There had been no determination by the authorities as to the existence of breaches giving rise to the obligation to pay the penalty. Ms Wiertz also argued that she had not prevented the access visits provided for in the judgment of 28 March However, the analysis set out in the grounds of that decision differed from the analysis carried out by the court at first instance.
Mr Bohez lodged an appeal before the Korkein oikeus, arguing that the judgment of the Helsingin hovioikeus should be set aside and reiterating the heads of claim put forward at first instance. In those circumstances, by decision of 31 December which was received at the Court Registry on 6 January , the Korkein oikeus decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:. If a periodic penalty payment imposed as a means to ensure compliance with rights of access is enforceable in another Member State without the amount of the penalty payment to be enforced having separately been finally determined:.
Written observations were submitted by the parties in the main proceedings, by the Finnish, Spanish and Lithuanian Governments, and by the European Commission. Mr Bohez, the Finnish Government and the Commission also presented oral arguments at the hearing on 8 January The request for a preliminary ruling from the Korkein oikeus essentially raises two problems connected with the enforcement in one Member State of a judicial decision handed down in another Member State, where that decision imposes a penalty payment whose final amount is set on a cumulative basis for the purpose of ensuring compliance with rights of access ordered by the court of origin.
Against that background, I consider it necessary to examine, at the outset, the ever sensitive question of the classification of penalty payments under Finnish and Belgian law for the purpose of identifying, in the present case, the rules applicable to such measures in the system for the recognition and enforcement of judicial decisions within the European Union.
A — Preliminary observations on the legal nature of penalty payments. First of all, I should point out that the referring court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. Against that background, it must be noted, first, that penalty payments are used in several Member States, 6 including penalty payments to ensure rights of access.
Second, as regards the similarities between these two national laws, the order for reference indicates that penalty payments are ancillary to the principal obligation, they must be authorised by a court 10 and they exert financial pressure on the debtor to ensure that he complies with the judicial decision handed down against him. Indeed, under Finnish and Belgian law, 11 penalty payments are of a coercive nature and become due solely as a result of the failure to comply with the judicial decision.
It is thus this coercive nature that makes penalty payments akin to measures of enforcement. Third, as to the points of divergence, it is apparent from the order for reference that the differences between Finnish law and Belgian law relate above all to the procedure leading to the imposition and enforcement of a penalty payment and to the determination by the beneficiary of the sums owed thereunder.
As regards, in the first place, the procedure leading to the imposition and enforcement of a penalty payment, the differences essentially relate to when the payment becomes due and payable and the detailed rules on quantification.
According to the order for reference, under Belgian law, the penalty payment system, which also applies in cases involving rights of access, excludes all forms of quantification procedure.
Pursuant to that decision, when — after service of the decision — the conditions set out therein are satisfied, the penalty payment becomes payable in full and may be recovered without a fresh judicial decision being necessary, 16 including where the amount of the penalty is to be determined by unit of time, for example per day, or by breach. By contrast, under Finnish law — according to the assertions of the national court and the Finnish Government — the purpose of penalty payments under Paragraph 16 of the TpL is to encourage contact between the child and the applicant in accordance with the decision on rights of access.
The decision ordering payment of the penalty postdates the main decision and requires the applicant to bring fresh proceedings. Under Paragraph 19 2 of the TpL, payment of the penalty may not be ordered if the debtor shows that there was a good reason preventing him from performing the obligation or if the obligation has been performed in the intervening period.
As regards, in the second place, the determination by the beneficiary of the amount owed under the penalty payment, the order for reference states that, under Belgian law, this amount is payable to the creditor, in accordance with Article quater of the Judicial Code, 23 whilst under Finnish law, it is paid to the State. I shall now examine the two problems raised in this request for a preliminary ruling which are mentioned in point 36 above: which regulation applies in the main proceedings and what are the conditions for enforcement of the penalty payment?
With regard to that question, Ms Wiertz, the Governments of the Member States that have taken part in these proceedings and the Commission argue that this regulation does not apply. It is apparent from the order for reference that, as regards the applicable regulation, the doubts expressed by the Korkein oikeus are based on the fact that the obligation in respect of which enforcement is sought, namely payment of a penalty payment, is a monetary claim that relates to rights of access.
