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.

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 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.

Case C-176/12 Association de Médiation Sociale: Some Reflections on the Horizontal Effect of the Charter and the Reach of Fundamental Employment Rights in the European Union

2014 ◽  
Vol 10 (2) ◽  
pp. 332-348 ◽  
Author(s):  
Eleni Frantziou
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
The European Union ◽  
Advocate General ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
The Right ◽  
Employment Rights ◽  
First Time ◽  
The Eu

On 15 January 2014, the Court of Justice (hereafter ‘the Court’) delivered its judgment in Association de Médiation Sociale (hereafter ‘AMS’). AMS brought for the first time before the Court the issue of horizontal applicability in relation to a provision of the EU Charter of Fundamental Rights (hereafter ‘Charter’), namely Article 27 thereof, which enshrines the right of workers to information and consultation within the undertaking. The case therefore raised questions of ‘undeniable constitutional significance’, as Advocate-General Cruz Villalón had put it in his Opinion, regarding the post-Lisbon enforcement and interpretation of the Charter and, in particular, its application to disputes between private parties.

Court of Justice of the European Union: Decision of 2 March 2010, Case C-315/08, Janko Rottman v. Freistaat BayernCase Note 1 Decoupling Nationality and Union Citizenship? Case Note 2 The Consequences of the Rottmann Judgment on Member State Autonomy – The European Court of Justice's Avant-Gardism in Nationality Matters

2011 ◽  
Vol 7 (1) ◽  
pp. 138-160 ◽  
Author(s):  
H.U. Jessurun d'Oliveira ◽  
Gerard René de Groot ◽  
Anja Seling
Keyword(s):  
European Union ◽  
Member State ◽  
Preliminary Ruling ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
The Status ◽  
First Time ◽  
The Relationship

This reference for a preliminary ruling raises for the first time the question of the extent of the discretion available to the Member States to determine who their nationals are. In so far as citizenship of the European Union, which depends, admittedly, on enjoyment of the status of national of a Member State, is established by the Treaty, can the powers of the Member States to lay down the conditions for the acquisition and loss of nationality still be exercised without any right of supervision for Community law? That is, in essence, the point at issue in this case. This case therefore calls for clarification of the relationship between the concepts of nationality of a Member State and of citizenship of the Union, a question which, it need hardly be emphasised, to a large extent determines the nature of the European Union.

The preliminary ruling procedure at the court of justice of the European Union and transformation of European anti-discrimination law

2020 ◽  
Vol 2020 (3) ◽  
pp. 66-72
Author(s):  
Elena Sorokina
Keyword(s):  
Legal System ◽  
Essential Feature ◽  
Preliminary Ruling ◽  
The European Union ◽  
Judicial Cooperation ◽  
Member States ◽  
National Courts ◽  
Court Of Justice ◽  
Protection Of Human Rights ◽  
The Eu

The preliminary ruling procedure is an essential feature of the EU legal system, which is a unique cooperation tool as part of the dialogue between the Court of Justice of the EU and national courts of the Member States. Its main purpose is to ensure uniform interpretation and application of the provisions of EU law with all Member States and to preserve the uniformity of the European legal system. The continuous use by national courts of the Member States of the mechanism of preliminary ruling and constructive inter-judicial cooperation, the Court of Justice has developed an extremely extensive case law on the prohibition of discrimination and with the result to introduce substantial changes in European anti-discrimination law.The preliminary rulings of the Court of Justice have shown its inclination to expand notions of what constitutes discrimination and in most cases the Court prompt by the desire to interpret the provisions of European law so as to ensure the full effectiveness of the law, as well as a willingness to promote and strengthen protection against discrimination in Europe. While the protection against discrimination on some grounds is stronger than others, however, the preliminary rulings of the Court of Justice are important contribution to the transformation of anti-discrimination law, promote change in the national legislation of the Member States and provide the more effective protection of human rights in general.

Review by Constitutional Courts of the Obligation of National Courts of Last Instance to Refer a Preliminary Question to the Court of Justice of the EU

2015 ◽  
Vol 16 (6) ◽  
pp. 1663-1700 ◽  
Author(s):  
Clelia Lacchi
Keyword(s):  
European Union ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
Constitutional Review ◽  
National Courts ◽  
Court Of Justice ◽  
Judicial Remedy ◽  
The Eu

The Constitutional Courts of a number of Member States exert a constitutional review on the obligation of national courts of last instance to make a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU).Pursuant to Article 267(3) TFEU, national courts of last instance, namely courts or tribunals against whose decisions there is no judicial remedy under national law, are required to refer to the CJEU for a preliminary question related to the interpretation of the Treaties or the validity and interpretation of acts of European Union (EU) institutions. The CJEU specified the exceptions to this obligation inCILFIT. Indeed, national courts of last instance have a crucial role according to the devolution to national judges of the task of ensuring, in collaboration with the CJEU, the full application of EU law in all Member States and the judicial protection of individuals’ rights under EU law. With preliminary references as the keystone of the EU judicial system, the cooperation of national judges with the CJEU forms part of the EU constitutional structure in accordance with Article 19(1) TEU.

