scholarly journals The Political Impact of the Case Law of the Court of Justice of the European Union

2021 ◽  
pp. 1-25
Author(s):  
Renata Mieńkowska-Norkiene
Keyword(s):  
European Union ◽  
Conceptual Framework ◽  
Case Law ◽  
The Political ◽  
Competing Values ◽  
The European Union ◽  
Political Realism ◽  
Court Of Justice ◽  
Political Impact ◽  
Definition Of

Conceptual framework for understanding the degree and scope of the political impact of the case law of the Court of Justice of the European Union – Definition of ‘the political’ – Carl Schmitt’s concept of political realism – Chantal Mouffe’s agonistic theory of ‘the political’ – ‘The political’ in the light of three classical categories: (1) polity, (2) policy, and (3) politics – Framework for understanding polity as competing values, policy as conflicts over resources, politics as fights for power – Criteria of political significance and impact of the Court of Justice case law – Two illustrations: Case C-391/09 Runevič-Vardyn v Vilniaus miesto savivaldybės administracija and Case C-192/18 European Commission v Republic of Poland set against the broader context of politically significant cases from the Court of Justice of the European Union.

scholarly journals Tracing the Boundaries between Disability and Sickness in the European Union: Squaring the Circle?

2016 ◽  
Vol 23 (1) ◽  
pp. 5-35
Author(s):  
Silvia Favalli ◽  
Delia Ferri
Keyword(s):  
European Union ◽  
Case Law ◽  
Social Model ◽  
The European Union ◽  
Persons With Disabilities ◽  
Social Model Of Disability ◽  
Court Of Justice ◽  
The Social ◽  
Definition Of ◽  
Employment Equality

In recent years the European Union (eu) has sought to develop a far-reaching policy regarding persons with disabilities. However, to date, eu non-discrimination legislation does not provide any clear legal definition of what constitutes a disability. The Court of Justice of the European Union (cjeu) has attempted to fill this gap and, in several decisions, has elaborated on the concept of disability and its meaning under eu law. The cjeu, with reference to the application of the Employment Equality Directive, has explained the notion of disability mainly by comparing and contrasting it to the concept of sickness. Against this background, this article critically discusses recent case law and attempts to highlight that, even though the Court has firmly embraced the social model of disability envisaged by the un Convention on the Rights of Persons with Disabilities, the boundaries between the concepts of sickness and disability remain blurred.

Concept of a court or tribunal under the reference for a preliminary ruling: the Court of Justice of the European Union practice

2021 ◽  
Vol 11 (3) ◽  
pp. 105-126
Author(s):  
Elena Sorokina
Keyword(s):  
European Union ◽  
National Level ◽  
Case Law ◽  
The Body ◽  
Preliminary Ruling ◽  
The European Union ◽  
Court Of Justice ◽  
National Body ◽  
Scope Of Application ◽  
Definition Of

The aim of the present article is to analyse the concept of a “court or tribunal” and its meaning within the preliminary ruling procedure of Article 267 of the Treaty on the Functioning of the European Union. The extensive case law of the Court of Justice of the European Union confirms the need for such analyse. The concept of a “court or tribunal” is one of EU law. There is no abstract definition of a “court or tribunal” in the Treaties and other EU legal acts. Also the Court of Justice has never clarified what a court or tribunal is under Article 267 TFEU. However, according to the Court of Justice’s practice a number of organizational and functional criteria are relevant for determining when a national body can make a preliminary reference. The Court of Justice does not focus on the nomes iuris of a body or its status in the national judicial system. In addition, the Court of Justice examines whether the body making the request for a preliminary ruling is a court or tribunal of a particular EU member state. It is also clear from the Court of Justice’s case law that not all of the different criteria have to be unconditionally met in order for a body to qualify as a court or tribunal that may refer preliminary questions and that some carry considerable more weight than others. It is possible to find a number of the Court of Justice decisions which may qualify in some respect too flexible and insufficiently consistent, with a lack of legal certainty, when requests for a preliminary ruling are declared admissible despite jurisdictional status of national bodies are being questionable. Still, such practice of the Court of Justice and flexibility approach take into account the changes occurring at national level and to be able to develop its case-law abreast of those changes. However, the opposite tendency emerges and the Court of Justice taking a more restrictive position than in previous pronouncements. The Court of Justice pays increasing attention to the criterion of independence when national body’s make a preliminary reference. Such an approach allows a further consistent development of case law specifying both the scope of application and the content of the criterion of independence by the Court of Justice and contributes to optimising the mechanism of cooperation in the preliminary ruling procedure.

