Primacy of Union Law

2004 ◽  
Vol 1 (1) ◽  
pp. 104-107 ◽  
Author(s):  
Jan Herman Reestman
Keyword(s):  
Case Law ◽  
Member States ◽  
Community Law ◽  
Court Of Justice ◽  
Higher Rank ◽  
Ec Law ◽  
Domestic Law ◽  
Traffic Rules

One of the legal cornerstones of ‘formal federalism’ is the capacity of any rule of EC Law to override any rule, including those of constitutional rank, of the Member States. The primacy doctrine has been introduced by the Court of Justice in Costa v. ENEL (1964). It can be read in two ways. In the first place it may be held to imply the supremacy of Community law, i.e., the idea that Community law has a higher rank than even the national constitutions and is hierarchically superior to it, as the Court itself sometimes has expressed it (Simmenthal, 1978). This may be called the existential reading. Alternatively, there is a more modest interpretation implying mere practical priority or precedence, as in traffic rules. For this practical interpretation there are equally arguments to be found in the Court's case-law: the aims of the EC-treaty cannot be accomplished if domestic law were to prevail over Community law.

scholarly journals The European Court of Justice: What are the Limits of its Exclusive Jurisdiction?

2009 ◽  
Vol 16 (3) ◽  
pp. 291-314 ◽  
Author(s):  
Tobias Lock
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Member States ◽  
International Courts ◽  
Community Law ◽  
Exclusive Jurisdiction ◽  
Court Of Justice ◽  
European Court ◽  
Academic Discussion

The article explores the limits of the ECJ's exclusive jurisdiction by addressing two main issues: firstly, whether there are exceptions to that exclusivity, such as the application of the CILFIT case law or the exclusion of Community law from the dispute. Secondly, it asks whether other international courts must respect the ECJ's jurisdiction over a case. The article commences by briefly discussing the ECJ's exclusive jurisdiction as it was established in Opinion 1/91 and the Mox Plant-Case and draws conclusions from this case law. It then addresses the above-mentioned points and comes to the conclusion that there are generally no exceptions to the ECJ's exclusive jurisdiction and that the only option open to Member States is to exclude Community law from a dispute (and even that option is subject to limitations). Furthermore, after exploring several routes advanced in the academic discussion, the article comes to the conclusion that other courts must respect the ECJ's jurisdiction and as a consequence declare the case inadmissible.

5.7 Types of Community law (primary and secondary legislation and case law of the European Court of Justice) There are several types of EC law each with different legal consequences. Some of the law that is developed in the Community immediately becomes part of the English legal system, other laws state a goal to be achieved within a timescale of years and the governments of the Member States are free to decide how best to comply with that law. Perhaps the choice of available types of law is one of the most difficult to understand when approaching the area for the first time. This chapter will run through the main issues and will be followed by a series of diagrams to assist your understanding. Characteristics of EC law are as follows. (1) It is of several types: (a) Primary law—articles in treaties. The superior form of law. (b) Secondary legislation: • Regulations: addressed to all Member States. • Directives: addressed to all Member States (which can appear as framework directives giving quite detailed guidance for changes to a large area). • Decisions: addressed to named Member States and/or individuals and organisations. • Recommendations (not legally binding). • Opinion (not legally binding). (c) Secondary law: decisions of the ECJ in individual cases and on matters referred to it as a preliminary reference with regard to interpretation of the Treaty of Rome. The legal authority for this power is found in Article 234 (formerly 177) of the Treaty of Rome. (2) Community law is produced by different partnerships between the institutions: the Council, the Commission, the European Parliament; or by institutions with the authority acting alone: the Council, the Commission, the European Court. The Union website at www.europe.eu.int has guides to the creation of legislation and copies of all legislation and case law for the Union going back to the 1950s. (3) Community law has varying degrees of: • legal effect; and • legal consequences, depending on whether it is primary or secondary law. With regard to secondary legislation, it depends on what type of secondary legislation it is. Some types of secondary legislation request that Member States ensure a goal is achieved within a timescale, leaving it up to the State to determine how the goal should be achieved. These types of legal rules are said to be binding as to ‘outcome’.

2012 ◽  
pp. 156-156
Keyword(s):  
Case Law ◽  
Large Area ◽  
Member States ◽  
Legal Rules ◽  
Community Law ◽  
European Court ◽  
Treaty Of Rome ◽  
Ec Law ◽  
First Time ◽  
Legal Consequences

MOX Plant Dispute – Court of Justice of the European Communities

2006 ◽  
Vol 2 (3) ◽  
pp. 456-469 ◽  
Author(s):  
Nikolaos Lavranos
Keyword(s):  
European Union ◽  
Union Member ◽  
Case Law ◽  
European Court Of Justice ◽  
Member States ◽  
Community Law ◽  
Court Of Justice ◽  
Legal Literature ◽  
European Court ◽  
European Union Member States

It is uncommon for a provision of the EC Treaty to remain all but unnoticed for fifty years by both legal literature and the case-law of the European Court of Justice. However, that is what happened to Article 292 EC, which states that ‘Member States undertake not to submit a dispute concerning the interpretation or application of this Treaty to any method of settlement other than those provided for therein.’ This provision can be taken to mean that if a dispute arises between European Union member states involving Community law, they shall bring the dispute exclusively before the European Court of Justice.

