Arbitration cases and preliminary references to the European Court of Justice—an assessment of ‘the Danish Solution’

2020 ◽  
Vol 36 (1) ◽  
pp. 147-155
Author(s):  
Morten Broberg ◽  
Niels Fenger
Keyword(s):  
European Union ◽  
National Court ◽  
European Court Of Justice ◽  
Preliminary Ruling ◽  
The European Union ◽  
Commercial Arbitration ◽  
Member States ◽  
Reference Procedure ◽  
Court Of Justice ◽  
European Court

Abstract When a case, that is pending before a national court in one of the Member States of the European Union, requires a decision on the interpretation or validity of an EU legal measure, the national court can seek a preliminary ruling on the matter from the European Court of Justice before deciding the main action. In its preliminary ruling, the European Court of Justice establishes authoritatively the interpretation or validity of the relevant EU legislation. When EU law plays a role in commercial arbitration it may be very useful for arbitration tribunals to have access to the preliminary reference procedure. However, according to the Treaty on the Functioning of the European Union, only ‘a court or tribunal of a Member State’ can make a preliminary reference and this notion does not include commercial arbitration tribunals. In order to give arbitration tribunals access to the preliminary reference procedure Denmark has introduced a scheme which allows them to ask the ordinary Danish courts to make preliminary references on behalf of the arbitration tribunal. This article explains the Danish scheme and considers to what extent it provides a useful model for other Member States.

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.

6. The preliminary ruling (Article 267 TFEU)

2020 ◽  
pp. 155-176
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Reference Procedure ◽  
Procedural Law ◽  
Court Of Justice

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 Court of Justice (CJEU). 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. This ensures legal unity.

scholarly journals The European Court of Justice and the Policy Process

2018 ◽  
Author(s):  
Susanne K. Schmidt
Keyword(s):  
European Union ◽  
Member State ◽  
Case Law ◽  
European Court Of Justice ◽  
The European Union ◽  
Member States ◽  
Administrative Practices ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

The European Court of Justice is one of the most important actors in the process of European integration. Political science still struggles to understand its significance, with recent scholarship emphasizing how closely rulings reflect member states’ preferences. In this book, I argue that the implications of the supremacy and direct effect of the EU law have still been overlooked. As it constitutionalizes an intergovernmental treaty, the European Union has a detailed set of policies inscribed into its constitution that are extensively shaped by the Court’s case law. If rulings have constitutional status, their impact is considerable, even if the Court only occasionally diverts from member states’ preferences. By focusing on the four freedoms of goods, services, persons, and capital, as well as citizenship rights, the book analyses how the Court’s development of case law has ascribed a broad meaning to these freedoms. The constitutional status of this case law constrains policymaking at the European and member-state levels. Different case studies show how major pieces of EU legislation cannot move beyond case law but have to codify its principles. Judicialization is important in the EU. It also directly constrains member-state policies. Court rulings oriented towards individual disputes are difficult to translate into general policies, and into administrative practices. Policy options are thereby withdrawn from majoritarian decision-making. As the Court cannot be overruled, short of a Treaty change, its case law casts a long shadow over policymaking in the European Union and its member states, undermining the legitimacy of this political order.

scholarly journals European Union citizenship: The acquisition of nationality and the ever-expansive reach of the European Court of Justice

2021 ◽  
Author(s):  
◽  
Bridgette K. McLellan
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
The European Union ◽  
European Union Law ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
Union Citizenship ◽  
The Law ◽  
Principle Of Proportionality

<p>European Union citizenship was established by the Treaty of Maastricht in 1992. Intended to fall within the exclusive prerogative of the Member States, it soon became clear that the autonomy of Member States to determine matters relating to nationality would be restricted by the ever-expansive reach of the European Court of Justice. As such, the European Court of Justice transformed the law on citizenship in the 2010 case of Rottmann where measures affecting or depriving the rights conferred and protected by the European Union were held to fall within the scope ratione materiae of European Union law. While Rottmann affirmed the law as to the deprivation of European Union citizenship, it left unanswered the question whether the acquisition of nationality also falls within the scope of European Union law. This paper aims to identify and analyse the law arising post-Rottmann to determine whether the acquisition of nationality could fall within the scope of European Union law. It shall then analyse whether fundamental principles of European Union law, namely the principle of proportionality, could be applied in order to regulate the conditions imposed by Member States in relation to the acquisition of nationality.</p>

scholarly journals The 346 Clause of TFEU Regulation in Different EU Member States

Teisė ◽  
2019 ◽  
Vol 113 ◽  
pp. 123-138
Author(s):  
Vilius Kuzminskas
Keyword(s):  
European Union ◽  
Case Law ◽  
European Court Of Justice ◽  
The European Union ◽  
Member States ◽  
Eu Member States ◽  
Court Of Justice ◽  
European Court

The article discloses the fixed exclusion regulation of Clause 346 in the Treaty of Function of the European Union in different EU member states. A further assessment of different relevant judicial approaches to regulation are disclosed and evaluated in accordance with the European Court of Justice case law and procurement in the defense area doctrine.

scholarly journals The Cogeco Case: The First Preliminary Ruling on the Private Enforcement Directive

2020 ◽  
Vol 3 (2) ◽  
pp. 81-106
Author(s):  
Catarina Vieira Peres
Keyword(s):  
European Union ◽  
Legal Order ◽  
European Court Of Justice ◽  
Controversial Issue ◽  
Private Enforcement ◽  
Preliminary Ruling ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Major Interest

In March this year, the European Court of Justice (hereinafter “CJ”) answered the first preliminary question regarding the Private Enforcement Directive (“Directive”).1 One might expect this decision2 to remain relevant for the next few years, as it sheds some light on the rather intricate issue of the Directive’s temporal application. The CJ explains what rules are applicable to actions for damages regarding infringements which occurred prior either to the Directive’s adoption or to its implementation in the respective Member States. The case is also of major interest since it illustrates the role that the principle of effectiveness can play when applied alongside Articles 101 or 102 of the Treaty on the Functioning of the European Union (“TFEU”).3 Finally, albeit not expressly addressed, the case is also of interest regarding the controversial issue of parent company liability in private enforcement, where it represents a novelty in the Portuguese legal order.

