GLOSSARY ENTRY (DERIVED FROM QUESTION BELOW) | ||||||
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06:53 Aug 18, 2011 |
Dutch to English translations [PRO] Law/Patents - Law (general) / Doorkruisingsleer/Twee-wegenleer | |||||||
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| Selected response from: FX Fraipont (X) Belgium Local time: 23:41 | ||||||
Grading comment
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Summary of answers provided | ||||
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4 +2 | thwarting doctrine |
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3 | interference/doctrine of unacceptable interference/two-way doctrine |
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thwarting doctrine Explanation: "The question raises if a govemment (administrative authority) which enjoys the power to act on a public law basis, could still make use of its powers under private law. This question cannot be answered in general. In a concrete case several determinants should be taken into account. One should first see whether the public regulation at issue provides for an answer. If this is not the case, the answer should, according to consistent jurisprudence, be found by applying the so-called 'thwart- ing-doctrine' (doorkruisingsleer). The main idea in this doctrine is that the use of private law powers by govemments will only be allowed, as long as that use does not thwart an existing public regulation in an unacceptable way. In order to exam- ine whether this is the case, one should, according to the Dutch Supreme Court in the Windmill-case, take into account several aspects, like the content and the purpose of the public regulation (which could also be derived from its history) and the way in which the interests of civilians have been protected by the regulation. All these aspects should be weighed against the background of other written and unwritten rules of public law. Moreover, it has to be examined whether the same result could be reached by using the powers provided for by the public regulation. When this is the case, use of private law powers will probably not be allowed. 28" https://openaccess.leidenuniv.nl/.../Effective_application_E... |
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