scholarly journals New Challenges for European Comparative Law: The Judicial Reception of EU Non-Discrimination Law and a turn to a Multi-layered Culturally-informed Comparative Law Method for a better Understanding of the EU Harmonization

2017 ◽  
Vol 18 (3) ◽  
pp. 721-770 ◽  
Author(s):  
Jule Mulder
Keyword(s):  
National Level ◽  
Comparative Law ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
National Courts ◽  
Culturally Informed ◽  
Harmonization Process ◽  
Legal Harmonization ◽  
The Eu

This article argues that comparative law needs to explore its critical potential when engaging with the European harmonization process and its effects on the law of the Member States. In the first part, the article evaluates existing comparative law methods and their suitability to identify legal and cultural factors that influence the judicial reception of EU harmonized law on a national level. Using EU non-discrimination law as a case study, it questions to what extent traditional methods are suitable to explain differences in the national judicial reception of EU harmonized law, despite the exclusive competence of the Court of Justice of the European Union to interpret EU law. In doing so, it considers the potential of critical comparative law for the development of a deeper understanding of the national courts' reception of EU harmonized law as a key part of the broader legal harmonization process. In the second part, the article develops an original multi-layered culturally informed method to compare EU harmonized law. The proposal goes beyond the existing methods of comparative law by including critical aspects and stressing the relevance of embedding a general normative framework in any comparative critique. It challenges comparatists to reach deeply into national cultural spheres and to identify key influences on the application of EU rules and EU-national legal ‘hybrids’. The method creates room for multi-layered narratives of comparison aimed at gaining a deeper understanding of the national legal and non-legal cultural background that can hinder or facilitate harmonization processes. This enriched comparative critique can offer new insights into the process of legal harmonization in the EU, particularly by focusing on the point of application rather than the previous phases of creation of EU law and its reception by Member States.

Review by Constitutional Courts of the Obligation of National Courts of Last Instance to Refer a Preliminary Question to the Court of Justice of the EU

2015 ◽  
Vol 16 (6) ◽  
pp. 1663-1700 ◽  
Author(s):  
Clelia Lacchi
Keyword(s):  
European Union ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
Constitutional Review ◽  
National Courts ◽  
Court Of Justice ◽  
Judicial Remedy ◽  
The Eu

The Constitutional Courts of a number of Member States exert a constitutional review on the obligation of national courts of last instance to make a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU).Pursuant to Article 267(3) TFEU, national courts of last instance, namely courts or tribunals against whose decisions there is no judicial remedy under national law, are required to refer to the CJEU for a preliminary question related to the interpretation of the Treaties or the validity and interpretation of acts of European Union (EU) institutions. The CJEU specified the exceptions to this obligation inCILFIT. Indeed, national courts of last instance have a crucial role according to the devolution to national judges of the task of ensuring, in collaboration with the CJEU, the full application of EU law in all Member States and the judicial protection of individuals’ rights under EU law. With preliminary references as the keystone of the EU judicial system, the cooperation of national judges with the CJEU forms part of the EU constitutional structure in accordance with Article 19(1) TEU.

scholarly journals References for a Preliminary Ruling to the European Union Court of Justice: The Substantive Criteria of Admissibility

2019 ◽  
Vol 14 (4) ◽  
pp. 131-156 ◽  
Author(s):  
Elena A. Sorokina
Keyword(s):  
European Union ◽  
National Court ◽  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Legal Traditions ◽  
National Courts ◽  
Acceptability Criteria ◽  
The Eu

