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Benjamin Fekonja - BaFin-Verlautbarungen

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Benjamin Fekonja

BaFin-Verlautbarungen

Series: Schriften des Augsburg Center for Global Economic Law and Regulation - Arbeiten zum Internationalen Wirtschaftsrecht und zur Wirtschaftsregulierung

Volume 58 2014

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Practical binding effect S. 167-168

„… . Practical binding effect Im US-amerikanischen Verwaltungsrecht stellen safe harbor rules Vorschriften dar …” „… (practical binding effect), die einer rechtlich verbindlichen safe harbor rule sehr nahe kommt.755 II. Die …”

Die safe harbor-Wirkung von SEC no-action letters S. 168-170

„… auch für Behörde eine rein faktische Selbstbindung (practical binding effect), die einer rechtlich …” „… der Aufsichtsbehörde. Dieser practical binding effect ist jedoch mittlerweile im US-amerikanischen …” „… , wird ihnen über dieses bilaterale Verhältnis hinaus zumindest ein persuasive effect nach der …”

Stichwortverzeichnis S. 305-306

„… Managment and Budget 223 f. 306 Practical binding effect 24 f., 64 f., 176 f. Präsumtive Verbindlichkeit 94 …” „… 207 Konkretisierungsbefugnis 258 ff. Lamfallussy-Verfahren 248 ff. Legal effect test 63 Legislative …”

Behördenverlautbarungen im US-amerikanischen Verwaltungsrecht S. 48-64

„… . Ist diese verbindlich (mandatory), so ist eine bezweckte, faktische Bindung (practical binding effect …” „… binding effect, wenn das Dokument so formuliert ist, dass die Aufsichtssubjekte die Regelung als eine Art …” „… whole or a part of an agency statement of general or particular applicability and future effect designed …”

Zwischenergebnis S. 64-65

„… Ermächtigungsgrundlage und entfalten eine erhebliche faktische Bindungswirkung für Normadressaten (practical binding …” „… effect). Die Befugnis zum Erlass solcher Behördenverlautbarungen beruht auf der verfassungsrechtlich …”

Titelei/Inhaltsverzeichnis S. 2-18

„… BaFin-Verlautbarungen 167 A. US-amerikanische Rechtslage 167 I. Practical binding effect 167 II. Die safe …” „… Rules/Nonlegislative Rules 59 a) Substantial impact test 60 b) Agency’s label test 60 c) Legal effect test 61 d …”

Problemaufriss und Bestimmung des Untersuchungsgegenstandes S. 23-25

„… Bindungswirkung (practical binding effect) zugesprochen, obwohl deren dogmatische Verankerung im Normengefüge »vom …”

Vertrauensschutz bei der Rechtsanwendung S. 171-179

„… nonlegislative rules wird aber eine erhebliche faktische Bindungswirkung (practical binding effect) zugestanden …” „… persuasive effect, sowohl für Gerichte als auch für die SEC selbst.799 Zur Beantwortung dieser Frage soll …”

Darstellung und Analyse der veröffentlichten BaFin-Verlautbarungen S. 65-71

„… eine erhebliche faktische Bindungswirkung für Normadressaten (practical binding effect). Die Befugnis …”

Zusammenfassung S. 273-282

„… US-amerikanischen Verwaltungsrecht lediglich ein practical binding effect zugesprochen. Sie gewähren daher keinen …”

doi.org/10.5771/9783845250540

Yajun Tao - The Guiding Cases of China's Supreme People's Court

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Yajun Tao

The Guiding Cases of China's Supreme People's Court

Series: Studien zu Recht und Rechtskultur Chinas

Volume 10 2023

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Chapter 3: The Binding Effect of Guiding Cases S. 141-212

„… , since only key points of adjudication have a factual binding effect.State of researchResearch on the …” „… cases do not.Research on the factual binding effectRegarding the nature of the factual binding effect …” „… cases published by the SPC, such as typical cases in its Gazette, in terms of binding effect.Basically …”

Chapter 7: Conclusion S. 397-410

„… trustworthy method for strengthening the factual binding effect.Second, another dimension of the SPC's factual …” „… has a factual binding effect.The lengthy and inefficient selection procedure also has a negative …” „… much in common in terms of binding effect, publishing format, and objective of implementing party …”

