scholarly journals Judicial Independence and Perceptions of Judicial Independence

2020 ◽  
pp. 7-28
Author(s):  
Frans van Dijk
Keyword(s):  
General Public ◽  
Judicial Independence ◽  
Case Law ◽  
Institutional Trust ◽  
European Level ◽  
Positive Perception ◽  
National Courts ◽  
Key Concepts ◽  
Theoretical Considerations ◽  
The Eu

AbstractThe three key concepts of this study are: perceived judicial independence, respect for judicial independence and trust in the judiciary. To provide the basis for the empirical chapters that follow, theoretical considerations are explored. Due to the subjective nature of independence, perceptions matter. According to European case law, the appearance of independence needs to be taken into account when the independence of a court is evaluated. The perceptions held by parties, lawyers, media, general public and judges are not homogeneous, and depend on different sets of factors. In the literature, it is widely believed that the judiciary needs a positive perception of independence to gain the trust of society. This trust in turn bolsters the legitimacy of the judiciary. Trust and legitimacy are many-faceted concepts. In this study trust is used in the sense of diffuse institutional trust. Respect for independence is used as an expression of the legitimacy of the judiciary. These concepts apply to the national courts and to the courts at the EU/European level. To understand judicial independence in Europe, both levels need to be examined in conjunction.

Judicial review of Common Foreign and Security Policy by the ECtHR and the (re)negotiation on the accession of the EU to the ECHR

2021 ◽  
pp. 1023263X2198824
Author(s):  
Maria José Rangel de Mesquita
Keyword(s):  
Judicial Review ◽  
Security Policy ◽  
Case Law ◽  
Regional Level ◽  
Judicial Control ◽  
National Courts ◽  
Foreign And Security Policy ◽  
Conclusion Section ◽  
The Relationship ◽  
The Eu

The article addresses the issue of judicial control of the implementation of Common Foreign and Security Policy at international regional level within the framework of the relaunching of the negotiation in view of the accession of the EU to the ECHR. Considering the extent of jurisdiction of the CJEU in respect of Common Foreign and Security Policy field in the light of its case law (sections 1 and 2), it analyses the question of judicial review of Common Foreign and Security Policy within international regional justice by the ECtHR in the light of the ongoing negotiations (section 3), in the perspective of the relationship between non-national courts (section 3.A), having as background the (2013) Draft Agreement of accession (section 3.B.1). After addressing the relaunching of the negotiation procedure (section 3.B.2) and the issue of CFSP control by the ECtHR according to the recent (re)negotiation meetings (section 3.B.3), some concrete proposals, including for the redrafting of the accession agreement, will be put forward (section 3.B.4), as well as a conclusion (section 4).

Judicial review of Common Foreign and Security Policy by the ECtHR and the (re)negotiation on the accession of the EU to the ECHR

2021 ◽  
Vol 28 (3) ◽  
pp. 356-370
Author(s):  
Maria José Rangel de Mesquita
Keyword(s):  
Judicial Review ◽  
Security Policy ◽  
Case Law ◽  
Regional Level ◽  
Judicial Control ◽  
National Courts ◽  
Foreign And Security Policy ◽  
Conclusion Section ◽  
The Relationship ◽  
The Eu

The article addresses the issue of judicial control of the implementation of Common Foreign and Security Policy at international regional level within the framework of the relaunching of the negotiation in view of the accession of the EU to the ECHR. Considering the extent of jurisdiction of the CJEU in respect of Common Foreign and Security Policy field in the light of its case law (sections 1 and 2), it analyses the question of judicial review of Common Foreign and Security Policy within international regional justice by the ECtHR in the light of the ongoing negotiations (section 3), in the perspective of the relationship between non-national courts (section 3.A), having as background the (2013) Draft Agreement of accession (section 3.B.1). After addressing the relaunching of the negotiation procedure (section 3.B.2) and the issue of CFSP control by the ECtHR according to the recent (re)negotiation meetings (section 3.B.3), some concrete proposals, including for the redrafting of the accession agreement, will be put forward (section 3.B.4), as well as a conclusion (section 4).

