The Vicissitudes of Life at the Coalface: Remedies and Procedures for Enforcing Union Law Before National Courts

2021 ◽  
pp. 275-306
Author(s):  
Francesca Episcopo
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Critical Discussion ◽  
Lisbon Treaty ◽  
European Law ◽  
Eu Law ◽  
National Courts ◽  
Judicial Protection

The chapter discusses the evolution of European law concerning national remedies and procedures involved in enforcing EU rights and obligations, combining an exposition of the case law with a critical discussion of the mainstream scholarship. EU law on national remedies is traditionally embodied in the equivalence-effectiveness test, whose jurisprudence is systematized into three periods of varying scrutiny. After the Lisbon Treaty, it is pictured as increasingly based on the principle of effective judicial protection, Articles 19 TEU and 47 EUCFR, suggesting a possible ‘human-rights-oriented twist’ in the field. Adopting a critical stand, the chapter shows how the traditional systematization misses additional strands of cases and facets to the Rewe-effectiveness, while the substantial implications of the latest trends are still under development.

scholarly journals Effective Judicial Protection in EU Law: an Evolving Principle of a Constitutional Nature

2019 ◽  
Vol 12 (2) ◽  
pp. 35-62
Author(s):  
Matteo Bonelli
Keyword(s):  
Case Law ◽  
Legal Order ◽  
Lisbon Treaty ◽  
Recent Case ◽  
Eu Law ◽  
Member States ◽  
National Courts ◽  
Court Of Justice ◽  
Judicial Protection ◽  
The Eu

Effective judicial protection emerged as a EU law principle in the 1980s, operating alongside the Rewe principles of equivalence and effectiveness as a standard to assess national procedures for the enforcement of EU law. This article argues that the codification of effective judicial protection in Article 19 TEU and 47 of the Charter, operated by the Lisbon Treaty, has stimulated an evolution of the principle, which is evident in the recent case law of the Court of Justice. Today, effective judicial protection operates not only as a procedural principle, but also as a more substantive and structural one, and has generally acquired broader constitutional relevance. This evolution has crucial effects on the EU legal order: most importantly, it affects the division of competences between Member States and the EU, and between the Court of Justice and national courts.

The Long Walk to Strasbourg: About the Insufficient Judicial Protection in Some Areas of the Common Foreign and Security Policy before the European Union’s Accession to the ECHR

2018 ◽  
Vol 17 (2) ◽  
pp. 393-414
Author(s):  
José M. Cortés-Martín
Keyword(s):  
Human Rights ◽  
Security Policy ◽  
Case Law ◽  
European Convention ◽  
National Courts ◽  
European Court ◽  
Foreign And Security Policy ◽  
Judicial Protection ◽  
Judicial Remedies ◽  
The Eu

Abstract It is likely that the European Court of Justice’s (ECJ) objection in Opinion 2/13 regarding the absence of judicial remedies in certain Common Foreign and Security Policy (CFSP) areas can hardly be accommodated in a future revised Accession Project to the European Convention on Human Rights (ECHR). This is basically due to obstacles to proceeding with reform of the EU Treaties or establishing an ECHR reservation clause. However, as a matter of fact, the exact dimension of this problem seems to be quite relative. First of all, this is because recent ECJ case-law is gradually eroding the Court’s lack of competence, in particular, after Rosneft. Next, this is because, in those cases where there is still an absence of effective judicial protection, national courts – as EU ordinary courts – could fill this gap. Finally, this gap could also be filled by creating accountability mechanisms in the area of human rights within the framework of Common Security and Defence Policy (CSDP) missions.

4. Principle of supremacy of EU law

2020 ◽  
pp. 89-110
Author(s):  
Marios Costa ◽  
Steve Peers
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
Legal Order ◽  
Eu Law ◽  
Member States ◽  
Human Rights Protection ◽  
Rights Protection ◽  
National Courts ◽  
Domestic Law

This chapter examines the Court of Justice’s (CJ) case law on the supremacy of European Union (EU) law over national laws of Member States, analyses the question of priorities between directly effective EU law and domestic law, and also looks at this problem from the perspective of the national courts, including issues of human rights protection. It argues that the CJ’s introduction of the notion of supremacy, as part of EU law constituting a ‘new legal order’, was instrumental in providing a view of the Union as a body which went beyond what was normal for an international law organization. The chapter also describes how Member States developed their own constitutional rules as a response to EU law.

The right to appeal to the European Court of Human Rights

2020 ◽  
Author(s):  
Yuliya Samovich
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Legal Regulation ◽  
The European Union ◽  
Educational Organizations ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Procedure ◽  
The Right ◽  
Judicial Protection

The manual is devoted to making individual complaints to the European Court of human rights: peculiarities of realization of the right to appeal, conditions of admissibility and the judicial procedure of the European Court of Human Rights. The author analyses some “autonomous concepts” used in the court's case law and touches upon the possibility of limiting the right to judicial protection. The article deals with the formation and development of the individual's rights to international judicial protection, as well as the protection of human rights in universal quasi-judicial international bodies and regional judicial institutions of the European Union and the Organization of American States. This publication includes a material containing an analysis of recent changes in the legal regulation of the Institute of individual complaints. The manual is recommended for students of educational organizations of higher education, studying in the areas of bachelor's and master's degree “Jurisprudence”.

