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Directive 2014/40/EU harmonises the manufacture, sales and presentation of tobacco and related products, notably, electronic cigarettes. As its predecessors, Directive 2014/40/EU has already been challenged on three occasions. This article will tackle the Pilbox case and assesses the impact of the principles of proportionality and subsidiarity on market harmonisation and health protection. It seeks to demonstrate that, contrary to the old-fashioned stream of case law on this subject, the battlefield has been shifted from the scope of Art. 114 TFEU to the impact of general principles of EU law. It then assesses how health protection increasingly permeates internal market legislations, leading to a sort of 'paternalistic' harmonisation. Finally, it argues that after two decades of disputes concerning tobacco products, the Court of Justice of the European Union (CJEU) has successfully ended litigations on Directive 2014/40/EU, holding that its compliance with the principles of proportionality and subsidiarity is beyond doubt. [ABSTRACT FROM AUTHOR]

Germany is widely regarded as a global model for the privacy protection its constitutional regime offers against intrusive intelligence-gathering and law enforcement surveillance. There is some basis for Germany's privacy "exceptionalism," especially as the text of the German Constitution ("Basic Law") provides explicit textual protections that America's Eighteenth Century Constitution lacks. The German Federal Constitutional Court has added to those doctrines with an expansive interpretation of the more general rights to dignity (Basic Law Article 1) and the free development of one's personality (Basic Law Article 2). This jurisprudence includes constitutional liberty guarantees such as the absolute protection of a "core area of privacy," a "right to informational selfdetermination," and a right to the "security and integrity of informationtechnology systems." On closer examination, however, Germany's burnished privacy reputation may not be so well deserved. The Constitutional Court's assessment of challenged intelligence-gathering or investigative powers through the framework of the proportionality principle means, more often than not, that the intrusive measures survive constitutional scrutiny so long as they are adapted to accommodate an array of detailed, finely tuned safeguards that are meant to minimize and mitigate infringements on privacy. Armed with a close analysis of its recent, seminal decision in the BKA-Act Case, in this Article I argue that this adds up to a mere pantomime of privacy--a privacy of precise data retention and deletion timelines, for example--but not the robust "right to be let alone" that contemporary privacy advocates demand. [ABSTRACT FROM AUTHOR]

The rules regarding modifications of public contracts were added to EU public procurement law in 2014 in order to clarify the conditions set forth by the relevant case law of the Court of Justice of the European Union. However, the provisions that were ultimately adopted are not quite black and white as one might think. One of the grey areas might be the application of the principle of proportionality to modifications of public contracts. New directives mention proportionality as a principle of "procurement". This article presents a view that contracting authorities shall act in a proportionate manner also after the "procurement" decision has been made, i.e. when a contract has already been awarded. [ABSTRACT FROM AUTHOR]

Proportionality is the tool of choice for the EU Court of Justice's review of measures affecting the enjoyment of fundamental rights. The use of proportionality is normally beneficial, as it ensures that public authorities pursue public policies without any avoidable waste of fundamental rights protection. In the field of internet-based activities, however, certain recurrent elements make proportionality unfit for the purpose. This article argues against the systematic recourse to the mythology of proportionality in the judgments of the Court of Justice of the EU. Most instances of putative proportionality assessment are in fact window-dressing for pragmatic or policy-based arguments. The claim relies on a critical reading of the recent case law of the Court in internet-related disputes. Accordingly, it is preferable to abandon the proportionality test when certain factual conditions-- which are commonplace in the digital milieu--prevail. [ABSTRACT FROM AUTHOR]

The difficult task facing national court judges in assessing the proportionality of mandatory retirement measures in age discrimination cases should not be underestimated. Such assessments often require judges to immerse themselves in history, science, economics, sociology and even psychology in answering this difficult question. The lack of guidance from the European Union level adds to the complexity of this task. This article provides a guiding model for the assessment of such cases at a national level which involves an analysis of four specific factors: the specific economic sector, the availability of a pension, the impact of the mandatory retirement measure on the right to work and earn a livelihood and the importance of consent to the measure. The article also addresses what appears to be a fifth factor in the case law of the courts of England and Wales: the particular age chosen, although the necessity and current interpretation of this factor is challenged. The article provides a foundational model for future cases involving mandatory retirement measures which will assist in reducing fragmentation and inconsistency of decision making, provide more certainty and clarity for both claimants and respondents as to the legality of such provisions and reduce the potential for the inevitable undermining of the age discrimination rules which currently exists. [ABSTRACT FROM AUTHOR]