Legal conflict between the EU and the republic of Poland regarding polish judicial reform

2021 ◽  
Author(s):  
Ivan Yakovyuk ◽  
Suzanna Asiryan ◽  
Anastasiya Lazurenko
Keyword(s):  
European Union ◽  
Judicial Reform ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
Legal Nature ◽  
Constitutional Tribunal ◽  
The Republic ◽  
The Eu

Problem setting. On October 7, 2021, the Constitutional Tribunal of the Republic of Poland ruled in favor of Polish law over European Union law, which in the long run may violate the principles according to which the Union operates and the rights enjoyed by citizens of the state. Such a precedent can further serve as a basis for identical decisions of the bodies of constitutional jurisdiction of those states that have problems in fulfilling their obligations in the European community. Analysis of recent researches and publications. The problems of the functioning of the bodies of the European Union, the implementation of their decisions and the general status in EU law are widely studied in national science. In particular, many scholars have studied the legal nature of the EU, including: TM Anakina, VI Muravyov, NM Ushakov, A. Ya. Kapustina, NA Korolyova, Yu. Yumashev, BN Topornin, OYa Tragniuk, SS Seliverstov, IV Yakovyuk and others. Target of research is to establish the foundations of EU law in the functioning of Union bodies, especially the Court, as well as to determine the hierarchy of national law and EU law. Article’s main body. Over the years, the Court has, within its jurisdiction, issued a large number of judgments which have become the source of the Union’s Constituent Treaties and of EU law in general. Over the last two decades, the powers of the Court of Justice have changed significantly. In particular, this is due to the adoption of the Lisbon Treaty, which amended the EU’s founding treaties on the powers of the Court, then the reform of the European Court took place in 2015-2016, which concerned a change in the organizational structure of the Court. Despite the generally well-established case law of the Court of Justice of the European Union on the unification of the observance by the Member States of the basic principles of the European Union, the Constitutional Tribunal of the Republic of Poland adopted a decision on 7 October. Conclusions and prospects for the development. Following the decision of the Constitutional Court, the Polish authorities found themselves in a situation that significantly complicated its internal and external situation. The way out of which requires answers to fundamental questions about the legal nature of the EU. Undoubtedly, this is an issue not only between Poland and the EU, but also between other member states.

The Google Ireland Case and the Legal Battle over Digital Taxes in the European Union

2021 ◽  
Vol 14 (1) ◽  
pp. 209-220
Author(s):  
Giulio Allevato ◽  
Fernando Pastor-Merchante
Keyword(s):  
European Union ◽  
Digital Economy ◽  
Free Movement ◽  
Preliminary Ruling ◽  
The European Union ◽  
Topical Issue ◽  
Member States ◽  
Court Of Justice ◽  
Legal Battle ◽  
The Way

The preliminary ruling of the Court of Justice of the European Union in the Google Ireland case turned on the compatibility with the rules on free movement of some of the administrative arrangements put in place by Hungary in order to administer its controversial advertisement tax (namely, the obligation to register and the penalties attached to the failure to comply with that obligation). The preliminary ruling offers some interesting insights on the way in which the Court assesses the compatibility with the freedom to provide services of national administrative arrangements aimed at ensuring the effective collection of taxes. This is a topical issue in the context of the recent efforts made by Member States to tax the digital economy more effectively.

Court of Justice of the European Union (Seventh Chamber) Kerly Del Rosario Martinez Silva v Instituto nazionale della previdenza sociale (INPS) Comune di Genova

2018 ◽  
Vol 20 (3) ◽  
pp. 357-363
Author(s):  
Bjarney Friðriksdóttir
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Report ◽  
Fundamental Rights ◽  
Equal Treatment ◽  
Preliminary Ruling ◽  
The European Union ◽  
Labour Law ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights

Abstract This case report provides an account of the issues addressed in the preliminary ruling of the CJEU in Martinez Silva vs. Italy. The case centres on the limitations Member States of the European Union are permitted to apply in granting third-country nationals in employment equal treatment with nationals in social security rights according to Directive 2011/98/EU (the Single Permit Directive). Additionally, the preliminary ruling of the Court is discussed is discussed in the context of the human rights principle of equal treatment as it is enshrined in EU Charter of Fundamental Rights and International Labour Law.

OPINION 2/15 OF THE CJEU: DELINEATING THE SCOPE OF THE NEW EU COMPETENCE IN FOREIGN DIRECT INVESTMENT

2018 ◽  
Vol 77 (1) ◽  
pp. 29-32
Author(s):  
Rumiana Yotova
Keyword(s):  
European Union ◽  
Foreign Direct Investment ◽  
Free Trade ◽  
Direct Investment ◽  
Free Trade Agreement ◽  
Trade Agreement ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
The Eu

ON 16 May 2017, the Court of Justice of the European Union (CJEU) delivered its Opinion 2/15 concerning the competence of the EU to conclude the Free Trade Agreement with Singapore (EUSFTA) (ECLI:EU:C:2017:376). The Opinion was requested by the Commission which argued, with the support of the European Parliament (EP), that the EU had exclusive competence to conclude the EUSFTA. The Council and 25 of the Member States countered that the EUSFTA should be concluded as a mixed agreement – that is, by the EU and each of its members – because some of its provisions fell under the shared competence of the organisation or the competence of the Member States alone.

Sign in / Sign up

Export Citation Format

Share Document