusion that the existing legal regulation may cause violations of the principle of legal certainty and provides suggestions for its improvement. In order to find out whether the effectiveness of the directives is ensured in national court proceedings, the case-law of the Supreme Court of Lithuania and the Supreme Administrative Court of Lithuania in applying the rules of the effect of EU directives is investigated.

The author of the dissertation "Effect of the European Union Directives: Aspects of Ensuring the Principle of Legal Certainty" analyses the doctrines of the effect of EU directives formulated by the Court of Justice of the European Union, identifies problems of their application in national court proceedings and provides suggestions regarding alternative regulation of the effect of directives. The research analyses the compliance of the rules on the effect of EU directives with the formal (predictability) and material (acceptability) aspects of legal certainty. The author carries out also an evaluation of the compliance of the norms of the Lithuanian civil and administrative procedure that are significant for ensuring the effectiveness of directives in national courts with the principle of legal certainty. The author arrives at a conclusion that the existing legal regulation may cause violations of the principle of legal certainty and provides suggestions for its improvement. In order to find out whether the effectiveness of the directives is ensured in national court proceedings, the case-law of the Supreme Court of Lithuania and the Supreme Administrative Court of Lithuania in applying the rules of the effect of EU directives is investigated.

In practice, a problem is frequently faced when such kind of provisional measures in not expressis verbis embodied in the text of national law. This hinders the right of the parties concerned to make use of such provisional measures significantly. Such hindrances limit the right of the parties concerned to effective judicial protection and may lead to violation of the EU law. For instance, The Code of Civil Procedure of Lithuania does not provide for special rules concerning suspension of national legal provisions in the above-mentioned situations. However, bearing in mind that the Court of Justice recognized the right to obtain interim measures before national courts to be an integral part of the EU concept of direct, immediate and effective judicial protection, national court should have the right to grant such provisional measures. Therefore, it is submitted that it would be appropriate for the national legislator of Lithuania to resolve the question on filling this gap in national legal system.

In practice, a problem is frequently faced when such kind of provisional measures in not expressis verbis embodied in the text of national law. This hinders the right of the parties concerned to make use of such provisional measures significantly. Such hindrances limit the right of the parties concerned to effective judicial protection and may lead to violation of the EU law. For instance, The Code of Civil Procedure of Lithuania does not provide for special rules concerning suspension of national legal provisions in the above-mentioned situations. However, bearing in mind that the Court of Justice recognized the right to obtain interim measures before national courts to be an integral part of the EU concept of direct, immediate and effective judicial protection, national court should have the right to grant such provisional measures. Therefore, it is submitted that it would be appropriate for the national legislator of Lithuania to resolve the question on filling this gap in national legal system.

In addressing this problem, the author analyses relevant ECJ case-law, practice of Lithuanian courts and doctrine with a view to give guidelines on how to use the tools granted by the indirect effectiveness of the directives. The author suggests that justices shall firstly determine if the rights or obligations at stake fall within the scope of EU law; secondly, if national laws implement EU law; thirdly, if such implementation is proper or not. In the latest phase, judges shall employ the tools granted by the doctrine and apply national laws in compliance with a particular directive. However, in such a case, the judges shall stop shortly before possible violation of the general principles of law, such as legal certainty, lex retro non agit, etc. is committed; e.g. in cases where application of the doctrine would lead to interpretation of national laws contra legem. Regardless of structural simplicity of this concept and substantial case-law on the issue, it seems that the doctrine of the ECJ on the matter is far from being finally settled. In Mangold and Kücükdeveci cases, the ECJ was reluctant to declare irrelevance of indirect effect of the directive by giving green light to application of principle of non-discrimination on grounds of age as given expression by the directive in the dispute vis-à-vis private parties. Though it is rather early to say that the notion of indirect effect was given a new shape, it looks like the ECJ, by "closing the door to direct effect of directives between private parties, leaves the window open".

In addressing this problem, the author analyses relevant ECJ case-law, practice of Lithuanian courts and doctrine with a view to give guidelines on how to use the tools granted by the indirect effectiveness of the directives. The author suggests that justices shall firstly determine if the rights or obligations at stake fall within the scope of EU law; secondly, if national laws implement EU law; thirdly, if such implementation is proper or not. In the latest phase, judges shall employ the tools granted by the doctrine and apply national laws in compliance with a particular directive. However, in such a case, the judges shall stop shortly before possible violation of the general principles of law, such as legal certainty, lex retro non agit, etc. is committed; e.g. in cases where application of the doctrine would lead to interpretation of national laws contra legem. Regardless of structural simplicity of this concept and substantial case-law on the issue, it seems that the doctrine of the ECJ on the matter is far from being finally settled. In Mangold and Kücükdeveci cases, the ECJ was reluctant to declare irrelevance of indirect effect of the directive by giving green light to application of principle of non-discrimination on grounds of age as given expression by the directive in the dispute vis-à-vis private parties. Though it is rather early to say that the notion of indirect effect was given a new shape, it looks like the ECJ, by "closing the door to direct effect of directives between private parties, leaves the window open".