The principles specific to the implementation of EU law have as characteristic that they mark the specificity of EU law in relation to other legal orders, from national or international point of view. These principles include the principle of conferral, with multiple consequences on the entire EU system, but also the principle of subsidiarity, proportionality or of sincere cooperation. [ABSTRACT FROM AUTHOR]

Member States frequently try to justify restrictive tax provisions with the need to ensure an effective fiscal supervision. In this context, the European Court of Justice (ECJ) has applied this justification reason notably different in intra-EU situations and in situations involving a third country. In the latter cases, the Court tends to be less stringent regarding the acceptance of this justification. In light of the most recent judgments of the ECJ, namely Welte and Emerging Market Series, this article seeks to determine how much leeway the Member States have to implement provisions that foresee an unequal treatment of capital investments in third country situations. [ABSTRACT FROM AUTHOR]

The Treaty on the Functioning of the European Union ("TFEU") and Regulation 1/2003 mandate the Commission to seek compliance with the competition rules through the imposition of fines that have deterrent effect. Deterrence is to be pursued subject to Article 49(3) of the Charter, which prohibits fines that are disproportionate to the gravity of the infringement. This contribution attempts to articulate a principled test for assessing compliance with Article 49(3). The current case law of the European Courts makes it difficult to fully apply that provision: the Courts have identified the relevant factors for the assessment of gravity but have not clarified the respective weight of these factors, and neither have the Courts indicated which fine level corresponds to a given degree of gravity. Pending such clarifications, the proportionality principle as expressed in the Charter would seem to prohibit the imposition of fines of an amount that the offender is unable to pay. I also conclude that the Commission's Fining Guidelines may not be compatible with the Charter to the extent they allow for increases of the basic fine amount for undertakings with a large turnover beyond the cartelized sales, and for improper gains. [ABSTRACT FROM AUTHOR]

El artículo analiza diversos decretos y sentencias en el área de Derecho de la Competencia emitidos en la Unión Europea (UE) y España entre junio y septiembre de 2014. Entre los temas tratados se encuentran la legislación sobre acuerdos que no restringen la competencia en la UE, sentencia del Tribunal Supremo de España en un caso relativo a comercialización de electricidad con sanción a la empresas Endesa Distribución Eléctrica S.L. y sentencia sobre la base del principio de proporcionalidad.

This article challenges the assumption that the burden of demonstrating that a limitation of a fundamental right is proportionate rests on the public authority seeking to justify the limitation. After considering the operation of burdens and presumptions in European human rights case-law it notes the difficulties British domestic courts have had in rigorously applying proportionality tests. It suggests that the concerns which lead judges to weaken the requirement of proportionality would be better met by recognising that certain circumstances give rise to a presumption of proportionality, where the burden of demonstrating disproportionality rests on the right-holder. Five categories of case in which this applies are proposed, and one which has recently been judicially accepted is rejected. Clarifying the types of case in which a presumption of proportionality applies is a preferable strategy to blurring the standards of justification to be met by those seeking to limit the enjoyment of rights. [ABSTRACT FROM AUTHOR]

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Human rights protection – Proportionality – Deference – Procedural rationality – Process-review – Interplay national courts and Strasbourg court [ABSTRACT FROM PUBLISHER]

The principle of proportionality is at the cornerstone of EU law, and precisely of the case-law of the European Court of Justice (ECJ). In the law and economics literature, the general principles of law are commonly opposed to legal rules in terms of efficiency. On the one hand, the legal formalistic approach consists of apprehending the law as principled, whereby principles of law do not and should not encompass an efficiency rationale and should be self-sufficient. On the other hand, the legal nihilism denying the existence or relevance of the general principles of law favours legal rules that are said to incorporate an efficiency rationale. I intend to analyse the efficiency rationale of probably the most important general principles of EU law-the proportionality principle. In this paper, I shall assert that not only does the EU proportionality principle encapsulate an efficiency rationale, but most importantly, it has been interpreted by the ECJ as such-hence, I propose the representation of the principle of proportionality as a principle of economic efficiency. After having introduced the principle of proportionality (1), I shall decipher the proportionality principle both from a law and economics perspective, and from a comparative perspective (2). Then, I shall delve into the jurisprudence of the ECJ so that the judicial reasoning of the Court as this reasoning proves the relevance of the proposed representation (3). Finally, I conclude in light of the findings of this paper (4). [ABSTRACT FROM AUTHOR]

