Ensuring Effective Judicial Review of EU Soft Law via the Action for Annulment before the EU Courts: a Plea for a Liberal-Constitutional Approach

2020 ◽  
Vol 16 (3) ◽  
pp. 466-492
Author(s):  
Giulia Gentile
Keyword(s):  
Judicial Review ◽  
European Court Of Justice ◽  
Soft Law ◽  
Preliminary Ruling ◽  
Court Of Justice ◽  
European Court ◽  
Liberal Constitutionalism ◽  
Judicial Protection ◽  
Constitutional Jurisprudence ◽  
The Eu

Judicial review of EU soft law – Liberal-constitutionalism – Principle of effective judicial protection – The liberal-constitutional jurisprudence of the European Court of Justice – Action for annulment – Formalistic understanding of the concept of ‘legally binding effects’ – Preliminary ruling procedure – Limitations of the preliminary ruling procedure in granting effective judicial protection in relation to EU soft law – A plea for a liberal-constitutional reading of Articles 263 and 288 TFEU in relation to direct review of EU soft law

scholarly journals Prejudicinio sprendimo procedūros kaip alternatyvos privačių subjektų teikiamiems ieškiniams dėl ES teisės akto panaikinimo trūkumai

Teisė ◽  
2011 ◽  
Vol 79 ◽  
pp. 48-64
Author(s):  
Agnė Limantė
Keyword(s):  
Present Article ◽  
Judicial Review ◽  
European Court Of Justice ◽  
Preliminary Ruling ◽  
Main Attention ◽  
Court Of Justice ◽  
European Court ◽  
Judicial Protection

Atmesdamas privačių subjektų teikiamus tiesioginius ieškinius dėl ES teisės aktų panaikinimo (SESV 263 straipsnis), Europos Sąjungos Teisingumo Teismas dažnai atkreipia dėmesį į prejudicinio sprendimo procedūros (SESV 267 straipsnis) teikiamas galimybes. Straipsnyje vertinama prejudicinio sprendimo procedūra Europos Sąjungos Teisingumo Teisme kaip alternatyva tiesioginiams ieškiniams dėl ES teisės akto panaikinimo, daugiausia dėmesio skiriant prejudicinių sprendimų trūkumams, dėl kurių šis alternatyvus ES teisės aktų teisėtumo kontrolės instrumentas ne visada garantuoja teisę į teisminę gynybą arba kelia gynybos veiksmingumo klausimų.When dismissing direct actions for annulment (Article 267 TFEU) European Court of Justice often refers to preliminary ruling procedure (Article 267 TFEU) as an alternative way to seek judicial review of EU legal act. Taking this into account, the present article examines preliminary ruling procedure in the European Court of Justice as an alternative to direct actions for annulment, the main attention paying to the shortcomings which result in failure in some cases to provide judicial protection or to ensure effective judicial protection.

National Procedural Autonomy and General EU Law Limits

2019 ◽  
Vol 12 (2) ◽  
pp. 5-34
Author(s):  
Rob Widdershoven
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Eu Law ◽  
Procedural Law ◽  
Court Of Justice ◽  
European Court ◽  
Recent Approach ◽  
Procedural Autonomy ◽  
Judicial Protection ◽  
The Eu

This article examines the recent approach of the European Court of Justice of the EU towards the applicability of procedural national law in cases falling within the scope of Union law. It argues that the Court increasingly assesses such rules within the framework of the principle of effective judicial protection, as bindingly codified in Article 47 of the Charter of Fundamental Right of the EU since December 2009. This test is gradually replacing the rather deferential test on the Rewe principles of equivalence and effectiveness and implies a further limitation of procedural autonomy of the Member States. The reason for the shift seems to be the necessity to coordinate the Court's case law on Article 47 CFR with the case law of the European Court of Human Rights on Article 6 ECHR, because this coordination requires the application of a similar standard by both European Courts. As a result, the importance of, in particular, the Rewe principle of effectiveness, has already decreased to a considerable extent and might decrease further in future. Nevertheless, it is not to be expected that this standard will be abolished completely. First, because it may provide an adequate standard for assessing procedural issues that are not related to effective judicial protection or Article 47 CFR. Secondly, because incidentally it may be used by the Court for modifying national procedural law with a view to the effective application of substantive EU rules.

scholarly journals The Randstad Case: Melki Reloaded? The Fundamental Right to Effective Judicial Protection as Battleground for Judicial Supremacy in European Law

2021 ◽  
Vol 4 (1) ◽  
pp. 53-68
Author(s):  
Orlando Scarcello
Keyword(s):  
European Court Of Justice ◽  
Constitutional Court ◽  
European Law ◽  
Eu Law ◽  
Court Of Justice ◽  
European Court ◽  
Judicial Supremacy ◽  
Judicial Protection ◽  
The Eu