In this case, under Article bis of the Judicial Code, the penalty payment at issue in the main proceedings is, as I have explained in point 40 of this Opinion, ancillary to the principal obligation. In this instance, the principal obligation imposed on Ms Wiertz enables Mr Bohez to exercise the rights of access granted to him. In the light of my proposed answer to Question 1, it is not necessary to answer Question 2. In order to answer that question, I shall first consider the legal nature of the penalty payment in the light of the system for the recognition and enforcement of judicial decisions within the European Union.
Second, I shall examine whether a penalty payment such as that at issue in the main proceedings is an integral part of the substance of the judgment on rights of access or whether, on the contrary, it can be taken in isolation as a self-standing obligation. Legal nature of the penalty payment in the light of the system for the recognition and enforcement of judicial decisions within the European Union.
In general terms, as mentioned in point 39 of this Opinion, penalty payments are used in a number of Member States. Their purpose is to ensure the performance of an obligation which, in the main proceedings, consists in compliance with rights of access.
They are therefore of an ancillary nature and are based on the assumption that the prospect of having to pay a significant sum of money should encourage the debtor to perform his obligation voluntarily.
As I have already indicated, this aspect of penalty payments makes them akin to measures of enforcement. The different stages in the application of penalty payments clearly illustrate their complexity and enable their nature to be better understood. Each of these stages, namely the adoption of the principal order imposing the penalty payment, the quantification of the amount actually calculated and the voluntary or compelled enforcement of the penalty, may be subject to different rules and procedures.
This last element — the cross-border context — goes some way to explaining how difficult it is to identify the body of rules that applies to penalty payments in the system for the recognition and enforcement of judicial decisions within the European Union, which is the situation in the main action.
Having regard to the foregoing considerations, the decisive issue is the legal nature of a penalty payment such as that at issue in the main proceedings. The penalty payment as an integral part of the substance of the judgment on rights of access. I shall begin my analysis, if I may, with a question: should the penalty payment at issue in the main proceedings be considered to be an integral part of the substance of the judgement on rights of access or, on the contrary, can it be taken in isolation as a self-standing obligation?
As regards the main proceedings, I am of the view that such a penalty payment is an integral part of the substance of the judgment on rights of access. While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document.
Prior to , state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution; Alexander Hamilton and James Madison, for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution.
Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people.
And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit.
In this decision, the Chief Justice asserted that the Supreme Court's responsibility to overturn unconstitutional legislation was a necessary consequence of its sworn duty to uphold the Constitution. That oath could not be fulfilled any other way. Each branch can check the other to prevent corruption or tyranny. Congress itself is divided into the House of Representatives and the Senate.
The House, elected for two-year terms, is more likely to be swayed by the passions of the people than the Senate, elected to six-year terms.
The Constitution further limits the powers of the government by listing its powers: The government may not exercise any power beyond those listed. In creating the judicial branch of government, the framers gave federal judges lifetime terms, thus ensuring that judges would base their decisions on the law and not on politics.
Do you agree? Which ideas of Aristotle? At the end of their lives, Socrates and Aristotle faced a similar situation. In your opinion, who made the correct decision? In this activity, students will examine and discuss political quotations from Plato and Aristotle. Divide the class into small groups. Assign one of the quotations to each group.
Each group should:. Be prepared to report your answers and reasons for them to the class. If you have extra time, discuss another quotation. The best laws, though sanctioned by every citizen of the state, will be of no avail unless the young are trained by habit and education in the spirit of the constitution.
If the poor. But is it just then that the few and the wealthy should be the rulers? And what if they, in like manner, rob and plunder the people—is this just?
Alumni Volunteers The Boardroom Alumni. Curriculum Materials. Add Event. Main Menu Home. Tyranny and the Rule of Law Plato and Aristotle both developed important ideas about government and politics. Plato c. But such a state will fall apart: The accumulation of gold in the treasury of private individuals is the ruin of timocracy; they invent illegal modes of expenditure; for what do they or their wives care about the law?
An oligarchy, the rule of a few the rich , leads to a city of the rich and a city of the poor, dwelling together, and always plotting against one another. The poor see the rich plotting, and they seek protection: The people have always some champion whom they set over them and nurse into greatness. Plato concluded: Until philosophers are kings, or the kings and princes of this world have the spirit and power of philosophy, and political greatness and wisdom meet in one,.
