Оxford_dictionary_of_law 24 page

An organ of the European Union formed in 1967, having both executive and legislative functions. It is composed of 20 Commissioners, who must be nationals of member states and are appointed by member states by mutual agreement (two Commissioners each from the five largest member states - France, Germany, Italy, Spain, and the UK; one each from the remaining members); their appointment must be approved by the *European Parliament. Each Commissioner assumes responsibility for a particular field of activity and oversees the department (Directorate General) devoted to that field (See Appendix II). Once appointed, the Commissioners must act in the interests of the EU; they are not to be regarded as representatives of their countries and must not seek or take instructions from any government or other body. Each Commissioner is appointed for a (renewable) four-year period. The Commission's executive functions include administration of Community funds and ensuring that Community law is enforced (See European court of justice). Its legislative functions consist primarily of submitting proposals for legislation to the *Council of the European Union, in some cases on the orders of the Council and in others on its own initiative (See also European parliament). It also has legislative powers of its own, partly under the Treaty of Rome and partly by virtue of delegation by the Council, but only on a limited range of subjects (See Community legislation).

European Community

EC

(European Community, EC)

An economic and political association of European states that originated as the European Economic Community (EEC). It was created by the *Treaty of Rome in 1957 with the broad object of furthering economic development within the Community by the establishment of a Common Market and the approximation of the economic policies of member states. Its more detailed aims included eliminating customs duties internally and adopting a common customs tariff externally, the following by member states of common policies on agriculture and transport, promoting the free movement of labour and capital between member states, and outlawing within the Community all practices leading to the distortion of competition (See article 81). Two of its institutions, the *European Parliament and the *European Court of Justice, were shared with the *European Coal and Steel Community (established in 1951) and the *European Atomic Energy Community (Euratom; established in 1957); the separate executive and legislative bodies of these three European Communities were merged in 1967 (See European Commission; Council of the European Union).

The *Single European Act 1986, given effect in the UK by the European Communities (Amendment) Act 1986, contains provisions designed to make "concrete progress" towards European unity, including measures to establish a *Single Market for the free movement of goods, services, capital, and persons within the Community: the Single Market came into operation on 1 January 1993. In February 1992 the member states signed the Treaty on European Union (See Maastricht Treaty). This amended the founding treaties of the Communities by establishing a *European Union based upon the three Communities; renamed the EEC the European Community; and introduced new policy areas with the aim of creating closer economic, political, and monetary union between member states. The Treaty came into force on 1 November 1993; it was amended by the *Amsterdam Treaty.

The original members of the EC were Belgium, France, Germany, Italy, Luxembourg, and the Netherlands. The UK, the Republic of Ireland, and Denmark joined in 1972, Greece in 1981, and Spain and Portugal in 1986, and Austria, Sweden, and Finland in 1995 (in 1994 Norway voted by referendum not to join). The changes in UK law necessary as a result of her joining were made by the European Communities Act 1972.

European Community Treaty

See Treaty of Rome.

European company

A proposed type of company to be incorporated under European *Community law rather than under the national law of a member state. European companies would be recognized by all member states and would facilitate mergers between two or more limited companies each incorporated under the national law of a member state.

European Convention on Human Rights

A convention, originally formulated in 1950, aimed at protecting the *human rights of all people in the member states of the Council of Europe. Part 1 of the Convention, together with a number of subsequent protocols, define the freedoms that each signatory state must guarantee to all within its jurisdiction, although states may derogate from the Convention in respect of particular activities (See derogation). The Convention established a Commission on Human Rights and a Court of Human Rights in Strasbourg. The Commission may hear complaints (known as petitions) by one state against another. It may also hear complaints by an individual, group, or nongovernmental organization claiming to be a victim of a breach of the Convention, provided that the state against which the complaint has been made declares that it recognizes the authority of the Commission to receive such petitions. The Commission cannot deal with any complaint, however, unless the applicant has first tried all possible remedies in the national courts (in England he must usually first appeal to the House of Lords). All complaints must be made not later than six months from the date on which the final decision against the applicant was made in the national courts. The Commission will only investigate a complaint if it is judged to fulfil various conditions that make it admissible. If the Commission thinks there has. been a breach of the Convention, it places itself at the disposal of the parties in an attempt to achieve a friendly settlement. If this fails, the Commission sends a report on the case to the Committee of Ministers of the Council of Europe. The case may then be brought before the Court within three months by either the Commission or one of the states concerned (an individual victim cannot take the matter to the Court himself). No case can be brought before the Court, however, unless the state against which the complaint is made has accepted the Court's jurisdiction. The Court then has power to make a final ruling, which is binding on the parties, and in some cases to award compensation. If the matter is not taken to the Court, a decision is made instead by the Committee of Ministers. The Convention has established a considerable body of jurisprudence. As of 2 October 2000 the Convention and its terms were transformed into English law as the *Human Rights Act 1998.

