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Cordula A. Meckenstock - Investment Protection and Human Rights Regulation

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Cordula A. Meckenstock

Investment Protection and Human Rights Regulation

Series: Leipziger Schriften zum Völkerrecht, Europarecht und ausländischen öffentlichen Recht

Volume 17 2010

Results in this title

The Legal Effects S. 160-161

„… The Human Rights Undertaking21.2 The Legal EffectsThe legal effects of the Human Rights Undertaking …” „… treaty standardsevolve.424 The binding interpretation has the legal effect to prohibit any …” „… Understanding restricts the scope of the economicstabilization clause. It contains the binding legal promise …”

Conclusions about the Legal Effects of Classic Stabilization Clauses S. 60-62

„… Interpretations of Legal Effects6.2.3 Stabilization Clause as a Material Law ChoiceBecause of the …” „… protected from subsequent changes in its laws.1466.3 Conclusions about the Legal Effects of Classic …” „… laws with effect to the State Contract froma legal point of view. A stabilization clause in the State …”

Classic Stabilization Clauses as Choice of Time Clauses S. 57-60

„… choice and the material57Interpretations of Legal EffectsA conflict of laws choice means that the parties …” „… state’s legal order is not applicablefurther than that. The legal effect of a valid choice of law is …” „… contract. The legal effect of a valid material law choice is that the contract isregulated by the …”

„… intended legal effect of stabilization clausesto bar subsequent inconsistent legislation from interference …” „… developing their intended legal effect to bar the host state from interfering with the State Contract through …” „… stabilization clause invalid, legally not binding and therefore bare ofany legal effect, disregards the …”

Classic Stabilization Clauses as Internationalization Clauses S. 56-57

„… Chapter 6: Interpretations concerning the Legal Effect of ClassicStabilization ClausesThe above …” „… Interpretations of Legal Effectslegal order. This seems dogmatically doubtful. To justify the concept of “direct …” „… presented “classic stabilization clauses” appear in one way or another in manyState Contracts. Their legal …”

The Wording S. 159-160

„… The Human Rights Undertaking21.2 The Legal EffectsThe legal effects of the Human Rights Undertaking …” „… treaty standardsevolve.424 The binding interpretation has the legal effect to prohibit any …” „… claim against, demand to, or dispute with a Host Government or another party, or in any legal action or …”

Legal Background S. 153-159

„… 1 to the Azerbaijan HGA and Appendix 1 to the Georgian HGA.156Project BackgroundThe legal effects of …” „… Economic Equilibrium as provided in Section 7.2(xi)[...]”20.2.2.2 Legal and Factual Effects and Concerns …” „… “change in law”and “economic equilibrium” and the provision for its legal effect bears the …”

The “Regulatory Chill Effect” S. 97-100

„… stabilization clauses simplyenforces the “regulatory chill effect”. This phenomenon causes severe legal and …” „… factualproblems to the detriment of the host state.248 The exact prerequisites and legal effects of compensatory …” „… Chapter 15: The Chilling Effects of Compensatory Duties15.1 The “Regulatory Chill Effect …”

Stabilization Clauses Generating the Tension between Stabilization and Regulation S. 93-97

„… sovereign authority, a violation of the contractual promisehas at least the severe legal effect of obliging …” „… triggered due to aneconomic stabilization clause.249 Both legal effects pose a financial burden on the …” „… exact prerequisites and legal effects of compensatory measures under international law such asdirect and …”

Titelei/Inhaltsverzeichnis S. 2-12

„… 535.3. Relevance of Stabilization Clauses 536. Interpretations of Legal Effects 566.1. Classic …” „… as a Material Law Choice 606.3. Conclusions about the Legal Effects of Classic Stabilization Clauses …” „… 7010. Concerns related to the Pursuit of Public Welfare 7211. Conclusions 73Part V: Legal Effects of …”

The “Selective Regulation” S. 100-102

„… The Chilling Effects of Compensatory Dutiesfound in favour of the Ogoni people. According to the …” „… of their citizens. If they refrain from regulationin order to avoid financial burdens as a legal …” „… worthwhile noting that host states are in violation of two important international legal obligations—the …”

Ex Post-Tools S. 136-139

„… theyregulate in other areas of law, however, stabilization clauses can unfold all their legal effects as …” „… thefulfilllment of their legal obligations arising out of international treaties because of the imminent …” „… compensatory duties. This regulatory chill effect is greater in case of stabilizationclauses compared to the …”

„… The more interesting question comes up onthe next level, in connection with the legal effects of …” „… been widely unexamined.174 That iswhy the legal effects of stabilization clauses in connection with the …” „… . It needs to be considered on the secondarylevel, concerning the legal effects of stabilization …”

Indirect Expropriations S. 82-86

„… compensatory payments and legal regulation without that effect.216 Itis this context, the discussion about the …” „… and direct taking of property—but that have the same effect—arecalled indirect expropriations. An …” „… , implying all kinds of measures that are no formal expropriations, but that have the same effect,namely the …”

„… question comes up onthe next level, in connection with the legal effects of stabilization clauses when host …” „… iswhy the legal effects of stabilization clauses in connection with the host states’ pursuit ofpublic …” „… resources. It rather providesthe international legal framework for an efficient and balanced use of the …”

Conclusions S. 88-90

„… deprive the foreign investor of his property throughan outright seizure; or they have the same effect …” „… in effect. Internationallaw requires that direct expropriations serve a public purpose, are …” „… indirect expropriations. The effect of those measures is thesame as with direct expropriations, namely the …”

Conclusions S. 73-74

„… stabilization clauses as well. It needs to be considered on the secondarylevel, concerning the legal effects of …” „… disregarded. Since an interpretation as invalid col-175 The deciding legal effect of stabilization clauses as …” „… as the creationof escape clauses for example. In the following chapters, the legal effects of …”

Expropriations S. 75-82

„… legal effects.179 This nationalization program triggered a whole series of international arbitrations …” „… Part VLegal Effects of Violating StabilizationClauses75Introductory RemarksHost state measures that …” „… chapter, legal and administrative measures that amount to(indirect) expropriation and trigger compensatory …”

Varieties of Stabilization Clauses S. 47-53

„… incorporation of certain material law from a certain date into the State Contract. The legal effect of such a …” „… its intended legal effect. In many constitutional orders—at least compulsory—“new” law cannot be …” „… “new”laws. The legal effect of this kind of stabilization clause is not to restrict the host statecompletely …”

Regulatory Takings S. 86-87

„… regulations do notamount to indirect expropriation, but can trigger legal effects under a stabilization …” „… relationship between legal regulation for “social purposes” andindirect expropriations is going to be discussed …” „… itsimportance for the tension it might create with legal regulation.12.3 Regulatory TakingsRegulatory takings …”

Conclusions and Drafting Proposal S. 133-136

„… degree of legal certainty possible; conceptually it has toprevent possible misuse by either party. On the …” „… by the host state according to Art. 20 of133Proposals for Regulatory Takingsernment and for legal …” „… area of law-focused criteria areboth in effect aimed at excluding all “police powers” regulation from …”

Relevance of Stabilization Clauses S. 53-56

„… : Interpretations concerning the Legal Effect of ClassicStabilization ClausesThe above presented “classic …” „… stabilization clauses” appear in one way or another in manyState Contracts. Their legal effect, however, is …” „… the legal and factualeffect that a stabilization clause should generate: Stabilization clauses in …”

FDI in the Rule of Law Reform Process S. 40-41

„… concept relates to theidea of economies of scale and network effects. As more firms in related industries …” „… decisive reformsof the legal system and an improvement of the rule of law situation in the country.4.4 FDI …” „… . Although they come in with an imperfect rule oflaw in place, they aim at an effective and reliable legal …”

Main Theses S. 163-168

„… implications, amongthem the violation of the host states’ legal obligations to implement internationalhuman …” „… “regulatory chill effect” can be avoided through the creation of escape clauses.Through such escape clauses …” „… international community.• They establish an international legal obligation of the host state to work …”

International Law S. 118

„… thefollowing tasks:320 This difference between the legal effect of stabilization clauses and BITs as to the …” „… according BITs. The imminent regulatory chill effect of a stabilization clause istherefore greater.320 So …” „… stabilization clausesare included in State Contracts whose legal nature is highly disputed as discussed …”

Introduction S. 13-16

„… adjustment of the State contract’s terms or by theparyment of compensation. The interesting legal effect of …” „… crucial question inthis context is how to attract FDI. Foreign investors need a certain degree of legal …” „… and/oreconomic legal framework of the investment project through domestic regulation. Butthey need to pay …”

International Literature S. 118-121

„… thefollowing tasks:320 This difference between the legal effect of stabilization clauses and BITs as to the …” „… according BITs. The imminent regulatory chill effect of a stabilization clause istherefore greater.320 So …” „… stabilization clausesare included in State Contracts whose legal nature is highly disputed as discussed …”

Conclusions about Stabilization Clauses in State Contracts S. 62-64

„… , such as the taxation regime for example. There is some insecurity as tothe legal effects of those …” „… the investment project. The legal effects of full and limited “classic stabilization clauses” are …” „… not stick to thereadjustment procedure, it is in breach of contract triggering the according legal …”

International Law S. 102-110

„… tribunals do not have a binding effect though. Thatmeans each international arbitral tribunal can decide …” „… legal certainty.All the various attempts in international law, jurisprudence and literature to …” „… tothis general rule, however. In international treaty law, some attempts have been made toset up legal …”

Case Law S. 111-118

„… legal effect of stabilization clauses and BITs as to the financial burdenand the following regulatory …” „… as a secondary criterion when analyzing a specific case.294 The“sole effect doctrine” within this …” „… Economic Impact as Exclusive CriterionThe other school of thought within this approach is the “sole effect …”

Treaty Law S. 24-26

„… ” bilateral agreement exists, those FCN treaties can still come into effect with regardto the protection of …” „… . 32.20 For a profound overview of the history, scope and legal regime of the World Trade Organization …” „… Conventions are all trade-related and serve the abstractprotection of free trade, connected as a side-effect …”

Implications of “Economic Stabilization Clauses” on the Threshold Triggering a Compensatory Duty S. 91-92

„… % increase in the export custom duty ondiamonds for example has a disturbing effect on the …” „… The typical wordings and legal techniques of freezing, non-application and intangibility clauses …” „… arelaid out in detail above under 4.2.1.-4.2.3.237 The typical wording and legal technique of limited …”

Factual Background S. 149-153

„… well as due to spill-over effects for upstream and downstream industries.402In 1997, BP formed a …” „… governments of Azerbaijan, Georgia and Turkey in 1999, laying the legal groundwork for the BTC pipelineproject …” „… comprehensive report in2003, criticizing the HGA-IGA legal framework profoundly.406 In direct response tothese …”

Jurisdiction S. 27

„… nationals. That includes the recognition of legal personality, the right to fair trial,and equality before …” „… interpretation of current legal issues in internationalinvestment protection law and for the further development …” „… the international legal order for the protection of FDIare Bilateral Investment Treaties (BITs).39 …”

Implications of “Classic Stabilization Clauses” on the Threshold Triggering a Compensatory Duty S. 90-91

