Note sull'evoluzione del diritto internazionale privato in chiave europea

National sovereignties have been eroded in the last decades. Domestic systems of conflict of laws are no exceptions. While contributing with some remarks on certain evolving processes that are affecting the private international law systems, this paper notes that within the EU \u2013 however fragmentary its legislation in the field of civil justice may be \u2013 the erosion of national competences follows as a matter of course. It then argues that the EU points to setting up a common space in which inter alia fundamental rights and mutual recognition play a major role. Thus, a supranational system of private international law is gradually being forged with the aim to ensure the continuity of legal relationships duly created in a Member State. As a result, domestic systems of private international law are deemed to become complementary in character. Their conceptualization as a kind of inter-local rules, the application of which cannot raise obstacles to the continuity principle, appears logically conceivable

Il telos dell'interpretazione conforme all'acquis dell'Unione

This article focuses on the rule of consistent interpretation, according to which domestic law should be interpreted in coherence with the EU acquis. Thirty years after the first statement of the ECJ in that respect, and arguing from the relevant case-law, the paper aims to reconstruct the structural elements, the legal basis, the limits and the intimate rationale of this systemic rule of jus non scriptum. It advocates that consistent interpretation is not a mere hermeneutical method, but rather an argumentative technique instrumental for ensuring the effectiveness of EU law. In addition, it maintains that, despite some analogies with the general theory of consistent interpretation, the EU rule has a peculiar telos, implying inter alia quite an invasive form of control on domestic law. Since it is a constructive tool based on the application of domestic law, it is not subject to the same constraints imposed on the horizontal direct effect of some EU secondary law provisions

Diritti fondamentali e riconoscimento dello status filii in casi di maternità surrogata: la primazia degli interessi del minore

While focusing on the ECtHR’s case-law on international surrogacy arrangements and namely on the child primary right’s to obtain respect for his private life, the article intends to show how inter-national human rights instruments can affect domestic law and its system of private international law. It argues basically that the Strasbourg Court approach, under Article 8 ECHR, is to be con-ceived as a judicial policy of child first implying a primacy of child’s rights as the ultimate point de repère given that he or she is the most vulnerable. Respect for the right to private life requires that persons should be able to establish details of their identity as individual human beings, which in-cludes filiation and the child’s right to have an identity, as well as a name. Overall, the emphasis lies on the child’s primary need to have his/her status filii recognized with respect to the biological fa-ther. Ultimately, the article advocates that private international law is to be shaped by means of in-terpretation to comply with international human rights obligations

L'appartenenza all'UE della Scozia in caso di secessione dal Regno Unito

1noL'articolo esamina le questioni giuridiche relative alla eventuale secessione di uno Stato membro dell'UnionereservedmixedR. BarattaBaratta, Robert

Rule of Law 'Dialogues' Within the EU: A Legal Assessment

The rule of law is a foundational principle of the EU\u2019s identity. It implies inter alia that member states are required to comply with this principle in their respective national realm. In that regard, the paper argues that respect for the rule of law can be conceptualized as an erga omes partes obligation: its indivisible nature entails that each country owes it to the EU, the other member states, as well as individuals. Yet the EU institutional system reveals some shortcomings as to the oversight on systemic deficiencies of the rule of law at national level, since the Article 7 procedure is not a sound response to systemic threats to the rule of law. In the light of a Council\u2019s invitation, the Commission has proposed a complementary mechanism, which provides for a political oversight aimed essentially at entering into a dialogue with the concerned member state. This paper, while challenging some critical remarks to the Commission\u2019s Communication, advocates that it is consistent with the Treaties. Finally, the paper highlights some positive and negative aspects of the Council\u2019s conclusions aimed at enacting a new political dialogue among all member states within the Council to promote and safeguard the rule of law

Sugli accordi misti: spunti di prassi recente

Lo scritto esamina la prassi recente dell'Unione in materia di conclusione di accordi mist

Diritto e prassi evolutiva dell\u2019Eurogruppo

Protocol No 14 does not reflect in normative terms the relevant role assumed by the Eurogroup in the EU institutional dynamics. It is only through the prism of its rich practice that one can assess that role. Originally conceived as a complementary body with respect to ECOFIN, the Eurogroup has become an instance of evaluation and composition of the specific interests of the Eurozone, its activities having ended up affecting the internal equilibrium of the ECOFIN. Indeed, practice shows that Eurogroup\u2019s positions \u2013 adopted by consensus \u2013 do influence the ECOFIN decision-making since the Eurozone Ministers may vote as a caucus. In a broader perspective, the Eurogroup evolutionary practice appears as a paradigmatic case study to conceptualize the normative role of customs at the institutional level. The paper addresses that practice even in the prospect to examine the limits to creating customary rules within the EU legal order

TREATY INTERPRETATION IN THE EU: ENSURING CONSISTENCY WITH THE BONA FIDE PRINCIPLE AND JUS COGENS

Treaty interpretation in the EU involves not only the observance of principles governing the interpretation of international agreements, but also the observance of substantive rules of international law applicable in the relations between the parties. While compliance with the former rarely presents an issue for the EU Court of Justice, perhaps because of the open-ended character of rules on treaty interpretation, its judicial practice shows the importance of carefully interpreting treaties so as to ensure their full consistency with customary international rules of a peremptory nature, such as the principle of self-determination of peoples. The Western Sahara saga is illustrative in this regard. These issues are addressed by the article