European Convention on State Immunity

An international convention of 1972 setting out when and how member states of the European Community (now the European Union) may sue or be sued (by other states or by individuals). It is in force only in those EU states that have signed up to the convention.

See also immunity.

European Council

A body consisting of the heads of government of the member states of the European Union. It is not a formal organ of the EU (Compare Council of the European Union), but meets three times a year to consider major developments of policy. It inspired, for example, the *European Monetary System.

European Court of Human Rights

See European Convention on Human Rights.

European Court of Justice

Court of Justice of the European Communities

ECJ

(ECJ, European Court of Justice, Court of Justice of the European Communities)

An institution of the European Union that has three primary judicial responsibilities. It interprets the treaties establishing the European Community; it decides upon the validity and the meaning of *Community legislation; and it determines whether any act or omission by the European Commission, the Council of the European Union, or any member state constitutes a breach of *Community law.

The Court sits at Luxembourg. It consists of 15 judges appointed by the member states by mutual agreement and assisted by six Advocates General (*Advocate General). Proceedings before the Court involve written and oral submissions by the parties concerned. Proceedings against the Commission or the Council may be brought by the other of these two bodies, by any member state, or by individual persons; proceedings to challenge the validity of legislative or other action by either Commission or Council are known as proceedings for annulment. Proceedings against a member state may be brought by the Commission, the Council, or any other member state. Appeals from the *Court of First Instance go to the ECJ. The decisions of the Court are binding and there is no appeal against them.

The Court also has power, at the request of a court of any member state, to give a preliminary ruling on any point of Community law on which that court requires clarification.

European Currency Unit

See ecu.

European Economic Area

(EEA)

A free-trade area encompassing the 15 member states of the *European Union and the member states (excluding Switzerland) of the European Free Trade Association (EFTA), i.e. Norway, Iceland, and (from 1 May 1995) Liechtenstein. The EEA Agreement, which contains many provisions similar to the *Treaty of Rome, was signed in 1992 and came into force on 1 January 1994. The EEA has its own institutions, such as the EFTA Court of Justice and the EFTA Surveillance Authority (ESA), and many of the EU *Single Market directives and other legislative measures apply within it, although it does not have a budget.

European Economic Community

See European Community.

European Free Trade Association

(EFTA)

A trade association formed in 1960 between Austria, Denmark, Norway, Portugal, Sweden, Switzerland, and the UK. Finland, Iceland, and Liechtenstein joined later. The UK, Denmark, Portugal, Austria, Finland, and Sweden left on joining the *European Union (or its earlier communities). EFTA is a looser association than the EU, dealing only with trade barners rather than generally coordinating economic policy. EFTA is governed by a council in which each member has one vote; decisions must normally be unanimous and are binding on all member countries. EFTA has bilateral agreements with the EU. All tariffs between EFTA and EU countries were abolished finally in 1984 and a free-trade area now exists between EU and EFTA member states (See European Economic Area).

European Monetary System

(EMS)

A financial system formed in March 1979 to develop closer cooperation in monetary policy among members of the European Community in advance of the liberalization of capital. It included the *Exchange Rate Mechanism (ERM) to stabilize exchange rates between member states as a precursor to *European Monetary Union. Directive 88/361 removed restrictions on the movement of capital between people resident in the member states. Article 102A of the Single European Act 1986 inserted a new Article (now called Article 98) into the Treaty of Rome to refer to the EMS. The UK has been a party to the EMS since Its inception and participated in the ERM from 1990 to 1992.

European Monetary Union

EMU

(European Monetary Union, EMU)

The establishment of a common currency for member states of the European Union. The *Maastricht Treaty specified three stages for achieving EMU, starting with participation in the *Exchange Rate Mechanism. The second stage created the European Monetary Institute, which coordinated the economic and monetary policy of member states. The third stage, achieved by January 1999, locked member states into a fixed exchange rate, activated the *European Central Bank, and introduced the single currency, the euro (divided into 100 cents), for all noncash transactions (national currencies continued in use for cash transactions). In 2002 euro notes and coins came into circulation in those states within the system (i.e. all member states except the UK, Denmark, and Sweden).