„… has a disturbing effect on the cost-benefit-equilibrium of a foreigninvestor’s diamond mine. In order …” „… . Limited economic stabilization clauses set more specific236 The typical wordings and legal techniques of …” „… typical wording and legal technique of limited classic stabilization clauses are laid out in detailabove …”

Customary International Law S. 26-27

„… sophisticated and investment-friendly instruments are embedded in the framework of the different legal …” „… states and requires some minimum treatment for foreign nationals. That includes the recognition of legal …” „… resolutions have some influence on the interpretation of current legal issues in internationalinvestment …”

Integrating FDI into the Rule of Law Reform Process S. 41-42

„… multinational enterprises also educatelocal staff mainly in the legal and accounting profession. They teach them …” „… . All this sums up to a big potential catalyst effect foreign investors canhave. They have lobbying …” „… extensive reports on the specificrisks and deficiencies in the legal and institutional systems of the host …”

In Detail: Bilateral Investment Treaties (BITs) S. 27-29

„… nationals. That includes the recognition of legal personality, the right to fair trial,and equality before …” „… interpretation of current legal issues in internationalinvestment protection law and for the further development …” „… the international legal order for the protection of FDIare Bilateral Investment Treaties (BITs).39 …”

Measures below the expropriating Threshold S. 87-88

„… indirect expropriation, but can trigger legal effects under a stabilization clausesince they do interfere …” „… expropriating effect doesnot trigger a compensatory duty under international law.231 The lowest threshold …” „… property throughan outright seizure; or they have the same effect since they render the economically viable …”

Bibliography S. 171-176

„… . Martinus Nijhoff Publishers, 1992.Faruque, A., Validity and Efficacy of Stabilisation Clauses : Legal …” „… .Garibaldi, O.M., The Legal Status of General Assembly Resolutions: Some ConceptualObservations. in: American …” „… Development and Cooperation, Legal and Judicial Reforms in German Development Cooperation Position Paper …”

Case Law S. 121-122

„… Contracts concerning legal prerequisites and consequences.33217.3 Case LawInternational case law has so far …” „… only dealt indirectly with the effect of stabilizationclauses on the host state’s domestic regulation …” „… indirect expropriation or for a violation of the fair and equitable treatment standard. Theconcrete effect …”

The Relationship between the Rule of Law and FDI S. 34-40

„… unfair in procedure and dubious regarding the facts it was based upon aswell as the legal reasoning …” „… legal systems and foreign direct investment: In searchof the evidence. International and Comparative Law …” „… effectiveness of the legal system before investing in Sri Lanka. Although mostparticipants in the study …”

Ex Ante Tools S. 139-146

„… line of demarcation are the broad consenus ofthe international community, the legal obligation of the …” „… procedures that lead to raisedinternational labour standards within the old legal and institutional framework …” „… . The Kyoto Protocol contains theinternational legal obligation for the various ratifying states to …”

Pros and Cons of Foreign Direct Investment S. 22-24

„… exists, those FCN treaties can still come into effect with regardto the protection of foreign investment …” „… and legal regime of the World Trade Organization compare P. van den Bossche, The Law and Policy of the …”

doi.org/10.5771/9783845226996

Anca Daniela Chirita - The German and Romanian Abuse of Market Dominance in the Light of Article 102 TFEU

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Anca Daniela Chirita

The German and Romanian Abuse of Market Dominance in the Light of Article 102 TFEU

Series: Schriften des Europa-Instituts der Universität des Saarlandes - Rechtswissenschaft

Volume 82 2011

Results in this title

Consistency v Legal Certainty in light of the Form and Effects-based Approach S. 168-173

„… power of dominant undertakings. 4. Consistency v Legal Certainty in light of the Form and Effects-based …” „… pricing because the concept of unfair pricing was not clearly articulated in the sense of an effects-based …” „… effects-based approach shifts the analysis to the final consumers or, in casu,to the intermediary customers …”

Establishing Market Dominance S. 74-79

„… more effects-based approach with a special emphasis upon safeguarding the immediate interests of …” „… can be recognised: the definition of a dominant market position; the legal and practical assessment …” „… effect affecting the economic activity or the prejudice of consumers. The last condition contained two …”

An Empirical Classification of Abusive Practices and Future Challenges S. 230-235

„… light of the previous efforts at modernising Article 102, Romania’s legal focus upon effects on …” „… consumers made it possible to distinguish between an effects-based approach, which is applied to all …” „… have a slightly different understanding when transposed into a legal perspective. As the RCL refers to …”

The Methodological Approach to Efficiencies and Case Law S. 180-190

„… assessment of effects on innovation it relies on predictions, which results in legal uncertainty. For example …” „… exhaustive assessment of the effects-based approach’s pros and cons, the main friction between it and the …” „… effects-based policies» should really be allowed was raised,742 as neither too great a focus upon the order of …”

Introduction to the Challenges and the Gaps of the Guidance Paper S. 158-162

„… with the Commission’s effects-based approach. 1. Introduction to the Challenges and the Gaps of the …” „… effective competition towards its new effects-based approach.602 The mainstream criticism of the old …” „… referred expressly to anti-competitive practices that have as an object or may have as an «effect» the …”

Brief Overview of Responses and Concluding Remarks S. 196-201

„… effects-based approach cannot be followed in all cases under Article 102 in order to ensure legal certainty and …” „… purposes.786Whilst the FCO considers efficiencies to be an appropriate means for enforcing an effects-based …” „… will be likely to impress the courts into introducing its more effects-based approach. However, if …”

The Analysis and Interpretation of the Recent Romanian Amendment S. 150-156

„… obligations. 152 accommodate an effects-based approach to any anti-competitive practices under Article 6. The …” „… position may affect the inter-Member States’ trade.589 A statement to this effect is therefore introduced …” „… an «effect» the economic activity or the prejudice of consumers respectively, has been repealed. As …”

The European Commission’s Standard: Total v Consumer Welfare S. 65-68

„… case-by-case specific analysis of welfare effects, which considerably reduces legal certainty.210205 …” „… power of the European courts, the new effects-based approach neither eliminates nor augments the tension …” „… undertakings.202From an economic and legal perspective, the underlying objective of Article 102 is promoting …”

Concluding Remarks S. 220-222

„… effects-based approach before the European courts and avoid any interference of competition with unfair …” „… an effects-based approach to the final consumer, but without attaining the value of a sophisticated …” „… from the legal balancing of policy objectives. The latter legitimately addresses consumers, it implies …”

Bibliography S. 383-395

„… for the Effects-Based Approach?, 1(2010)1 Journal of European Competition Law and Practice. Monti, G …” „… : Implementing an Effects-based Approach to Article 82, 1(2009) Competition Policy Newsletter. Petit, Nicolas and …” „… Oxford Journal of Legal Studies. Akman, P.: ‘Consumer Welfare’ and Article 82 EC: Practice and Rhetoric …”

Undistorted Competition: High Level Protection v Consumer Welfare S. 203-205

„… effects-based approach requires legal support in order to legitimise consumer interests and to enforce them for …” „… undertaking as the protection of legitimate commercial interests or the proof of net economic effects did not …” „… net economic effects, since parallel trade «ultimately» benefits consumers with regard to both price …”

Undistorted Competition and the Old Teleological Interpretation of Article 102 S. 202-203

„… standard or a more effects-based approach requires legal support in order to legitimise consumer interests …” „… process, the Commission’s effects-based approach to consumers as an intermediate goal of EU competition …” „… the effects-based approach. Since Continental Can, the interpretation of abuse by reference to a …”

Introduction S. 201-202

„… provisions that could justify the consideration of an effects-based approach to those anti-competitive …” „… Merger Regulation. Despite safeguarding the competitive process, the Commission’s effects-based approach …” „… , consumer welfare would require support in the Treaty if it were to follow the effects-based approach. Since …”

Anti-competitive Foreclosure and Consumer Harm S. 173-176

„… Commission’s newly introduced effects-based approach may not even be entirely new. However, the two different …” „… from an intrinsic approach to identifying abuse by object to a more effects-based approach.663 The …” „… to the burden of proof and consumer harm.664Therefore, under such an effects-based approach, where …”

The Standard of Proof and the Evidentiary Requirements S. 176-180

„… considered if evidence were available. This seems inappropriate for an effects-based approach, but more …” „… foreclosure effects should not be considered identical to the protection of the structure of the market, as it …” „… identical to the German approach in favouring the likelihood of harmful effects as prima facieevidence of …”

Titelei/Inhaltsverzeichnis S. 2-10

„… . Consistency v Legal Certainty in light of the Form and Effects-based Approach 1685. Anti-competitive …” „… Consumers’ Interests 211 88. A Shift to More Effects-based Competition, Consumer Harm, and Public …” „… Dominance 161. Brief Historical Overview of National Competition Laws 172. The Legal Background of the …”

A Shift to More Effects-based Competition, Consumer Harm, and Public Policy? S. 213-217

„… 213 8. A Shift to More Effects-based Competition, Consumer Harm, and Public Policy?Under EU …” „… requirement, this effects-based approach relates to both businesses and consumers as market participants to …” „… the competitive process. Thus, the emphasis upon «consumer prejudice» suggested that the effects-based …”

The Teleological Interpretation of Article 12 to Article 102 S. 217-220

„… reluctant to apply an effects-based approach, then Article 12 will solve the issue twice. It will apply a …” „… . Therefore, the new effects-based approach complements the old approach, its function being to prevent abuse …” „… effects-based approach where it held that Intel’s rebates and payments had a «direct and immediate negative …”

Brief Overview of Sharp Practices of the German Act against Unfair Competition S. 156-158

„… with the Commission’s effects-based approach. 1. Introduction to the Challenges and the Gaps of the …” „… practices would rather focus on both market-and competition-related aspects, but not on ethical or legal …” „… referred expressly to anti-competitive practices that have as an object or may have as an «effect» the …”

Overview of Major Policy Objectives S. 27-46

„… effects on market participants in general.125 It is, however, possible that the more effects-based …” „… legal and economic concepts surrounding the abuse of dominance from a dynamic perspective. The chapter’s …” „… their object or effect the prevention, restriction or distortions of competition, shall be prohibited …”

The Dominant Position and the Concept of Abuse S. 82-104

„… adopted the second element of the «legal test» in a domestic regulation, defining dominance as a situation …” „… , such as the legal presumptions and the criteria for assessing dominance, provides a far more precise …” „… normal competition» with the effect of «hindering the maintenance of the degree of competition still …”

Preface S. 11-12

„… prevention-based competition; a «more economic» or an effects-based approach; and free, fair, and unfair …” „… Article 82 EC aims to discuss the extent to which a «more economic» or an «effects-based approach» really …” „… aims to ensure a higher understanding of the legal and economic concepts of the abuse of dominance and …”

Reconcilable Tensions of the New Shift S. 165-168

„… Certainty in light of the Form and Effects-based Approach The EU case law on the abuse of dominance rejects …” „… freedom of action and the effects of agreement on the process of rivalry as ends in themselves; see V.C …” „… regulating the effects of anti-competitive conduct restricting competition and, more importantly, situations …”

