Two Legal Orders: Divergent or Convergent?

1999 ◽  
Vol 48 (2) ◽  
pp. 257-284 ◽  
Author(s):  
Eileen Denza

The conclusion of the Treaty of Amsterdam and its progress through the ratification procedures of the 15 member States of the European Union provides an occasion to re-examine a familiar question. What is meant by the claim by the European Court of Justice that the European Com-munity Treaties have created “a new legal order of international law”1 or, more radically, “a new legal order”?2 Is EC law to be regarded as a particularly effective system of regional international law, or has it been created as, or mutated into, an entirely new species of law? If there are indeed two legal orders, to what extent are they still capable of cross-fertilisation? What about “European Union law”? Have the Treaty on European Union and now the Treaty of Amsterdam eroded the dichotomy between the two legal orders of public international law and EU law? Is public international law itself taking on some of the characteristics which have made EC law an attractive as well as an effective system for regulating relations between sovereign States? Are the two streams converging?

Author(s):  
Robert Schütze

The European Union was born as an international organization. The 1957 Treaty of Rome formed part of international law, although the European Court of Justice was eager to emphasize that the Union constitutes “a new legal order” of international law. With time, this new legal order has indeed evolved into a true “federation of States.” Yet how would the foreign affairs powers of this new supranational entity be divided? Would the European Union gradually replace the member states, or would it preserve their distinct and diverse foreign affairs voices? In the past sixty years, the Union has indeed significantly sharpened its foreign affairs powers. While still based on the idea that it has no plenary power, the Union’s external competences have expanded dramatically, and today it is hard to identify a nucleus of exclusive foreign affairs powers reserved for the member states. And in contrast to a classic international law perspective, the Union’s member states only enjoy limited treaty-making powers under European law. Their foreign affairs powers are limited by the exclusive powers of the Union, and they may be preempted through European legislation. There are, however, moments when both the Union and its states enjoy overlapping foreign affairs powers. For these situations, the Union legal order has devised a number of cooperative mechanisms to safeguard a degree of “unity” in the external actions of the Union. Mixed agreements constitute an international mechanism that brings the Union and the member states to the same negotiating table. The second constitutional device is internal to the Union legal order: the duty of cooperation.


2009 ◽  
Vol 11 ◽  
pp. 15-51 ◽  
Author(s):  
Jo Eric Khushal Murkens

AbstractThis chapter examines the recent decision by the European Court of Justice in Kadi and Al Barakaat International Foundation. It is a response to criticism that the ECJ’s judgment, in providing for the review of EC measures implementing UN Security Council resolutions, undermines the authority of public international law. Instead of committing itself to international law and institutions at all cost, the ECJ concerns itself with the constitutional repercussions from national constitutional courts (in the case of failure to protect fundamental rights). Important as the relationship between EC law and international law is, there is a clear sense that the ECJ is responsible to, and will ultimately be held to account by, the courts and constitutions of the Member States of the European Union.


Author(s):  
Paul Gragl

The aim to defend legal monism requires more than just mere epistemology, as sceptics might argue that monism is incapable of describing the real legal world and the law as it is. Consequently, this part offers a precise analysis as to whether two or more distinct bodies of law blend into a unitary legal order or whether they evade such integration. Thus, it will assess the assumptions of the pure theory of law, and in particular those of legal monism, namely between national law and public international law; and between national law and European Union law. The objective of this assessment is to show whether monism is in fact capable of describing the legal reality as well as or even better than dualism or pluralism.


2009 ◽  
Vol 11 ◽  
pp. 15-51 ◽  
Author(s):  
Jo Eric Khushal Murkens

AbstractThis chapter examines the recent decision by the European Court of Justice inKadi and Al Barakaat International Foundation. It is a response to criticism that the ECJ’s judgment, in providing for the review of EC measures implementing UN Security Council resolutions, undermines the authority of public international law. Instead of committing itself to international law and institutions at all cost, the ECJ concerns itself with the constitutional repercussions from national constitutional courts (in the case of failure to protect fundamental rights). Important as the relationship between EC law and international law is, there is a clear sense that the ECJ is responsible to, and will ultimately be held to account by, the courts and constitutions of the Member States of the European Union.


Author(s):  
Luca Prete

The enforcement of EU law on non-compliant national authorities has, at its heart, infringement proceedings brought pursuant to Articles 258 to 260 TFEU. That focus is embedded in the scheme of the EU Treaties. In that regard, infringement proceedings are a particular feature of the EU legal order. As the Court of Justice stated in one of its first cases, ‘it is a procedure far exceeding the rules heretofore recognized in classical international law, to ensure that obligations of States are fulfilled’. Indeed, under the rules of public international law, there is no obligation to settle disputes or to establish formal and legal procedures for dispute resolution, which, where they exist, always depend on the consent of the parties concerned. By contrast, the jurisdiction of the Court in cases of EU law infringements by Member States is compulsory and constitutes a corollary to membership in the European Union.