The case law of the Court of Justice of the European Union on ‘judicial authority’ and issuing European arrest warrants

2021 ◽  
pp. 203228442110276
Author(s):  
Tricia Harkin
Keyword(s):  
Rule Of Law ◽  
Case Law ◽  
Public Prosecutor ◽  
The European Union ◽  
Advocate General ◽  
Member States ◽  
Court Of Justice ◽  
Judicial Authority ◽  
Criminal Matters ◽  
Judicial Protection

The case law of the Court of Justice from 2016 to 2019 on the interpretation of ‘judicial authority’ in Article 6(1) FD-EAW essentially examines whether a public prosecutor can be an issuing judicial authority and if so, how Member States’ systems for issuing EAWs ensure effective judicial protection for the person concerned. For the Advocate General, applying the Court’s ‘rule of law’ jurisprudence, effective judicial protection when deprivation of liberty is involved can only be assured by a body with the highest level of judicial independence, being a court. The Court’s broader approach of including public prosecutors with sufficiency of independence from the executive and requiring their decisions to be amenable to review by a court, when applied in practice arguably falls short of the requisite standard of effective judicial protection. There is also a lack of clarity about access to the interpretative jurisdiction of the Court by public prosecutors acting as judicial authorities. Effective judicial protection and EU cooperation in criminal matters would now be better served by the designation in all Member States of a court as the issuing judicial authority for the FD-EAW. This is against the background of the uniquely coercive nature of the EAW in terms of deprivation of liberty; the differences in Member States’ institutional arrangements for public prosecutors and the post-Lisbon effective constitutionalisation of judicial protection of rights of individuals.

Property and Expropriation: Two Concepts Revisited in the Light of the Case Law of the European Court of Human Rights and the European Court of Justice

2019 ◽  
Vol 8 (2) ◽  
pp. 172-191
Author(s):  
Sabrina Praduroux
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Economic Value ◽  
Case Law ◽  
European Court Of Justice ◽  
Property Law ◽  
Court Of Justice ◽  
European Court ◽  
Key Concepts ◽  
Domestic Law

Abstract In the late 1950 s René Savatier foretold that the qualification of economic value itself as property (bien) would have been the ultimate evolution of the theory of property rights. This prediction has come true with regard to the case law of the European Court of Human Rights (ECtHR) and the European Court of Justice (CJEU). This paper investigates the implications of the understanding of property developed by the two European Courts on the concept of expropriation itself as well as for the principles governing expropriation law. Hence, the paper illustrates the role played by both the ECtHR and the CJEU in laying down the parameters of legitimacy for national law, including property law. Within this context, the focus falls on cases in which the Courts characterize the facts as deprivation of property requiring for compensation, even though the relevant property could not be the object of expropriation under the domestic law of the defendant State. My contribution brings new insights into the current transformation of the traditional property categories and suggests the reinterpretation of some key concepts of expropriation law.

NON-DISCRIMINATORY TRADE RESTRICTIONS AFTER KECK

2002 ◽  
Vol 61 (1) ◽  
pp. 1-52
Author(s):  
Alan Dashwood
Keyword(s):  
Case Law ◽  
Sales Promotion ◽  
Trade Restrictions ◽  
Member States ◽  
The Public ◽  
Court Of Justice ◽  
Equivalent Effect ◽  
The One ◽  
Domestic Products ◽  
By Products

IN its Keck judgment—famous or notorious according to taste—the Court of Justice drew a distinction, for the purposes of the application of the prohibition in Article 28 EC against measures having equivalent effect to quantitative restrictions (“MEEQRs”), between two categories of national measures. On the one hand were “product requirements”: measures specifying requirements to be met, in order to obtain access to the market of a Member State, by products coming from other Member States where they are lawfully manufactured and marketed, like the minimum alcohol requirement for fruit liqueurs in Cassis de Dijon (Case 120/78 [1997] E.C.R. 649). Such product requirements are liable to constitute MEEQRs, and therefore require specific justification, in order to escape prohibition, on one of the public interest grounds recognised by Community law. On the other hand was the category of measures described in the judgment as “provisions restricting or prohibiting certain selling arrangements”. An example was the legislation at issue in the main proceedings in Keck, which prohibited the resale of products below their purchase price, thereby depriving retailers of a form of sales promotion. Other examples, attested by the case law post-Keck, are measures regulating advertising methods, the kind of shop in which goods of a certain description can be sold, shops’ opening hours and Sunday trading. National provisions in this latter category are not normally such as to hinder trade between Member States under the test formulated by the Court in Dassonville (Case 8/74 [1974] E.C.R. 837, at para. 5), and so do not call for justification; not, that is, “so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and those from other Member States”: see Joined Cases C-267 and 268/9 [1993] E.C.R. I-6097, at paras. 15–17.