The UK courts and EU law post-Brexit

2021 ◽  
Vol 20 (3) ◽  
pp. Christopher-Vajda
Author(s):  
Christopher Vajda
Keyword(s):  
Supreme Court ◽  
Transition Period ◽  
Case Law ◽  
Eu Law ◽  
National Courts ◽  
The Supreme Court ◽  
The Future ◽  
The Status ◽  
The Uk ◽  
Court Of Appeal

Following the expiry on 31 December 2020 of the ‘transition period’ under the UK/EU Withdrawal Agreement, the relationship between UK and EU law had changed. Whilst much EU legislation at that date will continue to apply in UK law as ‘retained EU law’ and judgments of the EU courts handed down before that date will remain binding on UK courts as ‘retained EU case law’, the Court of Appeal and Supreme Court can depart from that case law. Whilst EU court judgments handed down after that date are not binding on UK courts, they may be taken into account. This article considers both the status of EU retained case law and when the Supreme Court and Court of Appeal may depart from it, and the future of EU law that is not ‘retained EU case law’ and how judgments of the European Courts and national courts of its Member States may influence UK judges in the future.

L'azione dell'Unione europea contro le discriminazioni basate sulla religione: l'impatto della giurisprudenza della Corte europea dei diritti umani

2012 ◽  
pp. 475-511
Author(s):  
Federico Casolari
Keyword(s):  
Human Rights ◽  
General Framework ◽  
Case Law ◽  
Legal Order ◽  
Equal Treatment ◽  
Freedom Of Religion ◽  
Eu Law ◽  
The Right ◽  
The Impact ◽  
The Eu

Law Although EU law has established a general framework concerning the fight against discriminations on the grounds of religion (namely as far as equal treatment in employment and occupation is concerned), the related ECJ case law is not very rich. This article tracks and evaluates the impact of the ECHR case law devoted to the freedom of religion on the interpretation and application of EU law concerning religion discriminations. It argues that the ECHR case law may contribute to identify the notion of ‘religion' which is relevant for EU law, while several arguments may be put forward against the application of the Strasbourg approach to the balancing between the right to quality based on religion and others human rights into the EU legal order.

When Are National Courts Obliged to Refer Questions?

2021 ◽  
pp. 201-248
Author(s):  
Morten Broberg ◽  
Niels Fenger
Keyword(s):  
Human Rights ◽  
National Court ◽  
European Convention ◽  
Preliminary Ruling ◽  
Eu Law ◽  
Case File ◽  
National Courts ◽  
Legal Consequences

Chapter 6 defines when a national court must make a preliminary reference. In principle, a national court whose decision cannot be appealed against (a court of last instance) is obligated to make a reference for a preliminary ruling if the main proceedings give rise to a question about the interpretation or validity of EU law. The chapter analyses when a national court is regarded as being a court of last instance and it analyses when a court of last instance is exempt from the obligation to make a reference. Particular focus is upon the acte éclairé and acte clair doctrines. Chapter 6 also examines when national courts, other than those of last instance, have a duty to make a reference. The chapter also considers the legal consequences of a national court failing to comply with its obligation to make a reference; in this respect it considers the question of how a failure to make a preliminary reference may affect the validity of a national judgment, the duty to reopen the case file, the obligation to pay damages, the possibility that the Commission will initiate infringement proceedings, and the possibility that such failure will constitute an infringement of the European Convention on Human Rights.

scholarly journals General and Particular Approaches to Implementation of theEuropean Convention on Human Rights

2018 ◽  
Vol 55 ◽  
pp. 248-292
Author(s):  
VLADIMÍRA PEJCHALOVÁ GRÜNWALDOVÁ
Keyword(s):  
Human Rights ◽  
National Level ◽  
Case Law ◽  
European Convention ◽  
Constitutional Courts ◽  
The Czech Republic ◽  
Human Rights Protection ◽  
Rights Protection ◽  
National Courts ◽  
European Court

AbstractThis article deals with the implementation, at the national level, of European human rights protection standards as enshrined in theEuropean Convention on Human Rights(ECHR) and interpreted by the European Court of Human Rights (ECtHR). It discusses the principles of interpretation of theECHRby the ECtHR, the interaction and mutual dialogue between the ECtHR and national courts, and the approach of the latter to interpretation and application of the case law of the ECtHR. Using the concrete examples of France and the Czech Republic as case studies, it is shown to what extent and how European constitutional courts take into account and apply the letter of the Convention and its interpretation by the ECtHR.

The Relationship between the EU and Member States in Constitutional Case Law: A Comparison between Western and Eastern Europe

2008 ◽  
Vol 10 ◽  
pp. 189-198
Author(s):  
Constance Grewe
Keyword(s):  
Turning Point ◽  
Case Law ◽  
Eastern European ◽  
European Law ◽  
Eu Law ◽  
Constitutional Courts ◽  
Member States ◽  
The Relationship ◽  
Constitutional Identity ◽  
The Eu

It is indeed a crucial moment now that Central and Eastern European (CEE) countries have begun to join the EU. The Maastricht Treaty was itself, in several respects, a turning point in European construction; Member States then became aware of the increasing influence of EU law and started to defend their autonomy against the ‘attacks’ stemming from it. With the accession of the CEE states, the ‘Solange story: a story about national constitutional courts resisting a straightforward surrender of national legal sovereignties, and insisting on their own role as guardians of any further transfer of powers from the national to the European level’, can now enter into ‘its chapter 3’. National or constitutional identity is the main arm of resistance, and these national reactions require a rethinking of the relationship between national and European law.

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.

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