Titelei/Inhaltsverzeichnis S. 1-14

„… researchIII. 23The ambiguous binding effect as a reason for the low application rate1.24The limited number of …” „… the objectives and contenta. 44Research on the structureb. 47Research on the binding effect of guiding …” „… Combination of guiding cases and similar-case searching3. 134SummaryVII. 137The Binding Effect of Guiding …”

Chapter 1: Introduction S. 15-40

„… , while guiding cases do not.12 Meanwhile, the binding effect of guiding cases is based on SPC documents …” „… respect to their binding effect, guiding cases show a feature of internal supervision of the SPC within …” „… binding effect as a reason for the low application rateTo begin with, the low application rate of guiding …”

Chapter 2: The development of guiding cases in China S. 41-140

„… , outcome of adjudication and the reasoning part.123Research on the binding effect of guiding casesIt is …” „… widely acknowledged that typical cases do not have a binding effect. Some studies indicate that typical …” „… typical cases have a persuasive effect that is nearly identical to a factual binding effect, as typical …”

List of References S. 427-458

„… ), Chen Zengbao (陈增宝), On the Problems of Binding Effect of Guiding Cases (指导性案例的效力问题探讨), Research on Rule …” „… .Li Yougen (李友根), Why Do Guiding Cases Not Have Binding Effect (指导性案例为何没有约束力), Law and Social …” „… (Social Science) (河南大学学报社会科学版), 2017, No. 4, pp. 66-73.Wang Cheng (王成), Research on the Binding Effect of …”

Chapter 6: Application of Guiding Cases in Practice S. 339-396

„… . First, the reason for an implicit application can be attributed to the ambiguous binding effect of …” „… ), Why Do Guiding Cases Not Have Binding Effect (指导性案例为何没有约束力), Law and Social Development (法制与社会发展 …” „… higher courts for reference, guiding cases with an explicitly stated factual binding effect would be …”

Chapter 4: The Procedure of Guiding-Case Selection S. 213-288

„… while the provisions released by the high courts differ in the application and binding effect of …” „… ; Mou Lvye (牟绿叶), On the Effect of Guiding Cases (论指导性案例的效力), Contemporary Law Review (当代法学), 2014, No …” „… Social Science (江苏社会科学), 2011, No. 6, p. 146.922 Li Yougen (李友根), Why Do Guiding Cases Not Have Binding …”

Chapter 5: Substantive criteria for the selection of guiding cases S. 289-338

„… binding effect is also based on an internal supervision as stated in Chapter Three.1328 In this regard …” „… Business and Law (法商研究), 2016, No. 5, p. 100; Li Yougen (李友根), Why Do Guiding Cases Not Have Binding Effect …” „… in divorce litigation or lawsuits involving minors.1291 Positive social effectFirst and foremost …”

doi.org/10.5771/9783748941392

Alfredo Barona - Soft law in practice - assessing technology pools according to American and European antitrust law

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Alfredo Barona

Soft law in practice - assessing technology pools according to American and European antitrust law

Series: Schriften zum geistigen Eigentum und zum Wettbewerbsrecht

Volume 14 2008

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Binding effect of the EC-Technology Transfer-Guidelines S. 21-23

„… importance to undertakings if they unfold binding effect. If guidelines are not binding, the question arises …” „… the Guidelines. A) Regulation basis I. Binding effect of the EC-Technology Transfer-Guidelines 1 …” „… . Directly binding effect Although the EC-Technology Transfer-Guidelines are the only regulations in European …”

Regulation basis S. 34-35

„… binding effect. Part (A) deals briefly with this question. Analyzing if the content of the US Guidelines …” „… US-Licensing-Guidelines unfold neither direct nor indirect binding effect. Courts are in no case bound to guidelines. In …” „… contrary, only courts are authorized to interpret antitrust law with binding effect.128 This is not …”

Titelei/Inhaltsverzeichnis S. 2-10

„… effect of the EC-Technology Transfer-Guidelines 21 1. Directly binding effect 21 2. Indirectly binding …” „… effect 22 3. Lack of binding effect 22 II. Analogous application of the Reg. No. 772/2004 23 III …” „… pools 20 Part 2: Technology pools in European competition law 21 A) Regulation basis 21 I. Binding …”