The preliminary ruling procedure as stipulated by Article 276 of the Treaty on the functioning of the European Union had a significant impact on the de-ve lop ment of EU law and became a collaborative tool as part of the dialogue bet-ween supranational and national judges.The mechanism of preliminary ruling enables to ensure a uniform interpretation and application of the provisions of EU law with all member states and consti tutes an instrumental element for preserving the uniformity of the European legal system.When developing the mechanism of preliminary ruling at EU level one consi-dered constitutional & legal traditions of member states, however, for long periods, the EU was perceived as "exotic" one and its impact on the national law was often underesti mated. Initially there were no any clear concepts how the mechanism of preliminary ruling would work. The EU court encouraged national judges of member states to use this mechanism; however, gradually it started introducing certain acceptability criteria in respect of such requests.The practice of the EU Court was summarized in the updated Rules of Procedure of 25 September 2012. During the period from 2014 to 2018, the number of cases sub mitted for preliminary ruling procedure was increasingly growing. Consequently, natio nal courts had started using this procedure relatively intensively and the con so-li dation of acceptability criteria created no serious problems for them.The imposition by the EU Court of minimal requirements towards the substance of requests does not reduce their number, since the acknowledgement of a re quest as inadmissible does not prevent a national court from sending a repeated re quest. However, it contributes to the improvement of quality and efficiency of the pre li mi-nary ruling procedure. The establishment of the respective requirements is necessary to ensure that the EU Court could provide national courts with an interpretation of EU law useful for resolution of a specific dispute and ensure constructiveness of the dialogue.

scholarly journals Judicial Review of Administrative Action at National Level under the EU Charter of Fundamental Rights and General Principles of EU Law

2020 ◽  
Vol 18 (1) ◽  
pp. 25-49
Author(s):  
Mihaela Vrabie
Keyword(s):  
Judicial Review ◽  
National Level ◽  
Fundamental Rights ◽  
Eu Law ◽  
Member States ◽  
National Courts ◽  
Charter Of Fundamental Rights ◽  
The Impact ◽  
Eu Fundamental Rights ◽  
The Eu

This article aims to determine when the national authorities have the obligation to comply with EU fundamental rights, in the framework of administrative procedures carried out in the EU Member States. It also aims to determine the legal remedies available at national level in the context of judicial review in case of violation, by the national authorities, of EU fundamental rights guaranteed by the Charter of Fundamental Rights of the EU or as general principles of EU law. To this end, this study explains the impact of the legally binding EU Charter on public administration of the Member States and the field of application of the EU Charter at national level. The article also deals with the distinction between EU fundamental rights as primary EU law guaranteed by the EU Charter and EU fundamental rights as general principles of EU law. With reference to the judicial remedies available to national courts, the study outlines the effects of EU law (primacy of EU law, direct effect, direct application) in relation to the EU fundamental rights and the measures that can be adopted by the national courts when the action of the national administrative authorities is not compatible with EU fundamental rights. Finally, the article presents the most important findings concerning judicial protection of EU fundamental rights at the national level, especially from the perspective of the right to an effective remedy and to a fair trial stipulated by Article 47 of the EU Charter.  

scholarly journals European law, national law and (un)certainty of law

2020 ◽  
Vol 2 (2) ◽  
pp. 155-177
Author(s):  
Gian Benacchio
Keyword(s):  
Legal System ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Binding Effect ◽  
Eu Member States ◽  
National Courts ◽  
Fundamental Values ◽  
Radical Shift ◽  
The Eu

One of the fundamental values of any legal system is the principle of certainty of law, whose highest expression is its encoding in the various bodies of law. However, today this value is strongly, albeit inadvertently, called into question by the European Union - in particular, by a set of principles, and related mechanisms, designed to ensure uniformity of law across the EU Member States. These include the principle of primacy of EU law over the laws of its Member States, the principle of the disapplication of national laws that are incompatible with EU law (including the provisions of directives that have not yet been implemented, or that have implemented in a manner deemed incorrect), the principle of interpretation of national law in conformity with EU law and, above all, the conclusive and binding effect of the judgments of the EU Court of Justice even when they provide a 'unique' or unusual interpretation, not expressly provided for in EU law. These principles are now well-established benchmarks in supreme and national courts as well, to the extent that there has been a radical shift in the system and hierarchy of sources of law in each legal system of the EU Member States, at the expense of citizens, businesspeople and legal practitioners, who all find it hard to identify the exact rule to apply to specific cases.

