Judicial review by the European court of justice

1992 ◽  
Vol 14 (2) ◽  
pp. 115-133
Author(s):  
Slynn of Hadley
Keyword(s):  
Judicial Review ◽  
European Court Of Justice ◽  
Court Of Justice ◽  
European Court

Constitutional Courts, Preliminary Rulings and the “New Form of Law”: The Adjudication of the European Stability Mechanism

2015 ◽  
Vol 16 (6) ◽  
pp. 1771-1790 ◽  
Author(s):  
Samo Bardutzky
Keyword(s):  
Judicial Review ◽  
European Court Of Justice ◽  
The Other ◽  
Constitutional Courts ◽  
High Courts ◽  
Court Of Justice ◽  
European Court ◽  
The Supreme Court ◽  
European Stability Mechanism ◽  
New Form

In 2012 and 2013, we observed how the European Stability Mechanism (ESM) was adjudicated by “EU courts, plural”: a number of high courts of the Member States (among them “Kelsenian” constitutional courts as well as representatives of a more hybrid model of judicial review of constitutionality) and the European Court of Justice (CJEU) were seized by challenges to the mechanism. What attracted attention was the fact that only one court, the Supreme Court of Ireland, decided to submit a preliminary reference to the CJEU, while the other courts, as would appear from their judgments, did not even consider the option. This was a suboptimal example of judicial dialogue in the case of ESM adjudication.

Judicial Review of UN Sanctions by the European Court of Justice

2009 ◽  
Vol 78 (3) ◽  
pp. 343-359 ◽  
Author(s):  
Nikolaos Lavranos
Keyword(s):  
Judicial Review ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
European Convention ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
Un Security Council ◽  
Procedural Rights ◽  
Court Of First Instance

AbstractWith its Kadi-judgment, the European Court of Justice firmly rejected the Kadi/Yusuf-judgments of the Court of First Instance. The Court of Justice made unambiguously clear that Community law, in particular its basic, core fundamental rights values prevail over any international law obligations of the EC and its Member States, including UN Security Council Resolutions and the UN Charter. As a consequence thereof, individuals targeted by UN sanctions must have access to full judicial review in order to be able to ensure the effective protection of their fundamental rights, including procedural rights as guaranteed by the European Convention of Human Rights (ECHR). As a result, the Court of Justice proved that the Community is indeed based on the rule of law and that the fight against terrorism – how important it may be – cannot be used as a justification for completely abrogating European constitutional law values as guaranteed within the Community and its Member States.

scholarly journals Transition from Austrian to American Model of Judicial Review in the European Court of Justice

2021 ◽  
Vol 100 (1) ◽  
pp. 137-153
Author(s):  
I.S. Grigoriev
Keyword(s):  
Judicial Review ◽  
European Court Of Justice ◽  
Political Regime ◽  
Gradual Transition ◽  
The Political ◽  
Constitutional Court ◽  
Relative Role ◽  
Court Of Justice ◽  
European Court ◽  
American Model

Legal scholars distinguish between two main models of judi cial review — the American model and Austrian (European) one. In the American model, the scope of discretion and the relative role of the constitutional court in the political system are noticeably higher than in the Aust rian one. The author traces the history of the origin of these two models, explains the differences between them and raises the question of whether the boundaries between these two ideal types are too rigid or whether a gradual transition from the Austrian model to the American one (without formal constitutional reform) is possible. The author provides the answer drawing on the real case of such transition that occurred in the European Court of Justice in the 1960s. This case is unique precisely because the change in the system of the judicial review was the result of the gradual “migration” from one model to the other, rather than the result of an outside reform. Similar to Baron Munchausen, who pulled himself out of the swamp by his own hair, the European Court of Justice was able to independently, through its own decisions, alter the order of the judicial review in the European Union, bringing it closer to the American model. In the final part of the article, the author places this transition into a broader historical context, demonstrating that the success of the construction of a new European legal order was not predetermined and consisted of the decisions taken by the judges in each specific case. However, any national constitutional court finds itself in a similar situation after a change of the political regime. As a rule of thumb, new constitutional courts are created according to the Austrian model and are institutionally similar to the legislative branch of government, but in order to make judicial review efficient, they need to transform into the American model, becoming more similar to the courts of general jurisdiction. In this respect, the experience of the European Court of Justice can be extremely useful for them.

scholarly journals Prejudicinio sprendimo procedūros kaip alternatyvos privačių subjektų teikiamiems ieškiniams dėl ES teisės akto panaikinimo trūkumai

Teisė ◽  
2011 ◽  
Vol 79 ◽  
pp. 48-64
Author(s):  
Agnė Limantė
Keyword(s):  
Present Article ◽  
Judicial Review ◽  
European Court Of Justice ◽  
Preliminary Ruling ◽  
Main Attention ◽  
Court Of Justice ◽  
European Court ◽  
Judicial Protection