Critical remark S. 24-25

„… outstanding importance in practice.63 IV. Result Since there is no binding effect of the EC-Technology …” „… . Critical remark The fact that technology pools were not included into an undoubtedly binding European …” „… non-binding guidelines does not give enough consideration to their economic relevance.60 The system of the Reg …”

Legitimacy S. 32-33

„… binding effect as technology pools are only addressed by the Guidelines in European law.114 As far as the …” „… binding set of rules, they foreshadow the Commission’s decision, so that affected individuals are …”

Result S. 25

„… there is no binding effect of the EC-Technology Transfer-Guidelines, and no room for an application by …”

Result S. 40-41

„… not binding in any respects, and the authorization in the CFR is widespread, comprising the …” „… context of effects on innovation. …”

Legality S. 31-32

„… Guidelines emit factually binding effect as technology pools are only addressed by the Guidelines in European …”

Content S. 35-40

„… agreements as unlawful, if the restraint is likely to have anticompetitive effects and, if so, whether the …” „… effects.135 However, an agreement is considered a violation of antitrust law without regard to potential …” „… pro-competitive effects, if it constitutes a ‘per se-restraint’ like naked price-fixing or market divisions.136 B …”

Content S. 25-31

„… there is no binding effect of the EC-Technology Transfer-Guidelines, and no room for an application by …” „… danger of foreclosure and, in addition, other anti-competitive effects on down stream markets.94 In fact …” „… protect know-how.101 Therefore, these pro-competitive effects of non-compete obligations militate rather …”

Summary and Conclusion S. 56

„… guidelines are not binding, undertakings cannot rely on the rules established by the Guidelines. Regarding …” „… systematical coherence, effectiveness and efficiency leads to the finding that the US Guidelines are slightly …”

doi.org/10.5771/9783845205625

Shira Becker-Alon - The Communitarian Dimension of the European Union's Common Foreign and Security Policy

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Shira Becker-Alon

The Communitarian Dimension of the European Union's Common Foreign and Security Policy

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

Volume 83 2011

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Binding effect of Union agreements on the Community S. 200-201

„… personality, it may still be equipped with a treaty-making competence.8742. Binding effect of Union agreements …” „… instructions as to the binding effect of the agreements concluded in accordance with its provisions. Yet …” „… , Article 24(6) of the TEU refers to the “institutions of the Union”. Nevertheless, the binding effect such …”

Binding effect of Common Positions on the Community and its institutions S. 197-198

„… within this policy framework. 2. Binding effect of Common Positions on the Community and its institutions …” „… Chapter IX. 198 Positions conferring legally binding instructions in areas which fall within the scope of …” „… actors duly participate in it.866 What this actually means is that Common Positions may have a binding …”

The binding effect of Joint Actions on the Community and its institutions S. 189-190

„… influential in terms of the CFSP. 2. The binding effect of Joint Actions on the Community and its …” „… 14(4) TEU is not legally binding and predict a possibility that the Commission will ignore the …” „… , the Commission noted that measures taken under Title V TEU are politically and legally binding on the …”

Can the 2006 IIA be considered to be legally binding? S. 142-146

„… 142 5. Can the 2006 IIA be considered to be legally binding? a. Legal nature of IIAs Not having …” „… non-legally binding have not yet been determined and the European Courts’ jurisprudence in this regard has …” „… considered the issue of the IIAs’ legal effects on the interinstitutional relations on a case-bycase basis …”

Treaty-making competence of the EU S. 198-200

„… personality, it may still be equipped with a treaty-making competence.8742. Binding effect of Union agreements …” „… instructions as to the binding effect of the agreements concluded in accordance with its provisions. Yet …” „… , Article 24(6) of the TEU refers to the “institutions of the Union”. Nevertheless, the binding effect such …”

The 2006 IIA between the Parliament, the Council and the Commission on Budgetary Discipline and Sound Financial Management. S. 141-142

„… . 142 5. Can the 2006 IIA be considered to be legally binding? a. Legal nature of IIAs Not having been …” „… they entail. Decisive criteria as to the classification of IIAs as legally or non-legally binding have …” „… of the IIAs’ legal effects on the interinstitutional relations on a case-bycase basis.598 …”

