ECJ cases

NoQuarter

Is there any way of searching for a case from the European Court of Justice if your lookin for a specific topic, eg case law on exemption clauses??

johnnyskeleton

http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-in-en

Exemption clauses and Human Rights, care to explain yourself?

EdgarAllenPoo

He's doing an assignment and is too lazy (hey I can't poke fun, just stating to facts) to look the stuff up himself.

johnnyskeleton

I usually associate exemption clauses with contract law - specifically commercial contracts.

I know there are property rights etc, but what's the HR angle? Has there been some recent case that went to the ECHR?

EdgarAllenPoo

I can't figure that one out myself. Maybe Stew knows something we don't. Come on now Stew share with the class. Tisn't nice to be all selfish.

johnnyskeleton

GDM wrote: »

I can't figure that one out myself. Maybe Stew knows something we don't. Come on now Stew share with the class. Tisn't nice to be all selfish.

I'm guessing he meant the ECJ rather than the ECHR, but in true law student style I'm looking forward to seeing him wriggle out of this one.

NoQuarter

pardon me, I seem to have developed an extra chromosome overnight,



on a completely different note, were all mods now!!!






[*/end subject change]

walrusgumble

when you say "exemption clauses" do you mean the ones that, as stated above, are known in areas such as contract / commerical law

or

"exemption clauses" in the sense of stated exeptions found in certain articles which guarantee rights eg

art 8 (1) as you know guarantee the right to respect for family and private life.....

whilst article 8 (2) provides derrogations of that guarantee for reasons of eg public security

compare that to say article 3 (prohibition on torture.....) where there is no derrogation???



even if the clause is within the meaning of contract/commercial such clauses still must have regard for the echr.


CASE OF FOLGERØ AND OTHERS v. NORWAY 15472/02 June 07 dealt with article 9 (and article 2 of protocol) whereby the parties were Humanist and challenge to a refusals by the domestic authorities to grant their children full exemption from a compulsory subject in Christianity, Religion and Philosophy (the “KRL-subject” taught during the ten-year compulsory schooling in Norway (state church and state school) - compulsory school act - violation

CASE OF BOTTA v. ITALY 1998 concerned a Mr Botta, who was born in 1939 and is physically disabled.in 1990 he went on holiday to the seaside resort with a friend, who is also physically disabled. There he discovered that the bathing establishments were not equipped with the facilities needed to enable disabled people to gain access to the beach and the sea (particularly special access ramps and specially equipped lavatories and washrooms), supposedly in breach of Italian legislation, which required a clause obliging private beaches to facilitate the access of disabled people to be added to the relevant concession contracts and made provision for compliance to be enforced by the competent local authorities. According to District Council, the compulsory clause was, however, only added to concession contracts signed after the adoption of the provisions concerned.
The applicant asserts that he was for a time able to gain access in his vehicle to certain public beaches without facilities, but was later prevented from doing so because a barrier had been erected across the entrance by order of the Ravenna harbour-master. in 1991 the applicant sent a letter to the mayor asking him to take the necessary measures to remedy the shortcomings noted the previous year. No reply was received. later in 1991 Mr Botta returned to the resort where he found that none of the measures requested had been implemented, although they were mandatory by law. He was therefore obliged to ask the local coastal authority for permission to drive his vehicle onto a public beach without facilities. He also wrote to various local bodies, receiving the following replies: the president of the cooperative which ran the resort’s private beaches informed him that the concession contracts did not stipulate any obligation to install the facilities requested; the local coastal authority replied that it had to receive an official request before it could authorise the construction of special access ramps on the beaches; the mayor asserted that it was the private beaches’ responsibility to install the facilities in question, but nevertheless gave the applicant permission to drive onto a public beach in his vehicle.the coastal authority gave him permission to drive onto a public beach without facilities in his vehicle for a limited period. the applicant decided to lodge a complaint with the carabinieri against the Minister for Merchant Shipping, the Ravenna harbour-master and the mayor. He alleged that, by failing to take any steps whatsoever to oblige the private beaches to install the facilities for disabled people prescribed by law on pain of cancellation of their licences, these authorities had committed the offence of omitting to perform an official duty (omissione d’atti d’ufficio), as defined in Article 328 of the Criminal Code. long story short he went to europe he relied on art 8 - lost - see the echr web