Atmesdamas privačių subjektų teikiamus tiesioginius ieškinius dėl ES teisės aktų panaikinimo (SESV 263 straipsnis), Europos Sąjungos Teisingumo Teismas dažnai atkreipia dėmesį į prejudicinio sprendimo procedūros (SESV 267 straipsnis) teikiamas galimybes. Straipsnyje vertinama prejudicinio sprendimo procedūra Europos Sąjungos Teisingumo Teisme kaip alternatyva tiesioginiams ieškiniams dėl ES teisės akto panaikinimo, daugiausia dėmesio skiriant prejudicinių sprendimų trūkumams, dėl kurių šis alternatyvus ES teisės aktų teisėtumo kontrolės instrumentas ne visada garantuoja teisę į teisminę gynybą arba kelia gynybos veiksmingumo klausimų.When dismissing direct actions for annulment (Article 267 TFEU) European Court of Justice often refers to preliminary ruling procedure (Article 267 TFEU) as an alternative way to seek judicial review of EU legal act. Taking this into account, the present article examines preliminary ruling procedure in the European Court of Justice as an alternative to direct actions for annulment, the main attention paying to the shortcomings which result in failure in some cases to provide judicial protection or to ensure effective judicial protection.

scholarly journals The European Court of Justice: Of Institutions and Democracy

1998 ◽  
Vol 32 (1) ◽  
pp. 3-50 ◽  
Author(s):  
Martin Shapiro
Keyword(s):  
Judicial Review ◽  
European Court Of Justice ◽  
Statutory Interpretation ◽  
Constitutional Courts ◽  
Limited Government ◽  
Administrative Action ◽  
Court Of Justice ◽  
European Court ◽  
Court Interpreting ◽  
Law Making

The problem of democracy and judicial review is a problem engendered by successful constitutional courts. For where courts are not successful in establishing veto powers over legislation, no problem or only a very limited problem occurs. Of course any court interpreting statutes in the process of applying them does some law making. How much this law making interferes with democracy depends on how easy it is for the legislature to legislate. Where legislatures can amend statutes easily, they can easily correct “errors” of judicial statutory interpretation. Judicial review of the lawfulness of administrative action essentially involves the same power of statutory interpretation with the same potential for legislative correction.Most of the nations of the world that do not have successful constitutional courts are not democracies. Indeed, no state without considerable claims to democracy has successful judicial review. These facts are clues to the obvious. Constitutional government is limited government. In the real world we do not encounter nondemocratic limited governments although we encounter many shades of more or less democratic, more or less constitutional governments. So there is some affinity between democracy and constitutionalism.

European Communities and Constitutional Law

1973 ◽  
Vol 32 (2) ◽  
pp. 256-267 ◽  
Author(s):  
P. D. Dagtoglou
Keyword(s):  
International Law ◽  
Judicial Review ◽  
Constitutional Law ◽  
European Court Of Justice ◽  
International Treaty ◽  
Court Of Justice ◽  
European Court ◽  
Restrictive Trade ◽  
Legal Nature ◽  
The Law

Of all legal disciplines, constitutional law is the most affected by the European Communities and their law. It is true that the law of competition and restrictive trade practices (to take an example) has, to an important extent, been altered and is currently regulated by Community law. However, the new elements in the European law of restrictive practices are only indirectly related to the nature or structure of the Community and its law as such. They could (with the exception of the new possibilities of judicial review through the European Court of Justice) just as well have come from a traditional international treaty as from international law. For, when we think of the law of restrictive practices we mainly think of what the rules say and much less of how they are enacted—in other words the content of rules and much less their legal nature.

The New Free Movement Architecture

2020 ◽  
pp. 9-40
Author(s):  
Jan Zglinski
Keyword(s):  
Judicial Review ◽  
European Court Of Justice ◽  
Free Movement ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Margin Of Appreciation ◽  
Long Time ◽  
Regulatory Decisions ◽  
National Legislatures

This chapter provides a conceptual analysis of judicial deference in free movement law. It argues that the reason for the growing relevance of deference in free movement cases is rooted in a shift in focus away from the scope of rights towards justification and proportionality. The European Court of Justice has created two deference doctrines: the margin of appreciation and decentralized judicial review. While the margin of appreciation doctrine is employed to pass certain regulatory decisions over to national legislatures and executives, decentralized judicial review is used to delegate responsibilities connected with free movement review to national courts. Both deference techniques represent a departure from the Cassis de Dijon approach, which has, for a long time, defined large parts of free movement adjudication, and have significant institutional consequences.

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