PUBLIC HEALTHCARE IN THE EUROPEAN UNION: STILL A SERVICE OF GENERAL INTEREST?

2008 ◽  
Vol 57 (3) ◽  
pp. 529-560 ◽  
Author(s):  
Adam Cygan
Keyword(s):  
Healthcare Services ◽  
Public Healthcare ◽  
General Interest ◽  
The European Union ◽  
Patient Mobility ◽  
Member States ◽  
Universal Healthcare ◽  
Court Of Justice ◽  
European Court ◽  
Competition Rules

AbstractThis article examines how recent judgments of the European Court of Justice have interpreted the concept of a service of general interest in Article 86(2) EC in the delivery of healthcare services. The article explores how and why the Court has afforded greater latitude to Member States in organizational matters by not applying competition rules. By contrast, the Court has actively promoted patient mobility and has not applied the derogation in Article 86(2) EC where it would restrict the free movement of services. Does the Court's policy of protecting individual rights undermine the ability of Member States to deliver a universal healthcare service within finite resources?

scholarly journals Castaño avoids a clash between the ECtHR and the CJEU, but erodes Soering. Thinking human rights transnationally

2020 ◽  
pp. 203228442097974
Author(s):  
Sibel Top ◽  
Paul De Hert
Keyword(s):  
European Union ◽  
Human Rights ◽  
Union Member ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
Criminal Matters ◽  
European Union Member States

This article examines the changing balance established by the European Court of Human Rights (ECtHR) between human rights filters to extradition and the obligation to cooperate and how this shift of rationale brought the Court closer to the position of the Court of Justice of the European Union (CJEU) in that respect. The article argues that the ECtHR initially adopted a position whereby it prioritised human rights concerns over extraditions, but that it later nuanced that approach by establishing, in some cases, an obligation to cooperate to ensure proper respect of human rights. This refinement of its position brought the ECtHR closer to the approach adopted by the CJEU that traditionally put the obligation to cooperate above human rights concerns. In recent years, however, the CJEU also backtracked to some extent from its uncompromising attitude on the obligation to cooperate, which enabled a convergence of the rationales of the two Courts. Although this alignment of the Courts was necessary to mitigate the conflicting obligations of European Union Member States towards both Courts, this article warns against the danger of making too many human rights concessions to cooperation in criminal matters.

The Practices of ‘Splitting’ and ‘Common Accord’ Under Scrutiny: the European Parliament‘s Request for an Opinion of the European Court of Justice on the Istanbul Convention

2020 ◽  
Vol 45 (4) ◽  
pp. 472-486
Author(s):  
Elizaveta Samoilova
Keyword(s):  
European Union ◽  
Legal Framework ◽  
Special Focus ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
Forms Of Violence ◽  
Istanbul Convention ◽  
The Eu

Abstract With all eyes on the recent global COVID-19 pandemic, another pandemic has been growing in the shadows: violence against women. The Council of Europe’s Istanbul Convention creates a legal framework in order to protect women against all forms of violence. Its ratification process, however, has faced considerable challenges, particularly in the Central and Eastern European Member States. This article discusses the basic elements of the Istanbul Convention, reflects on the ratification process in the EU and its Member States, and sets out the main legal issues raised in the European Parliament’s request for an opinion (A-1/19 of 22 November 2019) to the Court of Justice of the European Union. Special focus is put on the choice of the correct EU legal basis and the practices of ‘splitting’ and ‘common accord’. This article argues that the European Parliament’s request for an opinion provides the perfect opportunity for the Court of Justice of the European Union to further clarify the law and the practice of concluding mixed agreements by the EU and its Member States.

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.

scholarly journals Mutual trust

2006 ◽  
Vol 2 (1) ◽  
pp. 1-3 ◽  
Keyword(s):  
Legal Status ◽  
European Court Of Justice ◽  
General Mechanism ◽  
Mutual Trust ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
Self Interest ◽  
Rules Of The Game

Mutual trust is at the heart of the European Union. Although the Union lacks a general mechanism to enforce its rules and decisions, member states usually comply with them. This remarkable fact can in part be explained by self interest: although individual rules and decisions may be found harmful and are ducked from time to time, all member states know they win by sticking to the rules of the game. The member state that grudgingly applies a rule or a decision, trusts all the others to do the same most of the time. If this were not so, the system would break down, in spite of the European Court of Justice denying the rule of reciprocity legal status in the Union.

scholarly journals The European Court of Justice and the Policy Process

2018 ◽  
Author(s):  
Susanne K. Schmidt
Keyword(s):  
European Union ◽  
Member State ◽  
Case Law ◽  
European Court Of Justice ◽  
The European Union ◽  
Member States ◽  
Administrative Practices ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

