scholarly journals Putting European Constitutionalism in its Place: The Spatial Foundations of the Judicial Construction of Europe

2020 ◽  
pp. 1-22
Author(s):  
Tommaso Pavone
Keyword(s):  
Interdisciplinary Approach ◽  
European Court Of Justice ◽  
Legal Consciousness ◽  
Future Research ◽  
Eu Law ◽  
Reference Procedure ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Judicial Protection

The judicial dialogue between national courts and the European Court of Justice as a cornerstone of European constitutionalism – The importance of understanding how place-based identities shape national judges’ willingness to apply EU law and enter into dialogue with the European Court of Justice through the preliminary reference procedure – An interdisciplinary approach for studying lawyers and judges’ legal consciousness and sense of place-attachment – Geospatial and interview evidence of how national lawyers and judges’ participation in the preliminary reference procedure is influenced by their attachment to particular court settings and cities – Consequences for European constitutionalism and future research on the uneven judicial protection of EU rights.

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.

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. 

9. The Relationship Between EU Law and National Law:

2015 ◽  
Author(s):  
Paul Craig ◽  
Gráinne de Búrca
Keyword(s):  
Legal Order ◽  
Common Market ◽  
European Court Of Justice ◽  
Eu Law ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
The Relationship ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses the doctrine of supremacy of EU law, which was developed by the European Court of Justice (ECJ) based on its conception of the ‘new legal order’. The ECJ ruled that the aim of creating a uniform common market between different states would be undermined if EU law could be made subordinate to national law of the various states. The validity of EU law can therefore, according to the ECJ, never be assessed by reference to national law. National courts are required to give immediate effect to EU law, of whatever rank, in cases that arise before them, and to ignore or to set aside any national law, of whatever rank, which could impede the application of EU law. Thus, according to the ECJ, any norm of EU law takes precedence over any provision of national law, including the national constitutions. This broad assertion of the supremacy of EU law has not however been accepted without qualification by national courts, and the chapter examines the nature of the qualifications that have been imposed by some national courts.

Data Protection in EU Law

2011 ◽  
pp. 273-297 ◽  
Author(s):  
Maria Tzanou
Keyword(s):  
Data Protection ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
Eu Law ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Data Protection Directive ◽  
Data Flows ◽  
Court Of First Instance

This chapter aims to discuss the possibilities and limitations of the EU to provide for an effective and comprehensive data protection regime. In this respect, it presents an analysis of the data protection rules in EU law by examining the relevant constitutional and secondary law framework. It analyzes the jurisprudence of the European Court of Justice and the Court of First Instance on data protection issues, and argues that the European Court of Justice has interpreted an internal market measure (the Data Protection Directive) in such a way so as to foster the protection of fundamental rights. However, when it comes to the balancing between fundamental rights the Court leaves the question to be resolved by national courts. Finally, the contribution assesses the transborder data flows regime established by the Data Protection Directive and attempts to draw some conclusions on whether the ‘adequate protection’ test ensures a high protection in such flows.

10. The Relationship Between EU Law and National Law: Supremacy

EU Law ◽  
2020 ◽  
pp. 303-352
Author(s):  
Paul Craig ◽  
Gráinne de Búrca
Keyword(s):  
Legal Order ◽  
Common Market ◽  
European Court Of Justice ◽  
Eu Law ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
The Uk ◽  
The Relationship ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter discusses the doctrine of supremacy of EU law, which was developed by the European Court of Justice (ECJ) based on its conception of the ‘new legal order’. The ECJ ruled that the aim of creating a uniform common market between different states would be undermined if EU law could be made subordinate to national law of the various states. The validity of EU law can therefore, according to the ECJ, never be assessed by reference to national law. National courts are required to give immediate effect to EU law, of whatever rank, in cases that arise before them, and to ignore or to set aside any national law, of whatever rank, which could impede the application of EU law. Thus, according to the ECJ, any norm of EU law takes precedence over any provision of national law, including the national constitutions. This broad assertion of the supremacy of EU law has not however been accepted without qualification by national courts, and the chapter examines the nature of the qualifications that have been imposed by some national courts. The UK version contains a further section analysing the relevance of the supremacy of EU law in relation to the UK post-Brexit.

Die Durchbrechung der Rechtskraft nationaler Zivilgerichtsurteile zu Gunsten des unionsrechtlichen "effet utile"?

