Public Interest in Law

This book analyses in a comprehensive manner the phenomenon of ‘public interest’ in different areas of law, both public and private. The contributions focus on the definition of public interest and the distinction between public and private interest. Further, they define the relevant ‘public’ and investigate the weight of public interest in case of conflict with other considerations and the legal consequences of its breach.
Editor(s):
Lubos Tichy, Michael Potacs
book | published | 1st edition
January 2021 | xxvi + 380 pp.

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€89.-

ISBN 9781780689708


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ISBN 9781839701337

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Details

This book analyses in a comprehensive manner the phenomenon of ‘public interest’ in different areas of law, both public and private. The term ’public interest’ can be found in a wide range of legislation and it is used extensively in judicial practice and public administration. Yet, it has received surprisingly little attention in academia. As a result, it is used for various, often contradictory purposes. Justifications for its application are rarely convincing and the concept is often confused with similar legal institutions such as state interest, societal interest and public welfare, which, however, serve quite different purposes. Further to the relevant ‘public’ being defined, the weight of public interest in case of conflict with other considerations will be examined and the legal consequences of its breach (e.g. nullity, damages and penalties) considered.

The book’s objectives are therefore manifold. First and foremost, it aims to provide a definition of the notion of public interest and to determine its main attributes, particularly against the background of the notion of private interest. In order to achieve this, the concept’s philosophical underpinnings will be outlined, as will its historical developments and its application in different times and socio-economic conditions. Consequently, the book will assist in applying the concept of public interest with a clear understanding of its substance, normative function and its relationship to other relevant legal institutions. The book focuses on the concept’s application across the spectrum of legal disciplines ranging from constitutional and administrative law to corporate and insolvency law, from criminal law to environmental law, and from competition law to labour law. In order to provide concrete examples of legislative and judicial practice, the book analyses three jurisdictions in particular – Austria, the Czech Republic and the European Union.

This book is not only an important addition to legal scholarship but, importantly, contributes to the improvement of decision-making processes at all levels of government. It will be of interest to scholars, practicing lawyers, judges and officials in public administration alike.

________

LUBOŠ TICHÝ is Professor for European Union and Private Law at Charles University Prague, the Czech Republic, and Director of the Centre of Comparative Law at the university’s Faculty of Law.

MICHAEL POTACS is Professor for Constitutional and Administrative Law at the University of Vienna, Austria.

Table of Contents

Table of Contents and Preliminary Pages (p. 0)

Lubos Tichy, Michael Potacs

PART I. FOUNDATIONS

The Concept of Public Interest (p. 1)

Public Interest and its Importance in Law (p. 25)

Public Interests in Legal Interpretation (p. 45)

The Theoretical Basis of the Relationship between Fundamental Rights and Public Interests (p. 59)

Three Problematic Assumptions about Public Interests in Law (p. 75)

PART II. EU LAW

Fiscal Interests and Fundamental Freedoms (p. 93)

National Public Interest Grounds Justifying Gold-Plating of EU Law (p. 109)

Public Interests and the Migration of Third-Country Nationals (p. 125)

Public Interest as a Potential Limit to Freedom of Movement and Residence of EU Citizens (p. 139)

The Public Interest in Private Enforcement of Competition Law via Damages Claims (p. 159)

PART III. PRIVATE LAW

Public Interest in Private Law - Some Thoughts from a Civil Law Perspective (p. 179)

Public Interest and Corporate Law (p. 205)

Public Interest and Strict Liability for Abnormally Dangerous Activities (p. 227)

Public Interest in Insolvency Law (p. 247)

Consumer Protection and Public Interest (p. 271)

PART IV. SELECTED AREAS OF LAW

Public Interests in Austrian Criminal Procedure Law (p. 291)

Public Interest before the ECtHR: Protection of Cultural Heritage and the Right to Property (p. 311)

Nature Protection as a Public Interest (p. 329)

Public Interest, Public Health, and the 2020 Covid-19 Pandemic (p. 347)