Selected Anti-competitive Practices of the Guidance Paper S. 192-196

„… , Implementing an Effects-based Approach to Article 82, 1(2009) Comp.Policy Newsletter.779 Ibid, 777, para 86 …” „… foreclosure effects of a dominant undertaking’s conduct or such other factors as the existence of entry …” „… qualify as predation even if the undertaking is not dominant in the secondary market, such as a legal …”

Final Remarks and Policy Recommendations for Romania S. 376-379

„… than with Article 6 itself, which was able to follow-up the more effects-based approach and the recent …” „… Article 6 is needed and, therefore, both general and more detailed legal and economic principles should be …” „… maintaining competitive market structures, and favours somewhat the likely restrictive market effects as …”

The Present Relevance of the Historical Interpretation of Article 102 S. 356-359

„… capability, intention, and actual effects.Thus, the mechanism of quantifying direct harm, causality and …” „… enforce effects or actual harm. Based on the interpretation of such incipient elements even the Guidance …” „… this legal background, which determined ordoliberals to shape the economic freedom of undertakings …”

Discounts and Rebates S. 270-279

„… the effects-based approach, see Intel, supra n 279, para 962, where HP incentive to remain loyal to …” „… choice» if they had been offered such advantages.1114This approach proves the shift to effects-based …” „… economists. In substance, the criticism that, in Intel, the Commission fails to carry out an effects-based …”

Brief Overview of Remedies, Penalties, and Judicial Review S. 222-229

„… by abusive practices. Therefore, individuals and/or any legal persons who are actually and directly …” „… . 554/2004, OJ I-1154/2004. 223 Article 46 RCL have the legal character of administrative acts that produce …” „… effects by their nature, whilst the CC did not give reasons for its order not to start an investigation …”

Final Remarks for Germany S. 379-381

„… legal and economic principles should be included in competition laws to help national enforcement. 2 …” „… restrictive market effects as primafacie abusive behaviour on the structure of competition. The analysis of …” „… misperceptions of the present competition law as devoid of economic analysis or effects. It was not only the …”

The Market-Structure-Conduct Paradigm, Effective Competition, and the Objective Justification S. 61-65

„… upon certain economic variables. This explains, partially, why certain effects were missing under the …” „… based on the effects of mergers on innovation.183Furthermore, this premise indeed deserves special …” „… harmful conduct relative to its effects on producers’, customers’, competitors’ or consumers’ welfare. The …”

Refusal to Grant Access to Essential Facilities S. 302-307

„… protection for its product «Valsartan», thereby attempting to annul the legal effects with regard to the …” „… the legal monopoly over administration of the Danube Channel. The latter abused its dominant position …” „… the undertaking concerned demonstrates that for operational, legal or factual reasons, the concurrent …”

Abuse of Intellectual Property Rights: A New Exploitative Abuse of Property Rights? S. 307-314

„… attempting to annul the legal effects with regard to the price setting procedure for medicines: the company …” „… of ex Article 6 have as an object or may have as an effect economic activity or prejudice to …” „… deemed the sole ownership of the patent rights as insufficient to denote abuse in the case of legal …”

Brief Overview of Short-Term or Other Policy Goals S. 68-74

„… differentiation possible, as before. However, it must ensure legal certainty and predictability for businesses …” „… anti-competitive behaviour. This is why these types of effects need not be proven under the ARC, but are present …” „… competition, rather than free competition. This happens because under the AUC the legal balancing of policy …”

Margin Squeeze in the Telecommunications Sector S. 260-268

„… 260 and its alleged practices do not have the same negative effects.1042 To establish whether …” „… the existence of effects on the dominated market.1043 The mere existence of cross-subsidisation in the …” „… pricing had an anti-competitive effect because its competitors had to resort to cross subsidisation «in …”

The Historical Background of the EU Unfair Competition Rules S. 349-356

„… to an end. Such unfair competition practices may also be enforced ex ante and based on the effects on …” „… of the Member States. Legal scholars have already envisaged various disparities due to their broad …” „… nature, and a real risk of legal uncertainty in general.1397 Therefore, sub-chapter 6 aims to analyse …”

Conclusions and Reasons to Enact an Unfair Competition Control Regulation Union-wide S. 372-375

„… permits the same consideration of business-to-consumer markets and of the effects on consumers. Prejudice …” „… left unclear and could also be mentioned as a non-exhaustive list for the benefit of legal certainty …” „… the effects of such practices on any market participants based on any unfair aspects of competition …”

National Competition Authorities S. 25-27

„… Section 48 ARC. 47 Rittner/Kulka, supra n 32, para 63, 183. 26 practice extends its restrictive effect on …” „… and where effects are limited to a single Land then its own competition authority …” „… to protect competition against all restraints of competition that have an effect in the Federal …”

Introduction S. 346-349

„… acts aims to ensure legal certainty and predictability and to enforce the balance of fair versus unfair …” „… based on the economic performance of price/costs, but rather on the effects on consumers with regard to …” „… also be enforced ex ante and based on the effects on consumers or competitors. A practical problem is …”

The German Economic Thinking in the Light of an Economic Constitution S. 49-55

„… , and not only «certain» anticompetitive practices of dominant undertakings, in which case the effects …” „… the protection of smaller competitors, «regardless of the effects on efficiency», rather than the …” „… competition models were not created in a legal vacuum. Ordoliberals were, indeed, aware of the pre-existing …”

Performance v Prevention-Based Competition and Economic Efficiency S. 55-61

„… . However, Hoppmann advocated in favour of per se rules and postulated that legal prohibitions should be …” „… formulated as such in order to reduce the risk of legal uncertainty for firms.155 Accordingly, competition …” „… As part of Eucken’s model of perfect competition, the state should create the legal framework to make …”

The Assessment of Market Dominance S. 112-127

„… details the legal presumptions of market dominance under German competition law and some selected …” „… , interdependence with other undertakings, legal or factual barriers to market entry, actual or potential …” „… interdependence with other undertakings can have a market foreclosure effect and are likely to affect the …”

The Legal Background of the Abuse of a Dominant Position S. 19-22

„… Legal Background of the Abuse of a Dominant Position In order to join the Union, Romania had to bring …” „… Article 82 EC16 was a means of replacing the legal vacuum in the abuse of dominance policy area by …” „… of «one or more economic agents» must have as an «object or may have as an effect» the distortion of …”

(Price) Discrimination S. 284-286

„… legal entities was objectively justified. The Romanian Shareholders Registry (RSR) infringed Article 6 …” „… specific legal requirements were not met, and it did not find any discrimination of customers, as the …” „… effects on the hindered undertaking. Thus, the practice is not per seabusive because it has negative …”

Long-term Exclusive Agreements S. 279-284

„… 279 consideration and not based on actual market effects, as the rebate system is an ex post …” „… the discount thresholds that made market access more difficult, but the economic incentive effect …” „… . Moreover, retroactive quantity discounts themselves have a negative effect upon competition. 11. Long-term …”

Concluding Remarks on the Eighth German Amendment and the Case Law S. 325-327

„… the energy sector introduced a certain degree of flexibility in handling cases, whilst the legal …” „… has the advantage of the likelihood of effects, which prevents abuse at the earliest stage. However …” „… , the likelihood of effects and competition on the merits, the lock-in effect, efficiencies, the …”

Hindrance Abuse S. 286-290

„… is a market conduct that has objectively negative effects on the hindered undertaking. Thus, the …” „… practice is not per seabusive because it has negative effects. Rather, it must be determined whether it …” „… competitors were dependent on them. Thus, although the hindrance abuse had negative market effects, the FCJ …”

Ambiguities: Where is a Clear Policy Standard? S. 162-165

„… balancing, or to the legal basis upon which the Commission decides to establish in advance consumer «choice …” „… «competitive advantage» is unfair per se when consumer choice is limited solely due to a lock-in effect or …” „… with regard to its harmful effects upon consumers, who suffer a direct prejudice by this artificial …”

The Relevant Markets S. 104-112

„… market where the firms allegedly had an anticompetitive effect and the circumstance that, under the EU …” „… of their initial investment by not pursuing the «lock-in-effect» refill strategy. Once the consumer …” „… disadvantage».388Thus, the court did not consider whether the lock-in effect was due to switching costs. The …”

The As-Efficient Competitor Test S. 190-192

„… . As with the fining decision in Rossmann, the use of this test and the focus upon effects is likely to …” „… , the Commission will rely on the likely foreclosure effects of a dominant undertaking’s conduct or such …” „… the secondary market, such as a legal monopoly.762755 See B.II.5 and 6. 756 Supra n 5, para 63. 757 …”

Exclusionary Abuses S. 133-142

„… «markets» with «distribution» and added a disjunctive conjunction with regard to its effects, namely, to …” „… with regard to the same prohibition as a whole proves to be inconsistent with regard to its effects if …” „… , the Romanian prohibition could be rather valued based on the effects of unfair pricing upon customers …”

Final Concluding Remarks S. 342-346

„… and the likelihood of anticompetitive effects, it is worth mentioning that both concepts are similarly …” „… intervention when negative market effects have already emerged and the undertaking is dominant, while the aim …” „… an EU Control Regulation of such unfair competition acts aims to ensure legal certainty and …”

Distinctive Features in the Light of the Eighth German Amendment S. 146-150

„… shifting in the burden of proof is detrimental to the ensuring of legal certainty for undertakings and may …” „… structural competitive advantage through unilateral effects and to the detriment of smaller competitors …” „… effect is therefore introduced by Article 6(2) RCL: 585 OECD, Annual Report on Competition Policy …”

Predatory Pricing S. 245-252

„… costs. The focus upon eliminating and disciplining a competitor reflects the worry that the legal …” „… Bucharest, 9 May 2006, paras 26-27. 248 emphasis was placed upon both the intention and the effect upon …” „… finding predation, and separate evidence on the likely effects on competition is rarely needed. In …”

Abuse of Economic Dependency: A Gap under Article 102 S. 322-325

„… to the energy sector introduced a certain degree of flexibility in handling cases, whilst the legal …” „… has the advantage of the likelihood of effects, which prevents abuse at the earliest stage. However …”

doi.org/10.5771/9783845230306

Finn Arnesen, Halvard Haukeland Fredriksen, Hans Petter Graver, Ola Mestad, Christoph Vedder - Agreement on the European Economic Area

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Finn Arnesen (ed.), Halvard Haukeland Fredriksen (ed.), Hans Petter Graver (ed.), Ola Mestad (ed.), Christoph Vedder (ed.)

