scholarly journals Fact or Fiction? Case C-616/17 and the Compatibility of the EU Authorisation Procedure for Pesticides with the Precautionary Principle

2020 ◽  
Vol 11 (3) ◽  
pp. 481-497
Author(s):  
Sophia PAULINI
Keyword(s):  
European Union ◽  
Precautionary Principle ◽  
Criminal Court ◽  
Sufficient Information ◽  
Preliminary Ruling ◽  
The European Union ◽  
The Precautionary Principle ◽  
Legal Standard ◽  
Court Of Justice ◽  
The Eu

This contribution analyses whether the Court of Justice of the European Union (CJEU) provides clarifications on the normative implications that the precautionary principle entails in the context of Regulation 1107/2009, laying out the EU authorisation procedure for pesticides, in its recent judgement in Case C-616/17. In this judgement, which is a response to a request for a preliminary ruling by a French criminal court on the compatibility of certain aspects of Regulation 1107/2009 with the precautionary principle, the CJEU concludes that the questions of the referring court reveal nothing capable of affecting the validity of the regulation. According to the CJEU, to ensure conformity with the precautionary principle, the EU legislature must establish a normative framework that makes available to competent authorities sufficient information to adequately assess the risks to health resulting from the pesticide in question. However, the CJEU’s substantive analysis of the compatibility of the different aspects of Regulation 1107/2009 with the precautionary principle is not conducted concretely in light of this legal standard, but constitutes a mere testing of the general adequacy of Regulation 1107/2009. Furthermore, the CJEU’s judgement examines Regulation 1107/2009 in a vacuum without considering problems that have occurred in its implementation or application.

scholarly journals Judicial Passivism at the European Court of Justice?

2019 ◽  
Vol 60 (2) ◽  
pp. 127-154
Author(s):  
Ernő Várnay
Keyword(s):  
European Union ◽  
European Integration ◽  
Path Dependence ◽  
National Court ◽  
Fundamental Rights ◽  
Sufficient Information ◽  
Preliminary Ruling ◽  
The European Union ◽  
Court Of Justice ◽  
The Eu

AbstractAccording to the generally accepted understanding, judicial activism arises when a court behaves improperly, straying beyond the limits of the judicial function and acting like a legislature.It is convincing that in the great majority of the cases the Court of Justice of the European Union fulfils the roles assigned to it by the founding treaties of the European Union without any excess, but there are decisions which may be characterized as activist, be they necessary or useful for the proper functioning of the European legal system, and there are decisions (refusing or avoiding to decide) which may be qualified as manifestations of judicial passivism.Judicial passivism is defined in the narrow sense of the term, i.e., when the court clearly refuses or avoids to decide the case before it, or does not answer the question legitimately referred to it. In the jurisprudence of the CJEU, such cases arise when the Court systematically waits for the withdrawal of the action, exceeds the reasonable time of the proceedings, or does not answer the question raised in the preliminary ruling procedure by the national court. The inadmissibility of questions referred by national courts may be perceived as passivism when the qualification of ‘not a court or tribunal’ in the sense of Article 267 TFEU is questionable, or when the scope of the EU Charter of Fundamental Rights is defined too narrowly. Cases may arise – at least in theory – in which the Court, while it would be in a position to act, defers the question to the EU or the Member State’s legislator or to the national judge to decide, with the not entirely convincing qualification of the act under scrutiny in annulment proceedings as ‘not an act for the Article 263 TFEU’. The label ‘judicial passivism in a broad sense of the term’ is used when the Court sticks to its position in a questionable manner (conservatism as passivism), steps back from its earlier position, narrowing the scope of EU law expressly or implicitly overruling its former decision, or it introduces new conditions with the same result (retreat).It has been demonstrated that the Court systematically opposed the Member States, the Commission and the parties in the main proceedings, arguing in favour of inadmissibility of referrals for preliminary questions − the Court avoided, in a large number of cases, the temptation of judicial passivism. On the other hand, the Court’s increased rigour in the preliminary ruling procedures is detectable in recent years. The Court took a less benevolent approach towards the qualification of the referring body as ‘court or tribunal’; the questions proved to be ‘hypothetical’ more often than before, and more importantly, the lack of sufficient information regarding the factual and regulatory context led more easily to inadmissibility.The driving forces behind the passivism of the Courts of the European Union are the ‘reasonableness’ of the judiciary in a time of crisis of the European integration, self-defence against the overburden of case-law and against unnecessary pressure from the public, in order to maintain the health of the management of justice and a certain ‘path-dependence’ as far as the traditional theoretical foundations of European integration are concerned.