scholarly journals Differences Between the Recognition and Enforcement of Authentic Instruments and the Recognition and Enforcement of Judgments

Lexonomica ◽  
2021 ◽  
Vol 13 (1) ◽  
pp. 1-16
Author(s):  
Maria Dymitruk ◽  
Jacek Gołaczyński ◽  
Maria Kaczorowska ◽  
Piotr Rodziewicz
Keyword(s):  
European Union ◽  
Case Law ◽  
Legal Order ◽  
The European Union ◽  
Cross Border ◽  
Court Of Justice ◽  
Recognition And Enforcement ◽  
The Subject ◽  
Definition Of

The subject of the article is to analyse and compare the specificity of judgments and authentic instruments in terms of cross-border recognition and enforcement under the Brussels I Recast Regulation framework. Particular focus has been put on the practical aspects of the definition of an authentic instrument. Selected detailed issues arising against this background have been discussed with reference to the Polish legal order as well as the case-law of the Court of Justice of the European Union (CJEU). Based on the undertaken considerations, some proposals have been formulated regarding the enhancement of the free circulation of authentic instruments within the European Union.

scholarly journals Characteristics of Precedent: The Case Law of the European Court of Justice in Three Dimensions

2015 ◽  
Vol 16 (5) ◽  
pp. 1073-1098 ◽  
Author(s):  
Mattias Derlén ◽  
Johan Lindholm
Keyword(s):  
European Union ◽  
Case Law ◽  
Three Dimensions ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Court ◽  
Number Of Factors ◽  
The One

AbstractThe case law of the Court of Justice of the European Union (CJEU) is one of the most important sources of European Union law. However, case law's role in EU law is not uniform. By empirically studying how the Court uses its own case law as a source of law, we explore the correlation between, on the one hand, the characteristics of a CJEU case—type of action, actors involved, and area of law—and, on the other hand, the judgment's “embeddedness” in previous case law and value as a precedent in subsequent cases. Using this approach, we test, confirm, and debunk existing scholarship concerning the role of CJEU case law as a source of EU law. We offer the following conclusions: that CJEU case law cannot be treated as a single entity; that only a limited number of factors reliably affect a judgment's persuasive or precedential power; that the Court's use of its own case law as a source of law is particularly limited in successful infringement proceedings; that case law is particularly important in preliminary references—especially those concerning fundamental freedoms and competition law; and that initiating Member State and the number of observations affects the behavior of the Court.

What, Where and Why is Europe? Some Answers from Recent Historiography

2010 ◽  
Vol 40 (4) ◽  
pp. 701-713 ◽  
Author(s):  
Philipp Nielsen
Keyword(s):  
European Union ◽  
Big Bang ◽  
The Political ◽  
Clear Definition ◽  
The European Union ◽  
Alexander Von Humboldt ◽  
Catching Up ◽  
History Of ◽  
Institutional Expansion ◽  
Definition Of

Writing the history of a continent is generally a tricky business. If the continent is not even a real continent, but rather ‘a western peninsula of Asia’ (Alexander von Humboldt) without a clear definition of where the continent becomes peninsula, things do not get any easier. Despite these problems there is no dearth of trying. In fact, writing European histories seems to become more fashionable by the year — ironically just as the political and institutional expansion of Europe is losing steam. While the European Union is catching its breath, the historians are catching up. With the first wave of post-Euro and post-big-bang-Enlargement literature written, it is time for the reviewer to survey the landscape — and to provide some guideposts for future exploration.

scholarly journals Has the Action for Failure to Act in the European Union Lost its Purpose?

