Sources of law

2018 ◽  
Author(s):  
Winfried Tilmann
Keyword(s):  
European Union ◽  
International Law ◽  
Judicial System ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
International Court ◽  
Judicial Systems

Union law is mentioned in the first position in lit a of para 1. When is the UPC required to apply Union law? The UPC was established by the UPCA which is a piece of international law and is not part of Union law. That makes the UPC an international court. However, the Member States established it—at the level of international law—as a court common to them which, pursuant to Arts 1(2) and 21 UPCA, is part of their respective national judicial systems. As part of the judicial system (Art 21 UPCA) of the CMSs—by an order under international law—and by reason of an express provision in Art 20 UPCA, the Court fulfils the obligation of the CMSs to apply Union law. Since the Court is a ‘court common to a number of Member States’, ‘it is situated within the judicial system of the European Union’, which is why ‘its decisions’ are subject to ‘mechanisms capable of ensuring the full effectiveness of Union law’. This wording—used in Opinion C-1/09 of the Court of Justice with reference to the Benelux Court of Justice—is also appropriate with reference to the UPC. Although it is integrated into the judicial systems of the Member States in a different way compared with the Benelux Court of Justice, it is a ‘court common to the Member States’, and it is only based on that connecting factor that the Benelux Court of Justice is ‘situated within the judicial system of the European Union’. The ‘mechanisms capable’ are expressly confirmed in Arts 21–23 UPCA.

Requests for preliminary rulings

2018 ◽  
Author(s):  
Winfried Tilmann
Keyword(s):  
European Union ◽  
National Court ◽  
Judicial System ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
Correct Application

As a court common to the Contracting Member States and as part of their judicial system, the Court shall cooperate with the Court of Justice of the European Union to ensure the correct application and uniform interpretation of Union law, as any national court, in accordance with Article 267 TFEU in particular. Decisions of the Court of Justice of the European Union shall be binding on the Court.

scholarly journals GLOSSARY TO THE JUDGMENT OF THE COURT OF JUSTISE OF THE EUROPEAN UNION C-638/16 X AND X V ÉTAT BELGE

2017 ◽  
Vol 29 (2) ◽  
pp. 121-133
Author(s):  
Aliaksei Shulha
Keyword(s):  
European Union ◽  
International Law ◽  
The European Union ◽  
Advocate General ◽  
Member States ◽  
International Protection ◽  
Court Of Justice ◽  
The Subject ◽  
Degrading Treatment

The subject of the glossary is to consider certain aspects concerning issuing of humanitarian visas . Its aim is to demonstrate the need for humanitarian visas in order to allow individuals to cross the external borders of the European Union in hopes of protection in one of its Member States . The prohibition of torture, inhuman or degrading treatment derives from the European Union and inter-national law . It confirms the importance of granting international protection to foreigners and accessibility to this procedure . This article is generally based on the Advocate General’s opinion and the judgment of the Court of Justice of the European Union in case C-638/16 X and X v État belge . It is also noted that the Court did not comply with the recommendations of the Advocate General . The arguments used in this article are to show that people in need of international protection should be able to apply for a humanitarian visa under European Union and international law

Kosovo: The Post-advisory Opinion Stage

2015 ◽  
Vol 22 (4) ◽  
pp. 486-510
Author(s):  
Alexander Orakhelashvili
Keyword(s):  
European Union ◽  
International Law ◽  
Advisory Opinion ◽  
The European Union ◽  
International Court Of Justice ◽  
Declaration Of Independence ◽  
Court Of Justice ◽  
International Court ◽  
Unilateral Declaration ◽  
Legal Position

The Unilateral Declaration of Independence by Kosovar authorities in Pristina in 2008 has generated heavy legal and political controversies. The delivery by the International Court of Justice of its advisory opinion on Kosovo unilateral declaration of independence in 2010 has not led to the elimination of unilateralist positions as to Kosovo’s status. Such unilateralist approach, favouring Kosovo’s independence either in principle or in practice, has since been adopted by the local Kosovar authorities, a number of governments and by the European Union. This contribution addresses the merit of such unilateralist positions and examines whether these positions could adversely affect the legal position as to Kosovo’s status under general international law as well as un Security Council resolution 1244 (1999).

The International Law of the Sea

2019 ◽  
Vol 7 (2) ◽  
pp. 144-152
Author(s):  
Christopher Whomersley
Keyword(s):  
European Union ◽  
International Law ◽  
Law Of The Sea ◽  
The European Union ◽  
International Court Of Justice ◽  
Eu Member States ◽  
The United Kingdom ◽  
Court Of Justice ◽  
International Court ◽  
Fisheries Policy

Abstract The concept of “historic rights” has been much discussed recently in the light of the arbitral award in the Philippines v. China case. The United Kingdom, as a major maritime power, has had long experience of dealing with claims about such rights and those which are similarly worded. This includes the seminal case of the Anglo-Norwegian Fisheries case in the International Court of Justice, as well as two other international decisions and a judgment of what is now the Court of Justice of the European Union (EU). In addition, the London Fisheries Convention and the European Union’s Common Fisheries Policy seem to employ terminology to similar effect. Finally, it is interesting to speculate about whether claims to historic rights will be made by other EU Member States after BREXIT.