European Parliament

An institution of the EU, formerly called the Assembly of the European Communities. Members of the European Parliament (MEPs) are drawn from member states of the EU but group themselves politically rather than nationally. There are 732 seats of which the UK has 77. In the case of the UK, MEPs are elected under the European Assembly Elections Act 1978 for constituencies comprising two or more UK parliamentary constituencies. .

The European Parliament's power and influence derive chiefly from Its power to amend, and subsequently to adopt or reject, the EU's budget. The Parliament is consulted by the *Council of the European Union on legislative proposals put to the Council by the *European Commission; it gives opinions on these after debating . reports from specialist committees, but these opinions are not binding. However, Its powers in the legislative process were extended under the Single European Act 1986 and the Maastricht Treaty by the introduction of the *cooperation, codecision. and *assent procedures. The Parliament may also put questions to the Council and the Commission and, by a motion of censure requiring a special majority, can force the resignation of the whole Commission (but not of individual Commissioners). Under the Maastricht Treaty it can now veto the appointment of a new Commission.

The European Parliament holds its sessions in Strasbourg, but its Secretariat-General is in Luxembourg and its committees meet in Brussels. The elected Parliament serves a term of five years, after which elections are held.

European Telecommunications Standards Institute

ETSI

(European Telecommunications Standards Institute, ETSI)

The organization that sets standards for the telecommunications industry throughout Europe. Established in 1988, it is made up of representatives of the telecommunications industry.

European Union

EU

(European Union, EU)

The 25 nations (Austria, Belgium, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and the UK) that have joined together to form an economic community with common monetary, political, and social aspirations. The EU came into being on 1 November 1993 according to the terms of the *Maastricht Treaty. It comprises the three European Communities (See European Community), extended by the adoption of a common foreign and security policy (CFSP), which requires cooperation between member states in foreign policy and security, and cooperation in justice and home affairs.

European Works Council

EWC

(European Works Council, EWC)

A council, set up by a special negotiating body, consisting of both employee and management representatives established at European level for the purpose of informing and consulting with employees. The requirement to set up such councils originated from the European Works Council Directive. The Directive was implemented by the UK through the Transnational Information and Consultation of Employees Regulations 1999, which came into force in January 2000. The Regulations apply to undertakings or groups with at least 1000 employees across member states and at least 150 employees in each of two or more of those member states. The Regulations set out the procedures for negotiating an EWC agreement, the enforcement mechanisms, provisions on confidentiality, and statutory protections for employees who are members of such a group when asserting their rights or performing duties under the Regulations. Disputes over procedural matters in setting up an EWC are heard by the *Central Arbitration Committee. Complaints of a failure to establish an EWC, or a failure to operate the system properly once set up, are heard by the *Employment Appeal Tribunal. Employment protection disputes with respect to individual employees go to an *employment tribunal.

eurotort

n.

A directly effective rule of European Community law (See Community legislation), breach of which gives the person injured a remedy in British courts in the form of an action in tort.

See also community law.

eviction

n.

The removal of a tenant or any other occupier from occupation. Under the Protection from Eviction Act 1977 the eviction of a *residential occupier, other than by proceedings in the court, is a criminal offence. It is also an offence to harass a residential occupier to try to persuade him to leave (See harassment of occupier). Note that it has recently been confirmed that if it is possible for a mortgagee to recover possession peaceably, no court order is necessary. Many tenants have statutory protection and the landlord must prove to a court that he has appropriate grounds for possession. Under the Housing Act 1988 a tenant may claim damages for unlawful eviction.

See also agricultural holding; assured shorthold tenancy; assured tenancy; business tenancy; long tenancy; protected tenancy; secure tenancy; restricted contract; trespass.

The Protection from Harassment Act 1997 allows the court to impose a restraining order against a tenant who is harassing a neighbour, which might require the harasser to be evicted (See nuisance neighbours).

evidence

n.

That which tends to prove the existence or nonexistence of some fact. It may consist of *testimony, *documentary evidence, *real evidence, and, when admissible, *hearsay evidence. The law of evidence comprises all the rules governing the presentation of facts and proof in proceedings before a court, including in particular the rules governing the *admissibility of evidence and the *exclusionary rules.

