13. Preliminary Rulings

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 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. The UK version contains a further section analysing the extent to which the preliminary reference system is relevant in relation to the UK post-Brexit.

Download Full-text

14. Preliminary Rulings

EU Law ◽

10.1093/he/9780198856641.003.0014 ◽

2020 ◽

pp. 496-539

Author(s):

Paul Craig ◽

Gráinne de Búrca

Keyword(s):

Direct Effect ◽

National Court ◽

European Court Of Justice ◽

Preliminary Ruling ◽

Eu Law ◽

The European Union ◽

Legal Norms ◽

National Courts ◽

European Court ◽

The Uk

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 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. The UK version contains a further section analysing the extent to which the preliminary reference system is relevant in relation to the UK post-Brexit.

Download Full-text

9. The Relationship Between EU Law and National Law:

10.1093/he/9780198714927.003.0009 ◽

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.

Download Full-text

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

EU Law ◽

10.1093/he/9780198856641.003.0010 ◽

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.

Download Full-text

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

10.5771/9783748900733 ◽

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.

Download Full-text

Understanding ICSID Article 54

ICSID Review - Foreign Investment Law Journal ◽

10.1093/icsidreview/siaa020 ◽

2020 ◽

Author(s):

George A Bermann

Keyword(s):

European Union ◽

National Court ◽

Secretary General ◽

European Court Of Justice ◽

Eu Law ◽

The European Union ◽

Legislative History ◽

Court Of Justice ◽

European Court ◽

State Practice

Abstract To the surprise of many, questions have recently arisen over the scope of inquiry, if any, that a national court may, consistent with Article 54 of the ICSID Convention, make in connection with the enforcement of an ICSID award. It has long been assumed in many, if not most, quarters that a national court is privileged to condition enforcement of an ICSID Convention award on a single simple requirement, viz. that the award be certified by the Secretary-General of ICSID. Until recently, doubts over whether that is so have been raised in a very small number of jurisdictions. But the Commission of the European Union has taken the view that an ICSID Convention award may be denied enforcement if it is contrary to a principle of “autonomy” of EU law and, based on its judgment in Achmea case in connection with non-ICSID awards, the European Court of Justice most likely takes the same view. This suggests that the European Union regards violation of EU public policy, more generally, as a defense to enforcement of an ICSID award. Based on text, object and purpose, legislative history, and predominant state practice, this position appears to run seriously afoul of the ICSID Convention. At the same time, some meaning must be given to the language in Article 54 according to which an ICSID award must be enforced by a national court “as if it were a final judgment of a court” of the enforcing State. The author finds that the understanding of Article 54 that best reflects all pertinent considerations is that it imposes on courts the modest requirement that they subject the enforcement of ICSID awards to no more restrictive or onerous procedures than they impose on the enforecement of national judgments.

Download Full-text

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

EU Law ◽

10.1093/he/9780198859840.003.0010 ◽

2020 ◽

pp. 314-366

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.

Download Full-text

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

der moderne staat – Zeitschrift für Public Policy Recht und Management ◽

10.3224/dms.v12i2.04 ◽

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.

Download Full-text

6. The preliminary ruling (Article 267 TFEU)

EU Law Directions ◽

10.1093/he/9780198816539.003.0006 ◽

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.

Download Full-text

INTERNATIONAL JURISDICTION RULES IN MATTERS OF PARENTAL RESPONSIBILITY IN THE EUROPEAN UNION AND BOSNIA AND HERZEGOVINA: THE CONCEPT OF HABITUAL RESIDENCE V. NATIONALITY

Journal Human Research in Rehabilitation ◽

10.21554/hrr.091203 ◽

2012 ◽

Vol 2 (2) ◽

pp. 4-14

Author(s):

Jasmina Alihodžić ◽

Keyword(s):

European Union ◽

Bosnia And Herzegovina ◽

European Court Of Justice ◽

Eu Law ◽

The European Union ◽

Parental Responsibility ◽

Habitual Residence ◽

International Jurisdiction ◽

Court Of Justice ◽

European Court

The rules of jurisdiction in matters of parental responsibility contained in the Brussels II bis Regulation are based on the concept of habitual residence, while the legislation in B&H in this area gave priority to the principle of nationality. Analyzing these concepts, the author of the paper points to the importance of interpreting the concept of habitual residence by the European Court of Justice, and gives possible directions for reform of the relevant provisions of the PIL Act in terms of their compliance with EU law.

Download Full-text