Article 51 of the EU Charter of Fundamental Rights from the Perspective of the National Judge

2021 ◽  
Vol 13 (4) ◽  
pp. 53-85
Author(s):  
Petr Mádr
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
National Courts ◽  
Track Record ◽  
Court Of Justice ◽  
Relevant Case ◽  
Charter Of Fundamental Rights ◽  
Scope Of Application ◽  
The Eu ◽  
Academic Debate

This article contributes to the growing scholarship on the national application of the EU Charter of Fundamental Rights ('the Charter') by assessing what challenges national courts face when dealing with Article 51 of the Charter, which sets out the Charter's material scope of application. In keeping with this aim, the relevant case law of the Court of Justice of the EU (CJEU) – with its general formulas, abstract guidance and implementation categories – is discussed strictly from the perspective of the national judge. The article then presents the findings of a thorough study of the case law of the Czech Supreme Administrative Court (SAC) and evaluates this Court's track record when assessing the Charter's applicability. National empirical data of that kind can provide valuable input into the CJEU-centred academic debate on the Charter's scope of application.

scholarly journals The Interpretive Function of the CJEU and the Interrelationship of EU and National Levels of Consumer Protection

2017 ◽  
Vol 9 (2) ◽  
pp. E-180-E-215 ◽  
Author(s):  
Geraint Howells ◽  
Gert Straetmans
Keyword(s):  
Consumer Protection ◽  
Case Law ◽  
National Courts ◽  
European Consumer ◽  
Court Of Justice ◽  
Correct Information ◽  
Unfair Commercial Practices Directive ◽  
High Level ◽  
Flexible Application ◽  
The Eu

Abstract This paper analyses the ways in which the Unfair Contract Terms and Unfair Commercial Practices Directives try to steer a path between imposing a common European standard and allowing national variation. The open wording of the norms and safeguard clauses in both directives allows room for their flexible application. The differentiated role between the Court of Justice, as the interpreter of European law, and the national courts, as the party that applies it, provides a release valve to prevent any direct clashes and allows a subtle way for national perspectives to be reflected. The analysis finds that, irrespective of the underlying level of harmonisation, and with the backing of the European legislator’s intention of ensuring a high level of consumer protection, the CJEU is gradually painting the average European consumer with more realistic features. Here, the case law of the CJEU fulfils a bridging function between the labelling requirements in the Foodstuff Regulation, the transparency requirements in the Unfair Contract Terms Directive and the informed decision requirements in the Unfair Commercial Practices Directive. In these three domains the CJEU recognises that the level of customer attention may be suboptimal, even in the presence of comprehensive and correct information. The CJEU’s approach contributes to more convergence in consumer protection throughout the EU. Yet, in terms of legitimacy, it must be noted that in all cases the CJEU has maintained a clear distinction between interpretation and application. The particular constitutional legal order in which the CJEU operates only allows for a process whereby the contours of a more coherent European consumer protection policy are gradually revealed. In the absence of sufficient legislative guidance at the European and national levels, national courts may be increasingly informed by the case law of the CJEU in an effort to establish clearly desirable common expectations. Those who believe that, in practice, uniformity can be achieved overnight by simply adopting a common maximum norm appear over-optimistic.

The Media Agenda: The Marginalization and Domestication of Europe

2003 ◽  
Author(s):  
Katrin Voltmer ◽  
Christiane Eilders
Keyword(s):  
Content Analysis ◽  
European Integration ◽  
General Public ◽  
Public Discourse ◽  
European Level ◽  
National Politics ◽  
Media Agenda ◽  
National Quality ◽  
The Media ◽  
The Eu

This chapter investigates whether the assumption that the media contribute to the communication deficit of the EU is reflected in the empirical pattern of political coverage. In particular, it explores the extent to which German media take a Europeanized perspective on political affairs and whether or not they promote the politics of European integration. The study is based on a content analysis of the editorials of German national quality newspapers covering the period between 1994 and 1998. The findings show that the media under study devote only a very small portion of their attention to European issues, thus marginalizing Europe to an extent that is not warranted by the significance of the European level of governance. If the media do focus on European issues, they predominantly address them in terms of national politics, which is interpreted as a ‘domestication’ of Europe in public discourse. At the same time, the media unanimously support the idea of European integration. This pattern of communicating Europe reflects the élite consensus on European matters in Germany and may have contributed to the alienation of the general public from European politics.

Public Security Derogations to the Free Movement of EU Citizens and Preventive Criminal Law: A Collision between Ever-Expanding Concepts?

2019 ◽  
Vol 27 (4) ◽  
pp. 293-319
Author(s):  
Alejandro Sánchez Frías
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Case Law ◽  
Free Movement ◽  
Public Security ◽  
European Level ◽  
Member States ◽  
Eu Directive ◽  
The Eu

The threat of foreign terrorist fighters has led to the development of preventive criminal law on an international and European level. The EU Directive on combating terrorism can have two impacts on the free movement of EU citizens. It directly calls upon Member States to criminalise the act of travelling, as well as other conduct that may be connected to a terrorist offence. In addition, ecj case law accepts EU criminal law as a basis for public security derogations against free movement. Therefore, the commission of any of the acts criminalised in the EU Directive on combating terrorism could be used as a reason to restrict the exercise of free movement by EU citizens. When Member States begin to adopt these measures, litigation on the balance between preventive criminal justice and free movement of EU citizens will increase.