See also circumstantial evidence; conclusive evidence; direct evidence; extrinsic evidence; primary evidence; secondary evidence; video evidence.

evidenced in writing

See unenforceable contract.

evidence in rebuttal

Evidence offered to counteract (rebut) other evidence in a case. There are some restrictions on the admissibility of evidence in rebuttal, for example if it relates to a collateral question, such as the *credit of a witness.

evidence obtained illegally

Evidence obtained by some means contrary to law. At common law, if evidence was obtained illegally (e.g. as a result of a search of premises without a search warrant), it was not inadmissible but the court might exclude it as a matter of discretion. The Police and Criminal Evidence Act 1984 provides that the court may refuse to allow evidence on which the prosecution proposes to rely if the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The *Human Rights Act 1998 and the cases now being decided under its provisions have left the previous law in some doubt.

See also confession.

evidence of character

See character.

evidence of disposition

See disposition.

evidence of identity

That which tends to prove the identity of a person. A person's identity may be proved by *direct evidence (even though it may involve an expression of *opinion) or by *circumstantial evidence. Secondary evidence (*secondary evidence) of an out-of-court identification by a witness (e.g. that he picked the accused out of an identification parade) may also be given to confirm the witness's testimony. In criminal cases, if the evidence of identity is wholly or mainly based on visual identification the jury must be specially warned of the danger of accepting the evidence; any *corroboration must be pointed out to them by the judge. In criminal cases this issue must be dealt with under the detailed provisions of the appropriate Code of Practice under the Police and Criminal Evidence Act 1984. Failure to follow this procedure and its accompanying safeguards will render the evidence of identity inadmissible.

See also DNA fingerprinting.

evidence of opinion

See opinion evidence.

evidence of user

Evidence of the manner in which the parties to a contract have acted. In a limited number of circumstances, evidence of user is admissible to assist the court in resolving a dispute between the parties as to their precise obligations. It may, for example, help to clarify an ambiguity in the wording of the contract or an allegation that written terms have been varied by oral agreement.

ex aequo et bono

(Latin)

As a result of fair dealing and good conscience, i.e. on the basis of *equity. The phrase refers to the way in which an international tribunal can base its decision not upon conventional law but on what is just and fair to the parties before it. Article 38(2) of the Statute of the International Court of Justice specifically authorizes settlement of disputes based upon ex aequo et bono should both parties give their consent, although the Court has not yet given any judgment on this basis.

examination

n.

The questioning of a witness on oath or affirmation. In court, a witness is subject to *examination-in-chief, *cross-examination, and *re-examination. In some circumstances a witness may be examined prior to the court hearing (See commission).

examination-in-chief

direct examination

(examination-in-chief, direct examination)

The questioning of a witness by the party who called him to give evidence. Leading questions (*leading question) may not be asked, except on matters that are introductory to the witness's evidence or are not in dispute or (with permission of the judge) when the witness is *hostile. The purpose of examination-in-chief is to elicit facts favourable to the case of the party conducting the examination. It is followed by a *cross-examination by the opposing party.

examined copy

See abstract of title.

examining justices

Justices of the peace sitting upon a preliminary inquiry into whether or not there is sufficient evidence to commit an accused person from the magistrates' court to the Crown Court for trial on indictment.

excepted perils

Risks expressly excluded from the cover given by an insurance policy.

exchange of contracts

The point at which a purchaser of land exchanges a copy of the sale contract signed by him for an identical copy signed by the vendor. At that point the contract becomes legally binding on both parties and the purchaser acquires an *equitable interest in the land.

exchange of medical reports

The exchange of medical reports in personal injury actions in the hope that they can be agreed before the hearing of the case, thus saving time and expense. The exchange of reports that are intended to be relied on at the hearing is compulsory, unless the court's permission not to disclose is obtained. The court also has power to order disclosure of medical reports by persons not party to the proceedings, such as a hospital authority.

Exchange Rate Mechanism

(ERM)

A component of the *European Monetary System under which the central banks of participating countries could not allow their currencies to fluctuate more than a certain percentage above (the ceiling rate) or below (minimum rate) a central rate, which was set in *ECUs. The system was intended as a precursor to full *European Monetary Union (EMU). The ERM linked currencies with the aim of ensuring their stability. From 1999, states wishing to participate join ERM II, which is based on the euro and supervised by the *European Central Bank.

Exchequer

n.

The department within Government that receives and controls the national revenue.

See chancellor of the exchequer; Court of Exchequer.

excise duty

A charge or toll payable on certain goods produced and consumed within the UK. Payments for licences, e.g. for the sale of spirits, are also classed as excise duty.

