Constitutional Courts, Preliminary Rulings and the “New Form of Law”: The Adjudication of the European Stability Mechanism

2015 ◽  
Vol 16 (6) ◽  
pp. 1771-1790 ◽  
Author(s):  
Samo Bardutzky
Keyword(s):  
Judicial Review ◽  
European Court Of Justice ◽  
The Other ◽  
Constitutional Courts ◽  
High Courts ◽  
Court Of Justice ◽  
European Court ◽  
The Supreme Court ◽  
European Stability Mechanism ◽  
New Form

In 2012 and 2013, we observed how the European Stability Mechanism (ESM) was adjudicated by “EU courts, plural”: a number of high courts of the Member States (among them “Kelsenian” constitutional courts as well as representatives of a more hybrid model of judicial review of constitutionality) and the European Court of Justice (CJEU) were seized by challenges to the mechanism. What attracted attention was the fact that only one court, the Supreme Court of Ireland, decided to submit a preliminary reference to the CJEU, while the other courts, as would appear from their judgments, did not even consider the option. This was a suboptimal example of judicial dialogue in the case of ESM adjudication.

scholarly journals The European Court of Justice: Of Institutions and Democracy

1998 ◽  
Vol 32 (1) ◽  
pp. 3-50 ◽  
Author(s):  
Martin Shapiro
Keyword(s):  
Judicial Review ◽  
European Court Of Justice ◽  
Statutory Interpretation ◽  
Constitutional Courts ◽  
Limited Government ◽  
Administrative Action ◽  
Court Of Justice ◽  
European Court ◽  
Court Interpreting ◽  
Law Making

The problem of democracy and judicial review is a problem engendered by successful constitutional courts. For where courts are not successful in establishing veto powers over legislation, no problem or only a very limited problem occurs. Of course any court interpreting statutes in the process of applying them does some law making. How much this law making interferes with democracy depends on how easy it is for the legislature to legislate. Where legislatures can amend statutes easily, they can easily correct “errors” of judicial statutory interpretation. Judicial review of the lawfulness of administrative action essentially involves the same power of statutory interpretation with the same potential for legislative correction.Most of the nations of the world that do not have successful constitutional courts are not democracies. Indeed, no state without considerable claims to democracy has successful judicial review. These facts are clues to the obvious. Constitutional government is limited government. In the real world we do not encounter nondemocratic limited governments although we encounter many shades of more or less democratic, more or less constitutional governments. So there is some affinity between democracy and constitutionalism.

Fighting for Authority: Strategic Actions of National High Courts in the European Union

2019 ◽  
Vol 12 (2-2019) ◽  
pp. 419-433
Author(s):  
Stefanie Vedder
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
Eu Law ◽  
The European Union ◽  
Principal Agent Theory ◽  
Strategic Actions ◽  
High Courts ◽  
Court Of Justice ◽  
European Court ◽  
Lower Courts

National high courts in the European Union (EU) are constantly challenged: the European Court of Justice (ECJ) claims the authority to declare national standing interpretations invalid should it find them incompatible with its views on EU law. This principle noticeably impairs the formerly undisputed sovereignty of national high courts. In addition, preliminary references empower lower courts to question interpretations established by their national ‘superiors’. Assuming that courts want to protect their own interests, the article presumes that national high courts develop strategies to elude the breach of their standing interpretations. Building on principal-agent theory, the article proposes that national high courts can use the level of (im-) precision in the wording of the ECJ’s judgements to continue applying their own interpretations. The article develops theoretical strategies for national high courts in their struggle for authority.

scholarly journals Some changes in the field of civil law

2006 ◽  
Vol 78 (9) ◽  
pp. 395-412
Author(s):  
Dušan Nikolić
Keyword(s):  
Separation Of Powers ◽  
Civil Law ◽  
Social Value ◽  
European Court Of Justice ◽  
The Other ◽  
The European Union ◽  
The Public ◽  
Public Benefit ◽  
Court Of Justice ◽  
European Court