Agreement on the European Economic Area

Series: Kooperationswerke Beck - Hart – Nomos

Volume 2018

Results in this title

Marthe Kristine Fjeld Dystland, Ida Sørebø Article 7 [Binding effect and implementation of EU legal acts] S. 248-270

„… great care of it. Article 7 [Binding effect and implementation of EU legal acts] Acts referred to or …” „… , 3.10.2007, Criminal Proceedings Against A, para. 41. Article 7 Binding effect and implementation of EU legal …” „… EEA Law, p. 387. Article 7 Binding effect and implementation of EU legal acts Dystland/Finstad/Sørebø …”

Ronny Gjendemsjø Article 56 [Distribution of competences between the ESA and the Commission] S. 558-563

„… the EFTA States, and with a binding effect only in the EFTA pillar. There are no specific legal basis …” „… able to provide the legal basis for national enforcement and a cross pillar effect.7 In addition to the …” „… contain block exemptions. Pursuant to Art. 60 EEA, Annex XIV contains specific provisions giving effect to …”

Christoph Vedder The EEA in the Union’s Legal Order S. 101-124

„… understood as ‘Union’. II. The EEA Agreement within the Union’s legal order The legal value and effect of …” „… pursuant to its powers, are binding upon the EU under European law and create legal effects within the …” „… public international law, it creates legal effects within the legal order of the EU. Only at that stage …”

Finn Arnesen, Halvard Haukeland Fredriksen Preamble S. 150-171

„… concerning the effect of EEA law in the legal orders of the EEA Contracting Parties, reciprocity is hardly …” „… primacy will govern the effect of EEA law within the EU legal order. The wording of this Protocol obliges …” „… recognises the direct effect of EEA law within the EU legal order and continues to interpret provisions of …”

Index S. 1125-1141

„… the free movement of persons I CH 15, 16 Agreements II 53 3 – EU-Norway I NOR 9 – legal effects I …” „… – effect in the legal orders of EEA contracting parties II 19 EEA legal system II 118 12 EEA relevance I …” „… Implementation of Main Part – EEA act I NOR 20 – incorporation I NOR 20 – legal effect I NOR 20 Implementation …”

Ernst Nordtveit, Sigrid Eskeland Schütz Article 74 [Protective measures] S. 721-737

„… Natura 2000-regime, whether or not a plan or project is likely to have significant effect will have legal …” „… effects from the Communities’ agriculture, transport and regional policies were observed in the early 1980 …” „… objectives referred to in Article 191’. The legal acts referred to in Annex XX thus represent the core of EEA …”

Henrik Bull Article 23 [Technical regulations and barriers to trade in wine, product liability] S. 350-356

„… introduce direct effect and primacy of EEA law comparable to that of EU law,18 EFTA States whose legal …” „… barriers to trade Introduction Through Annex II, EU legal acts concerning harmonisation of technical …” „… Area 350 Bull 6 7 1 contains 32 chapters covering a vast number of legal acts concerning such diverse …”

Margrét Einarsdóttir, Ragnhildur Helgadóttir Iceland and the EEA S. 13-35

„… Implementation Deficit 42 V. Legal Effects of EEA Law on Icelandic Law …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 1. No Direct Legal Effect, but Obligation to Comply with Principles of Uniform Interpretation …” „… execution of the EEA Agreement. Finally, the legal effect of EEA law in Iceland will be discussed, both …”

Halvard Haukeland Fredriksen EEA law in and beyond the text of the Main Part of the EEA Agreement S. 124-145

„… discussion about the character and legal effect of the EFTA Court’s Advisory Opinions;34 the legal basis for …” „… governing the effect of EU law within the legal orders of the Member States – in particular the EU law …” „… Even though the debate on the effect of EEA law within the legal orders of the dualist EFTA States is …”

Fredrik Bøckman Finstad Norway and the EEA S. 59-80

„… legal system with respect to international legal obligations and thus do not grant EEA law direct effect …” „… Contracting Parties’ duties to give the Main Part a certain national legal effect. However, the good faith …” „… Norwegian law.46 To have full legal effect in the dualistic Norwegian legal system, EEA relevant EU acts …”

Halvard Haukeland Fredriksen Article 105 [Homogeneous interpretation of EU and EEA law] S. 825-835

„… question of the legal effect of EEA law in the legal orders of the Contracting Parties. Crucially, this …” „… principle of homogeneity embraces the legal effect of EEA law in the legal orders of the Contracting Parties …” „… -related conception of homogeneity is limited to the question of the effect of EEA law in the legal orders of the …”

Jonas W. Myhre Article 16 [State monopolies of a commercial character] S. 323-335

„… fulfil the EU law conditions for the direct effect of international obligations in the EU legal or- 19 …” „… the conditions for the direct effect of international obligations in the EU legal order differ …” „… somewhat from the conditions for the direct effect of EU law in the national legal orders of the EU Member …”

Introduction S. 1-13

„… acceptance for, an effect-related conception of the homogeneity objective: Homogeneity is a legal principle …” „… (not only a political goal) which applies also to the question of the legal effect of EEA law in the …” „… Implementation Deficit 42 V. Legal Effects of EEA Law on Icelandic Law …”

Pål Wennerås Article 6 [Homogeneity] S. 209-248

„… of substance, procedure or effect in the national legal orders, but whether the rules are …” „… . Effect in the legal order State liability Opinion 1/91 emphasized that the EEA Agreement was a …” „… non-discrimination stipulated by Art. 4 and the duty of implementation laid down in Art. 7, may have an effect on the …”

Titelei/Inhaltsverzeichnis S. I-XXXVI

„… to incorporate EEA law with legal effect as integrated parts of Icelandic and Norwegian law. The …” „… XV Binding effect and implementation of EU legal acts ..........Article 7 248 Part II: Free movement …” „… enlargement of the small community of academics with an interest in the legal affiliation of the EFTA States …”

Finn Arnesen Article 17 [Veterinary and phytosanitary measures] S. 335-336

„… . By Decision 69/98 of the EEA Joint Committee, the original Annex I was replaced to the effect that …” „… the entire body of EU legal acts pertaining to veterinary and food safety matters was included in the …” „… largest of the annexes, and accounts for approximately 40 % of the legal acts referred to in the EEA …”

Per Andreas Bjørgan Article 25 [Responsibilities of the ESA in the field of the competition rules] S. 1012-1018

„… regulations have been implemented into the EEA Agreement and that the regulations take effect as such with the …” „… Protocol 3 to the SCA, are granted similar powers as that of the Commission. Thus, the legal basis for ESAs …” „… . Annex XV to the EEA Agreement contains several important legal acts such as transparency directive, the …”

Marthe Kristine Fjeld Dystland, Fredrik Bøckman Finstad, Ida Sørebø Article 103 [Requirements for binding Joint Committee decisions] S. 819-824

„… any kind of direct effect of the legal act that is to be included in national law.12 7 Norberg et al …” „… note of the negative effects of suspension, it should be kept in mind, however, that the effect of …” „… suspension of the relevant Annex might not in all cases have serious negative effects for the functioning of …”

Peter-Christian Müller-Graff Article 34 [Right of establishment for companies] S. 434-450

„… ’. The effect of Art. 34 before national courts Due to the different legal nature of EEA law as compared …” „… EEA law and other national rules, the EFTA States shall introduce a statutory provision to the effect …” „… failure to sign up to the Lugano Convention can have an effect on the assessment of public interest …”

Henrik Bull Article 21 [Border controls and cooperation in customs‑related matters] S. 341-349

„… are those flowing from Arts. 38 TFEU et seq., and in particular EU legal acts adopted pursuant to Arts …” „… shall apply to all products. I. Legal Context Unlike certain other association agreements between the …” „… simplification of border controls and formalities Relationship to EU legal acts and EU-Swiss agreements Art. 21(1 …”

Marthe Kristine Fjeld Dystland, Fredrik Bøckman Finstad, Ida Sørebø Article 102 [Amendments of Annexes, incooperation of EEA-relevant EU legislation] S. 803-819

„… the legal security and the homogeneity of the EEA, the EEA Joint Committee shall take a decision …” „… decision necessary to this effect, including the possibility to take notice of the equivalence of …” „… effect six months after the end of the period referred to in paragraph 4, but in no event earlier than …”

Ingvald Falch Article 4 [Non-discrimination on grounds of nationality] S. 196-209

„… . 4, but on a different legal basis; in Norway and Iceland such effect is due to national …” „… Opinions, and the fact that all EEA legal acts – i.e. both Directives and Regulations – must be transposed …” „… 18(2) TFEU in the EU,3 see also Section 2 below. The effect of Art. 4 is thus, in essence, that for …”

Gunnar Thor Pétursson Article 11 [Quantitative restrictions on imports and measures having equivalent effect] Quantitative restrictions on imports S. 289-299

„… does not mean that Art. 34 TFEU/11 EEA should be able to have unlimited vertical legal effects and thus …” „… such vertical legal effects have been accepted as concerning other freedoms, most commentators argue …” „… effect] Quantitative restrictions on imports and all measures having equivalent effect shall be …”

Halvard Haukeland Fredriksen Article 111 [Dispute resolution in the EEA Joint Committee] S. 865-883

„… of the protocols),38 and only if it suffices to change the legal situation with effect for future …” „… Committee about the EEA-relevance of novel EU legal acts, the legal consequences of the EFTA States making …” „… use of their collective right to block the incorporation of a given legal act into the Agreement (i.e …”

Christian Frommelt Liechtenstein and the EEA S. 35-59

„… directives, which, in practice, had direct effect on the legal order of Liechtenstein after they were …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 IV. Other agreements with the EU . . . . . . . . . 23 V. EEA law in the Liechtenstein legal order …” „… tailor-made arrangements . . . 60 3. Explanations for and effects of tailor-made arrangements …”

Gunnar Thor Pétursson Article 10 [Customs duties and charges having equivalent effect] S. 286-289

„… Community legal order’.3 This put Art. 10 EEA on an equal footing to Art. 12 TEEC, whose direct effect was …” „… national law’ and therefore ‘perfectly suited to produce direct effects in legal relations between the …” „… imports of low value for personal use. Article 10 [Customs duties and charges having equivalent effect …”

Per Andreas Bjørgan Article 24 [Responsibilities of the ESA in the field of State aid] S. 1011-1012

„… effect to the provisions of the EEA Agreement concerning State aid as well as ensure that those …” „… listed in Annex I. Art. 24 SCA sets out ESA’s obligation to give effect to the State aid provisions of …” „… previous legal acts that reflect the powers and functions of the Commission, including the 5 Orders of the …”

Per Andreas Bjørgan Article 22 [Monitoring the application of the EEA Agreement and the SCA] S. 1007-1009

„… subsequently be implemented in the national legal orders of the EFTA States.3 To date, more than 11 000 EU …” „… legal acts have been incorporated into the EEA Agreement.4 These legal acts also constitute “provisions …” „… effectively implemented in their national legal orders. ESA has various means at its disposal to ensure such …”

Ólafur Jóhannes Einarsson Article 31 [Freedom of establishment] S. 400-420

„… the legal effects of Protocol 15 EEA in Rainford- Towning. First, the Liechtenstein Government claimed …” „… are given effect in the Icelandic legal order by Art. 4(1) of Act 34/1991 on Investment by …” „… Reyners2 that Art. 52 EEC had direct effect. As Art. 31 EEA is in the main part of the Agreement, which …”

Christian Jordal, Gjermund Mathisen Article 62 [Review of State aid through the ESA and the Commission] S. 598-605

„… the measure into effect, and the State must not put the measure into effect until ESA has adopted a …” „… . sections IV and V below, mn. 21-38. The legal framework Together with Art. 24 SCA, Art. 62 EEA constitutes …” „… the basic legal framework for ESA’s handling of state aid cases (Art. 62(1)(b)), referring to Art. 108 …”