2019 ◽  
Author(s):  
Catharina Voß
Keyword(s):  
Public Procurement ◽  
European Court Of Justice ◽  
Eu Law ◽  
The European Union ◽  
Procedural Law ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Further Development ◽  
Additional Reason

This book examines allowing the legal force of national judgements to be overturned in favour of the priority law of the European Union, which has been relevant for both procedural practice and academic discourse since the ‘Klausner-Holz’ ruling by the European Court of Justice in 2015. In addition to an overview of the state of the current jurisprudence of the European Court of Justice, the book also offers solutions to the effective enforcement of European priority law through an autonomous concept of the matter in dispute which is in line with EU law, the creation of an additional reason for restitution or a larger submission in practice by national courts. Judges, lawyers, academics and politicians who have to deal with the application or further development of national procedural law in connection with legal fields relevant to EU law, such as the EU’s state aid and public procurement law, antitrust law or competition law, will benefit enormously from reading this book.

‘A Missing Piece of European Emergency Law: Legal Certainty and Individuals’ Expectations in the EU Response to the Crisis’

2016 ◽  
Vol 12 (2) ◽  
pp. 265-293 ◽  
Author(s):  
Pablo Martín Rodríguez
Keyword(s):  
International Law ◽  
European Court Of Justice ◽  
Eu Law ◽  
Legal Certainty ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Legitimate Expectations ◽  
Mixed Nature ◽  
The Eu

The principle of legal certainty and legitimate expectations as a legal tool for individuals in EU law – the mixed nature of EU emergency law: the ‘conferral principle’ limitation and the ways to expand executive powers in the EU response to the crisis (Pringle,ESMA,BPP,OMT) – the existence of legal certainty failures in that response: unpredictable and disjointed legislation and adjudication – arguments blurring legal certainty as the standard of review for EU emergency law: conditionality, international law and indirect legislation – the self-restraint attitude of the European Court of Justice and the risks of leaving litigation under the sole remit of national courts: normalising emergency powers and EU law autonomy at stake

scholarly journals The Normative Impact of Invoking Directives: Casting Light on Direct Effect and the Elusive Distinction between Obligations and Mere Adverse Repercussions

2019 ◽  
Author(s):  
Lorenzo Squintani ◽  
Justin Lindeboom
Keyword(s):  
Direct Effect ◽  
Case Law ◽  
European Court Of Justice ◽  
Eu Law ◽  
Reference Procedure ◽  
Eu Directive ◽  
Court Of Justice ◽  
European Court ◽  
Impact Theory ◽  
The Impact

Abstract The main aim of this paper is to cast light on the case law on direct effect of directives, which has remained elusive to both scholars and practitioners. To this end, we first revisit the relevant case law on inverse vertical, horizontal. and triangular disputes to show that the fundamental distinction drawn by the case law is that between ‘direct obligations’ and ‘mere adverse repercussions’. Subsequently, we propose a doctrinal approach to distinguish between ‘direct obligations’ and ‘mere adverse repercussions’ which centres on the impact of invoking a Euorpean Union (EU) directive on the norms governing the dispute. This ‘normative impact theory’ explains all existing case law on the direct effect of directives, and thus aids a better understanding of the concept of imposing obligations on individuals. We compare this theory with other doctrinal theories that have purported to explain the case law, including the well-known distinction between invocabilité de substitution and invocabilité d’exclusion, concluding that the normative impact theory has descriptive and normative advantages over existing approaches. Lastly, we show how the functioning of the preliminary reference procedure has affected the development of the case law on direct effect. We demonstrate that the European Court of Justice (ECJ) applies a presumption that consistent interpretation is capable of remedying incompatibilities between national and EU law. Secondly, we show how the formulation of the preliminary reference can substantially affect, and even confuse, the answer of the ECJ as regards matters of direct effect.

13. Preliminary Rulings

2015 ◽  
Author(s):  
Paul Craig ◽  
Gráinne de Búrca
Keyword(s):  
Direct Effect ◽  
National Court ◽  
European Court Of Justice ◽  
Eu Law ◽  
The European Union ◽  
Legal Norms ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter focuses on Article 267 of the Treaty on the Functioning of the European Union, which contains the preliminary ruling procedure. Article 267 has been of seminal importance for the development of EU law. It is through preliminary rulings that the European Court of Justice (ECJ) has developed concepts such as direct effect and supremacy. Individuals assert in national courts that the Member State has broken a Union provision, which gives them rights that they can enforce in their national courts. The national court seeks a ruling from the ECJ whether the particular EU provision has direct effect, and the ECJ is thereby able to develop the concept. Article 267 has been the mechanism through which national courts and the ECJ have engaged in a discourse on the appropriate reach of EU law when it has come into conflict with national legal norms.

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