Standards for Independent Oversight

2017 ◽  
Author(s):  
Nico van Eijk
Keyword(s):  
The Netherlands ◽  
European Court Of Justice ◽  
Data Retention ◽  
Digital Rights ◽  
National Courts ◽  
Court Of Justice ◽  
Intelligence Services ◽  
European Court ◽  
The Uk ◽  
Point Of Departure

The point of departure for this chapter is the decision of the European Court of Justice in the Digital Rights Ireland case, which annulled the European Data Retention Directive, in part because the use of retained data was not made subject to independent oversight. Next, it examines judgments from the national courts of the Netherlands and the UK, also focusing on the independent oversight issue, declaring invalid the data retention laws of those two countries. From the Digital Rights Ireland case and others, seven standards for oversight of intelligence services can be drawn: the oversight should be complete; it should encompass all stages of the intelligence cycle; it should be independent; it should take place prior to the imposition of a measure; it should be able to declare a measure unlawful and to provide redress; it should incorporate the adversary principle; and it should have sufficient resources.

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

EU Law ◽  
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.

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

EU Law ◽  
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.

scholarly journals The myth of associative discrimination and the Court of Justice’s great vanishing act: part 2

2021 ◽  
Vol 72 (3) ◽  
pp. 510-541
Author(s):  
Michael Connolly
Keyword(s):  
European Court Of Justice ◽  
The Other ◽  
General Will ◽  
Traditional Form ◽  
Court Of Justice ◽  
European Court ◽  
Indirect Discrimination ◽  
The Uk ◽  
Extended Notion

This article complements an article (part 1) recently published in this journal (72(1) NILQ 29–60) contending that the notion of associative discrimination as a term of art renders it so vulnerable to manipulation that it can be used to narrow the scope of the legislation. That argument was rooted in the UK Supreme Court’s reasoning in Lee v Ashers Bakery [2018] UKSC 49. Part 2 continues the theme, but this time to show that the vulnerability can work the other way, producing, first, an ‘extended’ notion of associative discrimination and, second, radically broad notions of direct and indirect discrimination. This limb of the thesis also argues that a case heralded as one of associative discrimination, CHEZ [2016] CMLR 14, was no such thing. It concludes that the ambitious approach of the European Court of Justice and its Advocates General will blur the traditional form-based distinction between direct and indirect discrimination.

scholarly journals The myth of associative discrimination and the Court of Justice’s great vanishing act: part 2

2021 ◽  
Vol 72 (AD1) ◽  
pp. 1-32
Author(s):  
Michael Connolly
Keyword(s):  
European Court Of Justice ◽  
The Other ◽  
General Will ◽  
Traditional Form ◽  
Court Of Justice ◽  
European Court ◽  
Indirect Discrimination ◽  
The Uk ◽  
Extended Notion

This article complements an article (part 1) recently published in this journal (72(1) NILQ 29–60) contending that the notion of associative discrimination as a term of art renders it so vulnerable to manipulation that it can be used to narrow the scope of the legislation. That argument was rooted in the UK Supreme Court’s reasoning in Lee v Ashers Bakery [2018] UKSC 49. Part 2 continues the theme, but this time to show that the vulnerability can work the other way, producing, first, an ‘extended’ notion of associative discrimination and, second, radically broad notions of direct and indirect discrimination. This limb of the thesis also argues that a case heralded as one of associative discrimination, CHEZ [2016] CMLR 14, was no such thing. It concludes that the ambitious approach of the European Court of Justice and its Advocates General will blur the traditional form-based distinction between direct and indirect discrimination.

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