scholarly journals The European Court of Justice: Of Institutions and Democracy

1998 ◽  
Vol 32 (1) ◽  
pp. 3-50 ◽  
Author(s):  
Martin Shapiro
Keyword(s):  
Judicial Review ◽  
European Court Of Justice ◽  
Statutory Interpretation ◽  
Constitutional Courts ◽  
Limited Government ◽  
Administrative Action ◽  
Court Of Justice ◽  
European Court ◽  
Court Interpreting ◽  
Law Making

The problem of democracy and judicial review is a problem engendered by successful constitutional courts. For where courts are not successful in establishing veto powers over legislation, no problem or only a very limited problem occurs. Of course any court interpreting statutes in the process of applying them does some law making. How much this law making interferes with democracy depends on how easy it is for the legislature to legislate. Where legislatures can amend statutes easily, they can easily correct “errors” of judicial statutory interpretation. Judicial review of the lawfulness of administrative action essentially involves the same power of statutory interpretation with the same potential for legislative correction.Most of the nations of the world that do not have successful constitutional courts are not democracies. Indeed, no state without considerable claims to democracy has successful judicial review. These facts are clues to the obvious. Constitutional government is limited government. In the real world we do not encounter nondemocratic limited governments although we encounter many shades of more or less democratic, more or less constitutional governments. So there is some affinity between democracy and constitutionalism.

Constitutional Courts, Preliminary Rulings and the “New Form of Law”: The Adjudication of the European Stability Mechanism

2015 ◽  
Vol 16 (6) ◽  
pp. 1771-1790 ◽  
Author(s):  
Samo Bardutzky
Keyword(s):  
Judicial Review ◽  
European Court Of Justice ◽  
The Other ◽  
Constitutional Courts ◽  
High Courts ◽  
Court Of Justice ◽  
European Court ◽  
The Supreme Court ◽  
European Stability Mechanism ◽  
New Form

In 2012 and 2013, we observed how the European Stability Mechanism (ESM) was adjudicated by “EU courts, plural”: a number of high courts of the Member States (among them “Kelsenian” constitutional courts as well as representatives of a more hybrid model of judicial review of constitutionality) and the European Court of Justice (CJEU) were seized by challenges to the mechanism. What attracted attention was the fact that only one court, the Supreme Court of Ireland, decided to submit a preliminary reference to the CJEU, while the other courts, as would appear from their judgments, did not even consider the option. This was a suboptimal example of judicial dialogue in the case of ESM adjudication.

Objectivity and Statutory Interpretation: End Use in the Canadian Customs Tariff

2009 ◽  
Vol 46 ◽  
pp. 3-54 ◽  
Author(s):  
Maureen Irish
Keyword(s):  
Case Law ◽  
Physical Characteristics ◽  
European Court Of Justice ◽  
Coding System ◽  
Statutory Interpretation ◽  
Court Of Justice ◽  
European Court ◽  
The World ◽  
End Use

SummaryThe Harmonized Commodity Description and Coding System (Harmonized System) has been adopted by the major trading nations of the world, including Canada. Decisions of the European Court of Justice are influential for interpretation of the Harmonized System. According to these decisions, goods should be classified under the Harmonized System on the basis of their physical characteristics, while factors that relate to use after importation should be considered only if they are reflected in the physical characteristics. The author rejects this narrow approach and argues that interpretation will be successful only if it is done in light of the full commercial context, including use after importation, advertising, distribution, and market indicators such as price. The article reviews Canadian case law since implementation of the Harmonized System in 1988 as well as some decisions interpreting the pre-1988 Canadian nomenclature, which contained many tariff items that depended on the end use of goods after importation.

Judicial Review of UN Sanctions by the European Court of Justice

2009 ◽  
Vol 78 (3) ◽  
pp. 343-359 ◽  
Author(s):  
Nikolaos Lavranos
Keyword(s):  
Judicial Review ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
European Convention ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
Un Security Council ◽  
Procedural Rights ◽  
Court Of First Instance

AbstractWith its Kadi-judgment, the European Court of Justice firmly rejected the Kadi/Yusuf-judgments of the Court of First Instance. The Court of Justice made unambiguously clear that Community law, in particular its basic, core fundamental rights values prevail over any international law obligations of the EC and its Member States, including UN Security Council Resolutions and the UN Charter. As a consequence thereof, individuals targeted by UN sanctions must have access to full judicial review in order to be able to ensure the effective protection of their fundamental rights, including procedural rights as guaranteed by the European Convention of Human Rights (ECHR). As a result, the Court of Justice proved that the Community is indeed based on the rule of law and that the fight against terrorism – how important it may be – cannot be used as a justification for completely abrogating European constitutional law values as guaranteed within the Community and its Member States.

scholarly journals Transition from Austrian to American Model of Judicial Review in the European Court of Justice

2021 ◽  
Vol 100 (1) ◽  
pp. 137-153
Author(s):  
I.S. Grigoriev
Keyword(s):  
Judicial Review ◽  
European Court Of Justice ◽  
Political Regime ◽  
Gradual Transition ◽  
The Political ◽  
Constitutional Court ◽  
Relative Role ◽  
Court Of Justice ◽  
European Court ◽  
American Model

Legal scholars distinguish between two main models of judi cial review — the American model and Austrian (European) one. In the American model, the scope of discretion and the relative role of the constitutional court in the political system are noticeably higher than in the Aust rian one. The author traces the history of the origin of these two models, explains the differences between them and raises the question of whether the boundaries between these two ideal types are too rigid or whether a gradual transition from the Austrian model to the American one (without formal constitutional reform) is possible. The author provides the answer drawing on the real case of such transition that occurred in the European Court of Justice in the 1960s. This case is unique precisely because the change in the system of the judicial review was the result of the gradual “migration” from one model to the other, rather than the result of an outside reform. Similar to Baron Munchausen, who pulled himself out of the swamp by his own hair, the European Court of Justice was able to independently, through its own decisions, alter the order of the judicial review in the European Union, bringing it closer to the American model. In the final part of the article, the author places this transition into a broader historical context, demonstrating that the success of the construction of a new European legal order was not predetermined and consisted of the decisions taken by the judges in each specific case. However, any national constitutional court finds itself in a similar situation after a change of the political regime. As a rule of thumb, new constitutional courts are created according to the Austrian model and are institutionally similar to the legislative branch of government, but in order to make judicial review efficient, they need to transform into the American model, becoming more similar to the courts of general jurisdiction. In this respect, the experience of the European Court of Justice can be extremely useful for them.

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