This paper will examine the recent preliminary reference to the European Court of Justice issued by the Italian Court of Cassation in the Randstad case, aimed at rearranging the internal constitutional separation between ordinary and administrative courts (article 111(8) of the Constitution). I will first provide some context on both the relations between Italian and EU courts (2.1) and on the confrontation between the Court of Cassation and the Constitutional Court in interpreting article 111 (2.2). I will then specifically examine the referring order to the Court of Justice of the EU (3), focusing on the role of general clauses of EU law as articles 4(3) and 19 TEU and 47 of the Charter in it. Finally, I will consider the instrumental use of EU law made by the Cassation to overcome an unpleasant constitutional arrangement. This aligns Randstad with previous cases such as Melki or A v. B and may foster constitutional conflict in the future. 

scholarly journals A Preliminary Ruling Instrument in the Constitutional Jurisprudence of Lithuania

Teisė ◽  
2019 ◽  
Vol 113 ◽  
pp. 80-107
Author(s):  
Paulius Griciūnas
Keyword(s):  
European Court Of Justice ◽  
Constitutional Court ◽  
Preliminary Ruling ◽  
Indirect Control ◽  
Court Of Justice ◽  
European Court ◽  
Similarities And Differences ◽  
The Republic ◽  
The Right ◽  
Constitutional Jurisprudence

The judicial dialogue between the Constitutional Court of the Republic of Lithuania and the European Court of Justice is analyzed in this article. The variety of opinions, arguments, and the evolution of the approaches regarding the right or obligation of the Constitutional Court to refer for a preliminary ruling are researched. Major events in the evolution were two referrals by the Constitutional Court in 2007 and 2017; both of these decisions to refer for the preliminary ruling are compared, and the similarities and differences analyzed. The potential of a preliminary ruling in the constitutional jurisprudence is demonstrated, with an emphasis on the indirect control of the legality of EU acts and the national identity clause.

scholarly journals “After Thunder Comes Rain”: The ECJ Finally Rules on the Boundaries of the EUMR Standstill Obligation

2019 ◽  
Vol 3 (1) ◽  
pp. 187-208
Author(s):  
Luca Villani
Keyword(s):  
Control System ◽  
European Court Of Justice ◽  
Preliminary Ruling ◽  
Eu Merger Control ◽  
Court Of Justice ◽  
First Case ◽  
European Court ◽  
Council Regulation ◽  
The Eu ◽  
Broad Overview

In its judgment of 31 May 2018, case C-633/16, the European Court of Justice ruled on the preliminary questions referred by the Danish Maritime and Commercial Court in the context of a merger notified to the Danish Competition and Consumer Authority by KPMG DK and EY DK. The referring court asked the ECJ to clarify on the scope of the so-called standstill obligation imposed on the parties of a notifiable transaction by article 7 of the Council Regulation (EC) No. 139/2004 (EUMR). The decision was long awaited, since after having imposed several fines for gun jumping practices in recent times, it is the first case ever in which the Court has been asked to take position on the matter through a preliminary ruling. As for substance, the European Court of Justice stated that article 7, paragraph 1 of the EUMR must be interpreted as meaning that a concentration is implemented only by a transaction which contributes to the change in control of the target undertaking. In doing so, the Court gives a broad overview of the EU merger control system, recalling the fundamental concepts of concentration, control and standstill in order to give a systematic interpretation of the provisions at stake.

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.

The CETA Opinion of the European Court of Justice and its Implications—Not that Selfish After All

2019 ◽  
Vol 22 (3) ◽  
pp. 503-521 ◽  
Author(s):  
Christian Riffel
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
European Court Of Justice ◽  
Court System ◽  
Eu Law ◽  
Investment Protection ◽  
Constitutional Principle ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

Abstract In Opinion 1/17, the European Court of Justice (ECJ) found the investment court system compatible with European Union (EU) law. The ruling concerned the mechanism in the Comprehensive Economic and Trade Agreement (CETA) but the Court’s reasoning is equally applicable to other investment courts as established, for example, in the EU’s investment protection agreements with Singapore and Vietnam. This outcome was far from clear, given that in the past the accession to international dispute settlement bodies regularly foundered on the autonomy of the EU legal order. The present article parses the CETA Opinion and explores its implications. It particularly focuses on autonomy as a constitutional principle and its advancement in Opinion 1/17. Importantly, the ECJ accepted the superiority of a court created by international agreement in relation to the said agreement. Furthermore, it clarified that it is not prerequisite for the Court to rule first on the meaning to be given to an act of EU law before that act can be the subject matter of an investment dispute. Finally, the pdrerogative of the EU to autonomously set the level of protection of a public welfare goal must be secured in a treaty for the EU to join it.

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