Financing Social Security and Regulation (EEC) 1408/71

2001 ◽  
Vol 3 (1) ◽  
pp. 7-24
Author(s):  
Herwig Verschueren
Keyword(s):  
Social Security ◽  
Policy Making ◽  
Case Law ◽  
Direct Link ◽  
Member States ◽  
Court Of Justice ◽  
The Cost ◽  
Social Security Benefits

This article seeks to provide a clearer picture of the role of methods for funding social security benefits in EC Coordination Regulation 1408/71. In past literature and in the case law surrounding Regulation 1408/71, this role has seldom been mentioned. However, this is changing in light of increasing numbers of questions emerging at both the policy-making level and at the level of Court of Justice proceedings. The first part of this paper deals with the role of different methods of financing social security in determining the material scope of the coordination regulation and the question of whether the method of financing certain benefits has a bearing on this material scope. The second part deals with the existing link within the coordination context between paying or having paid contributions and entitlement to benefits. I discuss, inter alia, the extent to which benefit levels are determined by the same legislation as that which determines contribution levels. I examine the extent to which Member States collecting contributions are also responsible for bearing the cost of the corresponding benefits and the extent to which a person who is paying or has paid contributions is entitled to benefits corresponding to those contributions. In light of this examination of the facts as they stand, I endeavour to consider possible alternatives, including the desirability of having a more direct link within the coordination context between payment of contributions and entitlement to benefits.

scholarly journals The Binding Force of Babel: The Enforcement of EC Law Unpublished in the Languages of the New Member States

2007 ◽  
Vol 9 ◽  
pp. 43-80 ◽  
Author(s):  
Michal Bobek
Keyword(s):  
European Union ◽  
Central Bank ◽  
European Central Bank ◽  
The European Union ◽  
Member States ◽  
Community Law ◽  
New Member States ◽  
European Central ◽  
Binding Force ◽  
Ec Law

On 1 may 2004, 10 new Member States joined the European Union. This meant inter alia that, save for the express derogations provided for in the Act of Accession, the entire mass of Community secondary legislation became binding in the new Member States. This principle of the immediate effects of Community law in the new Member States was provided for in Article 2 AA: From the date of Accession, the provisions of the original Treaties and the acts adopted by the institutions and the European Central Bank before Accession shall be binding on the new Member States and shall apply in those States under the conditions laid down in those Treaties and in this Act.

Mixed Agreements: The EU Law Fundamentals

2018 ◽  
Author(s):  
Joni Heliskoski
Keyword(s):  
European Union ◽  
Case Law ◽  
International Agreements ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
Basic Characteristics ◽  
Mixed Agreements ◽  
The Eu

Whatever terminology one might wish to employ to describe the form of integration constituted by the European Union and its Member States, one fundamental attribute of that arrangement has always been the division, as between the Union and its Member States, of competence to conclude international agreements with other subjects of international law. Today, the fact that treaty-making competence—as an external facet of the more general division of legal authority—is divided and, to some extent, shared between the Union and its Member States is reflected by some of the opening provisions of the Treaty on European Union and the Treaty on the Functioning of the European Union. Notwithstanding the changes to the scope and nature of the powers conferred upon the Union, resulting from both changes to primary law and the evolution of the case law of the Court of Justice of the European Union (CJEU), the basic characteristics of the conferment as an attribution of a limited kind has always been the same; there has always existed a polity endowed with a treaty-making authority divided between and, indeed, shared by, the Union and its Member States. In the early 1960s mixed agreements—that is, agreements to which the European Union

The Challenged and Challenging De Facto Authority of the Central American Court of Justice at the Intersection of Pacification, International Law, and Regionalism

2020 ◽  
pp. 178-213
Author(s):  
Salvatore Caserta
Keyword(s):  
Early Years ◽  
Central American ◽  
Territorial Disputes ◽  
National Politics ◽  
Integration System ◽  
Member States ◽  
Community Law ◽  
Court Of Justice ◽  
The Caribbean ◽  
Caribbean Court Of Justice

This chapter deals with the trajectory of gaining de facto authority of the Central American Court of Justice (CACJ), showing how, different from the Caribbean Court of Justice (CCJ), this Court has thus far failed to leave a significant mark in its operational context. In its early years, the Court fared rather well, especially in terms of its capacity to build a system of community law and to address some institutional difficulties of the Central American Integration System (SICA). However, when the Court became involved with several highly political disputes (i.e. a political clash between two former Nicaraguan Presidents and some territorial disputes among its Member States) in the early 2000s, it encountered strong resistance from several actors in its context of operation. As in the analysis of the CCJ, this chapter explains the fluctuation of the CACJ’s authority by looking at the role played by various contextual factors such as the institutional conflicts between the various organs of Central American integration, the highly polarised national politics of some of the Court’s Member States, and the divergent professional interests of the Central American legal elites.

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