Indirect Discrimination: Interpreting Seymour-Smith

1999 ◽  
Vol 58 (2) ◽  
pp. 399-412 ◽  
Author(s):  
Catherine Barnard ◽  
Bob Hepple
Keyword(s):  
National Court ◽  
European Court Of Justice ◽  
Preliminary Ruling ◽  
Service Employees ◽  
Community Law ◽  
Court Of Justice ◽  
European Court ◽  
Continuous Service ◽  
Indirect Discrimination ◽  
The Right

THE preliminary ruling by the European Court of Justice in the Seymour-Smith and Perez case about the scope and meaning of indirect discrimination has done little to clarify this perplexing concept. The ruling does not tell the thousands of short-service employees whose claims were stayed pending the litigation whether the qualifying period of two years’ continuous service for the right not to be unfairly dismissed is contrary to Community law. Nor does it provide clear standards by which disparate impact is to be tested, nor the relevant time for assessing the legality of an allegedly discriminatory measure, nor the conditions for establishing objective justification. More generally, these proceedings under Article 177 (now Article 234) of the EC Treaty reveal a failure by the Court to perform its function of facilitating the national court in interpreting and applying Community equality law in a way which would be consistent and uniform throughout the Union.

The Effect of WTO Dispute Settlement Rulings in the EC Legal Order: Reviewing Van Parys v Belgische Interventie- en Restitutiebureau (C-377/02)

2005 ◽  
Vol 6 (6) ◽  
pp. 1025-1032
Author(s):  
Delphine De Mey
Keyword(s):  
Dispute Settlement ◽  
National Court ◽  
Legal Order ◽  
European Court Of Justice ◽  
Court Of Justice ◽  
Wto Dispute Settlement ◽  
European Court ◽  
The Right ◽  
Community Legal Order

On 1 March 2005, the European Court of Justice (hereinafter ‘ECJ’ or ‘the Court’) got another opportunity to rule on the effect of recommendations and decisions of the WTO Dispute Settlement Body (hereinafter ‘DSB’) in the Community legal order. The ECJ concluded that an individual does not have the right to challenge, before a national court, the incompatibility of Community measures with WTO rules, even if the DSB had previously declared the Community legislation to be incompatible with those rules.

The Principle of Non-discrimination in Respect of Age: Dimensions of the ECJ's Mangold Judgment

2006 ◽  
Vol 7 (5) ◽  
pp. 505-524 ◽  
Author(s):  
Marlene Schmidt
Keyword(s):  
General Framework ◽  
European Court Of Justice ◽  
Equal Treatment ◽  
Preliminary Ruling ◽  
Framework Agreement ◽  
Community Law ◽  
Court Of Justice ◽  
Council Directive ◽  
European Court ◽  
Answering Questions

On 22 November 2005, the European Court of Justice (ECJ) delivered a judgement in a preliminary ruling procedure from the Arbeitsgericht München (Labour Court Munich), answering questions concerning the interpretation of Clauses 2, 5 and 8 of the Framework Agreement on fixed-term contracts, put into effect by Council Directive 1999/70/EC of 28 June 1999, and as regards the construction of Article 6 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. Essentially, the Arbeitsgericht wanted to know whether a statutory provision exempting employees of 52 years of age and older from limitations to the conclusion of fixed-term contracts was compatible with Community law.

What Questions Can Be Referred?

2021 ◽  
pp. 89-140
Author(s):  
Morten Broberg ◽  
Niels Fenger
Keyword(s):  
Security Policy ◽  
National Court ◽  
International Agreements ◽  
European Court Of Justice ◽  
Preliminary Ruling ◽  
The European Union ◽  
Judicial Cooperation ◽  
Court Of Justice ◽  
European Court ◽  
Foreign And Security Policy

Chapter 4 examines which questions can be referred for a preliminary ruling. The European Court of Justice has jurisdiction to give preliminary rulings on the interpretation of the Treaties, and on the validity and interpretation of acts of the institutions, bodies, offices, or agencies of the Union. It does not have jurisdiction to rule on the interpretation or validity of international law or national laws, and it is prevented from giving a binding ruling on the facts that are put before a national court. Chapter 4 explains the reference to ‘the Treaties’ as well as the meanings of ‘acts’, ‘institutions, bodies, offices or agencies’, and ‘validity’. This examination includes police and judicial cooperation, common foreign and security policy, the Euratom Treaty and the ECSC Treaty, and it includes preliminary references concerning international agreements. The chapter also examines the extent to which the Court of Justice can give its opinion on the facts or the content of national law in connection with a reference for a preliminary ruling or on questions that concern circumstances that arise before a Member State’s accession to the European Union or where the preliminary ruling is rendered after a Member State’s withdrawal from the Union (eg Brexit).