The double function of the Council and its legal implications S. 211-213

„… binding effect of Article 11(2) of the TEU, which requires the Member States to “support the Union’s …” „… Kugelmann 1998, p. 115. See discussion on the binding effect of these articles in Chapter VIII. 927 Cremer …” „… requirement of consistency can be even regarded as binding under Community law.920 Indeed, the adherence to a …”

Economic sanctions in the EU legal framework S. 206-208

„… Article to be considered as an exception to the rule that Union law has no binding effect on the Community …” „… interests. The extent and implications of this binding effect for the inter-pillar relations are examined …” „… give effect to a UN Resolution under Chapter VII of the UN-Charter is contrary to the Community legal …”

The inter-pillar procedure S. 208-211

„… to be considered as an exception to the rule that Union law has no binding effect on the Community …” „… interests. The extent and implications of this binding effect for the inter-pillar relations are examined …” „… requirement of “urgent measures” to be taken by the Council in light of its binding force and its full and …”

Titelei/Inhaltsverzeichnis S. 2-15

„… initiating Joint Actions 1882. The binding effect of Joint Actions on the Community and its institutions 1893 …” „… their reference to Community matters 1952. Binding effect of Common Positions on the Community and its …” „… competence of the EU 1982. Binding effect of Union agreements on the Community 2003. EU agreements: a new …”

Involvement of the Community in initiating Joint Actions S. 187-189

„… influential in terms of the CFSP. 2. The binding effect of Joint Actions on the Community and its …” „… 14(4) TEU)825. When considering the possible legal effects of such a request by the Council, is …” „… 14(4) TEU is not legally binding and predict a possibility that the Commission will ignore the …”

Community law aspects of armament and defence cooperation S. 167-174

„… non-binding political agreement which includes a set of general principles for defence (not security …” „… , that is, they should be interpreted in such a way that their effects do not extend beyond that which is …” „… binding legal framework and the Commission’s experience in public procurement regulation and policy.744738 …”

Jusiciability of Common Positions S. 198

„… 198 Positions conferring legally binding instructions in areas which fall within the scope of …” „… actors duly participate in it.866 What this actually means is that Common Positions may have a binding …” „… effect on the Community under the conditions of the mode d’emploi.3. Jusiciability of Common Positions …”

EU agreements: a new field of dualism in the EU’s external relations S. 201-203

„… whom the binding effect for the institutions of the agreements concluded under Article 24 is not …” „… binding effect on the Community’s institutions. 887 Although a similar provision was suggested in the …” „… legally effective under international law, but rather, it is only of an internal scope. 879 Schmalz (1998 …”

EPC legal nature S. 56-60

„… legally binding international obligation, considering that Title III was formulated as a common …” „… consolidation of the acquis politique, the latter was nevertheless not as clearly articulated and as binding as …” „… more as a (relatively weak) commitment rather than a binding legal obligation. As stated, the …”

Scope of Common Positions and their reference to Community matters S. 194-197

„… or to what extent the reference to Community action in a Common Position may have a binding effect on …” „… also be interpreted as expecting the Commission to act within this policy framework. 2. Binding effect …” „… acknowledging and giving effect to international obligations to which the Member States are committed. They were …”

The legal implications of Article 301 of the TEC for the Commission S. 213-216

„… performance.946In practice, the question of the binding effect that a CFSP Decision on economic sanctions …” „… Resolutions through action by the Community as being binding at the Community level.9293. The legal …” „… , Article 301 is regarded as an exceptional clause in the EC Treaty, one that arguably confers legal effects …”

The 1997 IIA between the Parliament, the Council and the Commission on the financing of the CFSP S. 136-139

„… Article 301 of the TEC, to explicitly convey legal effects of decisions made within the framework of the …” „… indicates that Article 268, paragraph 2 of the TEC does not represent a binding arrangement on this issue …” „… the lack of a binding arrangement regarding CFSP financing, funding for CFSP actions was based mainly …”