scholarly journals Support Schemes in Renewable Energy: Commentary to Judgment of the Court (Fifth Chamber) of 13 September 2017, ENEA S.A. v. Prezes Urzędu Regulacji Energetyki

2018 ◽  
Vol 2 (1) ◽  
pp. 171-183
Author(s):  
Nevin Alija
Keyword(s):  
European Union ◽  
Renewable Energy ◽  
European Commission ◽  
Environmentally Friendly ◽  
Preliminary Ruling ◽  
The European Union ◽  
Court Of Justice ◽  
The Supreme Court ◽  
Financial Penalty ◽  
The Eu

In its September 13th 2017 decision,1 the Court of Justice of the European Union (CJEU) decided on a request for a preliminary ruling by the Supreme Court of Poland (Sąd Najwyższy) in proceedings between ENEA S.A. (ENEA) and the president of the Urzędu Regulacji Energetyki (Office for the regulation of energy, URE) on the imposition by the latter of a financial penalty on ENEA for breach of its obligation to supply electricity produced by cogeneration. The judgment of the Court of Justice follows many decisions of the European Commission and judgments of the EU courts assessing the involvement of State resources in support schemes in energy, particularly with the aim of switching towards more environmentally friendly sources. This case reaffirms that support schemes may, in certain circumstances, fall outside the scope of the EU State aid rules.

Case C-233/18 Zubair Haqbin v. Federaal Agentschap Voor de Opvang van Asielzoekers (C.J.E.U.)

2020 ◽  
Vol 59 (4) ◽  
pp. 694-707
Author(s):  
Justine N. Stefanelli
Keyword(s):  
European Union ◽  
Violent Behavior ◽  
Fundamental Rights ◽  
Preliminary Ruling ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
First Time ◽  
The Eu

In its preliminary ruling in Haqbin, the Court of Justice of the European Union (CJEU or Court) ruled for the first time on whether the EU Reception Conditions Directive 2013/33 (RCD) prohibits Member States from withdrawing material reception conditions in the event of a breach of the rules of accommodation centers, or in the context of violent behavior within those centers. In holding in the negative, the CJEU affirmed the important role played by fundamental rights in the EU's asylum system.

Eu Neonicotinoid Ban Removes Vital Tools in Global Fight Against Pests

2018 ◽  
Vol 29 (5) ◽  
pp. 197-200 ◽  
Author(s):  
Robin Blake
Keyword(s):  
European Union ◽  
Precautionary Principle ◽  
Current Status ◽  
Guidance Document ◽  
The European Union ◽  
The Precautionary Principle ◽  
Regulatory Decision ◽  
The World ◽  
The Impact ◽  
The Eu

In May 2018, the European Union (EU) banned all outdoor uses of three neonicotinoid insecticides due to concerns about adverse effects on pollinators following their use. Neonicotinoids continue to be used in other areas of the world such as North America. However, increasing scrutiny following the European Union decision threatens their availability as a control tool for farmers in these regions too. This article aims to provide an update on the current status of neonicotinoids, including a brief overview of the reasons behind the European regulatory decision, alternative control strategies that are available to farmers, how the situation in Europe might influence what will happen in other regions of the world, and what this means for future regulatory decision-making. The author concludes that the recent neonicotinoid ban in the EU represents an overly conservative approach to pesticide regulation, and in using the Draft Bee Guidance Document, one where the majority of pesticides currently on the market will fail. There is no definitive scientific evidence that neonicotinoids are the primary cause of declines in bees, and although banning these insecticides is the factor that humans have the greatest control over, it represents an overly simplistic solution to a very complex problem, and one that alone may not improve bee health. Whilst extreme pressure from environmental NGOs and politicians have undoubtedly helped shape these decisions, it is imperative that the regulatory process allows scientific innovation to help achieve food security and protect the environment. Ruling against recent lawsuits brought by Syngenta and Bayer CropScience to contest the bans on their respective neonicotinoids, the General Court of the European Union, said that the EU's"precautionary principle" meant that the EU could take measures if there was scientific uncertainty about risks to human health or the environment. The precautionary principle lies at the heart of EU regulation and effectively puts the burden of proof to demonstrate that a pesticide poses no unacceptable risk onto the manufacturers. Given that neonicotinoids are insecticides, and insecticides kill insects, it is not difficult to connect how the use of the precautionary principle led to the neonicotinoid ban. However, this principle is at odds with the desire to innovate – the so-called "Innovation principle" – "whenever policy or regulatory decisions are under consideration the impact on innovation as a driver for jobs and growth should be assessed and addressed". The innovation principle and precautionary principle should be complementary, recognising the need to protect society and the environment while also protecting the EU's ability to innovate. Neonicotinoids represent one such innovation where their highly targeted nature, especially as seed treatments, makes them effective within Integrated Pest Management (IPM) strategies, in comparison to alternatives such as pyrethroids, organophosphates and carbamates, that are known to be highly toxic to bees (and other non-target invertebrates) through spray drift. Replacing neonicotinoids with these products will also result in higher overall environmental risks, including risks to taxonomic groups that are not adversely affected by neonicotinoids such as birds, mammals and fish, together with higher risks to humans, particularly applicators. The HFFA report recommends that potential environmental concerns must be balanced against the need to boost agricultural productivity, and if such an assessment results in societal benefits outweighing the costs, then the technology should be applied. The hope is that regulators in other regions of the world will judiciously balance innovation and precaution, and base decisions on science rather than opinion or fear, and thus allow the continued use of neonicotinoids as vital tools in the global fight against crop pests.

