scholarly journals Defending Union Values in Judicial Proceedings. On How to Turn Article 2 TEU into a Judicially Applicable Provision

2021 ◽  
pp. 237-268
Author(s):  
Luke Dimitrios Spieker
Keyword(s):  
Court Of Justice ◽  
Fundamental Freedoms ◽  
Judicial Proceedings ◽  
Scope Of Application

AbstractThis chapter centres on the question of how to address violations of EU values in judicial proceedings before the Court of Justice. Instead of relying on fundamental freedoms, EU secondary legislation or the Charter, this chapter explores a more promising path—engaging with Article 2 TEU itself. Yet this path rests on a crucial premise: the judicial applicability of the values enshrined in Article 2 TEU. Such a judicial applicability is far from self-evident and needs to be carefully construed. Based on recent jurisprudential developments, this chapter will propose ways to operationalise Article 2 TEU without curtailing its unrestricted scope of application. The judgments of Associação Sindical dos Juízes Portugueses, Minister for Justice and Equality (L.M.) and Commission v. Poland will be at the heart of this contribution.

Turn of the Tide?: The “Golden Share” Judgements of the European Court of Justice and the Liberalization of the European Capital Markets

2002 ◽  
Vol 3 (8) ◽  
Author(s):  
Johannes Adolff
Keyword(s):  
Central Element ◽  
Case Law ◽  
European Court Of Justice ◽  
Freedom Of Establishment ◽  
Community Institutions ◽  
Court Of Justice ◽  
European Court ◽  
Fundamental Freedoms ◽  
Judicial Proceedings ◽  
Treaty Of Rome

There is hardly a set of legal institutions that has more contributed to the creation of the common market than the fundamental freedoms enshrined in the Treaty of Rome. The expanding concepts of freedom of establishment and of free movement of goods, persons, services and capital have, during the thirty years since the European Court of Justice\'s (ECJ) decision in \”Dassonville\”, by far become the Community\'s most effective deregulatory instruments. The driving force behind this development has been the case law of the Court. This case law has, on an initially slim basis in the Treaty, established the fundamental freedoms as the central element of a \“new legal order\” which has direct effect, results in the automatic inapplicability of incompatible national law and which can be invoked by every citizen in national administrative or judicial proceedings. Furthermore, it is enforced not only by Community institutions but also by EU-citizens acting as \“private public attorneys\” when bringing claims under European law against Member States for damages resulting from violations of the Treaty.

scholarly journals Breathing Life into the Union’s Common Values: On the Judicial Application of Article 2 TEU in the EU Value Crisis

2019 ◽  
Vol 20 (8) ◽  
pp. 1182-1213
Author(s):  
Luke Dimitrios Spieker
Keyword(s):  
Rule Of Law ◽  
Member States ◽  
Common Values ◽  
Court Of Justice ◽  
Fundamental Freedoms ◽  
Judicial Proceedings ◽  
Value Crisis ◽  
The Eu

AbstractThe EU faces one of the deepest crises since its formation. A dangerous rule of law backsliding in several Member States undermines the Union’s common values and puts Europe to the test. This raises the question of how to substantially address violations of EU values in judicial proceedings before the Court of Justice. Unfortunately, relying on fundamental freedoms, EU secondary legislation and even the Charter will not help much to resolve this value crisis. This Article takes a different path and calls for engaging with Article 2 TEU itself. Yet this proposal rests on a crucial premise: The judicial applicability of the values enshrined in Article 2 TEU. Based on recent jurisprudential developments, this Article will elaborate a framework for the operationalization of Article 2 TEU values and demonstrate how their judicial applicability can be construed. The judgments of Associação Sindical dos Juízes Portugueses, Minister for Justice and Equality (“L.M.”) and Commission v. Poland will be at the heart of this proposal.

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 Rise and Expressions of Consistency in EU Law: Legal and Strategic Implications for European Integration

2013 ◽  
Vol 15 ◽  
pp. 139-167
Author(s):  
Ester Herlin-Karnell ◽  
Theodore Konstadinides
Keyword(s):  
European Union ◽  
European Integration ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
Treaty Of Lisbon ◽  
Legal Principles ◽  
Division Of Powers ◽  
Court Of Justice ◽  
Scope Of Application

Abstract The principle of consistency has a prominent place in EU law. In the Treaty of Lisbon, it constitutes an umbrella under which a number of legal principles of EU law follow as corollaries. Consistency manifests itself within both horizontal and vertical levels of governance. This chapter will unpack this principle and will focus on the broader implications of consistency for the division of powers in EU law. In doing so, the authors aim to discuss the rise of consistency in EU law and decrypt its various constitutional expressions in order to determine its scope of application. Two notions of consistency are presented: a formal one that appears in the Treaty of Lisbon and a strategic one, prominent in the case law of the Court of Justice of the European Union (CJEU). It is argued that consistency is relevant to both traditional (integrationist) and alternative (differentiated) routes to European integration. The chapter concludes by discussing whether the undefined nature of ‘consistency’ puts it at risk of becoming an empty vessel.