Christophe Hillion Article 127 [Withdrawal from the EEA Agreement] S. 953-961

„… could be argued that the there is a, rebuttable, presumption that a number of the legal positions of the …” „… treatment to all natural and legal persons of the Contracting Parties. When Finland became an EU Member …” „… Member State not to be part of the EEA would in effect entail a fragmentation of that market. Thus, all …”

Dora Sif Tynes Article 108 [The ESA and the EFTA Court: Establishment and competences] S. 840-852

„… from individuals and economic operators and initiating legal proceedings concerning infringement of EEA …” „… Agreement by fully, correctly and timely transposing EEA acquis into their domestic legal order and by …” „… transposition of legal acts on the other. In the former instance, cases may be opened as a result of a complaint …”

Ronny Gjendemsjø Article 55 [Supervision] S. 555-558

„… Arts. 53 and 54. None of these legal instruments have any cross-pillar effects between the EFTA States …” „… statement that whether something is an abuse or a restriction of competition “is a legal question that must …” „… [Supervision] 1. Without prejudice to the provisions giving effect to Articles 53 and 54 as contained in …”

Per Christiansen Article 39 [Actions for non-contractual liability] S. 1048-1050

„… jurisdiction to determine the non-contractual liability of ESA. The legal basis for ESA’s liability is Art …” „… Consequently, costs relating to legal proceedings in national courts related to the subject matter of ESA’s …” „… concerns the legal capacity, privileges and immunities of the Court. It is likely that the reference should …”

Ronny Gjendemsjø Article 57 [Merger control] S. 563-566

„… law.6 Recapitulating, it is difficult to find any legal ground to justify that an amendment of …” „… Protocol 21 or Annex XIV should not be able to provide the legal basis for national enforcement and a cross …” „… pillar effect.7 In addition to the arguments raised above, Art. 56 was drafted and adopted at a time when …”

Jóhanna Jónsdóttir Article 79 [Dialogue and consultation] S. 754-757

„… from Parts II-V in the sense that its aim is not to create a homogenous legal environment within the …” „… limited tangible effect with respect to the role of ESA or the EFTA Court. 3 Regulation (EC) No 294/2008 …” „… Jónsdóttir 755 4 5 6 One area where such an adaptation could have considerable effect is in relation to rules …”

Finn Arnesen Article 119 [Annexes and Protocols as integral part of the Agreement] S. 912-919

„… to adopt legal acts giving substance and detail to the principles contained in the treaties. The …” „… the Annexes to include legal acts adopted by the EU after the entering into force of the Agreement …” „… . As far as the legal acts referred to in the Annexes are concerned, the case law of the EFTA Court may …”

Christian Franklin Article 3 [Principle of loyalty] S. 180-196

„… the EEA legal system. It applies in all fields covered by the EEA Agreement, and is linked to all EEA …” „… necessarily synonymous with) a number of other EU/EEA legal principles. As we shall see, certain aspects of …” „… acts which might nullify the effects of Regulations or Directives before the end of the transposition …”

Henrik Bull Article 40 [Free movement of capital] S. 473-488

„… an EEA obligation, have direct effect in the EU legal order, one needs to take into account Art. 43 …” „… Court did not specifically address the question of direct effect of Art. 40 within the EU legal order …” „… not have the effect of totally abolishing 1 Generally on free movement of capital in the EEA, see also …”

Karin Fløistad Article 28 [Free movement of workers] S. 369-385

„… are, parallel to the EU legal order, convinced that individuals will play an important role in the EEA …” „… and reside, in the EU legal order, only applied to economically active persons, i.e. workers (now Art …” „… , stemming from Union citizenship. The concept of ‘citizenship of the Union’ in the EU legal order …”

Halvard Haukeland Fredriksen Article 107 [Preliminary rulings from the ECJ] S. 837-840

„… legal value for courts in EC Member States of the non-binding answers given to courts from the EFTA …” „… States and about the possibility for a negative ‘spill-over’ effect on the status of preliminary rulings …” „… . 107 was amended to the effect that the ECJ is to ‘decide’ on the interpretation of an EEA rule. In …”

Ernst Nordtveit, Sigrid Eskeland Schütz Article 73 [Object and purpose of EEA environmental law] S. 715-721

„… decisions with an effect on the environment. The phrase ‘[a]ction by the Contracting Parties’ in Art. 73(1 …” „… policy-makers that put the general objectives and principles of EU/EEA environmental law into effect through …” „… legal acts when incorporating them into the EEA Agreement. Derogations from obligations flowing from …”

Convention establishing the European Free Trade Association EFTA Convention S. 1103-1125

„… the free movement of persons I CH 15, 16 Agreements II 53 3 – EU-Norway I NOR 9 – legal effects I …” „… , and charges having equivalent effect Customs duties on imports and exports, and any charges having …” „… equivalent effect, shall be prohibited between the Member States. This shall also apply to customs duties of …”

Finn Arnesen Article 20 [Fish and marine products] S. 338-341

„… certain listed products, customs duties on imports and charges having equivalent effect upon the entry …” „… customs duties and charges having equivalent effect on others. Furthermore, the EFTA States may not apply …” „… quantitative restrictions on imports or measures having equivalent effect on certain listed products, and the …”

Karl Harald Søvig Article 69 [Equal pay for equal work] S. 677-683

„… ECJ also made it clear that the principle now found in Art. 157 TFEU has direct effect in the legal …” „… direct effect of international obligations in the EU legal order. Thus, Art. 69 confers a right to equal …” „… the implementation of paragraph 1. I. Legal context and development of the principle of equal pay Art …”

Tron Løkken Sundet Article 68 [Labour law] S. 664-677

„… ensure the good functioning of this Agreement. These measures are specified in Annex XVIII. I. Legal …” „… context and starting points Legal Context Article 68 is the basis for implementing legislation based on …” „… EEA. The majority of 10 justices decided the case on a different legal basis (Art. 31 on the freedom …”

Finn Arnesen, Halvard Haukeland Fredriksen The Contracting Parties S. 145-150

„… organisation with legal capacity, but the EFTA Member States have not vested it with any competence to enter …” „… legal perspective, the Commission’s view was the most convincing.4 In any event, subsequent developments …” „… in the Union’s Legal Order’ in part I of this book. 2 See Art. 43 of the EFTA Convention, whose …”

Henrik Bull Article 25 [Safeguard measures] S. 361-362

„… been expanded to include many legal acts concerning measures to reduce the use of energy that is …” „… would have otherwise followed from the Directive.25 Annex IV also refers to EU legal acts on …” „… energy-efficiency design and marking. Further legal acts on climate policy are to be found in Annex XX.26 Article 25 …”

Ólafur Jóhannes Einarsson Article 30 [Recognition of diplomas, certificates] S. 391-400

„… minimum duration of studies for these professions. The EFTA Court dealt with the legal effects of …” „… an interesting effect of the Zambrano case law on the interpretation of national law by the Supreme …” „… in the legal framework. 26 See also Fredriksen and Franklin, ‘On Pragmatism and Principles: The EEA …”

Thomas Chr. Poulsen Article 46 [Contractual and non-contractual liability of the ESA] S. 1066-1074

„… ESA and the EFTA Court have, as legal persons under international law, entered into headquarters …” „… or other relevant legal instruments suggests that any provision governing the functioning of the EFTA …” „… stated purposes and the legal structure of the EEA Agreement. Particular emphasis was given to the …”

Christian Jordal, Gjermund Mathisen Article 61 [Prohibition of state aid, exemptions] S. 585-598

„… and third paragraphs of Art. 61, along with Arts. 59(2) and 49 provide a wide variety of legal bases …” „… paragraph of Art. 107 TFEU. The concept of state aid is an objective and legal concept defined by the EEA …” „… activity. On the other hand, several separate legal entities constitute one undertaking for the purposes of …”

Ernst Nordtveit, Sigrid Eskeland Schütz Article 75 [More stringent national measures] S. 737-740

„… one legal act – Dir. 2002/49/EC relating to the assessment and management of environmental noise. Acts …” „… of which the contracting parties take note In addition to the legal acts listed in its Chapters I-VI …” „… protective measures compatible with this Agreement. I. Legal Context Art. 75 reproduces in substance Art …”

Per Andreas Bjørgan Article 4 [Establishment of the EFTA Surveillance Authority] S. 984-987

„… . When the relevant EU legal acts (directives, regulations or decisions) are incorporated into the EEA …” „… organisation with legal personality, with the capacity to contract, to acquire and dispose of movable and …” „… immovable property and to be party to legal proceedings. ESA started its operations in 1994 and was at the …”

Benedikt Pirker Switzerland and the EEA S. 80-101

„… interpretation of these mentioned parallel legal norms since the law of the Bilateral Agreements partly requires …” „… parallelism” of EFTA legal norms, norms in the Bilateral Agreements, EEA legal norms and EU legal norms. This …” „… there are parallel norms in the mentioned legal regimes. Finally, the chapter studies the direct and …”

Henrik Bull Article 24 [Energy] S. 356-361

„… was thought to provide a basis for a new provision to the effect that the Act did not limit the right …” „… in Rt. 2004 p. 122, followed up on this and in effect “interpreted away” the amendment made to the …” „… wider geographical application of certain legal acts have no bearing on the understanding of Art. 126.9 …”

Per Andreas Bjørgan Article 18 [Publication of decisions] S. 1004-1005

„… regard not only to its wording, but also to its context and to all the legal rules governing the …” „… [Notification and entry into effect of decisions] Save as otherwise provided in this Agreement or in the EEA …” „… addressed and shall take effect upon such notification. The Rules of Procedures Art. 17 stipulates that the …”

Tarjei Bekkedal Article 59 [Public undertakings, services of general economic interest] S. 568-584

„… internal legal order. The practical effect of the decision would be the same as that of a directive.” 74 …” „… effect to the principles set out in Articles 53, 54, 57 and 59. The legal acts included in Annex XIV have …” „… EFTA States may then join the request for the Commission to examine the case, with the effect that …”

Gunnar Thor Pétursson Article 9 [Origin of goods] S. 281-286

„… unconditional and sufficiently precise and as such has direct effect as an ‘integral part of the Community legal …” „… national law’ and therefore ‘perfectly suited to produce direct effects in legal relations between the …” „… the Icelandic legal order: see judgment by Reykjavik City Court of 18 November 2016 in Case E …”

Halvard Haukeland Fredriksen, Jóhanna Jónsdóttir Article 11 [Amendments of the Agreement on a Standing Committee] S. 1099-1100

„… legal basis for the allocation to the Standing Committee of certain functions and powers entrusted to …” „… legal framework for the Standing Committee: In certain cases, functions and voting arrangements of the …” „… day as that withdrawal takes effect. 2. Any EFTA State which accedes to the European Community shall …”

Dora Sif Tynes Article 110 [Enforceability of decisions of the ESA and the Commission and of judgments of the EFTA Court and the EU Courts] Einarsson/FredriksenEnforceability of decisions and judgements S. 860-865

„… XIV EEA or the provisions of Protocol 4 SCA with binding effect within the Norwegian legal order is …” „… fall under the competition rules of the TFEU. ESA is responsible for cases where there is an effect on …” „… legal basis for ESA to impose fines for breaches of the competition rules found in Arts. 53 and 54 EEA …”