In the first part of the paper, the author has outlined some changes that have happened in the field of civil law during the history, and in the second part of the paper, the author has paid attention to the modern trends, produced by the process of globalization. By analyzing certain sectors, the author has come to the conclusion that ownership title and public office are being slightly shifted from state to non-state authorities. On the other hand, this trend of the global (re)privatization has contributed to the change of attitude toward the title. The owner is expected to ewoy his title both for his own and for the public benefit. One of the most recent judgments of the European Court of Justice speaks in favor of this and it has been mentioned in this paper. This judgment supports the view that the property is not absolute and that it has a social value. The special attention is paid to the so called new institutionalism and need to question the concept of separation of powers within the European Union.

scholarly journals The myth of associative discrimination and the Court of Justice’s great vanishing act: part 2

2021 ◽  
Vol 72 (3) ◽  
pp. 510-541
Author(s):  
Michael Connolly
Keyword(s):  
European Court Of Justice ◽  
The Other ◽  
General Will ◽  
Traditional Form ◽  
Court Of Justice ◽  
European Court ◽  
Indirect Discrimination ◽  
The Uk ◽  
Extended Notion

This article complements an article (part 1) recently published in this journal (72(1) NILQ 29–60) contending that the notion of associative discrimination as a term of art renders it so vulnerable to manipulation that it can be used to narrow the scope of the legislation. That argument was rooted in the UK Supreme Court’s reasoning in Lee v Ashers Bakery [2018] UKSC 49. Part 2 continues the theme, but this time to show that the vulnerability can work the other way, producing, first, an ‘extended’ notion of associative discrimination and, second, radically broad notions of direct and indirect discrimination. This limb of the thesis also argues that a case heralded as one of associative discrimination, CHEZ [2016] CMLR 14, was no such thing. It concludes that the ambitious approach of the European Court of Justice and its Advocates General will blur the traditional form-based distinction between direct and indirect discrimination.

scholarly journals The myth of associative discrimination and the Court of Justice’s great vanishing act: part 2

2021 ◽  
Vol 72 (AD1) ◽  
pp. 1-32
Author(s):  
Michael Connolly
Keyword(s):  
European Court Of Justice ◽  
The Other ◽  
General Will ◽  
Traditional Form ◽  
Court Of Justice ◽  
European Court ◽  
Indirect Discrimination ◽  
The Uk ◽  
Extended Notion

This article complements an article (part 1) recently published in this journal (72(1) NILQ 29–60) contending that the notion of associative discrimination as a term of art renders it so vulnerable to manipulation that it can be used to narrow the scope of the legislation. That argument was rooted in the UK Supreme Court’s reasoning in Lee v Ashers Bakery [2018] UKSC 49. Part 2 continues the theme, but this time to show that the vulnerability can work the other way, producing, first, an ‘extended’ notion of associative discrimination and, second, radically broad notions of direct and indirect discrimination. This limb of the thesis also argues that a case heralded as one of associative discrimination, CHEZ [2016] CMLR 14, was no such thing. It concludes that the ambitious approach of the European Court of Justice and its Advocates General will blur the traditional form-based distinction between direct and indirect discrimination.

Judicial Review of UN Sanctions by the European Court of Justice

2009 ◽  
Vol 78 (3) ◽  
pp. 343-359 ◽  
Author(s):  
Nikolaos Lavranos
Keyword(s):  
Judicial Review ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
European Convention ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
Un Security Council ◽  
Procedural Rights ◽  
Court Of First Instance

AbstractWith its Kadi-judgment, the European Court of Justice firmly rejected the Kadi/Yusuf-judgments of the Court of First Instance. The Court of Justice made unambiguously clear that Community law, in particular its basic, core fundamental rights values prevail over any international law obligations of the EC and its Member States, including UN Security Council Resolutions and the UN Charter. As a consequence thereof, individuals targeted by UN sanctions must have access to full judicial review in order to be able to ensure the effective protection of their fundamental rights, including procedural rights as guaranteed by the European Convention of Human Rights (ECHR). As a result, the Court of Justice proved that the Community is indeed based on the rule of law and that the fight against terrorism – how important it may be – cannot be used as a justification for completely abrogating European constitutional law values as guaranteed within the Community and its Member States.

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