7. Treaty enforcement actions against member states

2020 ◽  
pp. 177-193
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
Member State ◽  
The European Union ◽  
Member States ◽  
Procedural Law ◽  
Interim Measures

This chapter examines the enforcement of legal actions against member states in violation of the provisions of the Treaty on the Functioning of the European Union (TFEU). This is termed the procedural law. It explains what constitutes a breach of TFEU provisions and the process of identifying and reporting violations. It provides examples of the procedures involved in breaches of Articles 258, 260, 259, and 278–279 of the TFEU. This chapter also considers the actions brought by one member state against another, suspensory orders, and interim measures, and describes alternative actions that can help secure compliance by member states.

7. Treaty enforcement actions against member states

2018 ◽  
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
Member State ◽  
The European Union ◽  
Member States ◽  
Interim Measures

This chapter examines the enforcement of legal actions against member states in violation of the provisions of the Treaty on the Functioning of the European Union (TFEU). It explains what constitutes a breach of TFEU provisions and the process of identifying and reporting violations. It provides examples of the procedures involved in breaches of Articles 258, 260, 259, and 278–279 of the TFEU. This chapter also considers the actions brought by one member state against another, suspensory orders, and interim measures, and describes alternative actions that can help secure compliance by member states.

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.

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.

Twenty Years of CJEU Jurisprudence on Citizenship

2014 ◽  
Vol 15 (5) ◽  
pp. 821-834
Author(s):  
Prof. Dr. Gerard-René de Groot ◽  
Ngo Chun Luk
Keyword(s):  
European Union ◽  
Member State ◽  
Symbiotic Relationship ◽  
The European Union ◽  
European Union Law ◽  
Member States ◽  
Constant Friction ◽  
Union Citizenship ◽  
History Of ◽  
The Relationship

The history of the European Union has been fraught with constant friction between the sovereignty of the Member States and the supranational powers of the Union, with the Union gaining terrain in fields of law traditionally belonging to the Member States. Despite this tension, certain legal fields are steadfastly asserted as belonging to the Member States. Notably, Member States regulate the grounds of the acquisition and loss of nationality. The Treaty of Lisbon highlights that the nationality of Member States is scarcely governed by European Union law, if at all. The sole provision governing the relationship between Member State nationality and Union law, i.e., Article 20 of the Treaty on the Functioning of the European Union (TFEU) stresses the primacy of Member State nationality.Reality, however, is often not as simple as such a cursory reading implies. European Union citizenship, once a mere complementary facet of the national citizenships, has transformed into an institution in its own right, forming a symbiotic relationship between the Member State nationality and the European Union.

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.

The Nice Treaty: Reforming European Union Institutions in Anticipation of Eastern Enlargements

2019 ◽  
Author(s):  
Finn Laursen
Keyword(s):  
European Union ◽  
Member State ◽  
Majority Voting ◽  
The European Union ◽  
Constitutional Treaty ◽  
Member States ◽  
Qualified Majority ◽  
The Future ◽  
Eastern European Countries ◽  
Year 2000

The Nice Treaty negotiated during the year 2000, signed in 2001 and in force from 2003, focused on institutional changes considered necessary, especially by the larger member states, for the anticipated large enlargement of the European Union with several central and eastern European countries. Efforts to adopt such changes in the Amsterdam Treaty negotiations in 1996–1997 had failed. The Nice Treaty therefore dealt with what was known as the “Amsterdam leftovers,” namely size and composition of the European Commission, reweighting of votes in the Council of Ministers, and increased use of qualified majority voting in the Council. Concerning the reweighting of votes the intergovernmental conference agreed to increase the number of votes per member state, but the larger member states got a relatively larger increase that the smaller member states. This should make it more difficult for the smaller member states to dominate in the future, something feared by the larger states. Concerning the Commission, it was decided that each member state would nominate one commissioner in the future from January 1, 2005. When the membership of the union reached 27 the size would have to be reduced. How much and how would be decided later. Concerning the use of qualified majority voting the decision was to extend the use to some policy areas from the entry into force of the new treaty and for some policy areas considered more controversial the extension would take place later. For the most controversial areas no extension to qualified majority voting was considered. During the intergovernmental conference, which negotiated the new treaty, the topic of “enhanced cooperation” was added. Most of these topics were quite controversial, and afterward there was a feeling that the treaty did not adequately deal with all the issues. This in turn led to further efforts to improve the institutions, first in the failed Constitutional Treaty (2004) and eventually in the successful Lisbon Treaty (2007).

scholarly journals La independencia de Escocia en la Unión Europea : los efectos de la secesión de territorios en la UE entre política y derecho = The independence of Scotland in the European Union : the effects of territories’ secession within the EU between Law and Politics.

