3. The Sources, Forms, and Individual Remedies of EU Law

2016 ◽  
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
Case Law ◽  
Legal Order ◽  
European Court Of Justice ◽  
Primary Sources ◽  
Eu Law ◽  
European Court ◽  
Questions And Answers ◽  
State Liability ◽  
The Eu

The Concentrate Questions and Answers series offer the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flowcharts. This chapter includes questions on a wide variety of often overlapping points concerned with the sources of European Union (EU) law. The sources of law are the Treaties which are regarded as primary sources and secondary legislation which can be enacted by the institutions of the Union by virtue of the powers given by the Member States and which are contained in the Treaties. Additional sources of law in the EU legal order are agreements with third countries, general principles and the case law of the European Court of Justice (ECJ) establishing, amongst other case law developments, the doctrine of direct effects, supremacy of EU law and state liability.

3. The Sources, Forms, and Individual Remedies of EU Law

2020 ◽  
pp. 26-46
Author(s):  
Nigel Foster
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
Primary Sources ◽  
Eu Law ◽  
European Court ◽  
Questions And Answers ◽  
Charter Of Fundamental Rights ◽  
State Liability ◽  
The Eu

The Concentrate Questions and Answers series offer the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flowcharts. This chapter includes questions on a wide variety of often overlapping points concerned with the sources of European Union (EU) law. The EU sources of law are the Treaties, Protocols, and the EU Charter of Fundamental Rights, which are regarded as primary sources. There is then the secondary legislation to consider which can be enacted by the institutions of the Union by virtue of the powers given by the Member States and contained in the Treaties. Additional sources of law in the EU legal order are agreements with third countries, fundamental rights, general principles, and the case law of the European Court of Justice (CJEU) establishing, amongst other case law developments, the doctrine of direct effects, supremacy of EU law, and state liability.

3. The Sources, Forms, and Individual Remedies of EU Law

2018 ◽  
Author(s):  
Nigel Foster
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
Primary Sources ◽  
Eu Law ◽  
European Court ◽  
Questions And Answers ◽  
Charter Of Fundamental Rights ◽  
State Liability ◽  
The Eu

The Concentrate Questions and Answers series offer the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flowcharts. This chapter includes questions on a wide variety of often overlapping points concerned with the sources of European Union (EU) law. The EU sources of law are the Treaties, Protocols, and the EU Charter of Fundamental Rights, which are regarded as primary sources and secondary legislation which can be enacted by the institutions of the Union by virtue of the powers given by the Member States and contained in the Treaties. Additional sources of law in the EU legal order are agreements with third countries, fundamental rights, general principles, and the case law of the European Court of Justice (ECJ) establishing, amongst other case law developments, the doctrine of direct effects, supremacy of EU law, and state liability.

From Washington with Love—Investor–State Arbitration and the Jurisdictional Monopoly of the Court of Justice of the European Union

2010 ◽  
Vol 12 ◽  
pp. 425-453
Author(s):  
Philip Strik
Keyword(s):  
European Union ◽  
Dispute Settlement ◽  
Case Law ◽  
Legal Order ◽  
Forum Shopping ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
International Dispute ◽  
The Eu

AbstractWhile investor–State arbitration is to a large extent detached from the EU legal order, EU law has recently started to be invoked in investor-State arbitration proceedings. In the context of intra-EU bilateral investment treaties, the Commission has expressed the view that investor-State arbitration gives rise to a number of ‘arbitration risks’ for the EU legal order. Not only can it solicit investors to engage in forum-shopping, but it can also result in questions of EU law not being litigated in Member State or Union courts. This chapter explores the extent to which the compatibility of investor–State arbitration with the EU legal order is in issue. It examines the main features of investor-State arbitration as concerns its interplay with the EU legal order, as well as the Court of Justice’s case law on issues of compatibility between systems of international dispute settlement and the EU legal order. The chapter highlights that the way in which investor–State arbitral tribunals handle issues of EU law, as well as the involvement of interested parties, may foster the synergy between investor–State arbitration and the EU legal order.

National Procedural Autonomy and General EU Law Limits

2019 ◽  
Vol 12 (2) ◽  
pp. 5-34
Author(s):  
Rob Widdershoven
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Eu Law ◽  
Procedural Law ◽  
Court Of Justice ◽  
European Court ◽  
Recent Approach ◽  
Procedural Autonomy ◽  
Judicial Protection ◽  
The Eu

This article examines the recent approach of the European Court of Justice of the EU towards the applicability of procedural national law in cases falling within the scope of Union law. It argues that the Court increasingly assesses such rules within the framework of the principle of effective judicial protection, as bindingly codified in Article 47 of the Charter of Fundamental Right of the EU since December 2009. This test is gradually replacing the rather deferential test on the Rewe principles of equivalence and effectiveness and implies a further limitation of procedural autonomy of the Member States. The reason for the shift seems to be the necessity to coordinate the Court's case law on Article 47 CFR with the case law of the European Court of Human Rights on Article 6 ECHR, because this coordination requires the application of a similar standard by both European Courts. As a result, the importance of, in particular, the Rewe principle of effectiveness, has already decreased to a considerable extent and might decrease further in future. Nevertheless, it is not to be expected that this standard will be abolished completely. First, because it may provide an adequate standard for assessing procedural issues that are not related to effective judicial protection or Article 47 CFR. Secondly, because incidentally it may be used by the Court for modifying national procedural law with a view to the effective application of substantive EU rules.

