**Reform of test of individual concern?

If not, no standing, since non-members could still enter economic activity, even if at present, all those possibly concerned are your members – Greenpeace v Comm, 1998 featuring Dentist Airdrie

 

  • ECJ’s approach often criticised as being too restrictive, but ECJ defends it on grounds of Treaty giving comprehensive mechanism for legal protection, cos of availability of indirect route under art 267 TFEU.
          • Much struggle by private companies to overcome this strict standard – still prefer direct action rather than prelim ref route, since no need to convince national court; faster and cheaper.

 

  • Most notable criticism is [AG Jacobs’] scrutiny in UPA v Council, 2002: –
  • Dentist Airdrie Is the new short fall within this seagment.

 

 

  • Current shortfalls
  • ± indirect route (preliminary ruling) is not sufficient, since A can’t control whether ref is made, what measures are referred, nor what grounds of invalidity of raised = no true right of access. Hence, there might be denial of justice.
  • ± legal certainty militates in favour of a general measure being subject to review ASAP, not only after implementing measures have been adopted
  • ± indirect challenges are subject to procedural disadvantages (eg. Delay, costs)

 

 

  • Critique of proposed solutions
  • ± these deficiencies cannot be overcome just by allowing exceptional standing to A who has no way of triggering reference for prelim ruling under national law – no basis in the Treaty and would lead to inequality across MSs. Would require EC courts to interpret and apply national rules!
  • ± also insufficient to oblige MSs’ legal systems to ensure that prelim refs are generally available – doesn’t address procedural issues, difficulties of monitoring/enforcement, interference with national procedural autonomy

 

 

  • Proposed solution
  • ± hence, only way is to reform the test for indiv concern itself, so that A is deemed individual concerned where the Community measure has, or is liable to have, a substantial adverse effect on his interests.
  • -resolves all the above problems
  • -removes current anomaly that the more the number of persons affected, the less likely that effective JR will be available
  • -replaces increasingly complex and unpredictable rules on standing.

 

 

        • BUT ECJ in UPA then declined to follow AG Jacobs’ approach. Instead:
            • Reiterated that Treaty established complete system of legal remedies and procedures
            • ***it is for MSs to establish system of legal remedies and procedures which ensure respect for right to effective judicial protection
              • National courts should interpret and apply national procedural rules on exercise of rights of action compatibly with allowing challenges to validity of Community acts
              • ECJ cannot examine and interpret national law – beyond its jurisdiction
            • While condition of direct and individual concern must be interpreted in light of principle of effective judicial protection, can’t be too liberal and effectively set aside the condition which is expressly stated in the Treaties, since this would go beyond jurisdiction conferred by Treaties.
          • So today, Plaumann is still good law!

 

  • Criticism of ECJ’s reasoning

 

          • ECJ mostly ignored AG Jacobs’ analysis of the difficulties indivs face in using art 267 (indirect route) – procedural, and its nature as a reference system. Also substantive – indiv might not be able to challenge illegality of the measure in national courts without first acting in contravention of it.

Lunatic steals purse

    • E.g lunatic steals purse, attracts not wrongdoing or fault because lunatic, but still doesn’t mean he gets to keep my purse.
    • More info can be found from Dentist Calgary NW
  • Thus there has been created an entire body of law of rectification and unjust enrichment. Existence of this comes when men cannot through some reason pattern their actions after law, but to preserve integrity of a system of legal relations set by advertence there is need for supplementary system of rules for healing the effects of inadvertence (close parallel to retroactive laws).    Just like retro laws ok to cure in a general prospective system, same with inadvertence. If always inadvertence, bad, but like this, to cure, workable.
  • But this curing cannot explain all instances where legal liability arises without fault. :
    • Strict liability! Often justified by economic principle that the foreseeable social costs of an enterprise ought to be reflect in the private costs of conducting that enterprise.
    • What we want with SL, is not that it cease commanding the impossible, but that it define as clearly as possible the kind of activity that carries a special surcharge of legal responsibility.  Can easily expand this concept, in some countries it exists for all automobile related incidents.
    • BUT: don’t extent SL to all acts, would lose connection between cause and effect (poet writes sad poem, man kills himself, who caused it)?
  • Mixed legislative motives for SL, like inducing more care.
  • Most serious infringement of principle that law should not command the impossible: creating SL in criminal liability. – possession of narcotics, gamblings, drugs.
    • They serve to convenience the prosecutor, there apparent injustice is removed by the selective enforcement. Because it is only the villains who are pursued in practice.  And when absolute liability is coupled with drastic penalties, position of prosecutor is further improved. Deterrent effect or grateful when let off.