Arbitration cases and preliminary references to the European Court of Justice—an assessment of ‘the Danish Solution’

2020 ◽  
Vol 36 (1) ◽  
pp. 147-155
Author(s):  
Morten Broberg ◽  
Niels Fenger
Keyword(s):  
European Union ◽  
National Court ◽  
European Court Of Justice ◽  
Preliminary Ruling ◽  
The European Union ◽  
Commercial Arbitration ◽  
Member States ◽  
Reference Procedure ◽  
Court Of Justice ◽  
European Court

Abstract When a case, that is pending before a national court in one of the Member States of the European Union, requires a decision on the interpretation or validity of an EU legal measure, the national court can seek a preliminary ruling on the matter from the European Court of Justice before deciding the main action. In its preliminary ruling, the European Court of Justice establishes authoritatively the interpretation or validity of the relevant EU legislation. When EU law plays a role in commercial arbitration it may be very useful for arbitration tribunals to have access to the preliminary reference procedure. However, according to the Treaty on the Functioning of the European Union, only ‘a court or tribunal of a Member State’ can make a preliminary reference and this notion does not include commercial arbitration tribunals. In order to give arbitration tribunals access to the preliminary reference procedure Denmark has introduced a scheme which allows them to ask the ordinary Danish courts to make preliminary references on behalf of the arbitration tribunal. This article explains the Danish scheme and considers to what extent it provides a useful model for other Member States.

scholarly journals A Preliminary Ruling Instrument in the Constitutional Jurisprudence of Lithuania

Teisė ◽  
2019 ◽  
Vol 113 ◽  
pp. 80-107
Author(s):  
Paulius Griciūnas
Keyword(s):  
European Court Of Justice ◽  
Constitutional Court ◽  
Preliminary Ruling ◽  
Indirect Control ◽  
Court Of Justice ◽  
European Court ◽  
Similarities And Differences ◽  
The Republic ◽  
The Right ◽  
Constitutional Jurisprudence

The judicial dialogue between the Constitutional Court of the Republic of Lithuania and the European Court of Justice is analyzed in this article. The variety of opinions, arguments, and the evolution of the approaches regarding the right or obligation of the Constitutional Court to refer for a preliminary ruling are researched. Major events in the evolution were two referrals by the Constitutional Court in 2007 and 2017; both of these decisions to refer for the preliminary ruling are compared, and the similarities and differences analyzed. The potential of a preliminary ruling in the constitutional jurisprudence is demonstrated, with an emphasis on the indirect control of the legality of EU acts and the national identity clause.

Centros Ltd—A Complete U-Turn in the Right of Establishment for Companies?

2000 ◽  
Vol 49 (3) ◽  
pp. 621-642 ◽  
Author(s):  
Anne Looijestijn-Clearie
Keyword(s):  
United Kingdom ◽  
Member State ◽  
European Court Of Justice ◽  
The United Kingdom ◽  
Court Of Justice ◽  
European Court ◽  
Registered Office ◽  
Set Up ◽  
The Right ◽  
A Company

InCentros Ltd and Erhvers-og Selskabsstyrelesen (hereinafter Centros),1 the European Court of Justice ruled that it is contrary to Article 52 (now Article 432) and Article 58 (now Article 48) of the EC Treaty for the authorities of a member State (in casu Denmark) to refuse to register a branch of a company formed under the law of another member State (in casu the United Kingdom) in which it has its registered office, even if the company concerned has never conducted any business in the latter State and intends to carry out its entire business in the State in which the branch is to be set up. By avoiding the need to form a company there it would thus evade the application of the rules governing the provision for and the paying-up of a minimum share capital in force in that State. According to the Court, this does not, however, prevent the authorities of the member State in which the branch is to be set up from adopting appropriate measures for preventing or penalising fraud, either with regard to the company itself, if need be in co-operation with the member State in which it was formed, or with regard to its members, where it has been determined that they are in fact attempting, by means of the formation of a company, to evade their obligations towards creditors established in the territory of the member State of the branch.

scholarly journals GUARANTEE OF THE RIGHT TO SILENCE AND OF THE RIGHT NOT TO CONTRIBUTE TO ONE’S OWN INCRIMINATION IN ROMANIAN CRIMINAL PROCEDURE LAW

2018 ◽  
Vol 2 (83) ◽  
pp. 25
Author(s):  
Carmen Adriana Domocos
Keyword(s):  
Freedom Of Expression ◽  
Case Law ◽  
Fair Trial ◽  
European Court Of Justice ◽  
European Convention ◽  
Criminal Offence ◽  
Court Of Justice ◽  
European Court ◽  
Right To Silence ◽  
The Right

The Romanian legislation establishes in the new penal procedure law the right to silence and the right of non-incrimination of the defendant in the criminal trial.The right to silence (to remain silent) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention on Human Rights, according to which judicial authorities cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect or a defendant to make statements, while having, however, a limited power to draw conclusions against them, from their refusal to make statements.Therefore, the right to silence involves not only the right not to testify against oneself, but also the right of the suspect or defendant not to incriminate oneself. The suspect or defendant cannot be compelled to assist in the production of evidence and cannot be sanctioned for failing to provide certain documents or other evidence. Obligation to testify against personal will, under the constraint of a fine or any other form of coercion constitutes an interference with the negative aspect of the right to freedom of expression which must be necessary in a democratic Romanian society.The right not to contribute to one’s own incrimination (the privilege against self-incrimination) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention, according to which judicial bodies or any other state authority cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect, a defendant or a witness to cooperate by providing evidence which might incriminate him or which could constitute the basis for a new criminal charge. It is essential to clarify certain issues as far as this right is concerned.

6. The preliminary ruling (Article 267 TFEU)

2018 ◽  
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Reference Procedure ◽  
Procedural Law ◽  
Court Of Justice ◽  
European Court

This chapter examines the procedural law of the European Union (EU), focusing on Article 267 of the Treaty on the Functioning of the European Union (TFEU). It explains that Article 267 is the reference procedure by which courts in member states can endorse questions concerning EU law to the European Court of Justice (CoJ). Under this Article, the Court of Justice of the European Union (CJEU) has the jurisdiction to provide preliminary rulings on the validity and interpretation of acts of the institutions, bodies, offices, or agencies of the Union and on the interpretation of the Treaties.

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