Scope of ECJ jurisdiction under the TEU S. 96-103

„… considering the legally binding effects that the provisions under TEU/CFSP produce, it could have been thought …” „… and the intergovernmental Second and Third Pillars are capable of producing binding 364 Judging from …” „… direct effect on the Member States’ national legislation as some of the Community legal instruments have …”

The Court of Justice of the European Union and the justiciability of the CFSP S. 265-268

„… whose effect would, in substance, be to amend the Treaties without following the procedure which they …” „… Nevertheless, the decision adopted in exercising the Union’s competence shall be “binding in its entirety”, and …” „… any decision which specifies those to whom it is addressed “shall be binding only on them” (Article …”

The Treaty of Lisbon: the integration of the pillar structure? S. 246-251

„… any legal effect, but rather, that the ordinary legislative procedure consisting of the joint adoption …” „… considered as binding as a general rule or under certain terms (Article 288 TFEU). The TFEU further provides …” „… that the Member States shall adopt all measures of national law necessary to implement legally binding …”

Summary and conclusions S. 283-298

„… Actions and Common Positions do not have a direct binding effect on the Community and its institutions and …” „… financial sanctions) represents an express exception to the rule that Union law has no binding effect on the …” „… . Different commentators pointed out the potential rivalry 1198 A similar effect can be attributed to the …”

Shared external competences S. 41-46

„… between the Community and the Member States, and as binding (paragraphs 49–50). 98 Opinion 1/94, WTO …” „… ")). When it comes to obligations binding the Member States outside the framework of Community law, the ECJ …” „… is a party, as regards the jurisdiction of the ECJ, and that – in giving effect to the provisions of …”

Justiciability of agreements concluded under Article 24 of the TEU S. 203

„… First Pillar.888. This is all the more true when such an agreement has a binding effect on the …”

The principle of subsidiarity S. 27-28

„… a legal person of public law and to this effect it has the necessary legal capacity to exercise its …” „… requirement that thereby follows is that each binding Decision of the Community and the institutions must find …” „… therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community …”

The principle of conferred powers S. 26-27

„… a legal person of public law and to this effect it has the necessary legal capacity to exercise its …” „… requirement that thereby follows is that each binding Decision of the Community and the institutions must find …” „… therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community …”

The conclusion of Interinstitutional Agreements (IIAs) in the TFEU and their influence on the role of the EP within the CFSP. S. 275-276

„… that the IIAs “may be of a binding nature”. This entails that the scope and influence of this …” „… Agreement have the effect of modifying the institutional balance set out in the Treaties in force, according …” „… would have an effect contrary to the interests of the Council and the prerogatives conferred upon it by …”

Economic sanctions in international law S. 204-206

„… legalizing effect.892This is in contrast to economic sanctions imposed by the EU and the Member States, which …” „… effect to a UN Resolution under Chapter VII of the UN-Charter is contrary to the Community legal order …” „… basis of Article 133 of the TEC while in effect being dissociated from the CCP. The arrangement thereby …”

Scope of the European Courts’ jurisdiction under the Treaties establishing the European Communities S. 95-96

„… Pillars are capable of producing binding 364 Judging from early guiding cases, ECJ jurisdiction over …” „… 1994, p. 251. 369 CFSP decisions do not have any direct effect on the Member States’ national …”

Implementing measures and voting procedure S. 182-183

„… Common Strategies in this specific manner, the European Council attempted to generate a binding effect on …”

Is there a Community obligation to finance the CFSP actions? S. 134-136

„… of the TEC, to explicitly convey legal effects of decisions made within the framework of the Union …” „… indicates that Article 268, paragraph 2 of the TEC does not represent a binding arrangement on this issue …” „… finance the CFSP action due to refusal on the part of the Community would necessarily hinder an effective …”

Evaluation of Common Strategies as a cross-pillar instrument S. 183-187

„… generate a binding effect on the Community policies and institutions, it may bring into question the …” „… only identify the Council as responsible for ensuring the unity, consistency and effectiveness of …” „… effectiveness of the CS is recognized in CS-Mediterranean (Article 26). The EP perceived the purpose of …”

The Commission S. 118-124

„… ). 120 Indeed, the Commission’s right to cooperate in the CFSP entails with it duties and binding …” „… ), the necessary request to the Council to that effect shall be first forwarded to the Commission, which …” „… influence and effectively represent the Community’s interests.517 Hence, request (Cremer, In: Calliess …”