The European Court of Justice is one of the most important actors in the process of European integration. Political science still struggles to understand its significance, with recent scholarship emphasizing how closely rulings reflect member states’ preferences. In this book, I argue that the implications of the supremacy and direct effect of the EU law have still been overlooked. As it constitutionalizes an intergovernmental treaty, the European Union has a detailed set of policies inscribed into its constitution that are extensively shaped by the Court’s case law. If rulings have constitutional status, their impact is considerable, even if the Court only occasionally diverts from member states’ preferences. By focusing on the four freedoms of goods, services, persons, and capital, as well as citizenship rights, the book analyses how the Court’s development of case law has ascribed a broad meaning to these freedoms. The constitutional status of this case law constrains policymaking at the European and member-state levels. Different case studies show how major pieces of EU legislation cannot move beyond case law but have to codify its principles. Judicialization is important in the EU. It also directly constrains member-state policies. Court rulings oriented towards individual disputes are difficult to translate into general policies, and into administrative practices. Policy options are thereby withdrawn from majoritarian decision-making. As the Court cannot be overruled, short of a Treaty change, its case law casts a long shadow over policymaking in the European Union and its member states, undermining the legitimacy of this political order.

scholarly journals European Union citizenship: The acquisition of nationality and the ever-expansive reach of the European Court of Justice

2021 ◽  
Author(s):  
◽  
Bridgette K. McLellan
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
The European Union ◽  
European Union Law ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
Union Citizenship ◽  
The Law ◽  
Principle Of Proportionality

<p>European Union citizenship was established by the Treaty of Maastricht in 1992. Intended to fall within the exclusive prerogative of the Member States, it soon became clear that the autonomy of Member States to determine matters relating to nationality would be restricted by the ever-expansive reach of the European Court of Justice. As such, the European Court of Justice transformed the law on citizenship in the 2010 case of Rottmann where measures affecting or depriving the rights conferred and protected by the European Union were held to fall within the scope ratione materiae of European Union law. While Rottmann affirmed the law as to the deprivation of European Union citizenship, it left unanswered the question whether the acquisition of nationality also falls within the scope of European Union law. This paper aims to identify and analyse the law arising post-Rottmann to determine whether the acquisition of nationality could fall within the scope of European Union law. It shall then analyse whether fundamental principles of European Union law, namely the principle of proportionality, could be applied in order to regulate the conditions imposed by Member States in relation to the acquisition of nationality.</p>

scholarly journals The 346 Clause of TFEU Regulation in Different EU Member States

Teisė ◽  
2019 ◽  
Vol 113 ◽  
pp. 123-138
Author(s):  
Vilius Kuzminskas
Keyword(s):  
European Union ◽  
Case Law ◽  
European Court Of Justice ◽  
The European Union ◽  
Member States ◽  
Eu Member States ◽  
Court Of Justice ◽  
European Court

The article discloses the fixed exclusion regulation of Clause 346 in the Treaty of Function of the European Union in different EU member states. A further assessment of different relevant judicial approaches to regulation are disclosed and evaluated in accordance with the European Court of Justice case law and procurement in the defense area doctrine.

The European Court of Justice and the Justification of Trade Restrictions for the Benefit of Animal Welfare: A Change of Mind?

elni Review ◽  
2011 ◽  
pp. 36-42
Author(s):  
Tania Van Laer
Keyword(s):  
Animal Welfare ◽  
Point Of View ◽  
The European Union ◽  
Trade Restrictions ◽  
Member States ◽  
Rule Of Reason ◽  
Court Of Justice ◽  
European Court ◽  
The Moment ◽  
High Level

This paper investigates whether EU law allows Member States to justify, on the basis of animal welfare, unilateral measures that impose trade restrictions. Since new developments – that might resolve the problem of Member States pursuing a high level of protection of animal welfare – seem to be on their way, it is necessary to highlight the issue both from the traditional point of view as well as from the possible future one. The paper also sets out more extensively the problem with unilateral measures aiming at a high level of animal welfare, at the same time serving as a reminder for the reader of the main principles of the free movement of goods. Furthermore, it describes the established view of the Court of Justice with regard to Art. 36 of the Treaty on the Functioning of the European Union (TFEU) and the rule of reason, and the possible changes under discussion at the moment.

Ireland in Europe: A Legal Perspective

2001 ◽  
Vol 29 (2) ◽  
pp. 219-231 ◽  
Author(s):  
Eugene Regan
Keyword(s):  
Common Law ◽  
European Court Of Justice ◽  
The European Union ◽  
Member States ◽  
Legal Principles ◽  
Legal Traditions ◽  
Court Of Justice ◽  
European Court ◽  
Legal Perspective ◽  
Ec Law

The Member States of the European Union have diverse legal traditions explained in part by the dichotomy of common law and civil law systems. Yet notwithstanding this diversity all Member States have adjusted to the new legal order created by the European Community in accepting the primacy of EC law and the legal principles establishing by the European Court of Justice. This paper examines briefly the Irish experience in making that adjustment.

Negotiating Turkey's Membership to the European Union. Can the Member States Do As They Please?

2007 ◽  
Vol 3 (2) ◽  
pp. 269-284 ◽  
Author(s):  
Christophe Hillion
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
The European Union ◽  
Member States ◽  
Constitutional Order ◽  
European Union Enlargement ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

Limits to member states' discretion in European Union enlargement negotiations – Changing the fundamentals of the EU constitutional order through the conclusion of accession treaties – The case of Turkey – Caveats, precautions and fallback strategies in the ‘Negotiating Framework for Turkey’ – Enforcing the limits to member states' discretion in European Union enlargement negotiations – The jurisdiction of the European Court of Justice before ratification and after entry into force.

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