This screening process has a number of advantages. Moreover, by freeing the Court of Cassation of undeserving cases, it is able to focus on its foremost task which is to draw up case law based on the replies given to legitimate legal issues. The Judge-Rapporteur, to whom every other case is assigned by the presiding judge of their division, is required to carry out an in-depth review of the file and submit their findings in writing.
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After having examined the case, the Judge-Rapporteur is required to prepare a report and a memorandum together with one or more draft judgments. The report includes a statement of the facts and proceedings, an analysis of the pleas, the specific aspects and significance of the point of law, the principal references from pertinent case law and legal theory, an indication as to whether one or more draft judgments have been prepared and a proposal on the composition of the appropriate bench to rule on the case.
The presence of one or more draft judgments is at the sole discretion of the Judge-Rapporteur who may decide that several solutions are possible or at least that they should be submitted for discussion. The file, including the report with the exception of the memorandum and draft judgments which are only intended for the trial judges who are to hear the case , is then transmitted to a deputy prosecutor who is required to issue an opinion.
Approximately one week before the hearing the presiding judge and the senior trial judge of the Division meet to exchange views on the cases to be heard. The purpose of this meeting conference is to ascertain whether certain cases raise specific issues which require particular attention from the Judge-Rapporteur and the bench which has been assigned to hear them.
Otherwise, the bench must be comprised of at least five judges who are entitled to vote. The case is then placed for deliberation. The senior trial judge then addresses the court and is followed in descending order of seniority by each trial judge. The Presiding Judge is the last person to speak. The judgment does not however stipulate how the judges voted.
There is no dissenting opinion. If an appeal is dismissed, the impugned decision becomes irrevocable. A judgment may be quashed in full the impugned decision is set aside and the parties find themselves in the position they were in before the decision was rendered or partially in this particular case, only certain parts of the ruling are overturned. In principle, such a decision only concerns the appellant and the respondent.
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In the vast majority of cases, when a decision is quashed it is then referred back to another court of equal jurisdiction to the one which initially heard the case or back to the same court which is comprised of a different bench. Except in judgments which are rendered by the Full Court, the court to which the case is then referred is not bound to comply with the terms of the ruling of the Court of Cassation.
However, the Court of Cassation may quash a judgment and refuse the right to appeal from its decision if such a judgment does not entail a new ruling on the merits of the case or if the facts, which have been ascertained and assessed at the sole discretion of the lower courts, enable the Court to apply the appropriate rule of law.
The aim here is to expedite proceedings and ensure that one of the principal requirements of a fair trial, in other words the right of a party to be judged within reasonable time, is observed. The Court of Cassation plays a fundamental role in harmonizing case law due to its position at the apex of the hierarchical structure of the courts, to the fact that it is unique and because it is its foremost task.
This specialised court never rules on the facts of a case but is exclusively required to interpret a rule of law whether the said rule is substantive or procedural, or part of old or new legislation. This naturally enhances the importance of its decisions. The way in which the ensuing case law is established, developed and disseminated is explained in further detail below. Due to the very nature of the quashing procedure which compels the Court to ensure that the law has been correctly applied for each impugned decision, the case law is established gradually, in line with the appeals and the pleas put forward.
Case law can only thus develop as and when problems come to light in respect of the pleas submitted. As the Court of Cassation is attentive to the French — and now to the European — society, it is able to state the law by adapting it to the evolutions of the society, be they political, social, economic, international, technical or technological. The range of questions submitted enables the Court to provide a balanced and consistent reply to the majority of potential questions raised concerning the interpretation of the law.
The resulting flexibility leaves ample scope for the Court to give another meaning to the law over time in line with changes in society and the way they are perceived. Furthermore, it allows the Court to fill a legal vacuum in substantive law. Indeed, article 4 of the Civil Code prohibits a court from declining to hear a case on the grounds that the act does not cover a specific aspect of the case, or is ambiguous or inadequate.
The Court of Cassation consequently plays a vital role on this particular point. If the provisions of the act do not cover a specific aspect of a case, the Court of Cassation is able to use two techniques. The first approach is to apply the texts to situations that have not been foreseen by the legislators as in the case for example of the application of texts on misdemeanours, which stem by and large from the Civil Code of , to driving offences.
The second technique is to refer to general principles such as for example the fraus omnia corrumpit [fraud negates everything] rule, the theory of unjust enrichment, that of abnormal neighbourhood disturbances or the principle of the rights of the defence insofar as they do not conflict with a substantive law text. Nevertheless the technique is limited. Sometimes the interpretation of the wording of the act which has become questionable due to various developments cannot be modified. In such circumstances, the Court indicates the consequences which ensue from the wording of the texts in its annual report and suggests legislative amendments.
Developments in case law naturally undergo distinctions from earlier case law, but they may also result in a precedent being overturned. This is quite exceptional. The judges of the Court of Cassation are concerned with laying down a stable case law which serves as a yardstick for the lower courts, the litigants and their counsel.