Harmony and Dissonance in Free Movement

2001 ◽  
Vol 4 ◽  
pp. 315-341
Author(s):  
Miguel Poiares Maduro
Keyword(s):  
Free Movement ◽  
Middle Ground ◽  
National Treatment ◽  
Court Of Justice ◽  
European Court ◽  
Scope Of Application ◽  
Free Movement Of Goods ◽  
Free Movement Of Persons ◽  
Movement Rules ◽  
Reversal Of Fortune

There is a generalised perception that the European Court of Justice has adopted different approaches to the different free movement rules included in the Treaties. In particular, the free movement of goods has ‘benefited’, until 1993, from a wider scope of application. Contrary to what has for long constituted the standard approach to the free movement of persons, the free movement of goods was constructed as requiring more than national treatment and non-discrimination in regard to goods from other Member States. Even non-discriminatory restrictions on trade in goods could constitute a violation of Community rules if not justified as necessary and proportional to the pursuit of a legitimate public interest. The freedom to provide services has somewhat occupied a middle ground between the interpretation given to the goods and persons provisions. Following the Court’s decision in Keck & Mithouard in 1993, a reversal of fortune appears to have taken place regarding the Court’s approach to the different free movement provisions, with the free movement of persons and the freedom to provide services now benefiting from a more ‘aggressive’ interpretation in comparison with the free movement of goods.

Between Informal Dialogue and Official Criticism

2019 ◽  
Vol 21 (5) ◽  
pp. 409-420
Author(s):  
Anna Podolska
Keyword(s):  
European Union ◽  
Human Rights ◽  
Mutual Recognition ◽  
Case Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Proceedings

Abstract There are various forms of jurisdictional dialogue. In addition to drawing from the case law of another court or seeking direct assistance of such another court in passing the judgment, we can notice in practice situations when by issuing a verdict the courts are communicating with each other. The rulings of the Bundesverfassungsgericht, the Court of Justice of the European Union, and the European Court of Human Rights regarding the free movement of judgments in the European Union and protection of fundamental rights are the example of such activities. Each of these bodies was interpreting separately the extent to which the mechanisms of recognising and executing the judgments may interfere with the level of protection of fundamental rights. A common conclusion concerns assigning the priority to protection of fundamental rights, while individual bodies were determining differently the standards of such protection. The analysed judgments can be construed as a communication between these bodies. Although no direct discussion takes place between these courts, this is still a form of interaction which affects the development of the case law and understanding of the boundaries of mutual recognition of judgments and protection of human rights within judicial proceedings.

ARTICLE 6(1) OF THE EUROPEAN CONVENTION AND THE CURATIVE POWERS OF JUDICIAL REVIEW

2001 ◽  
Vol 60 (3) ◽  
pp. 441-492
Author(s):  
Christopher Forsyth
Keyword(s):  
Civil Rights ◽  
Judicial Review ◽  
Public Law ◽  
European Convention ◽  
Public Hearing ◽  
Reasonable Time ◽  
Fundamental Freedoms ◽  
Judicial Proceedings ◽  
Administrative Proceedings

The European Convention on Human Rights and Fundamental Freedoms makes no mention of any right to procedural justice in the making of administrative decisions. Any protection for such rights must be found in Article 6(1) which provides that in the determination of their “civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. But Article 6(1) was originally intended to apply to the determination of private law rights only and not to public law matters (see Le Compte, Van Leuven and De Meyere v. Belgium (1981) 4 E.H.R.R. 1, 36 (Sir Vincent Evans, dissenting); Konig v. Germany (1978) 2 E.H.R.R. 170 (Matscher J., dissenting)). The article plainly envisages judicial proceedings, and there are obvious difficulties in applying it straightforwardly to administrative proceedings.

scholarly journals The right to paid annual leave as an EU fundamental social right. Comment on Bauer et al.: Joined Cases C-569/16 and C-570/16 Stadt Wuppertal v. Maria Elisabeth Bauer and Volker Willmeroth v. Martina Broßonn, EU:C:2018:871

2019 ◽  
Vol 26 (3) ◽  
pp. 441-448
Author(s):  
Maria Antonia Panascì
Keyword(s):  
European Union ◽  
Case Note ◽  
Fundamental Rights ◽  
The European Union ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
Scope Of Application ◽  
The Right ◽  
The Relationship ◽  
Horizontal Direct Effect

This case note examines the judgment of Court of Justice of the European Union delivered in Joined Cases C-569/16 and C-570/16 Stadt Wuppertal v. Maria Elisabeth Bauer and Volker Willmeroth v. Martina Broßonn on 6 November 2018. It engages with the noteworthy aspects of the ruling, such as the horizontal direct effect of the Charter of Fundamental Rights of the European Union (the Charter), the relationship between primary and secondary law in the European Union legal order and the scope of application of the Charter.

scholarly journals EU Law and the Discretion of Private National Decision-Makers in Light of the Court's Judgement in Case C-22/18 TopFit and Biffi

2020 ◽  
Vol 3 (2) ◽  
pp. 82-94
Author(s):  
Angelica Ericsson
Keyword(s):  
Decision Makers ◽  
The Other ◽  
Eu Law ◽  
Private Regulation ◽  
Prior Authorisation ◽  
Court Of Justice ◽  
Regulatory Bodies ◽  
Scope Of Application ◽  
The One ◽  
Movement Rules

This contribution aims to introduce the reader to a judgement from the Court of Justice which seems to broaden the scope of application of EU free movement rules to private regulatory bodies in two ways. One the one hand, this judgment expands our understanding of what type of private regulation can fall within this scope. On the other hand, it shows that EU law requires a private prior authorisation scheme to be infused with the same objectivity safeguards as those that have been required for public ones.

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