Compare customs duty.

exclusion and restriction of contractual liability

See exemption clause.

exclusion and restriction of negligence liability

The Unfair Contract Terms Act 1977 provides that a person cannot exclude or restrict his *business liability for death or injury resulting from negligence. Nor can he exclude or restrict his liability for other loss or damage arising from negligence, unless any contract term or notice by which he seeks to do so satisfies the requirement of reasonableness (as defined in detail in the Act). For the purposes of this provision, negligence means the breach of any contractual or common-law duty to take reasonable care or exercise reasonable skill or of the *common duty of care imposed by the Occupiers' Liability Acts 1957 and 1984. There are similar provisions in relation to consumer contracts in the Unfair Terms in Consumer Contracts Regulations 1999.

exclusionary rules

Rules in the law of evidence prohibiting the proof of certain facts or the proof of facts in particular ways. Although all irrelevant evidence must be excluded, the rules are usually restricted to relevant evidence, e.g. the rule against *hearsay evidence. Exclusionary rules may be justified in various ways; for example, by the desirability of excluding material that is of little evidentiary weight or may be unfairly prejudicial to an accused person.

exclusion order

An order of the Secretary of State under the Prevention of Terrorism (Temporary Provisions) Act 1989 (now repealed) excluding a named person from Great Britain, Northern Ireland, or the UK in order to prevent terrorist acts aimed at influencing policy or opinion concerning Northern Ireland.

See also terrorism.

exclusion requirement

A requirement in an *emergency protection order or an interim care order that a person who is suspected of having abused a child is excluded from the child's home. A *power of arrest may be attached to the order.

exclusive economic zone

(EEZ)

A zone defined by Articles 55-75 of the UN Convention on the Law of the Sea as comprising that area of sea adjacent to a coastal state not exceeding 200 miles from the *baseline of the territorial sea. The state shall have sovereign rights over the zone for the purpose of exploring and exploiting, conserving, and managing the living and nonliving resources of the sea, seabed, and subsoil within it.

See also high seas; law of the sea; territorial waters.

exclusive jurisdiction

1. That part of the jurisdiction of the *Court of Chancery that belonged to the Chancery alone. The jurisdiction ceased after the Judicature Acts 1873-75, but the matters under exclusive jurisdiction (e.g. trusts, administration of estates) are now dealt with in the Chancery Division.

Compare concurrent jurisdiction.

2. A clause in a commercial agreement providing that only the English, Scottish, or other courts will be entitled to determine disputes between the parties. Normally agreements provide that the parties agree to submit to either the exclusive or the nonexclusive jurisdiction of particular courts. If no such clause is included, international conventions, such as the Brussels and Lugano conventions, determine which courts have jurisdiction. EU regulation 44/2001 contains provisions in this area applicable from January 2001. In particular, customers are given a right to bring proceedings in their home state.

excusable homicide

The killing of a human being that results in no criminal liability, either because it took place in lawful *self-defence or by misadventure (an accident not involving gross negligence).

ex debito justitiae

(Latin)

As a matter of right. The phrase is applied to remedies that the court is bound to give when they are claimed, as distinct from those that it has discretion to grant.

executed

adj.

Completed. A contract that has been carried out by both parties is said to have been executed, and *consideration that has been actually given for a contract is described as executed consideration.

See also executed trust.

Compare executory.

executed trust

(completely constituted trust, perfect trust)

A trust that is complete and enforceable by the beneficiaries without further acts by the settlor.

Compare executory trust.

execution

n.

1. The process of carrying out a sentence of death imposed by a court.

See also capital punishment.

2. The enforcement of the rights of a judgment creditor (See also enforcement of judgment). The term is often used to mean the recovery of a debt only, especially by seizure of goods belonging to the debtor under a writ of *fieri facias or a warrant of execution. In the case of property not subject to ordinary forms of execution, e.g. an interest under a trust, judgment is enforced by means of *equitable execution.

3. The completion of the formalities necessary for a written document to become legally valid. In the case of a *deed, for example, this comprises the signing and delivery of the document.

See also execution of will.

execution of will

The process by which a testator's will is made legally valid. Under the Wills Act 1837 the will must be signed at the end by the testator or by someone authorized by him, and the signature must be made or acknowledged (See acknowledgment) by the testator in the presence of at least two witnesses, present at the same time, who must themselves sign the will or acknowledge their signatures in the testator's presence. A will witnessed by a beneficiary or the beneficiary's spouse is not void, but the gift to that beneficiary or spouse is void.

Date: 2015-01-29; view: 1229