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Establishing the law is an ongoing process. Moreover the authority of the court is at stake. However, this does not mean that case law should be cast in stone as judgments have repeatedly shown. Logical developments can also result in a complete change in judicial attitude on one point of law or another due to a long internal maturing process which is coupled with input from jurists or resistance from lower courts. It is only in all events after careful consideration that a precedent is overturned as the consequences not only affect the case in question but also have a chain reaction on all cases pending on the same issue.
In other words it has a retroactive effect and thus calls into question the practices which it condemns. It is therefore quite understandable that there is constant concern to strike a subtle balance between the need to adapt the law to changes in society and to have lasting rules of law. The most significant reversals are often decided by the Full Court but they are by no means the only division to do so. However, the practical impact of the case law of the Court of Cassation is only worth if it is brought not only to the attention of judicial and legal circles, but to companies and individuals.
This is why particular attention is paid to the way in which the Documentation and Research Department disseminates the case law. A variety of publication tools is used to cover the diversity of the public involved. The bulletins contain the judgments which are put forward by the divisional presiding judge. The latter, which is sent to all courts and courts of appeal, provides a summary of all the most important decisions or those which are of particular interest to the lower courts.
It includes decisions that have not only been delivered by the Court of Cassation but by other courts too. It reproduces the opinions of the deputy prosecutors and the reports of the trial judges. A selection of writings by jurists or even the minutes of the meetings organised by the Court of Cassation such as for example the meeting of the presidents of the courts of appeal are also published in these bulletins.
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Another tool which has been in use since the 19 th century is the publication of judgments in legal journals. These are accompanied by comments from jurists and, in the case of important decisions, by the aforementioned opinions and reports. This database will be expanded even further to include new pages. The Internet site of the Court of Cassation www. Finally, special mention should be made of the Annual Report of the Court of Cassation.
The Code of Judicial Organisation indeed stipulates that an annual report is submitted to the Minister of Justice on the progress of proceedings and the time required for appeals to be heard. The Commission reports to the chief judicial officers. The Annual Report in particular includes suggestions for legislative or regulatory amendments, comments on the most significant judgments which were delivered during the year and the legal research which was carried out by the members of the Court. The Report is also available online on the site of the Court of Cassation. Reporting directly to the President, the Documentation, Research and Reporting Department is headed by a senior judge who has the same ranking as a divisional presiding judge.
Of course threats must be backed by actions. While Tooze insists on bond write-downs as an arm against the creditors, Mason puts the emphasis on creating a parallel payments system. And in the worst case, if the creditors still refused to accept anything but the existing package, the parallel payments system would become the basis for a new currency, allowing a gradual transition out of the euro instead of a wrenching leap … The greatest strength of the political establishment in Europe—as of political establishments everywhere—is the perception that their rule is an unchangeable fact, that there is no alternative.
The sight of Greece still standing—businesses running, people working and paying bills, public services functioning—after the ECB had done its worst would severely damage this aura of inevitability. Mason also considered that it was fundamental for the Tsipras government to take back control of the Central Bank. I agree with this. What is more, Mason believes that Varoufakis was wrong to refuse to introduce controls on the movements of capital. These bonds dating from were still under Greek jurisdiction.
The interest is determined by the interest rate, which may be high or low. Over 10 years, the total amount repaid will come to The repayment of the capital is not usually made in equal instalments. In the initial years, the repayment concerns mainly the interest, and the proportion of capital repaid increases over the years. In this case, if repayments are stopped, the capital still due is higher… The nominal interest rate is the rate at which the loan is contracted.
The real interest rate is the nominal rate reduced by the rate of inflation. The objective is to pay the pensions of the employees that take part in the scheme. They manage very big amounts of money that are usually invested on the stock markets or financial markets. The Greek government had not only the moral right, but quite simply the right to write-down or repudiate these bonds.
This proposition by Varoufakis was quite correct; the trouble is he never took this action while he was minister. He just folded under the pressure. Varoufakis accepted concession after concession and never made public his disagreements, nor his alternative proposals, until the day after the second capitulation on 13 July Tooze rightly mentions the unfruitful contacts the Tsipras government made with China, Russia and the US and his remarks are largely correct. The old left wing of the party looked to Russia.
In other words, the assets provide information about how the funds collected by the company have been used; and the liabilities, about the origins of those funds. But from Moscow and Beijing, Greece received the same answer: you must come to terms with Germany. The same message came from Washington. Varoufakis leant toward Britain and the US. But when Germany made its position clear, the US pulled back.
As one American official told Varoufakis, Washington would not meddle. Varoufakis had hoped to convince the Chinese government, in March , to purchase Greek Government treasury bills to a value of several billion Euros. The product of which he hoped to use to pay IMF instalments. That would certainly not have benefited the Greek people or helped them retain some measure of sovereignty. Mason and Tooze forget that a solution to the banking crisis much more than just having access to liquidities was essential.
The programme on which Syriza was elected clearly included taking complete control of the banks and creating a development bank. As we have seen, Varoufakis opposed the Syriza programme. It is very surprising that Mason and Tooze say nothing about this. This may be because, once Varoufakis became Finance Minister, Tsipras and Dragasakis, the Deputy Prime Minister, quickly relieved him of his authority over the banks.