Per Andreas Bjørgan Article 17 [Notification and entry into effect of decisions] S. 1004

„… regard not only to its wording, but also to its context and to all the legal rules governing the …” „… [Notification and entry into effect of decisions] Save as otherwise provided in this Agreement or in the EEA …” „… addressed and shall take effect upon such notification. The Rules of Procedures Art. 17 stipulates that the …”

Per Andreas Bjørgan Article 5 [Responsibilities and means] S. 987-990

„… the SCA, the protocols and the Annexes, including the EU legal acts that have been incorporated into …” „… Joint Committee decisions. To date, more than 11 000 EU legal acts have been incorporated into the EEA …” „… that Art. 13 shall apply.2 The legal test described is rather unclear but the surveillance of Art. 18 …”

Ólafur Jóhannes Einarsson Article 36 [Freedom to provide services] S. 450-470

„… , the ECJ found in van Binsbergen that Art. 59 EEC had direct effect.2 As Art. 36 EEA is in the main …” „… expression and effect through Art. 36.6 Direct discrimination arises when a situation is subject to …” „… the application of any national rules which have the effect of making the provision of services …”

Halvard Haukeland Fredriksen Article 112 [Safeguard measures] S. 883-888

„… safeguard measures with erga omnes effect are ruled out.9 Further safeguard clauses can be found in EU legal …” „… met with counterdeclarations by the EC to the same effect.17 Thus, their legal significance appears to …” „… . 112 when it introduced a system of minimum prices for salmon in 1995, but the correct legal basis …”

Ólafur Jóhannes Einarsson Article 33 [Exemptions] S. 423-434

„… requirements in the general interest. The present author is not aware of any EFTA Court judgment to that effect …” „… case.22 The EFTA Court held that Art. 125 EEA was to be interpreted to the effect that an EEA State’s …” „… law.27 It follows from the Court’s case law that the fundamental rights guaranteed in the EEA legal …”

Karin Fløistad Article 29 [Social security for workers and self-employed persons] S. 385-391

„… well as the aggregation of time periods is necessary to give real effect to the provisions on free …” „… , however, part of the dispute in the EU legal order in the case C-431/11 UK v. Council.6 The case is one of …” „… the relatively few examples of the ECJ interpreting EEA law specifically. The legal question in the …”

Per Andreas Bjørgan Article 16 [Obligation to state the reasons for decisions] S. 1003-1004

„… regard not only to its wording, but also to its context and to all the legal rules governing the matter …” „… and entry into effect of decisions] Save as otherwise provided in this Agreement or in the EEA …” „… addressed and shall take effect upon such notification. The Rules of Procedures Art. 17 stipulates that the …”

Ronny Gjendemsjø Article 53 [Agreements, decisions and concerted practices] S. 526-546

„… effect the prevention, restriction or distortion of competition within the territory covered by this …” „… market in a specific way, the object or effect of the conduct being the prevention, restriction or …” „… object or effect to restrict competition, but it must be understood as a reference to the second …”

Martin Hennig Article 52 [Charges for crossing the borders] S. 524-525

„… quantitative restrictions and “measures having equivalent” effect as well as the prohibition on internal tax …” „… . The legal basis and procedure for adopting such regulations for the EFTA pillar of the EEA will be …” „… and ESA to enforce Arts. 53 and 54. Art. 57 contains the legal basis for control of concentrations …”

Ronny Gjendemsjø Introduction to the competition rules applicable to undertakings S. 525-526

„… Arts. 53 and 54. Art. 57 contains the legal basis for control of concentrations with effect in the EEA …” „… contain a third paragraph which grants the competence to adopt block exemptions. The legal basis and …” „… affect trade between Contracting Parties and which have as their object or effect the prevention …”

Halvard Haukeland Fredriksen, Jóhanna Jónsdóttir Article 12 [Withdrawal from the Agreement on a Standing Committee] S. 1100-1101

„… the legal framework for the Standing Committee: In certain cases, functions and voting arrangements of …” „… Agreement on the same day as that withdrawal takes effect. 2. Any EFTA State which accedes to the European …” „… takes effect. 3. The Governments of the remaining EFTA States shall, by common accord, decide on the …”

Ólafur Jóhannes Einarsson Article 38 [Transport services] S. 470-473

„… Agreement. The EFTA Court then stated that the lack of direct legal effect in Iceland of acts referred to in …” „… contains an intriguing statement concerning the effect of Regulations under the EEA Agreement. The ECJ …” „… stated that the provisions of Reg. No 4055/86 are an integral part of the legal order of all of the …”

Finn Arnesen Article 18 [Technical barriers to trade in agricultural products] S. 336-337

„… A large number of the legal acts referred to are regulations of a very detailed and technical …” „… character. According to Art. 7 EEA, regulations are to be made part of the internal legal order of the …” „… the same measures as those covered by the term ‘measures having equivalent effect’ to quantitative …”

Henrik Bull Article 22 [Reduction of customs duties] S. 349-350

„… breach of implied conditions for EFTA participation, in effect leading to termination of the affected …” „… the reduction of the effective level of its duties or charges having equivalent effect applicable to …” „… thirty days before such reduction or suspension comes into effect. It shall take note of any …”

Dora Sif Tynes Article 109 [The two-pillar surveillance system] S. 852-860

„… the European Economic Area 852 Tynes 1 2 3 4 evolved with the corollary effects on the EEA Agreement …” „… legal acts, a special referencing technique was included in Protocol 1 EEA on horizontal adaptations …” „… between the Commission and ESA. Such “two-pillar decisions” should therefore have effect without having to …”

Berte-Elen R. Konow Article 72 [Provisions on consumer protection] S. 691-713

„… directs uniform interpreta- 10 The legal basis in the Main Part of the Agreement is Art. 78 listing …” „… with regard to legal cooperation between the Nordic countries, resulting in common mandatory provisions …” „… of the legal status of the parties. According to the general clause, a contract can be modified or …”

Dora Sif Tynes Article 91 [The EEA Council: presidency and meetings] S. 780-782

„… decision adopted by the Council. The practical effects of this contrast is however limited since the …” „… provides the legal basis for the establishment of the EEA Joint Committee and prescribes that the committee …” „… the EEA Agreement. It is therefore the body entrusted with the vital job of incorporating new EU legal …”

Finn Arnesen Article 129 [Languages, ratification, entry into force] S. 968-973

„… within the EEA legal order. Thus, one has to have in mind that an interpretation of a provision of EEA …” „… of EU law that uses terminology that is peculiar to EU law; that legal concepts do not necessarily …” „… 283/81, 6.10.1982, Srl CILFIT. 4 See to this effect, Case E-4/01, 30.5.2002, Karlssson, para. 30 …”

Finn Arnesen, Halvard Haukeland Fredriksen Preamble S. 975-977

„… due account shall be paid to the legal and administrative practices of the Commission of the European …” „… legal acts are relevant for the interpretation of corresponding provisions found in the said protocols …” „… rules on the functions and powers of ESA corresponding to those found in various EU legal acts …”

Henrik Bull Article 43 [Protective measures] S. 490-495

„… direct effect in the EU legal order, see comments to Art. 40 EEA. PART II: The Agreement on the European …” „… securing the objective they pursued, and whether they satisfied the principle of legal certainty. The Court …” „… probably saw proportionality and legal certainty as general principles of law that without doubt applied …”

Ole-Andreas Rognstad Article 65(2) [Intellectual property rights] S. 641-659

„… procurements outside the scope of the Procurement Directives entails that it is for the domestic legal system …” „… includes the Directive and various decisions regarding the legal protection of topographies of …” „… , The Agreement on the European Economic Area, 1993, p. 131. 4 See Dir. 2009/24/EC on the legal …”

Ronny Gjendemsjø Article 60 [Specific provisions on undertakings] S. 584-585

„… [Specific provisions on undertakings] Annex XIV contains specific provisions giving effect to the principles …” „… set out in Articles 53, 54, 57 and 59. The legal acts included in Annex XIV have already been …” „… concentrations. The legal implications of the implementation of the regulation are further discussed in the …”

Per Andreas Bjørgan Article 25 a [Responsibilities in the field of financial supervision] S. 1018-1019

„… to the provisions contained in Protocol 8 to the present Agreement, give effect to the relevant …” „… their national legal orders. Article 26 [Cooperation between the ESA and the EU Commission] Provisions …” „… party, has no legal significance as such. Part IV: The EFTA Court Introduction to Part IV* Part IV SCA …”

Per Christiansen Article 36 [Action for annulment] S. 1041-1046

„… law relating to their application, or misuse of powers. Any natural or legal person may, under the …” „… paragraph extends the right of challenge to any natural or legal person that is directly and individually …” „… subject of a challenge before the Court. Measures that seek to bring about a change in the legal position …”

Gunnar Thor Pétursson Article 13 [Exemptions] S. 301-311

„… to justify discriminatory restrictions (see, to that effect, Case C-55/94, 30.11.1995, Gebhard [1995 …” „… legal certainty and transparency, have been introduced, to which restrictive measures must comply in …” „… fundamental freedoms to be justified, the principle of legal certainty must be complied with.44 Moreover, the …”

Gunnar Thor Pétursson Article 8 [Free movement of goods, scope of application] S. 270-281

„… (and direct effect) entails that non-implemented acts do not prevail over conflicting national …” „… prohibitions in Art. 10 (custom duties and charges having equivalent effects); Arts. 11 to 12 (quantitative …” „… restrictions and measures having equivalent effects); Art. 14 (discriminatory taxation); and Art. 15 (repayment …”

Thomas Chr. Poulsen Article 125 [The EEA Agreement and national systems of property ownership] S. 942-945

„… interpreted to the effect that rules governing the system of property ownership fall outside the scope of the …” „… that Article 125 EEA is to be interpreted to the effect that, although the system of property ownership …” „… is a matter for each EEA State to decide, the said provision does not have the effect of exempting …”

Finn Arnesen, Halvard Haukeland Fredriksen Contracting Parties S. 973-975

„… whereas others are the result of decisions by the EEA Joint Committee to adapt new EU legal acts to the …” „… . Arnesen/Fredriksen 973 1 2 Agreement in ways which have tested the legal limitations brought about by the EEA …” „… effect that the Norwegian judge would leave office when passing retirement age for judges in Norway, came …”

Henrik Bull Article 42 [Circumvention of capital movements liberalization] S. 489-490

„… Art. 68 (2) and (3) EEC, repealed with effect from 1 January 1994 and deleted from the text of what is …” „… TFEU raises the question of whether the EEA capital movement provisions have direct effect in the EU …” „… legal order, see comments to Art. 40 EEA. PART II: The Agreement on the European Economic Area 490 Bull …”

Peter-Christian Müller-Graff Article 77 [Provisions on company law] S. 742-751

„… States in a legal environment of company law that resembles familiar characteristics of company law in …” „… also be served by the availability of European types of companies. EU-legislation to this effect can be …” „… . Consequently, Annex XXII is a breathing register of the current EU legal acts on company law which are relevant …”

