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.

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.

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.

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 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.

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 Who Are the “Masters of the Treaty”?: European Governments and the European Court of Justice

1998 ◽  
Vol 52 (1) ◽  
pp. 121-147 ◽  
Author(s):  
Karen J. Alter
Keyword(s):  
European Court Of Justice ◽  
State Control ◽  
Member States ◽  
General Hypothesis ◽  
Political Autonomy ◽  
Court Of Justice ◽  
European Court ◽  
International Court ◽  
European Union Member States ◽  
Supranational Level

To what extent can the European Court of Justice, an international court, make decisions that go against the interests of European Union member states? Neofunctionalist accounts imply that because the Court is a legal body it has vast political autonomy from the member states, whereas neorealist accounts imply that because member states can sanction the ECJ, the Court has no significant political autonomy. Neither theory can explain why the Court, which was once politically weak and did not stray far from the interests of European governments, now boldly rules against their interests. In explaining how the Court escaped member state control, this article develops a general hypothesis of the autonomy of the ECJ, focusing on how differing time horizons of political and judicial actors, support for the Court within the national judiciaries, and decision-making rules at the supranational level limit the member states' ability to control the Court.

Indirect taxes and national remedies

1999 ◽  
Vol 58 (1) ◽  
pp. 1-48
Author(s):  
Angela Ward
Keyword(s):  
Attorney General ◽  
Case Law ◽  
European Court Of Justice ◽  
Special Edition ◽  
Community Law ◽  
Court Of Justice ◽  
Council Directive ◽  
European Court ◽  
National Rule ◽  
Indirect Taxes

IN Case C-188/95 Fantask A/S and Others v. Industriministeriet (Erhvervsministeriet) [1997] E.C.R. I-6783 the European Court of Justice provided further guidance on the interpretation of Council Directive 69/335 EEC of 17 July 1969 concerning indirect taxes on the raising of capital (O.J. English Special Edition 1969 (II), p. 412), as most recently amended by Council Directive 85/303/EEC of 10 June 1985 (O.J. 1985 L 156, p. 23), and elaborated its case law concerning Member State remedies and procedural rules. More particularly, it was held that a national rule which would have allowed Danish authorities to escape the duty to refund charges levied in breach of the Directive on the ground of “excusable error” rendered Community law impossible in practice or excessively difficult to enforce (Case 199/82 Amministrazione delle Finanze dello Stato v. San Giorgio [1983] E.C.R. 3595), while a five-year time limit for bringing proceedings under Danish law was upheld as a reasonable limitation period (cf. Case C-208/90 Emmott v. Minister for Social Welfare and the Attorney General [1991] EC.R. I-4269).

Ne Bis Interpretatio In Idem?The Two Faces of theNe Bis In IdemPrinciple in the Case Law of the European Court of Justice

2017 ◽  
Vol 18 (1) ◽  
pp. 39-58 ◽  
Author(s):  
Alessandro Rosanò
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
European Court Of Justice ◽  
Antitrust Law ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Ne Bis In Idem ◽  
Regional Custom

The meaning ofidemin thene bis in idemprinciple is controversial in the case law of the Court of Justice of the European Union. In interpreting the provision of Article 54 of the Convention Implementing the Schengen Agreement, the court has emphasized the necessary requirement in the identity of the material acts while in antitrust law three requirements have been deemed necessary: (1) Identity of the facts, (2) unity of offender, and (3) unity of the legal interest protected. Despite the opinions of some Advocates General, the court has confirmed different interpretations of the same principle, depending on differences of the legal scope in question. A few years ago, however, the European Court of Human Rights proclaimed the criterion based on the identity of the material acts as the most suitable. This might push the Court of Justice of the European Union to correct its position in the antitrust field. Should this happen, this adjustment might serve as grounds to recognize the existence of a regional custom concerning thene bis in idemprinciple.

scholarly journals The Nordea Bank Denmark Case (C-48/13)

2014 ◽  
Vol 2014 (2) ◽  
pp. 231-242
Author(s):  
Anders Nørgaard Laursen
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
Tax Law ◽  
European Economic Area ◽  
Member States ◽  
European Economic ◽  
Court Of Justice ◽  
Economic Area ◽  
European Court

Abstract This paper reports on an investigation of a recent decision by the European Court of Justice (ECJ) in case C-48/13, Nordea Bank Denmark, concerning the Danish rules for reincorporation of losses from permanent establishments situated in European Union/ European Economic Area (EU/EEA) member states other than Denmark. The article includes comments on various EU tax law aspects of the case - namely the restriction test applied by the ECJ, the justifications brought forward by the intervening governments and the question of proportionality - and examines the consequences of the Danish tax law going forward.

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