2015 ◽  
Vol 16 (5) ◽  
pp. 1073-1098 ◽  
Author(s):  
Mattias Derlén ◽  
Johan Lindholm

AbstractThe case law of the Court of Justice of the European Union (CJEU) is one of the most important sources of European Union law. However, case law's role in EU law is not uniform. By empirically studying how the Court uses its own case law as a source of law, we explore the correlation between, on the one hand, the characteristics of a CJEU case—type of action, actors involved, and area of law—and, on the other hand, the judgment's “embeddedness” in previous case law and value as a precedent in subsequent cases. Using this approach, we test, confirm, and debunk existing scholarship concerning the role of CJEU case law as a source of EU law. We offer the following conclusions: that CJEU case law cannot be treated as a single entity; that only a limited number of factors reliably affect a judgment's persuasive or precedential power; that the Court's use of its own case law as a source of law is particularly limited in successful infringement proceedings; that case law is particularly important in preliminary references—especially those concerning fundamental freedoms and competition law; and that initiating Member State and the number of observations affects the behavior of the Court.


Author(s):  
Miguel Azpitarte Sánchez

La renovada defensa que el Tribunal de Justicia hace del concepto de autonomía contrasta con los impulsos políticos que intentan abrir la jurisdicción de la Unión, sea prolongando su intervención hacia fuera, o reconociendo competencia a tribunales ajenos a ella. Dada esta situación paradójica, mi intención es reflexionar sobre el vínculo entre autonomía del ordenamiento y funciones esenciales del sistema jurisdiccional. Para ello, en el epígrafe II, al modo de un intento de arqueología jurídica, me planteo cuáles han sido las razones constitucionales que condujeron a diseñar ese vínculo que el Tribunal de Justicia ha subrayado. En mi opinión, tres divisiones esenciales —la funcional, la institucional y la de parámetros de validez— dan sentido al modelo de cooperación vigilada que sostendría la autonomía del ordenamiento. A continuación, en el epígrafe III, intento mostrar las debilidades actuales del sistema jurisdiccional de la Unión. En primer lugar, pese a que el Tribunal de Justicia hace causa firme de la autonomía, la realidad y las propias exigencias de los Tratados constitutivos llaman a su complemento por otros actores. La pregunta esencial es saber qué función cumplen tales actores en esa labor de adición. En segundo lugar, la tutela que ofrece el sistema jurisdiccional de la Unión es hoy doblemente asimétrica, de un lado porque no extiende la garantía de la tutela judicial mediante recursos; de otro, porque opera de forma distinta si controla actos del Estado o de los particulares. Finalmente, intentaré defender que estos dos flancos abiertos —una autonomía necesitada de complemento y una tutela asimétrica— explican al menos la razón política encaminada a abrir la jurisdicción más allá de la Unión.The European Court’s renew vindication of the autonomy of the European Union Legal order opposes against the political impulses directed to open the judicial power of the Union, taking its jurisdiction beyond the Union or giving jurisdiction to court outside the Unión. Do to this paradox, I try to analyze the link between autonomy of the legal order and indispensable tasks of the judicial power of the Unión. In title II, in an effort of juridical archeology, I wonder which have been the constitutional reasons that moved to the link mentioned. In my opinion three fundamental divisions —functional, institutional and validity divisions— justify the jurisdictional model of vigilant cooperation that build the autonomy of the legal order. In title III, I try to show the weakness of this model. Firstly, although the European Court holds strong on autonomy, reality and the constitutive Treaties call for a complement. The essential question is to know what function develop several actors. Secondly, the protection offered by the judicial power of the Union is asymmetric in a double sense: it does not extend the protection through a system of appeals and it works in a different way attending to state or private origin of the wrong. Finally, I try to defend that those two asymmetries explain the political reason towards the opening of the judicial power of the Union.


2020 ◽  
Vol 9 (1) ◽  
pp. 5-23
Author(s):  
Marija Daka

The paper presents some of the most relevant aspects of European nondiscrimination law established th rough European Union law and the European Convention on Human Rights, looking also at the evolution of the norms and milestones of case-law on equal treatment within the two systems. The paper gives an overview of the non-discrimination concept as interpreted by the Court of Justice of the European Union and by the European Court of Human Rights. We examine the similar elements but also give insight into conceptual differences between the two human rights regimes when dealing with equal treatment. The differences mainly stem from the more complex approach taken by EU law although, based on analysed norms, cases, and provisions, the aspects of equal treatment in EU law are largely consistent with the practice of the ECtHR. Lastly, the paper briefl y places the European non-discrimination law within the multi-layered human rights system, giving some food for thought for the future potential this concept brings.


Sign in / Sign up

Export Citation Format

Share Document