Legal instruments and voting procedures under the CFSP S. 268-270

„… competence shall be “binding in its entirety”, and any decision which specifies those to whom it is addressed …” „… “shall be binding only on them” (Article 288, paragraph 4, TFEU). 1150 Crowe 2008, p. 185. 1151 At the …” „… it comes to legally binding matters, the European Council decides on the composition of Heads of …”

The Treaty of Lisbon S. 46-47

„… , in terms of division of legislating and adopting binding acts. These articles, along with others …” „… delineation in the establishing Treaties, it was the ECJ that effectively set out the principles determining …”

Instruments S. 55-56

„… . International law aspects versus Community law order The SEA represented a legally binding international …” „… impairs their effectiveness as a cohesive force in international relations or within international …”

Article 133 of the TEC S. 219-221

„… non-binding character of the respective CFSP Decision on the Community and its institutions.964 Second …” „… develop an effective control system on the import and export of such diamonds into or out of the Community …”

The Council S. 108-115

„… representation does not entail binding consequences in Community subject areas.433 The role that the Presidency …” „… Commission, consistency (as well as unity and effectiveness of the action by the EU), specifically with …” „… adoption.449 Taking into consideration the COREPER composition and the fact that it effectively determines …”

doi.org/10.5771/9783845231198

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

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

„… [Binding effect of EEA Joint Committee decisions] Decisions taken by the EEA Joint Committee in the cases …” „… binding on the Contracting Parties which shall take the necessary steps to ensure their implementation and …” „… application. Art. 104 states that decisions of the EEA Joint Committee are binding on the Contracting parties …”

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 …”

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

„… [Binding effect of EEA Joint Committee decisions] Decisions taken by the EEA Joint Committee in the cases …” „… 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 …”

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

„… ensures information exchange or binding effects of decisions between the EFTA pillar and the EU pillar …” „… the EFTA States, and with a binding effect only in the EFTA pillar. There are no specific legal basis …” „… instruments enable any similar effects across the EF- TA and EU pillar. ESA decisions do not have a binding …”

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

„… binding, the binding effect is limited to the interpretation of EEA law as such. It is still for the …” „… of EEA rules to the ECJ for a binding preliminary ruling. During the EEA negotiations, the EFTA …” „… that the answers given to the courts and tribunals in the EFTA States were not to be binding.3 …”

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

„… binding effect of certain decisions by the European Food Safety Authority (EFSA), the European Aviation …” „… Protocol 48. The EEA Joint Committee cannot annul the binding inter partes effect of a final judgment from …” „… EU believes to violate Art. 61 EEA. The binding effect of the EFTA Court’s judgment will probably …”

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

„… pursuant to its powers, are binding upon the EU under European law and create legal effects within the …” „… such legal effect.43 Secondary EEA law consists of the binding decisions adopted by the EEA Joint …” „… international instruments binding the EU.55 Direct effect Under public international law international treaties …”

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

„… the effect-related conception of homogeneity inherent in the EFTA Court’s deduction of an unwritten …” „… of the Supreme Courts of the EFTA States.30 The reach of ‘the effect-related branch of the principle …” „… question the general acceptance of the effect-related conception of homogeneity. More recently, the EFTA …”

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 …” „… to recognise the enforceability of such claims; ii) the legal basis for the binding decision/judgment …”

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 …” „… gradually been given more powers to adopt legally binding decisions. Such decision-making powers extend to …” „… such binding decisions should also apply to the EFTA States or economic operators established in the …”

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

„… 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 …” „… than 3. a) 5 Decisions usually take effect upon notification to the addressees, or for decision with no …”

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

„… conscious choice of not transferring any power to enact directly effective binding decisions. Consequently …” „… EFTA States may then join the request for the Commission to examine the case, with the effect that …” „… ) enshrines no formal competence to enact directives or legally binding decisions addressed to the EEA States …”

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

„… trade’ in Art. 18 EEA as being synonymous with ‘measures having equivalent effect’ to quantitative …” „… technical barriers to trade’ in Article 18 EEA can only be understood to the effect that no further …” „… effect, Fredriksen, ‘EEA Main Agreement and Seconadry EU Law Incorporated int the Annexes and Protocols …”