2014 ◽  
Vol 1 (33) ◽  
pp. 69 ◽  
Author(s):  
Alberto López Basaguren
Keyword(s):  
European Union ◽  
Member State ◽  
The European Union ◽  
Member States ◽  
Law And Politics ◽  
Special Procedure ◽  
Independent Member ◽  
The Eu

Este trabajo analiza el problema de los efectos en el interior de la UE de la recesión de territorios en el seno de sus Estados miembros, en relación a la hipotética independencia de Escocia, en el supuesto de un apoyo mayoritario a la opción independentista en el referéndum que va a tener lugar el próximo 18 de septiembre de 2104. Frente a la convicción inquebrantable de los promotores de la independencia de que Escocia, tras la independencia, permanecerá en la UE, como Estado miembro de pleno derecho y que la modificación de un status es una cuestión interna, casi una mera formalidad, este trabajo analiza los problemas que plantea la pretención escocesa, en la UE, entre Derecho y Política.This paper’s aim is to analyze the effects the secession of territories in the Member States can have within the EU, regarding the hypothetical independence of Scotland in the case a majority of Scotish citizens would back that opinion in the referendum on September 18, 2014. Those who are promoting and independent Scotland are completely convinced that the territory will remain in the EU, as an independent Member State, and that it will reach this new status from within the EU. In their mind, that is an EU’s «internal» matter, which doesn’t need any special procedure, as far as it would be just little more than a formality. On the contrary, this paper analyzes the issues a proposal like this of Scotland encounter within the EU both in the fields of Law and Politics.

The (Rebuttable) Presumption of the European Union Member States as ‘Safe Countries’ under the Dublin Regulation

2012 ◽  
pp. 240-255
Author(s):  
Cristina Contartese
Keyword(s):  
European Union ◽  
Member State ◽  
The European Union ◽  
Member States ◽  
Eu Member States ◽  
European Court ◽  
Dublin Regulation ◽  
Effective Remedy ◽  
European Union Member States ◽  
The Eu

The purpose of this chapter is to analyze a particular aspect of the so-called Dublin Regulation, whose aim is to determine the European Union (EU) Member State responsible for examining an asylum application, that is, the presumption that the EU Member States are “safe countries.” Although the notion of “safe country” is on the base of the Dublin Regulation functioning mechanism, as it implies that any EU Member States can transfer an asylum seeker to any other EU country which is responsible, the authors contend that the safety of an EU Member State can be given as presumed for the purpose of asylum seekers. The analysis of the present work starts, firstly, with the examination of the notion of “safe country” under the Dublin Regulation. In the second part, relying on the European Court of Human Rights’ (ECHR) case-law, it will be discussed to what extent the Court of Strasbourg clarifies the notion of “safe countries” and the test it applies to it. Finally, the Commission’s proposal for a recasting of the Dublin Regulation will be analysed with the aim of foresee possible future developments of the EU law mechanisms to rebut such a presumption as applied to the EU Member States. It will emerge that in order to assess the safety of an EU Member State, attention has to be given to the prohibition of both direct and indirect refoulement as well as to the effective remedy at the EU Member State’s domestic level.

Rule 266 Preliminary references to the Court of Justice of the European Union

2018 ◽  
Author(s):  
Andreas von Falck ◽  
Christian Stoll
Keyword(s):  
European Union ◽  
Member State ◽  
The European Union ◽  
Member States ◽  
Court Of Justice

Rule 266 regulates the requirements for a question to be referred to the CJEU by the UPC (Art 267 TFEU, Art 21 UPCA). Referrals to the CJEU ensure uniform interpretation of Union law. Rule 266 specifies the meaning of Arts 20 and 21 UPCA. According to Art 21 UPCA, the UPC cooperates with the CJEU for ensuring uniform application of Union law. The UPC is a common court of the Member States and is part of the jurisdiction of the Member States and therefore functionally a court of a Member State within the meaning of Art 267 TFEU.

scholarly journals Solidarity and Responsibility: Advancing Humanitarian Responses to eu Migratory Pressures

2017 ◽  
Vol 19 (3) ◽  
pp. 223-254 ◽  
Author(s):  
Sonia Morano-Foadi
Keyword(s):  
European Union ◽  
Member State ◽  
Effective Practices ◽  
The European Union ◽  
Member States ◽  
Collective Interest ◽  
Legal Foundation ◽  
Migration Flows ◽  
Building Walls ◽  
High Migration

Abstract The principle of solidarity is embedded in the foundations of the European Union (eu) legal system and is integral to the very ethos that has made the Union possible. However, as Member States struggle with contemporary challenges such as high migration flows, terrorism and economic turmoil they have predominantly adopted individualist and protectionist strategies which undermine the character of the Union. Those strategies include, for instance, building walls and securitising internal borders. This contribution argues that solidarity is inextricably linked with responsibility. Solidarity gives rise to responsibility and is a desired consequence of responsibility. Thus, this work suggests that strengthening the binomial of solidarity/responsibility is the solution that will create effective practices in meeting the humanitarian needs of refugees and sharing burdens between Member States. The contribution analyses the eu’s commitment to solidarity/responsibility and calls for Member States to demonstrate their commitment. Three types of Member State solidarity/responsibility are identified: 1) towards refugees and migrants, 2) towards fellow countries and 3) towards the eu itself. The latter finds its legal foundation in the principle of ‘sincere cooperation’ as enshrined in Article 4 (3) teu and constitutes a means of protecting collective interest and precluding unilateral Member State actions that might jeopardize the entire eu project.

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