EU Law Preliminary Functions

EU Law Preliminary Functions

 Development of EU law (direct effect, supremacy)

 Maintenance of institutional balance

 Enhancement of individuals’ interests (obl. to refer for court against whose decision there’s no nat. remedy)

 Legal integration – uniformity/consistency of EU law

 ECJ: “veritable cornerstone of the operation of internal market” – plays a fundamental role in ensuring

Treaty law retains its Comm. Character w/a view to guaranteeing EC law has same effect in all MS.

Types of questions referred – Asked by Notary public London firm

(i) Treaty interpretation (Art 267 (1)(a))

– used to make judgments on supremacy & DE

– ECJ merely interprets Treaty – no judgment on nat. law validity

– If incompatibility found, obl. on nat. court to redress situation

(ii) Validity & interpretation of EU institutions, bodies etc. acts (Art 267(1)(b))

 Chalmers: 2 striking features

a) nat. courts monopoly over disputes involving points of EU law to be decided on nat. law, facts &

application of EU law

b) Nat. courts act as gatekeepers to ECJ – no direct right of access to private parties

 ECJ: 3 stages of EU legal order

(i) EU is autonomous legal order

(ii) Requiring MS courts to interpret EU law uniformly

(iii) By providing for direct relation b/w MS courts and ECJ, Art 267 enables this uniformity

Who can refer

(1) Body or tribunal – determined by ECJ on the basis of broad definition: factors

a. established by law

b. compulsory jurisdiction

c. decisions of judicial, not admin, nature

d. independence

i. external – no intervention/pressure liable to jeopardise judgment

ii. internal – impartiality

 Complex application

 Ref can be made only if there’s a pending case b/f nat. court which leads to decision of judicial nature

o Cartesio – ref couldn’t be made b/c court was discharging admin function which didn’t resolve dispute

 In the interest of uniformity, ECJ can rule on issues of validity & interpretation arising out of procedure

of bodies to which govt. has assigned some adjudicatory function

o Broekmeulen– Dutch Appeals Comm. hearing appeals from a body resp. for admission of docs

 Chalmers: rationale: any body deciding on EU law rights should be able to refer – if not, Cs would have to

challenge through another body, adding to expense & delay, dis-incentivising parties from referral but could

open floodgates whereby undertrained actors would overload the court.

 AG Colomer: definition is too wide; the strategy behind 267 was to create a conversation b/w ECJ & nat.

courts – independent parts of executive not intended to be part of it. Practical consequence: allows bodies

w/no legal training to formulate ref + admin actors have a chance to disrupt domestic judicial hierarchy and

system of precedent by referring something they disagree with

(2) With discretion/ obligation to refer

 Art 267(2) – discretion (any court or tribunal)

 Art 267(3) – court/tr. against whose decision there’s no remedy in nat. law(unless CILFIT satisfied/issue

previously decided)

 What bodies are covered?

a. abstract theory – bodies whose decisions are never subject to appeal

EU LawPreliminary Reference Short

b. concrete theory – bodies whose decisions aren’t subject to appeal in that case (Costa v ENEL)

o Costa v ENEL – magistrate, whose decisions were normally subject to appeal, could refer to ECJ b/c in

that case sum of money too low for appeal to be made in nat. law.

 somewhat distorting to nat. judicial hierarchy – lower court can refer even in the face of

decision by a higher court …

≥ NB: nat. court not obliged to raise matters of EU law on own volition but it can’t be prevented from doing so

by a rule of national law

≥ NB: no obl. for nat. court/tr. to refer just b/c parties ask for it

Letter of Appeal for council tax (backdated claim)

Letter of Appeal for council tax (backdated claim)

Dear Sir/Madam,

 