Broberg and Fenger on Preliminary References to the European Court of Justice

2021 ◽  
Author(s):  
Morten Broberg ◽  
Niels Fenger
Keyword(s):  
National Court ◽  
Case Law ◽  
European Court Of Justice ◽  
European Convention ◽  
European Economic Area ◽  
The European Union ◽  
International Organisations ◽  
Reference Procedure ◽  
Court Of Justice ◽  
European Court

This fully updated and revised 3rd edition of Preliminary References to the European Court of Justice provides a meticulous and yet easily accessible examination of all aspects of the preliminary reference procedure. A reference for a preliminary ruling is a request from a national court of an EU Member State to the European Court of Justice to give an authoritative interpretation on an EU act or a decision on the validity of such an act. Preliminary rulings have played a pivotal role in the development of the European Union. The European Union’s preliminary reference procedure has been copied by several other international organisations – including not least the European Economic Area (EEA) and the EFTA Court. Since the second edition, the European Court of Justice has rendered a considerable number of rulings which have led to important changes to the book. This is particularly reflected in the treatment of the Court’s acte clair doctrine, of preliminary references from administrative appeal boards and arbitration tribunals and of preliminary references regarding international agreements. And it is reflected in the interaction between the preliminary reference procedure and the European Convention on Human Rights as well as in a more general revision of the text bringing it up to date by taking into account new case law and new legal writings. With backgrounds as both practitioners and academics the two authors have produced a book that caters for the needs of both practitioners and academics.

Negotiating Turkey's Membership to the European Union. Can the Member States Do As They Please?

2007 ◽  
Vol 3 (2) ◽  
pp. 269-284 ◽  
Author(s):  
Christophe Hillion
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
The European Union ◽  
Member States ◽  
Constitutional Order ◽  
European Union Enlargement ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

Limits to member states' discretion in European Union enlargement negotiations – Changing the fundamentals of the EU constitutional order through the conclusion of accession treaties – The case of Turkey – Caveats, precautions and fallback strategies in the ‘Negotiating Framework for Turkey’ – Enforcing the limits to member states' discretion in European Union enlargement negotiations – The jurisdiction of the European Court of Justice before ratification and after entry into force.

Preliminary References

2018 ◽  
Author(s):  
Morten Broberg ◽  
Niels Fenger
Keyword(s):  
European Union ◽  
Member State ◽  
National Court ◽  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
Reference Procedure ◽  
National Courts ◽  
Court Of Justice ◽  
Court Of Appeal

A reference for a preliminary ruling is a request from the national court of a Member State to the Court of Justice of the European Union to give an authoritative interpretation of an EU act or a decision on the validity of such an act. In this situation, the Court of Justice does not function as a court of appeal that rules on the outcome of the main proceedings before the referring court: it makes judgment neither on the facts in the main proceedings nor on the interpretation and application of national law. Moreover, in principle it does not itself pronounce on the concrete application of EU law in the main proceedings before the referring court. Finally, while a preliminary ruling is normally given in the form of a judgment, the ruling is addressed to the referring court and not to the parties to the main proceedings. Only the referring court’s subsequent decision can be enforced against those parties. The preliminary reference procedure is therefore an expression of the interplay and allocation of tasks between national courts and the Court of Justice.

What Questions Can Be Referred?

2021 ◽  
pp. 89-140
Author(s):  
Morten Broberg ◽  
Niels Fenger
Keyword(s):  
Security Policy ◽  
National Court ◽  
International Agreements ◽  
European Court Of Justice ◽  
Preliminary Ruling ◽  
The European Union ◽  
Judicial Cooperation ◽  
Court Of Justice ◽  
European Court ◽  
Foreign And Security Policy

Chapter 4 examines which questions can be referred for a preliminary ruling. The European Court of Justice has jurisdiction to give preliminary rulings on the interpretation of the Treaties, and on the validity and interpretation of acts of the institutions, bodies, offices, or agencies of the Union. It does not have jurisdiction to rule on the interpretation or validity of international law or national laws, and it is prevented from giving a binding ruling on the facts that are put before a national court. Chapter 4 explains the reference to ‘the Treaties’ as well as the meanings of ‘acts’, ‘institutions, bodies, offices or agencies’, and ‘validity’. This examination includes police and judicial cooperation, common foreign and security policy, the Euratom Treaty and the ECSC Treaty, and it includes preliminary references concerning international agreements. The chapter also examines the extent to which the Court of Justice can give its opinion on the facts or the content of national law in connection with a reference for a preliminary ruling or on questions that concern circumstances that arise before a Member State’s accession to the European Union or where the preliminary ruling is rendered after a Member State’s withdrawal from the Union (eg Brexit).

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