Aristotle — B. Aristotle made the same argument about oligarchies. The U. For Discussion 1. What is the rule of law? How can it help prevent tyranny? What is a republic? V — Analysis of the question referred for a preliminary ruling. A — Delimitation of the subject-matter of the action. It is not disputed that the fees charged to Recheio by the Registo Nacional de Pessoas Colectivas are a tax contrary to Community law or that the company has a right to bring the actions appropriate under national law.
The Portuguese court has no doubt that that time-limit is in keeping with the principle of equivalence. Thus, the laudable effort made by Recheio in its written observations to show that the time-limit granted by Portuguese procedural law infringes the principle of equivalence is made in vain since, once the national court, after interpreting its legal code, has accepted that the period is applicable to all kinds of actions, the Court of Justice has nothing to say on the matter.
The compatibility of the period in question with Community law must be analysed solely in relation to the principle of effectiveness and, even at this stage, it is necessary to avoid considering the existence of an alternative remedy — the action for a declaration — available for four years, or the fact that, when the ground of the claim is nullity ipso jure, there is no time-limit for bringing it.
B — Consideration of the time-limit of 90 days in the light of the principle of effectiveness. This is the responsibility of the national courts. From the point of view of the principle of effectiveness, the Court of Justice has on rare occasions given a direct ruling on specific limitation or extinction periods, laid down in the legal systems of the Member States, for bringing actions for the repayment of sums paid into public funds in infringement of Community law.
Its allusions are clothed in abstraction. For the Court of Justice, Community law allows reasonable time-limits and a time-limit of three years is reasonable, with no further explanation. It has followed the same approach when considering whether certain time-limits laid down in the laws of the Member States for bringing actions based on Community law are compatible with the principle of effectiveness. The judgment in Bassin et Salson 27 decided that Community law does not preclude provisions of a Member State establishing a mandatory limitation period of three years for the submission of all applications for the repayment of duties unduly levied.
Just once, the Court has endeavoured to express more thoroughly the reasons for its decision: the judgment in Grundig Italiana , in which case I delivered my Opinion on 14 March , ruled that to fix a transitional period of 90 days for the substitution of a limitation period of three years for one of five or ten years was not in keeping with Community law, adding that, in order to observe the principle of effectiveness, that period must be sufficient still to allow taxpayers a reasonable opportunity of asserting their rights to recovery if, because of the introduction of the new rules, they would already be out of time, so that they may prepare their action without haste and without being harried by the obligation to act with urgency disproportionate to the period originally allowed.
The position adopted by the Court has a simple explanation: when time-limits for initiating proceedings are calculated in years, it is obvious that they will permit the effective exercise of the rights recognised by Community law, for which reason no further justification is required.
On the other hand, when the periods are shorter, reckoned in months or days, the assessment of their utility is less clear, and so reasons are called for. However, as I pointed out in the opinion in Grundig Italiana , it is not for the Court of Justice to make that evaluation since, with obvious exceptions, 35 it must be made by the national court.
It is possible that in Grundig Italiana there was enough information for the Court of Justice to venture to make that evaluation, in view of the fact that the limitation period was reduced from five years to three, so that taxpayers whose rights had accrued approximately three years earlier were compelled to act within three months when they thought that almost two years were still available.
The fact is that, as the Court of Justice has itself often acknowledged, the procedure for appealing against taxes unlawfully levied and that for claiming repayment of taxes paid though not due take different forms in the various Member States. The list of determining factors could be extended, by weighing up their difficulty and cost in each State. Against this diversity and other special features which those who move in the area of comparative European law can easily imagine, Community law has to set the protection of the rights it confers on individuals, 40 requiring that national procedural rules applicable to their protection should not be less favourable than those applicable to similar national actions and that in practice it should not be impossible or excessively difficult to exercise such rights.
It does not therefore appear consistent for the judgment in Grundig Italiana , having declared a specific period to be inadequate, to determine the minimum period deemed adequate to ensure the effective exercise of actions based on Community law, assuming duties of the legislature; whether the Community or the Italian legislature is not clear.
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