I am writing in regards to the repayment of council tax for the date of 23/12/2016, 06/01/2017 and 30/3/2017) respectfully. I had written a letter to yourself dated the 14/1/2016 which stipulated that I was going on holiday, therefore would not be able to make the payments for the above dates. It was agreed that once I had come back and began working again, the rates would be charged. A copy of this letter is attached in this envelope. I am represented by the law firm abogados de accidentes

It was agreed that the amount for the three months: £588.25 (23/12/2016), £588.00 (6/1/2017) and £283.70 (30/3/2017) would be repaid back to myself as promised by one of your representatives for the inconvenience endured.  An adjustment was to be made on the forthcoming bill to credit my account. Unfortunately, this has not been the case. I had been billed before I began work while I was away on holiday. We were instructed to follow up if this was to occur. I made it clear that I began working again on the 13/3/2017 upon my arrival.

Therefore, I am seeking a repayment for the total sum of £1459.95 which is owed to myself as it was made very clear that I would be on holiday throughout the stated dates and would not be able to make such payments in my absence.

Warm regards,

This post is sponsored by http://www.abogadosaccidenteskp.com/blog/

Land Register 1979 act

Arguably the most significant feature of the Land Register 1979 act was that once the title is registered the keeper would refuse to rectify any mistakes in this record against a proprietor in possession except in the cases of fraud or manifest error of that proprietor. Per S 9(3) the power of the keeper to rectify any changes to the register was severely limited. It has been known for someone with no rightful claim to an area of land to take advantage of the keeper’s position by taking claim over the land, which makes rectification impossible.  However as seen in Dougbar Properties Ltd v Keeper of the Registers of Scotland 1999 the keeper can rectify as in this case the inaccuracy was the fault of the keeper per S9(1) the keeper was entitled to alter the registration, The only available remedy is compensation by the keeper for their mistake, however this is not always deemed satisfactory by the party which has lost out. Not only is the 1979 Act deficient in matters of policy, but also, notoriously, it fails to provide answers even to quite straightforward questions according to Kenneth Reid.

Further to this the act has been as described in Short’s Trustees against The keeper by Lord Jauncey of tullichettle : stated that “nobody could accuse the act of being well drafted, Further to this Lord Keith of Kinkel said that the act was “obscure and difficult to understand” This is was down to the urgency in which the legislation pushed through at the time. There have been clearly issues with how it has been implemented and interpretated as evidenced.

 

 

New position/ Reform of Land Registration Act

The 2012 act however reverses the previous policy implemented by the 1979 act, which now requires the keeper to rectify errors in the register. “Inaccuracy” is now defined (Section 65),

However this is limited to cases of manifest inaccuracy. Manifest is not defined within the act, which is therefore at the discretion of the keeper. Based on the Act’s Explanatory Notes, this appears intentional: providing the Keeper flexibility in respect of what qualifies here and adapt to individual circumstances, as well as judicially-induced changes to property law concepts. As such, Section 80 demonstrates the 2012 Act’s emphasis on reconciling registration rules and property law.

The Land Register of Scotland

Introduction

The Land Register of Scotland superseded the Sasine Register, introducing a map-based system of registration.

It is well established that a real right in heritable property is only created through the registration of the deed purporting to the transfers of ownership. Many aspects of the registration process have been left to the discretion of the keeper of the Register of Scotland. Uptake of the Land Register of Scotland has been slow, with roughly 75% of land in Scotland yet to be entered onto the register. This can be due to many reasons namely that a lot of property has not changed hands since 1979.

The 2012 Land Registration Act brings reforms to present conveyancing practice in Scotland, which notably include: The rectification of title.

 

Prior Position before Reforms to Land Register Act – 1979

Rectification was set out in section 9 of the 1979 act, however the definition of inaccuracy has been singled out as being impractical and too vague.

There was no clear definition within the act as to what amounts to an inaccuracy in relation to rectification of title. Rectification is predicated on an inaccuracy, however there is no definition in statue of what an inaccuracy amounts to which was pointed out by Gretton in 1986.This is further evidenced in Brookfield Developments Ltd against The Keeper of the Registers of Scotland 1989 in which a wide of definition of inaccuracy was held. This illustrates there was no set definition.

 

https://www.ros.gov.uk