keep eye out with cases involving employment contracts and such clauses and cases relating to arbitration. although maybe not relevant per se there is a lot of article 6 cases that dealt with exclusion clauses in domestic courts, but i doubt thats helpful here

an english case of Commonwealth Secretariat in Sumukan Limited v Commonwealth Secretariat [2007] in the Court of Appeal.Sumukan appealed against a decision that a term had been incorporated into a contract between Sumukan Limited and the Commonwealth Secretariat, excluding the right to appeal to the Court against an arbitration award. Sumukan argued that the incorporation of such an exclusion clause was contrary to Article 6 - the right to a fair hearing.

The Court of Appeal held:

that the exclusion agreement was incorporated and that Sumukan Limited was bound by it and it would not involve an infringement of Article 6 rights . the impact of Article 6 did not render the clause excluding a right of appeal onerous or unusual ,the Article 6 rights waived were of a limited nature ,it was common in a commercial context, when arbitration was agreed, to agree to limit the right of appeal.

that case showed that a challenge exclusion clauses in arbitration agreements pursuant to the ECHR, may not succeed

NoQuarter

thanks walrus,

to try clarify, i was looking for a higher authority than the irish courts when it comes to cases involving exemption clauses in the contract sense!

dermot_sheehan

king-stew wrote: »

thanks walrus,

to try clarify, i was looking for a higher authority than the irish courts when it comes to cases involving exemption clauses in the contract sense!

There is ECJ case law out there as the irish unfair terms in contracts regulations is based on an EU directive. Try http://curia.eu

dK1NG

johnnyskeleton wrote: »

http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-in-en

Exemption clauses and Human Rights, care to explain yourself?

OT: Any idea how the ECtHR (if they have even done so) have approached the issue of belief evidence? Eg, OASA 1972 re membership of an unlawful organisation; POCA re proceeds of crime; also relevant re belief evidence under the ASBO procedure.

I havent had much joy with their portal so far.

walrusgumble

dK1NG wrote: »

OT: Any idea how the ECtHR (if they have even done so) have approached the issue of belief evidence? Eg, OASA 1972 re membership of an unlawful organisation; POCA re proceeds of crime; also relevant re belief evidence under the ASBO procedure.

I havent had much joy with their portal so far.

i am second guessing here, but with evidence, wouldn't there need to be a genuine and reasonable belief, and its proportionate (or in words more appropritate), and say if one was eg held in detention and such belief was wrong, articles 5 and 6 might come into play? as far as cases with unlawful organisation and belief one is a member, it maybe worth reading (i risk looking like an ass here) the echr case of murrary v uk 1994; heaney & mcguinness v ireland, the irish supree court case of dppv martin kelly, and the echr case of Kostovski v. The Netherlands

or P. S. v. Germany where echr held
"All the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle but they must not infringe the rights of the defence. As a general rule, the accused must be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statement or at a later stage… and

Where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or have examined, whether during the investigation or at the trial, the right of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 …”


as for asbo's the irish penal reform trust are of the opinion that the asbo themselves are inconsistent with the European Convention on Human Rights insofar as they involve the imposition of penal sanctions for the breach of an order made in civil proceedings. ASBO conditions involve a disproportionate interference with personal and private rights, and civil liberties. Articles 5, 8,9, & 11; not to mention the consitution and un convention on children's rights

NoQuarter

is there any legislation, irish or otherwise(preferrably irish) that discusses exemption clauses in contract law and fundemental breaches on contract??

Planxty

dude research and writing class is not worth that much effort.. It's not even a real class. If you hand in any remotely coherent paper you are guaranteed to pass

NoQuarter

Planxty wrote: »

If you hand in any remotely coherent paper you are guaranteed to pass

And if i dont??? haha:(