This article addresses the development of age discrimination law in the Court of Justice and concludes that there is a marked difference in the level of discretion given to Member States in cases relating to mandatory retirement policies. The article will critique the approach of the Court of Justice to the legitimate objective test and the proportionality test in retirement cases. It will also argue that the decisions of the Court of Justice to date have all involved cases with very similar factual scenarios, and the article hypothesises how a different conclusion might be reached in cases with different factors. It also considers the impact of the Charter of Fundamental Rights on such cases. The article concludes by arguing that mandatory retirement policies may no longer be compatible with EU law and that there is a need to move towards more flexible retirement policies. [ABSTRACT FROM AUTHOR]

The free movement of services is a fundamental tenet of the European Union's Common Market. Gambling services' free movement, however, has long been obstructed by municipal gambling restrictions. One such restriction in place in Sweden authorized the prosecution of two newspaper editors for publishing advertisements of foreign-based online gambling operators. In the course of the editors' appeal from their conviction, the Swedish courts referred questions to the European Court of Justice regarding the compliance of Sweden's domestic restriction with European treaty provisions enshrining the free movement of services. The Court of Justice provided little guidance, however, when it addressed the dispositive question of proportionality; that is, whether Sweden's law went beyond the point needed to affect Sweden's legitimate underlying policy objectives. The court, in its deferent and cursory proportionality analysis, employed a standard ill-equipped to account for the effects national gambling restrictions have on the Common Market in the online age. [ABSTRACT FROM AUTHOR]

The article focuses on the increase trend wherein English courts use European Union (EU) Law. It states that cases brought up by English Courts that use EU law produces recurrent themes which include the purposive interpretation of powers of secondary legislation, tensions between EU and domestic administrative law, and disputes on proportionality and regulatory review. It says that litigation that uses EU law is cause by lack of or exhausted domestic legal redress, it offers much advantageous legal approach, and produced aggregate value.

Traditionally, fundamental human rights have occupied an important place in labor law. The ILO constitution of 1919 focuses, for example, on the right of freedom of association. Subsequent ILO documents stress other fundamental rights such as the right to non-discrimination in the field of labor. The fundamental rights of the worker did begin to get some attention in the EU too, especially in non-binding documents such as the Community Charter of the Rights of the Worker from 1989. Since the entry into force of the Treaty of Lisbon in 2009, the Charter of Fundamental Rights introduced at the summit in Nice is legally binding to the same extent as the EU Treaty itself. The Charter includes fundamental rights in the field of labor law under the heading 'solidarity'. In this article two basic questions will be addressed. The first question will address the 'old' issue of the clash between fundamental (labor) rights and the four economic freedoms of the EU, which are seen by the ECJ as of fundamental nature as well. Since the seminal cases of Viking and Laval, a lot has been written about this theme by both European and labor lawyers. I will not revisit the literature that has been written about these cases, but the more dogmatic issue of a (potential) clash between the four economic freedoms and the fundamental rights is still in need of clarification. The second question is whether the fundamental human rights will get a more important place in the case law of the European Court of Justice now that the Charter of Fundamental Rights is of binding character, or, will there be just a continuation of the already developed relationship between fundamental freedoms and rights or between two different kind of fundamental human rights? I will focus here on case law in the field of labor law. The article will finish with a plea for a proportionality test 'light' in order to limit the interference of EU law with the essence of fundamental rights. [ABSTRACT FROM AUTHOR]

The article discusses the globalization of the principle of proportionality in the use of violent force, quoting the political scientist Fritz Fleiner, who said that the use of force by police must always be proportional to the force used against them. Topics include related decisions by the European Union Court for Human Rights, national laws among European states beginning in the 1990s, and the constitutionalization of the principle. An analysis of the reception of the principle in the legal system of various countries outside Europe is presented, including Canada, South Africa, and Israel.

Examines the relationship between the Member States and the European Community otherwise known as European Union (EU). Elements of the relationship between the Member States and the EU; Importance of the principle of conferral to the relationship between the EU and the Member States; Details of the three forms of differentiation, a feature of the EU order; Information on the subsidiarity and proportionality principle which was inserted into the European Community Treaty by the Treaty of European Union.

Analyzes cases in the European Court of Justice (ECJ) concerning free movement and environmental protection in the context of the principle of proportionality. Review of the principle of proportionality and its relationship to the principle of Community law; Application of the principle of proportionality on trade and environment; Roles and functions of the principle of proportionality; Problems in the application of the principle in the ECJ cases.