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 The Programmatic Approach: Finding the Right Balance between the Precautionary Principle and the Right to Conduct a Business

2020 ◽  
Vol 17 (1) ◽  
pp. 76-98
Author(s):  
Rogier Kegge ◽  
Annemarie Drahmann
Keyword(s):  
European Union ◽  
Precautionary Principle ◽  
Eu Law ◽  
The European Union ◽  
Environmental Rights ◽  
The Precautionary Principle ◽  
Court Of Justice ◽  
Eu Directives ◽  
The Right ◽  
High Level

This article aims to assess whether a programmatic approach could still be a useful legal instrument for the allocation of scarce environmental rights and a legitimate tool for implementing EU Directives. In response to the recent judgment of the Court of Justice of the European Union (cjeu) in the Dutch Programmatic Approach to Nitrogen case, 1 we will examine under what conditions a programmatic approach could be compatible with the precautionary principle and the freedom to conduct a business as protected by EU law. These principles are inextricably linked, and the Member States and the cjeu must find a balance between a high level of environmental protection and the freedom to conduct a business.

scholarly journals Interpretation of Art. 54 of the Convention Implementing the Schengen Agreement

2020 ◽  
Vol 9 ◽  
Author(s):  
Oskar Losy
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
Preliminary Ruling ◽  
The European Union ◽  
Judicial Cooperation ◽  
Court Of Justice ◽  
Ne Bis In Idem ◽  
Charter Of Fundamental Rights ◽  
Criminal Matters ◽  
The Eu

The paper discusses the problem of the ne bis in idem principle stipulated in the Convention Implementing the Schengen Agreement (CISA) and the Charter of Fundamental Rights of the European Union. Article 54 of the CISA makes the application of the principle ne bis in idem subject to the condition of execution of the penalty. An analogous condition is not provided for in the Charter. These differences caused doubts regardingthe application of the ne bis in idem principle and were subject of the question for preliminary ruling in the Spasic case (C-129/14 PPU). The paper contains a critical review of the reasoning of the Court of Justice of the European Union in this judgment. In addition, the article also contains an analysis of the CJEU’s decision in Case C-398/12 M. in which the CJEU has analysed the meaning of “final disposal” of the judgment in the context of the ne bis in idem principle. Based on the above judgments, the article presents arguments indicating that the reasoning of the CJEU on the conditions for the application of the ne bis in idem principle in judicial cooperation in criminal matters in the EU is not consistent.

scholarly journals The Use of the Preliminary Ruling Procedure by Czech Courts: Historical Retrospective and Beyond

2019 ◽  
Vol 9 (4) ◽  
pp. 150-172
Author(s):  
Václav Stehlík ◽  
David Sehnálek
Keyword(s):  
European Union ◽  
Supreme Court ◽  
Constitutional Court ◽  
Preliminary Ruling ◽  
The European Union ◽  
Court Of Justice ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Eu

Abstract The article analyses the use of the preliminary ruling procedure by the Czech courts in the 15 years of the Czech membership in the European Union. It presents statistics of cases lodged to the EU Court of Justice and refers to the most important decisions. The article compares the practise of both lower courts as well as courts of last instance, namely the Supreme Court and the Supreme Administrative Court. It also outlines the attitude of the Czech Constitutional Court towards this procedure.

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