It is impossible to apply measures contrary to the Troika wishes and the Memoranda without strong measures concerning the banks. Varoufakis was aware of this and accepted to conform to this attitude. This was a decisive factor in the capitulation. Neither do Mason and Tooze mention the initiative taken to audit the Greek debt that was launched by Zoe Konstantopoulou, the President of the Greek Parliament, with the support, albeit unenthusiastic, of Alexis Tsipras.
This initiative, the likes of which had never before been seen in Europe, was widely supported by the Greek population, but Varoufakis took no part in it. Although he claims to have supported the Truth Committee on Public Debt, in reality he did nothing at all. He did not believe in it, he was convinced that questioning the legality or the legitimacy of the debt would be of no use. Varoufakis shows a serious lack of knowledge of the history of sovereign debt Sovereign debt Government debts or debts guaranteed by the government. Debt repayments should have been suspended as of February to avoid emptying the State coffers to the profit of the IMF.
The IMF was the single public beneficiary of Greek government debt Government debt The total outstanding debt of the State, local authorities, publicly owned companies and organs of social security. The Greek government could very well have divided the creditors by announcing a suspension of IMF payments only. On what does Tooze base his two claims that the majority of the Greek population did not want to risk breaking away, and that Tsipras was right to take this fact into account?
Tsipras had not foreseen that. It must be remembered that the referendum took place in the context of ECB reprisals, entirely cutting off liquidities to Greece, and the Greek banks were closed. Tooze and Mason do not ask what alliances Varoufakis could have forged in order to resist the nefarious direction Tsipras had taken. If Varoufakis had really wanted to make the Greek government unilaterally decide on a write-down on the Greek bonds held by the ECB, create a parallel payments system, suspend debt repayments to the IMF, he should have sought alliances with favourable tendencies within Syriza, the Government and the Parliament.
He was an accomplice to all the concessions. If he had really wanted to take this measure he would have had to pass an Act of Parliament. Varoufakis remained in the cosy little circle around Tsipras. The measures that the Tsipras government should have taken from the beginning and at least from 5 February I maintain, as do others, that a very different orientation from the one adopted by Varoufakis and the small circle around Tsipras should have been taken.
To apply the Thessaloniki Programme, the Tsipras government should have taken the following initiatives and measures:. Such a measure would have immediately improved the situation of 3. This book has the suspense and intrigue of a good novel, rounded off with a good dose of betrayal.
This turnaround was also contrary to the will of the people who had elected the political organization to office on the basis of strong commitments. After the Syriza-Anel government was formed it was more than just the will of the Syriza base that was not respected, it was the will of the Greek people who had brought the Tsipras government to power on the basis of a radical program put forward during the campaign. From the beginning of the negotiations with the European leaders, Tsipras and Varoufakis showed their lack of real determination to end the Memoranda, debt, privatizations and the power of the banks, to increase pensions and wages, among other essential measures.
Varoufakis claims a central role, and he did indeed have significant influence over the policies adopted by the Tsipras-Pappas-Dragasakis trio who used him as a trump card for five months up to the 5 July referendum. After which, they got rid of him by withdrawing his ministerial portfolio, leading him to resign. Varoufakis never publicly mentioned his disagreement while he was Minister. He accepted secret diplomacy. He never called on Greek public support or international solidarity. He never had the courage to resign before 6 July, even though he had his letter of resignation always in his pocket, regularly updated.
Of course, I do not accept the explanations that he gives but his insight is irreplaceable and should be taken seriously. Varoufakis continues to be politically active and preaches a perspective of consensual reform of the European Union and the Eurozone that do not take into account the lessons of Dragasakis was clearly opposed to anything that would go against the interests of the private Greek banks, and was also against the audit of the debt and suspension of repayments.
He was favourable to remaining in the Eurozone. Dragasakis had had ties to bankers for many years. He himself had been a board member of a medium-sized commercial bank. In a way he served as the bridge between Tsipras and the bankers. Syriza was a new group whose political leaders had relatively little involvement in the spheres of the State — unlike the PASOK, for example, whose history is linked to the Republic and management of State affairs. Only 15 per cent of this sum would be required in tax arrears, payable via web banking or debit card.
A History of Franco-German Relations in Europe | SpringerLink
In the passage that follows, due to lack of space, I discuss only the main proposals. Varoufakis, op. Putting this proposal into practice — that is, pooling the public debts of the Eurozone — would have involved a joint decision by the governments of the Zone to ease public finances and abandon austerity policies. We had more evidence of popular support for the Tsipras government when the 5 July referendum was decided at the end of June Both are again subject to approval by the Eurogroup.
See Yanis Varoufakis, chapter 5, p. Lafazanis, N. Chountis, D. Stratoulis, C. Your display name should be at least 2 characters long. At Kobo, we try to ensure that published reviews do not contain rude or profane language, spoilers, or any of our reviewer's personal information. You submitted the following rating and review. We'll publish them on our site once we've reviewed them.
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