The preliminary ruling procedure at the court of justice of the European Union and transformation of European anti-discrimination law

2020 ◽  
Vol 2020 (3) ◽  
pp. 66-72
Author(s):  
Elena Sorokina
Keyword(s):  
Legal System ◽  
Essential Feature ◽  
Preliminary Ruling ◽  
The European Union ◽  
Judicial Cooperation ◽  
Member States ◽  
National Courts ◽  
Court Of Justice ◽  
Protection Of Human Rights ◽  
The Eu

The preliminary ruling procedure is an essential feature of the EU legal system, which is a unique cooperation tool as part of the dialogue between the Court of Justice of the EU and national courts of the Member States. Its main purpose is to ensure uniform interpretation and application of the provisions of EU law with all Member States and to preserve the uniformity of the European legal system. The continuous use by national courts of the Member States of the mechanism of preliminary ruling and constructive inter-judicial cooperation, the Court of Justice has developed an extremely extensive case law on the prohibition of discrimination and with the result to introduce substantial changes in European anti-discrimination law.The preliminary rulings of the Court of Justice have shown its inclination to expand notions of what constitutes discrimination and in most cases the Court prompt by the desire to interpret the provisions of European law so as to ensure the full effectiveness of the law, as well as a willingness to promote and strengthen protection against discrimination in Europe. While the protection against discrimination on some grounds is stronger than others, however, the preliminary rulings of the Court of Justice are important contribution to the transformation of anti-discrimination law, promote change in the national legislation of the Member States and provide the more effective protection of human rights in general.

Legal conflict between the EU and the republic of Poland regarding polish judicial reform

2021 ◽  
Author(s):  
Ivan Yakovyuk ◽  
Suzanna Asiryan ◽  
Anastasiya Lazurenko
Keyword(s):  
European Union ◽  
Judicial Reform ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
Legal Nature ◽  
Constitutional Tribunal ◽  
The Republic ◽  
The Eu

Problem setting. On October 7, 2021, the Constitutional Tribunal of the Republic of Poland ruled in favor of Polish law over European Union law, which in the long run may violate the principles according to which the Union operates and the rights enjoyed by citizens of the state. Such a precedent can further serve as a basis for identical decisions of the bodies of constitutional jurisdiction of those states that have problems in fulfilling their obligations in the European community. Analysis of recent researches and publications. The problems of the functioning of the bodies of the European Union, the implementation of their decisions and the general status in EU law are widely studied in national science. In particular, many scholars have studied the legal nature of the EU, including: TM Anakina, VI Muravyov, NM Ushakov, A. Ya. Kapustina, NA Korolyova, Yu. Yumashev, BN Topornin, OYa Tragniuk, SS Seliverstov, IV Yakovyuk and others. Target of research is to establish the foundations of EU law in the functioning of Union bodies, especially the Court, as well as to determine the hierarchy of national law and EU law. Article’s main body. Over the years, the Court has, within its jurisdiction, issued a large number of judgments which have become the source of the Union’s Constituent Treaties and of EU law in general. Over the last two decades, the powers of the Court of Justice have changed significantly. In particular, this is due to the adoption of the Lisbon Treaty, which amended the EU’s founding treaties on the powers of the Court, then the reform of the European Court took place in 2015-2016, which concerned a change in the organizational structure of the Court. Despite the generally well-established case law of the Court of Justice of the European Union on the unification of the observance by the Member States of the basic principles of the European Union, the Constitutional Tribunal of the Republic of Poland adopted a decision on 7 October. Conclusions and prospects for the development. Following the decision of the Constitutional Court, the Polish authorities found themselves in a situation that significantly complicated its internal and external situation. The way out of which requires answers to fundamental questions about the legal nature of the EU. Undoubtedly, this is an issue not only between Poland and the EU, but also between other member states.