Thomas Chr. Poulsen Article 50 [Withdrawal from the SCA] S. 1075-1076

„… Agreement on the same day as that withdrawal takes effect. 2. Any EFTA State which accedes to the European …” „… takes effect. 3. The Governments of the remaining EFTA States shall, by common accord, decide on the …” „… Iceland and Norway suggest that an EFTA-pillar of only two may be feasible from a legal perspective, at …”

Gunnar Thor Pétursson Article 12 [Quantitative restrictions on exports and measures having equivalent effect] Quantitative restrictions on exports S. 299-301

„… [Quantitative restrictions on exports and measures having equivalent effect] Quantitative restrictions on …” „… exports and all measures having equivalent effect shall be prohibited between the Contracting Parties. Art …” „… legal instruments, part of this ‘package’ are Reg. (EC) No. 765/2008 of the European Parliament and of …”

Martin Hennig Article 76 [Cooperation in the field of statistics] S. 740-742

„… information enables the Contracting Parties to survey the effects of the integration in economic, social and …” „… . Art. 76(3) refers to Annex XXI, which contains the relevant EU legal acts that have been incorporated …” „… States in a legal environment of company law that resembles familiar characteristics of company law in …”

Article 124 [Non-discrimination of investments] Henrik Bull S. 939-942

„… . Legal Content With Art. 124 having lost its significance, a discussion of its legal content has no …” „… in Art. 34 (1) EEA.10 In other words, the provision protects both natural and legal persons in their …” „… asserted that Art. 125 had to be interpreted to the effect that rules governing the system of property …”

Christophe Hillion Article 118 [Extension of the EEA Agreement to new fields] S. 904-912

„… . The ECJ has jurisdiction to interpret the EEA Agreement within the EU legal order, having in turn an …” „… epitomised that the EEA Agreement may be construed broadly enough to reflect EU legal developments in areas …” „… in practice unlikely in view of the implications of a revision. The latter would in effect extend the …”

Christian Jordal, Gjermund Mathisen Article 64 [Dispute resolution] S. 609-612

„… necessary to offset the effect of such distortion. Priority shall be given to such measures that will least …” „… ”. That is, they must be reasonably well targeted, aiming at and being capable of offsetting the effects …” „… Parties, but because the definitive measures must be “strictly necessary” to “offset the effect” of such …”

Martin Hennig Article 47 [Scope of application] S. 500-517

„… may be important to exchange views on the effects of these obligations on the development of the …” „… into the UK legal system. However, this option does not sit well with the idea of preserving national …” „… opening up and liberalisation of the transport sector. However, the negative effects of the exception to …”

Gunnar Thor Pétursson Article 27 [Provisions concerning coal and steel products] S. 367-369

„… observance of a floor price cites Art. 112(1) and (3) EEA as the legal basis. Reg. (EC) No 1447/2004 imposing …” „… restrictions on exports, measures having equivalent effect and customs duties and charges having equivalent …” „… effect were to be abolished. Furthermore, Art. 3 prohibits the introduction of any restrictions or …”

Per Andreas Bjørgan Article 23 [Monitoring within the field of public procurement law] S. 1009-1011

„… , give effect to the provisions of the EEA Agreement concerning State aid as well as ensure that those …” „… listed in Annex I. Art. 24 SCA sets out ESA’s obligation to give effect to the State aid provisions of …” „… previous legal acts that reflect the powers and functions of the Commission, including the 5 Orders of the …”

Finn Arnesen, Halvard Haukeland Fredriksen Article 1 [Object and purpose] S. 171-176

„… contains no similar statements. However, the EEA Agreement’s silence on this matter is of limited legal …” „… Agreement, the practical effect of this difference of objectives is remedied by the principle of homogeneity …” „… international agreement (or any other agreement for that matter) is intended to have the same legal content …”

Per Andreas Bjørgan Article 13 [Rules of procedure] S. 997-1002

„… is Norwegian. There are, however, no obvious legal reasons for this since ESA is led by a College of …” „… out its tasks. The rules ensure that any natural or legal person has a right to request access to …” „… document where disclosure would undermine the protection of commercial interests of a natural or legal …”

Henrik Bull Article 26 [Anti-dumping and anti-subsidies measures] S. 362-367

„… affecting exports or measures having equivalent effect. Arts. 10 and 12 EEA ban customs duties and …” „… quantitative restrictions on exports as well as all charges and other measures having similar effects between …” „… . Countervailing duties are duties imposed to neutralise the effect of subsidies or export premiums granted by an …”

Per Christiansen Article 117 [Provisions governing the EEA financial mechanism] S. 894-904

„… new Member States were below the average of the existing Member States. This effect of enlargement …” „… between the EU and Norway.15 Accordingly, the Norway Grants are formally not part of EEA legal context …” „… denotes the economic effect that inefficiencies follow if a risk-taker is relieved of responsibility for …”

Ólafur Jóhannes Einarsson Article 32 [Exemptions for exercise of official authority] S. 420-423

„… of these exceptions must have the same legal effect as regards the provisions of Dir. 2014/24. This …” „… in the public interest i.e. to guarantee the lawfulness and legal certainty of documents. However …”

Ronny Gjendemsjø Article 54 [Abuse of a dominant position] S. 546-555

„… EFTA Court.2 For the requirement of effect on trade between the Contracting Parties, see the comments …” „… effect of its position be relevant for finding that it is dominant in a substantial part of the EEA. The …” „… the basis of the transactions of commercial operators, has the effect of hindering the maintenance of …”

Per Christiansen Article 34 [Advisory opinion] S. 1032-1040

„… a step in proceedings that have begun and will be finalised within a national legal system. The …” „… hypothetical, or where the Court does not have before it the factual or legal material necessary to give a …” „… 19: “The present case concerns legal issues that the Court dealt with to some extent in Case E-13/15 …”

Per Christiansen Introduction: Economic and social cohesion in the EU and in the EEA S. 890-891

„… suffers indirectly due to the effect that the safeguard measures have on other Contracting Parties, inter …” „… Agreement’s Part VIII on the Financial Mechanism. Arts. 115 to 117 provide the legal basis for the …”

Christian Jordal, Gjermund Mathisen Article 63 [Specific provisions on State aid] S. 605-609

„… secondary legislation on state aid. The important legal acts referred to in Annex XV are the Transparency …” „… available at: http://www.eftasurv.int/state-aid/ legal-framework/state-aid-guidelines/. 10 E.g. ESA Decision …” „… necessary to offset the effect of such distortion. Priority shall be given to such measures that will least …”

Marthe Kristine Fjeld Dystland, Fredrik Bøckman Finstad, Ida Sørebø Article 104 [Binding effect of EEA Joint Committee decisions] S. 824-825

„… legal and political issues of incorporation head on in the EEA Joint Committee, and to seek a broad …” „… [Binding effect of EEA Joint Committee decisions] Decisions taken by the EEA Joint Committee in the cases …”

Simen Hammersvik Article 65(1) [Public procurement] S. 612-641

„… in the secondary legislation.1 The legal basis for the EU Acts on public procurement is found in the …” „… Annex was amended as part of the Interim Package,6 so that it referred to eight legal acts.7 This meant …” „… private entities in the utilities sectors and introducing legal procurement-specific remedies. Accordingly …”

Pål Wennerås Article 3 [Relevance of ECJ case law] S. 980-984

„… fourth recital in the preamble. The combined effect of Arts. 6 EEA and 3 SCA is essentially that EEA …” „… different objectives and legal context. This is applies in particular to ECJ judgments concern- 10 Case E …” „… . When the relevant EU legal acts (directives, regulations or decisions) are incorporated into the EEA …”

Martin Hennig Article 14 [Internal taxation: No fiscal discrimination of imported goods] S. 311-322

„… imported goods. Whereas Art. 10 is designed to prevent customs duties and “charges having equivalent effect …” „… customs duties and other charges of equivalent effect. The latter prohibition would inevitably be …” „… the French tax rules made no reference to the origin of the cigarettes, the effect of the taxation …”

Jóhanna Jónsdóttir Introduction to EEA cooperation outside the four freedoms S. 751-753

„… Tzieropoulos, Senior Legal Officer at the EFTA Secretariat and Ólafur Einarsson, Director of Internal Market …” „… examples of cooperation. Part VI of the EEA Agreement thus has a tangible an effect on businesses, research …”

Håvard Ormberg Article 123 [National security and trade in arms] S. 929-939

„… EU Council. The legal nature of the list has been debated, and a complete official version of the …” „… disruptive effects of the internal market. The consultation might lead to adapted measures less detrimental …”

doi.org/10.5771/9783845275796

Andreas Fischer-Lescano, Hans-Peter Gasser, Thilo Marauhn, Natalino Ronzitti - Frieden in Freiheit - Peace in liberty - Paix en liberté

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Andreas Fischer-Lescano (ed.), Hans-Peter Gasser (ed.), Thilo Marauhn (ed.), Natalino Ronzitti (ed.)

Frieden in Freiheit - Peace in liberty - Paix en liberté

2008

Results in this title

Ruth Lapidoth The legal effect of Security Council Resolution 1701 (2006) on cessation of hostilities in Lebanon S. 199-204

„… The legal effect of Security Council Resolution 1701 (2006) on cessation of hostilities in Lebanon …” „… . The purpose of this article is only to examine the legal effect of the resolution, and we will not …” „… resolutions, one can now try to deal with the main purpose of this article, namely, the legal effect of …”

Georges Abi-Saab Whatever happened to Article 19? S. 831-850

„… , the staunch defense of the integrity of the international legal system, while striving to perfect its …” „… role. I. Towards a dual regime of responsibility Responsibility is an integral part of any legal …” „… the recorded practice of the 19th and the early 20th century, under the legal rubric of “State …”

Dieter Fleck Law Enforcement and the Conduct of Hostilities: Two Supplementing or Mutually Excluding Legal Paradigms? S. 403-420

„… legal consensus on its effects has not yet been developed; and where certain aspects are regulated by …” „… Law Enforcement and the Conduct of Hostilities: Two Supplementing or Mutually Excluding Legal …” „… advocates a strict legal distinction between the conduct of hostilities in armed conflicts and law …”

Thilo Marauhn The Silent Thread: Explosive Remnants of War S. 205-216

„… has taken long to limit the effects of ongoing armed conflicts, it seems to take even longer to …” „… effects of armed conflicts that should be addressed. This article will not discuss the continuing effects …” „… of weapons, effects activated during armed conflict. To give an example, the war-fighting use of …”

Heike Spieker The Conduct of Hostilities and the Protection of the Environment S. 753-780

„… new is that effects of armed conflict on the natural environment are the object of explicit legal …” „… . Armed Conflict and Effects on the Environment That armed conflict does not leave the natural …” „… regulation and the fact that the prohibition of causing certain negative effects on the natural environment …”

Marco Sassòli Human Shields and International Humanitarian Law S. 579-590

„… against attacks and effects of hostilities. Space obliges me to focus on the legal problems without …” „… latter of any protection against effects of hostilities) has no legal or logical justification and is …” „… or at military objectives are unlawful if they must be expected to have excessive incidental effects …”