On the Bright Side (of the eu’s Janus Face)The eu Commission’s Notice on Access to Justice in Environmental Matters

2017 ◽  
Vol 14 (3-4) ◽  
pp. 373-398
Author(s):  
Jan Darpö
Keyword(s):  
Direct Action ◽  
Case Law ◽  
Access To Justice ◽  
National Courts ◽  
Legal Challenges ◽  
Key Issues ◽  
Bright Side ◽  
Short Comment ◽  
The One ◽  
The Eu

In April 2017, the eu Commission published a “Notice on Access to Justice in Environmental Matters”, laying down the views of Brussels on this hot topic. The Notice takes stock of the dynamic development of the cjeu’s case law on the matter and draws cautious conclusions from this jurisprudence. This article is both an introductory and a short comment on the Notice. The main reasoning and conclusions drawn in the document are described, and then a couple of key issues are highlighted and discussed. All in all, evaluation of the Notice is positive, as it represents a rather big step forward compared with previous standpoints from Brussels. In this way, the Notice consolidates the impression that the eu is furnished with a Janus face concerning access to justice in environmental matters. It is very positive and affirming concerning legal challenges to administrative decision-making in national courts on the one hand, but very strict and of a rejecting nature when dealing with direct action to the cjeu on the other.

The Long Walk to Strasbourg: About the Insufficient Judicial Protection in Some Areas of the Common Foreign and Security Policy before the European Union’s Accession to the ECHR

2018 ◽  
Vol 17 (2) ◽  
pp. 393-414
Author(s):  
José M. Cortés-Martín
Keyword(s):  
Human Rights ◽  
Security Policy ◽  
Case Law ◽  
European Convention ◽  
National Courts ◽  
European Court ◽  
Foreign And Security Policy ◽  
Judicial Protection ◽  
Judicial Remedies ◽  
The Eu

Abstract It is likely that the European Court of Justice’s (ECJ) objection in Opinion 2/13 regarding the absence of judicial remedies in certain Common Foreign and Security Policy (CFSP) areas can hardly be accommodated in a future revised Accession Project to the European Convention on Human Rights (ECHR). This is basically due to obstacles to proceeding with reform of the EU Treaties or establishing an ECHR reservation clause. However, as a matter of fact, the exact dimension of this problem seems to be quite relative. First of all, this is because recent ECJ case-law is gradually eroding the Court’s lack of competence, in particular, after Rosneft. Next, this is because, in those cases where there is still an absence of effective judicial protection, national courts – as EU ordinary courts – could fill this gap. Finally, this gap could also be filled by creating accountability mechanisms in the area of human rights within the framework of Common Security and Defence Policy (CSDP) missions.

Saving Judicial Independence: A Threat to the Preliminary Ruling Mechanism?

2021 ◽  
pp. 1-27
Author(s):  
Charlotte Reyns
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Judicial Independence ◽  
Case Law ◽  
Preliminary Ruling ◽  
The European Union ◽  
The Rule Of Law ◽  
Court Of Justice ◽  
The Eu

Admissibility of questions for preliminary ruling – Independence of courts and tribunals in the case law of the Court of Justice of the European Union as Dorsch Consult criterion under Article 267 TFEU – Independence of courts and tribunals in the case law of the Court of Justice of the European Union as element of the Rule of Law value under Article 19 TEU – Structural inadmissibility of questions for preliminary ruling as perverse consequence of the attempts to safeguard independence of the EU judiciary

scholarly journals Regressing into the right direction: Non-contractual claims in proceedings between contracting parties under Article 7 of the Brussels Ia Regulation

2021 ◽  
Vol 28 (3) ◽  
pp. 390-398
Author(s):  
Michiel Poesen
Keyword(s):  
Case Law ◽  
Eu Law ◽  
National Courts ◽  
The Right ◽  
The Eu

This case comment addresses the interpretation of ‘matters relating to a contract’ in the EU law of civil jurisdiction, contained in the Brussels Ia Regulation. Recently, this topic received renewed attention in the Wikingerhofv.Booking.com judgment of the CJEU. More particularly, the judgment addressed whether non-contractual claims in proceedings between contracting parties can be characterized as a ‘matter relating to a contract’. This seemingly trivial question has been a recurring source of trouble in the case law of the CJEU as well as national courts. The annotation will side with the approach taken in this judgment, but criticize it for taking a long way round to settling the issue.

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