Titelei/Inhaltsverzeichnis

„… XV Binding effect and implementation of EU legal acts ..........Article 7 248 Part II: Free movement …” „… .............................................................. Article 102 803 Requirements for binding Joint Committee decisions ........Article 103 819 Binding effect …” „… to incorporate EEA law with legal effect as integrated parts of Icelandic and Norwegian law. The …”

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

„… non-discrimination stipulated by Art. 4 and the duty of implementation laid down in Art. 7, may have an effect on the …” „… effect and primacy of Community law. The EEA Agreement, on the other hand, was deemed a traditional …” „… homogeneity with regard to procedural rules, where the wording is downplayed.60 55 E.g., to this effect, Case …”

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

„… acts which might nullify the effects of Regulations or Directives before the end of the transposition …” „… much the same effect as if it were directing an action against the EEA Joint Committee. 24 Whilst art …” „… EFTA Court’s Advisory Opinions are not legally binding (although highly authoritative), and there is no …”

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

„… incorporated into the individual employment contracts in order to have a binding effect for the parties in the …” „… setting and for setting the terms and conditions in the labour market, being legally binding both for the …” „… the members of the associations. The collective agreement may also have effects vis-á-vis third …”

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 …”

Per Christiansen Article 46 [Exchange of views and information] S. 497-500

„… non-binding basis. Art. 46* is the sole provision of Chapter 5 on Economic and Monetary Policy Cooperation …” „… under Art. 46 takes place on a non-binding basis. Other parts of the Agreement do however create …” „… obligations for the Contracting Parties. It may be important to exchange views on the effects of these …”

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

„… partakes, to make the decisions that will have binding effect in Norway. This can still be constitutionally …” „… relations. The EEA Agreement is the main mechanism of translating EEA relevant EU law into binding Norwegian …” „… secondary law, has direct effect in the EU Member States, and can be relied upon by all individuals and …”

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

„… effects from the Communities’ agriculture, transport and regional policies were observed in the early 1980 …” „… , could contribute to mitigate the effects of floods. The lack of flood risk management led to the …” „… effects of a kind that creates an obligation for the EFTA states to incorporate the directive in the EEA …”

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

„… , 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 …” „… imports and exports, and measures having equivalent effect Quantitative restrictions on imports and …”

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

„… , exercises binding jurisdiction, applies the rule of law and is independent, and, as the case may be, whether …” „… summary of the arguments of the parties.40 IX. Effect of an advisory opinion Unlike Art. 267 TFEU, which …” „… This difference in wording entails that the Court’s advisory opinions are not binding as such upon the …”

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 …” „… all traders active in the national territory, its actual effect is nonetheless greater on goods …”

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

„… national authorities, with fewer compulsive overarching elements (e.g. non-binding nature of Advisory …” „… now Art. 18(1) TFEU.1 1. 80 Such as e.g. binding the EU Member States where they seek to exercise …” „… 18(2) TFEU in the EU,3 see also Section 2 below. The effect of Art. 4 is thus, in essence, that for …”

Index S. 1125-1141

„… – effectivity I NOR 15 – stability I NOR 15 EESC II 96 1 Effect on trade II 53 29, 61 41 ff., 109 34 Effect …” „… II 126 7 ff. – dynamic II 38 – effect-related II 28 – effect-related conception II 38 …” „… – effect-related understanding II 19 – external II 34 5 – independence of courts II 41 – internal II 34 5 …”

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

„… 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 …” „… proceedings is Art. 31 SCA. Therefore, as long as no adaptation text has been included to the effect of …”

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

„… also be served by the availability of European types of companies. EU-legislation to this effect can be …” „… not binding by their legal nature under Union law: Art. 288(5) TFEU). II. The EU legal acts referred …” „… legal nature, are not binding in EU law (Art. 288(5) 3. 51 Art. 9(1). 52 Recital 6 of Reg. (EC) No …”

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

„… ’ turnover in the relevant markets and the potential effect on trade in the EU. The ECJ has described the EEA …” „… EFTA Court 988 Bjørgan 4 5 6 for most competition cases that have a sufficient cross border effect to …” „… binding obligation for the two surveillance bodies to cooperate closely. This provision serves merely as a …”