Bakhtiyar Tuzmukhamedov The End of Contractual Disarmament? S. 345-350

„… times”2. While those “later times” had yet to come, what seemed as occasional and sporadic legal …” „… colleagues in international legal profession that the 1925 The Protocol for the Prohibition of the Use in War …” „… . As we look at the Hague Conferences of 1899 and 1907 as benchmarks of the development of legal …”

Christian Tomuschat Pacta sunt servanda S. 1059-1078

„… building block of the international legal order, legal theory must encounter great difficulties in …” „… has become clear that the international legal order is predicated on a vast network of legal rules …” „… cooperation, thus belonging to the structural groundwork of the international legal order whose existence …”

Allan Rosas EU Primary Law as Substantive Law S. 969-984

„… constitutional principles of EU law, such as direct effect, primacy (supremacy), respect for fundamental rights …” „… Judicial Dialogue', 1 European Journal of Legal Studies, Issue 2 (2007), and infra, at notes 46-49. 12 …” „… Interaction of Legal Regimes (Oslo 2007: Universitetsforlaget), pp. 33-63. Rosas 960 of which …”

Wolff Heintschel von Heinegg Manoeuvring in Rough Waters: The UK Manual of the Law of Armed Conflict and the Law of Naval Warfare S. 439-456

„… necessity. Rather it imposes legal restrictions on naval commanders that may prove to be inconvenient in …” „… , goes beyond such general complaints about legal rules. It is based upon the belief that when it comes …” „… Global War on Terror are legal. It would be similarly difficult to explain the legality of measures …”

Anthony Carty The Irish Government’s Neutrality, the Nuremberg Trials and After S. 375-386

„… Irish Government in 1945-46. Eamon de Valera, the Irish Prime Minister had taken extensive legal advice …” „… on the matter. The Irish legal view was that the Nuremberg Charter was not sound law. Dr O’Driscoll …” „… legal opinion of Michael Rynne, the Legal Adviser to the Irish Department of External Affairs. I …”

Jost Delbrück Protecting National Security against Terrorism in Open Societies – A Political, Constitutional and Ethical Dilemma S. 53-62

„… side-effects in terms of potentially or actually disproportionate counter-measures undertaken by states …” „… international and also domestic legal instruments clearly state that the right to curtail fundamental rights in …” „… and of international law, as well.3 Thus, it is clear that constitutions and the international legal …”

Sabine Schlemmer-Schulte Sovereign Debt: The Argentine Bonds Case S. 985-1030

„… restructuring negotiations. The paper discusses the core legal and policy issues of sovereign debt based on the …” „… ). Schlemmer-Schulte 975 II. The Argentine bonds case or ill-managed globalization and alternative legal and policy …” „… by construction, the latter debts have been termed “odious debts” and received legal treatment …”

Daniel-Erasmus Khan At the Edge of an „Inadvertent War“ – The 2007 British-Iranian Incident in the Shatt-al-Arab Annotated S. 155-168

„… depictions for official purposes may have highly undesirable legal side-effects: It is generally …” „… legal responsibility and thus to hide facts behind a broad smoke screen of uncertainty. First and …” „… . Further, and now quite different from the legal and institutional system of developed (national …”

Laurence Boisson de Chazournes, Danio Campanelli The United Nations Compensation Commission: Time for an Assessment? S. 13-30

„… Chazournes, Campanelli 4 The legal basis that allowed the payment of compensation to be imposed on Iraq for …” „… past10. The UNCC, in effect, was neither the fruit of the imposition of the victor’s law over the …” „… . Claims commissions of the past were, in effect, judicial bodies. They were usually composed of one sole …”

Rainer Hofmann International Protection of Human Rights and International Territorial Administration: A Legal Black Hole S. 135-154

„… International Protection of Human Rights and International Territorial Administration: A Legal …” „… , with a direct effect on the (human) rights of individuals, this situation seems to be about to change …” „… pertinent UNSC resolutions, are – just as any administrative authority acting within the national legal …”

Hanspeter Neuhold The International Community and „Rogue States“ S. 227-248

„… of the legal issues; it is hoped, however, that readers of the Festschrift might also find the …” „… party; 1 Michael Bothe, International Legal Aspects of the Darfur Conflict, in: August Reinisch and …” „… legal bases. See, for example, Michael Bothe, Peace-keeping, in: Simma (ed.), op. cit., pp. 648-700 …”

Inhaltsverzeichnis S. 7-12

„… Dieter Kugelmann Das Verständnis von Sicherheit im Völkerrecht 175 Ruth Lapidoth The legal effect of …” „… Hofmann International Protection of Human Rights and International Territorial Administration: A Legal …” „… Conduct of Hostilities: Two Supplementing or Mutually Excluding Legal Paradigms? 391 David P. Forsythe …”

Elzbieta Mikos-Skuza The International Humanitarian Fact-Finding Commission: An Awakening Beauty? S. 493-504

„… abuses of legal norms and are particularly useful before an armed conflict breaks out. Classic measures …” „… qualified personnel, appointment of legal advisers in armed forces, establishment of national committees on …” „… this effect was included for the first time into the Geneva Convention for the Amelioration of the …”

Gerhard Hafner The ECHR torn between the United Nations and the States: The Behrami and Saramati Case S. 115-134

„… latter’s legal status. For a certain period, no detailed definition of their legal status has seemed …” „… necessary and the UN has operated in a relatively vague legal framework1. However, in recent time, a …” „… 1 See in particular the question regarding Fundamentals of the legal basis for United Nations …”

Yoram Dinstein Comments on the UK Manual of the Law of Armed Conflict S. 387-402

„… (written by the great L. Oppenheim jointly with J.E. Edmonds), later revised, which served as a legal …” „… , but not secondarily, the Manual ought to be regularly consulted by Legal Advisers who (under Article …” „… question only triggers a second query. Why does the Legal Adviser (or, for that matter, the instructor in …”

Wolfgang Münch The Revision of the System of Administration of Justice in the United Nations Secretariat – The Current State of Affairs in the Light of the Recommendations of the Secretary-General’s Redesign Panel S. 217-226

„… Regulations and Staff Rules. Various legal actions are available to UN staff members ranging from a simple …” „… regarded as not standing on legal grounds.6 5 UNTS vol. 1144, I – 17955. 6 For more details on UNAT´s …” „… /61/205. The Panel’s report summarizes in an introductory chapter the legal and practical weaknesses of …”

Mary Ellen O’Connell Defending the Law against Preemptive Force S. 249-260

„… statements to that effect. See W. Michael Reisman, International Legal Responses to Terrorism, 22 HOUS. J …” „… comprehensive legal approach to the problem of force in international relations following the catastrophe of …” „… Hungary was, in effect, conquest. Hungary did, however, keep its sovereign state- O’Connell …”

Peter H. Sand Japans „Forschungswalfang“ und das Washingtoner Artenschutzabkommen (CITES) S. 693-722

„… Fn. 11, S. 132): “…[an IWC] recommendation has no binding effect, and does not have any restrictive …” „… effect on the right of research whaling”. Zur Empfehlungswirkung von Resolutionen nach ICRW Art. VI vgl …” „… ; und P. van Heijnsbergen, International Legal Protection of Wild Fauna and Flora Sand …”

Natalino Ronzitti The Proliferation Security Initiative and International Law S. 281-296

„… international law. Taken separately, they may conform to the international legal order and the Charter of the …” „… “interdiction”. Interdiction comprises a number of actions specified in the Statement. In effect, interdiction …” „… coastal State are also threatened6. This conclusion is not exempt from criticism. In effect, while it is …”

Rüdiger Wolfrum The Protection of the Environment through International Courts and Tribunals S. 819-830

„… there is a growing number of fora where certain legal aspects of international environmental disputes …” „… legal systems. In this respect it is worth mentioning that the International Court of Justice and the …” „… tailored differently when it is enshrined in a legal regime covering different activities. III …”

Theodor Schweisfurth The United Nation's Peacebuilding Commission's First Year S. 309-344

„… such as reintegration of ex-combatants. Use of Fund resources is meant to have a catalytic effect in …” „… effect. As sign of an eventual turn appeared a conference organized by the National Assembly and held …” „… additional efforts are needed for legal reform, harmonization of customary and traditional justice …”

doi.org/10.5771/9783845209593

Kangnikoé Bado - The Court of Justice of the Economic Community of West African States as a Constitutional Court

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Kangnikoé Bado

The Court of Justice of the Economic Community of West African States as a Constitutional Court

2019

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The Legal Effect of Rulings by National Constitutional Courts S. 56-96

„… The Legal Effect of Rulings by National Constitutional Courts In all of the constitutions of the …” „… The Legal Effect of Rulings by National Constitutional Courts 58 The Legal Force of Decisions by …” „… full extent. The legal force has a date of effect (formal legal force), a subject matter(material legal …”

The Reception of the Legal Force in theNational Legal System S. 227-286

„… this binding force of the legal effect? At the same time, this also poses the question of the national …” „… concerned state. The question whether the legal effect is welcome or not welcome within the national legal …” „… made by the ECOWAS legal regulations regarding the legal effect of its decisions and, secondly, how the …”

Supranational Derogation of the Legal Force in Municipal Law S. 97-226

„… , dogmatic legal form. The erga-omnes-legal effect of constitutional decisions is not opposed to the national …” „… of the constitution restricted the erga-omnes-legal effect, for example, in Art. 106 of the Togolese …” „… Constitution only to the national rule of law. Subsequently, the legal force does not develop its effect …”

Titelei/Inhaltsverzeichnis S. 1-20

„… StructureF. 49 The Legal Effect of Rulings by National Constitutional Courts Chapter 2 56 The Initial Case …” „… interpretation 5. 156 Effects of Legal Force of other Regional Human Rights Courts II. 162 East African Court of …” „… powersII. 262 Indirect legal force for all state organs1. 263 Special binding effect of the Constitutional …”

Result and Concluding Comment S. 287-334

„… und Entscheidungswirkungen im öffentlichen Recht [The object of Dispute and the Effect of Legal …” „… legal-substantive perspective (III.) and from the perspective of the basis of authorisation (I.). Criticism of the …” „… Self-Restraint Legal basis of the self-restraint In clause 18 of the legal matter of Ameganvi et al vs Togo, the …”

Bibliography S. 335-357

„… Entscheidungswirkungen im öffentlichen Recht [The object of Dispute and the Effect of Legal Decisions in Public Law …” „… der Mitglied- staaten[Effect and rank of the ECHR in the legal systems of Member States], in: Oliver …” „… , § 359 ff., 1628–1669. Hopkins, Kevin: The effect of an African Court on the domestic legal orders of …”

Introduction S. 21-23

„… In a formal sense, jurisdiction means the competence of a court to decide on a legal dispute.3 In …” „… erga-omnes effect on national level. The conflict and its effects10 can, for example, be found in Art. 46 (3 …” „… possibility of legal action at the court of justice on the ECOWAS-level.11 By challenging the final binding …”

Research Question and Structure of the Study S. 24-55

„… the binding legal effect form the focus of this dissertation. Therefore, in order to clarify this …” „… for an easy understanding of the binding effect of the decisions within the national legal systems of …” „… (D). The jurisdiction poses complex fundamental questions regarding the binding effect of the …”

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