2014 ◽  
Vol 7 (2) ◽  
pp. 209-226 ◽  
Author(s):  
Inga Daukšienė ◽  
Arvydas Budnikas
Keyword(s):  
European Union ◽  
Judicial Review ◽  
Scientific Literature ◽  
Case Law ◽  
The European Union ◽  
Eu Legislation ◽  
Court Of Justice ◽  
Legal Remedy ◽  
The Eu

ABSTRACT This article analyzes the purpose of the action for failure to act under article 265 of the Treaty on the Functioning of the European Union (TFEU). The statements are derived from the analysis of scientific literature, relevant legislation, practice of the European Union Court of Justice (CJEU) and the European Union General Court (EUGC). Useful information has also been obtained from the opinions of general advocates of the CJEU. The article of TFEU 265, which governs the action for failure to act, is very abstract. For this reason, a whole procedure under the article 265 TFEU was developed by the EU courts. The original purpose of the action for failure to act was to constitute whether European Union (EU) institution properly fulfilled its obligations under the EU legislation. However, in the course of case-law, a mere EU institution’s express refusal to fulfill its duties became sufficient to constitute that the EU institution acted and therefore action for failure to act became devoid of purpose. This article analyzes whether the action for failure to act has lost its purpose and become an ineffective legal remedy in the system of judicial review in the EU. Additionally, the action for failure to act is compared to similar national actions.

From ‘Don’t Mention the Titanium Dioxide Judgment’ to ‘I Mentioned it Once, But I Think I Got Away with it All Right’: Reflections on the Choice of Legal Basis in EU External Relations after the Legal Basis for Restrictive Measures Judgment

2013 ◽  
Vol 15 ◽  
pp. 537-562
Author(s):  
Geert de Baere
Keyword(s):  
European Union ◽  
Titanium Dioxide ◽  
Case Law ◽  
The European Union ◽  
Legal Basis ◽  
Court Of Justice ◽  
External Relations ◽  
Restrictive Measures

Abstract This chapter examines the choice of legal basis in EU external relations post-Lisbon in the light of the judgment of the Court of Justice in the Legal Basis for Restrictive Measures case. Before reaching the conclusion that the regulation at issue there was rightly based on Article 215(2) of the Treaty on the Functioning of the European Union (TFEU) and rejecting the European Parliament’s argument that the measure ought to have been taken on the basis of Article 75 TFEU, the Court made a number of important observations on the principles to be followed when choosing a legal basis and recalled some of its earlier case law, in particular Titanium Dioxide and its progeny. This chapter reflects upon the application of those principles in a post-Lisbon framework.

scholarly journals The Rise and Expressions of Consistency in EU Law: Legal and Strategic Implications for European Integration

2013 ◽  
Vol 15 ◽  
pp. 139-167
Author(s):  
Ester Herlin-Karnell ◽  
Theodore Konstadinides
Keyword(s):  
European Union ◽  
European Integration ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
Treaty Of Lisbon ◽  
Legal Principles ◽  
Division Of Powers ◽  
Court Of Justice ◽  
Scope Of Application

Abstract The principle of consistency has a prominent place in EU law. In the Treaty of Lisbon, it constitutes an umbrella under which a number of legal principles of EU law follow as corollaries. Consistency manifests itself within both horizontal and vertical levels of governance. This chapter will unpack this principle and will focus on the broader implications of consistency for the division of powers in EU law. In doing so, the authors aim to discuss the rise of consistency in EU law and decrypt its various constitutional expressions in order to determine its scope of application. Two notions of consistency are presented: a formal one that appears in the Treaty of Lisbon and a strategic one, prominent in the case law of the Court of Justice of the European Union (CJEU). It is argued that consistency is relevant to both traditional (integrationist) and alternative (differentiated) routes to European integration. The chapter concludes by discussing whether the undefined nature of ‘consistency’ puts it at risk of becoming an empty vessel.

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