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.

Treaty-making Procedures

2021 ◽  
pp. 57-100
Author(s):  
Jan Wouters ◽  
Frank Hoffmeister ◽  
Geert De Baere ◽  
Thomas Ramopoulos
Keyword(s):  
European Union ◽  
Case Law ◽  
European Court Of Justice ◽  
Historical Evolution ◽  
The European Union ◽  
Provisional Application ◽  
Court Of Justice ◽  
European Court ◽  
Important System ◽  
The Eu

This chapter provides an overview of the treaty-making procedures in the European Union. It explains the historical evolution of primary law in the field and gives examples for each step under Article 218 TFEU (negotiation, signature, provisional application, and conclusion). Excerpts of European Court of Justice (ECJ) case law illustrate how these provisions are interpreted and applied in practice. The chapter also discusses the principles covering suspension and termination of EU agreements, and the ever more important system that allows the EU to contribute to the adoption of international secondary law under Article 218, paragraph 9 Treaty on the Functioning of the European Union (TFEU). A final section describes EU practice for adopting non-legally binding instruments and reproduces the new guidance of December 2017 issued by the Council and the Commission in this respect after the ECJ’s judgment in the case relating to the EU–Swiss Memorandum of Understanding.

11. Free movement of goods II: non-tariff barriers

2020 ◽  
pp. 287-318
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
European Commission ◽  
Case Law ◽  
European Court Of Justice ◽  
Free Movement ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Free Movement Of Goods

This chapter examines European Union (EU) law concerning non-tariff barriers to free movement of goods. It describes member states’ attempts to influence imports and the way the European Commission and the European Court of Justice (CoJ) handled these issues. This chapter explains the provisions of the relevant legislation for non-tariff barriers, which include Articles 34, 36, and 35 of the Treaty on the Functioning of the European Union (TFEU). It also analyses example cases including ‘Dassonville’, ‘Cassis de Dijon’, and post ‘Keck’ case law. It concludes with a consideration of the latest trend of cases concerning product use and residual rules.

From Washington with Love—Investor–State Arbitration and the Jurisdictional Monopoly of the Court of Justice of the European Union

2010 ◽  
Vol 12 ◽  
pp. 425-453
Author(s):  
Philip Strik
Keyword(s):  
European Union ◽  
Dispute Settlement ◽  
Case Law ◽  
Legal Order ◽  
Forum Shopping ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
International Dispute ◽  
The Eu

Abstract While investor–State arbitration is to a large extent detached from the EU legal order, EU law has recently started to be invoked in investor-State arbitration proceedings. In the context of intra-EU bilateral investment treaties, the Commission has expressed the view that investor-State arbitration gives rise to a number of ‘arbitration risks’ for the EU legal order. Not only can it solicit investors to engage in forum-shopping, but it can also result in questions of EU law not being litigated in Member State or Union courts. This chapter explores the extent to which the compatibility of investor–State arbitration with the EU legal order is in issue. It examines the main features of investor-State arbitration as concerns its interplay with the EU legal order, as well as the Court of Justice’s case law on issues of compatibility between systems of international dispute settlement and the EU legal order. The chapter highlights that the way in which investor–State arbitral tribunals handle issues of EU law, as well as the involvement of interested parties, may foster the synergy between investor–State arbitration and the EU legal order.

8. Remedies: direct and indirect effects and state liability

2018 ◽  
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
Indirect Effects ◽  
Case Law ◽  
European Court Of Justice ◽  
Direct And Indirect Effects ◽  
Procedural Law ◽  
European Court ◽  
Eu Directives ◽  
State Liability ◽  
Direct Applicability

This chapter examines the remedies developed by the European Court of Justice (CoJ) for member states who violate European Union (EU) laws. It considers the concept of direct applicability and reviews the development of the doctrine of direct effects through an analysis of case law. The chapter proposes ways for overcoming the lack of horizontal effect for EU Directives to avoid the result of the ‘Marshall’ ruling and discusses state liability in the CoJ cases ‘C-6’ and ‘9/90 Francovich’. It also considers national procedural law and the system of remedies developed by the CoJ.

5. Supremacy of EU law

2018 ◽  
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
Czech Republic ◽  
European Court Of Justice ◽  
Eu Law ◽  
Member States ◽  
The Czech Republic ◽  
European Court ◽  
The Uk ◽  
The Relationship ◽  
The Eu

This chapter focuses on the supremacy of European Union (EU) law over the law of the member states and the relationship with international law. It suggests that the reasons and logic for the supremacy of the EU law have been developed through the decisions and interpretation of the European Court of Justice (CoJ) and provides relevant cases to illustrate the views of the CoJ on the superiority of EU law. This chapter also describes the reception and implementation of EU law in several member states, including the UK, but now in the light of Brexit, Germany, Italy, France, the Czech Republic, Denmark, and Spain.

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