Mixed Agreements: The EU Law Fundamentals

2018 ◽  
Author(s):  
Joni Heliskoski
Keyword(s):  
European Union ◽  
Case Law ◽  
International Agreements ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
Basic Characteristics ◽  
Mixed Agreements ◽  
The Eu

Whatever terminology one might wish to employ to describe the form of integration constituted by the European Union and its Member States, one fundamental attribute of that arrangement has always been the division, as between the Union and its Member States, of competence to conclude international agreements with other subjects of international law. Today, the fact that treaty-making competence—as an external facet of the more general division of legal authority—is divided and, to some extent, shared between the Union and its Member States is reflected by some of the opening provisions of the Treaty on European Union and the Treaty on the Functioning of the European Union. Notwithstanding the changes to the scope and nature of the powers conferred upon the Union, resulting from both changes to primary law and the evolution of the case law of the Court of Justice of the European Union (CJEU), the basic characteristics of the conferment as an attribution of a limited kind has always been the same; there has always existed a polity endowed with a treaty-making authority divided between and, indeed, shared by, the Union and its Member States. In the early 1960s mixed agreements—that is, agreements to which the European Union

Multilevel hardening in progress – Transition from soft towards hard regulation of CSR in the EU

2020 ◽  
pp. 1023263X2095837
Author(s):  
Tamás Szabados
Keyword(s):  
Financial Reporting ◽  
Intermediate Stage ◽  
Due Diligence ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Corporate Social ◽  
The Impact ◽  
Human Rights Due Diligence ◽  
The Eu

Corporate social responsibility (CSR) is gradually undergoing multilevel transformation in the European Union (EU). Hardening of the initially voluntary CSR approach of the EU is progressively taking place in an interaction between the law of the Member States and EU law. Domestic solutions can serve as a model for EU legislation. In this progress, the Non-Financial Reporting Directive, granting considerable flexibility both to companies and the Member States, can indeed be seen as an intermediate stage and it is expected that, under the impact of human rights due diligence requirements recently imposed on companies by Member States, more substantive obligations will also be introduced at an EU level in the future.

Reading the Tea Leaves: The Polish Constitutional Tribunal and the Preliminary Ruling Procedure

2015 ◽  
Vol 16 (6) ◽  
pp. 1543-1568
Author(s):  
Aleksandra Kustra
Keyword(s):  
European Union ◽  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
Tea Leaves ◽  
National Courts ◽  
Legal Provisions ◽  
Constitutional Tribunal ◽  
The Relationship ◽  
The Eu

The main purpose of the preliminary ruling procedure is to prevent divergences in judicial decisions applying European Union (EU) law and to ensure the uniform interpretation of EU legal provisions across Member States. The procedure, introduced in the Founding Treaties, has provided a platform for the Court of Justice of the European Union (hereafter, the ECJ or the CJEU) to deliver seminal judgments that have progressively defined the relationship between national and EU legal systems, among others. The procedure has also helped the ECJ to develop fundamental principles of EU law, including direct effect, indirect effect (i.e., the interpretation of national law in line with directives) and primacy. Being one of the most important aspects of the EU judicial system, the procedure provided by Article 267 of the Treaty on the Functioning of the European Union (hereafter, TFEU) has had an immense impact on the harmonious development of EU law and the way in which national courts and EU courts interact and communicate.

scholarly journals National Security Concerns as an Exception to EU Standards on Data Protection

2021 ◽  
Vol 4 (2) ◽  
pp. 86-91
Author(s):  
Araceli Turmo
Keyword(s):  
National Level ◽  
Significant Risk ◽  
Personal Data ◽  
Fundamental Rights ◽  
Public Security ◽  
Eu Law ◽  
National Courts ◽  
Conflicting Interests ◽  
Security Concerns ◽  
The Eu

Discussions on the appropriate fundamental rights standards in the EU and the need to take into account conflicting interests are increasingly being reframed as debates on the conflict between the primacy of EU law and the constitutional standards of the Member States. One example of this reframing is the French administrative supreme court’s decision following the ECJ judgment in La Quadrature du Net. The Conseil ruled that the EU standards set in that judgment must be reviewed, at the national level, with regard to a national understanding of security concerns and the requirements of the fight against terrorism. Thus, constitutional requirements related to public security may be relied upon to argue for a lower standard of protection of personal data than those which the ECJ requires. As this decision shows, the ability of corporations and Governments to rely on litigation before national courts to challenge the standard of protection set at the EU level creates a significant risk, not only for the uniformity of EU law, but also for the protection of the rights of individuals. 

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