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

„… is clear […] that a recommendation, even if it has no binding effect, cannot escape Article 85 (1 …” „… 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 …”

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 …”

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 …” „… making decisions that will be directly binding in Norway, a decision pursuant to Art. 115 of the …” „… EEA Joint Committee to this effect, “underlining that the incorporation of these Regulations and the …”

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 …” „… and individual aid which were put into effect before the entry into force of the EEA Agreement (1 …” „… not constitute aid at the time when they were put into effect, and subsequently became aid due to the …”

Christian Frommelt Liechtenstein and the EEA S. 35-59

„… direct effect in Liechtenstein.32 This means that ‘it is effective as international law on a national …” „… tailor-made arrangements . . . 60 3. Explanations for and effects of tailor-made arrangements …” „… Sweden. The immediate effect of the accession to the EEA was a fast increase in the number of Law …”

Benedikt Pirker Switzerland and the EEA S. 80-101

„… and measures having equivalent effect.14 At the same time, EFTA continues to be relevant. Despite the …” „… as binding for the Swiss legal system and even gives certain supervisory powers to EU institutions.41 …” „… binding interpretation; should a disagreement not be settled in this manner, each party should be allowed …”

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

„… an interesting effect of the Zambrano case law on the interpretation of national law by the Supreme …” „… self-employed capacity. The EFTA Court sustained ESA’s application to the effect that this was in breach of Art …” „… minimum duration of studies for these professions. The EFTA Court dealt with the legal effects of …”

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

„… unfair contractual term such that it does not produce binding effects with regard to the consumer …” „… , procedure and effects of the withdrawal), including detailed rules on a standardised withdrawal form that …” „… the consumer’s rights under the Directive, the contractual term is not binding for the consumer, see …”

Introduction S. 1-13

„… acceptance for, an effect-related conception of the homogeneity objective: Homogeneity is a legal principle …” „… the EU has developed considerably since the signing of the EEA Agreement. As a side-effect, the …” „… (not only a political goal) which applies also to the question of the legal effect of EEA law in the …”

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

„… principle of homogeneity. Thus the Court has developed the doctrine of effect-related homogeneity which …” „… effect-related homogeneity has proven to be a key factor in the development of EEA law as a whole. The …” „… interpret EU law in a way which was binding on the EU Member States.3 Therefore, it was recognised at an …”

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

„… principle of proportionality.9 Even if Groenveld is a ruling that is binding on the EEA Contracting Parties …” „… to justify discriminatory restrictions (see, to that effect, Case C-55/94, 30.11.1995, Gebhard [1995 …” „… certain (tobacco consumptions), but the effects of measures preventing it from turning into risk are not …”

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

„… in practice unlikely in view of the implications of a revision. The latter would in effect extend the …” „… would be incorporated in the Annexes of the Agreement and become binding on the three EEA EFTA States …”

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

„… Wall, the ECJ held that the rules on free movement are only binding to undertakings which fulfil the …” „… basis of nationality because the effect of the direct award was that undertakings located in other …” „… regards their effect.44 Advertising of Contracts In the landmark case of Teleaustria, the ECJ ruled that …”

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

„… non-binding basis. Other parts of the Agreement do however create obligations for the Contracting Parties. It …” „… may be important to exchange views on the effects of these obligations on the development of the …” „… opening up and liberalisation of the transport sector. However, the negative effects of the exception to …”

Thomas Chr. Poulsen Article 42 [Protocols and Annexes as integral part of the SCA] S. 1051-1056

„… contract at issue. Such an order is, however, not legally binding on the EFTA State nor company in question …” „… and investment firms) established in the EFTA States. The powers to adopt binding decisions correspond …” „… (Storting) found, on the presupposition that the drafts are non-binding on ESA,28 that Sec. 115 was …”

Christophe Hillion Article 128 [Accession to the EEA Agreement] S. 961-968

„… , membership in the EU already entails that EEA law, as part of EU law, is binding on any Member States. The …” „… to conclude international agreements, and its ability to be an effective participant in the EEA …” „… EEA, and for the candidate to operate effectively therein. Indeed, the candidate must not only …”

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