Foreign Affairs Federalism in the European Union

2019 ◽  
pp. 331-351
Author(s):  
Robert Schütze
Keyword(s):  
European Union ◽  
International Law ◽  
Legal Order ◽  
Foreign Affairs ◽  
The European Union ◽  
Member States ◽  
European Court ◽  
Treaty Of Rome ◽  
Formed Part ◽  
Mixed Agreements

The European Union was born as an international organization. The 1957 Treaty of Rome formed part of international law, although the European Court of Justice was eager to emphasize that the Union constitutes “a new legal order” of international law. With time, this new legal order has indeed evolved into a true “federation of States.” Yet how would the foreign affairs powers of this new supranational entity be divided? Would the European Union gradually replace the member states, or would it preserve their distinct and diverse foreign affairs voices? In the past sixty years, the Union has indeed significantly sharpened its foreign affairs powers. While still based on the idea that it has no plenary power, the Union’s external competences have expanded dramatically, and today it is hard to identify a nucleus of exclusive foreign affairs powers reserved for the member states. And in contrast to a classic international law perspective, the Union’s member states only enjoy limited treaty-making powers under European law. Their foreign affairs powers are limited by the exclusive powers of the Union, and they may be preempted through European legislation. There are, however, moments when both the Union and its states enjoy overlapping foreign affairs powers. For these situations, the Union legal order has devised a number of cooperative mechanisms to safeguard a degree of “unity” in the external actions of the Union. Mixed agreements constitute an international mechanism that brings the Union and the member states to the same negotiating table. The second constitutional device is internal to the Union legal order: the duty of cooperation.

Review by Constitutional Courts of the Obligation of National Courts of Last Instance to Refer a Preliminary Question to the Court of Justice of the EU

2015 ◽  
Vol 16 (6) ◽  
pp. 1663-1700 ◽  
Author(s):  
Clelia Lacchi
Keyword(s):  
European Union ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
Constitutional Review ◽  
National Courts ◽  
Court Of Justice ◽  
Judicial Remedy ◽  
The Eu

The Constitutional Courts of a number of Member States exert a constitutional review on the obligation of national courts of last instance to make a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU).Pursuant to Article 267(3) TFEU, national courts of last instance, namely courts or tribunals against whose decisions there is no judicial remedy under national law, are required to refer to the CJEU for a preliminary question related to the interpretation of the Treaties or the validity and interpretation of acts of European Union (EU) institutions. The CJEU specified the exceptions to this obligation inCILFIT. Indeed, national courts of last instance have a crucial role according to the devolution to national judges of the task of ensuring, in collaboration with the CJEU, the full application of EU law in all Member States and the judicial protection of individuals’ rights under EU law. With preliminary references as the keystone of the EU judicial system, the cooperation of national judges with the CJEU forms part of the EU constitutional structure in accordance with Article 19(1) TEU.

scholarly journals Castaño avoids a clash between the ECtHR and the CJEU, but erodes Soering. Thinking human rights transnationally

2020 ◽  
pp. 203228442097974
Author(s):  
Sibel Top ◽  
Paul De Hert
Keyword(s):  
European Union ◽  
Human Rights ◽  
Union Member ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
Criminal Matters ◽  
European Union Member States

This article examines the changing balance established by the European Court of Human Rights (ECtHR) between human rights filters to extradition and the obligation to cooperate and how this shift of rationale brought the Court closer to the position of the Court of Justice of the European Union (CJEU) in that respect. The article argues that the ECtHR initially adopted a position whereby it prioritised human rights concerns over extraditions, but that it later nuanced that approach by establishing, in some cases, an obligation to cooperate to ensure proper respect of human rights. This refinement of its position brought the ECtHR closer to the approach adopted by the CJEU that traditionally put the obligation to cooperate above human rights concerns. In recent years, however, the CJEU also backtracked to some extent from its uncompromising attitude on the obligation to cooperate, which enabled a convergence of the rationales of the two Courts. Although this alignment of the Courts was necessary to mitigate the conflicting obligations of European Union Member States towards both Courts, this article warns against the danger of making too many human rights concessions to cooperation in criminal matters.

RESILIENCE TECHNIQUES OF INTERNATIONAL COURTS IN TIMES OF RESISTANCE TO INTERNATIONAL LAW

2021 ◽  
pp. 1-32
Author(s):  
Salvatore Caserta ◽  
Pola Cebulak
Keyword(s):  
European Union ◽  
International Law ◽  
Land Rights ◽  
Analytical Framework ◽  
The European Union ◽  
International Courts ◽  
Court Of Justice ◽  
Indigenous Groups ◽  
The Caribbean ◽  
Caribbean Court Of Justice

Abstract International courts are increasingly called upon to adjudicate socially divisive disputes. They are therefore exposed to a heightened risk of backlash that questions their authority and impedes the implementation of their judgments. This article puts forward an analytical framework for mapping the resilience techniques used by international courts to counter this growing resistance. Case studies involve the Court of Justice of the European Union, which has been cautious in its stance regarding democratic backsliding in Hungary and Poland, and the Caribbean Court of Justice, which has engaged in legal diplomacy while adjudicating both on the land rights of indigenous groups and on Lesbian Gay Bisexual Transgender Queer and Intersex (LGBTQI) rights. It is argued that, in order to effectively avoid and mitigate backlash, international courts should deploy resilience techniques that go beyond merely exercising their judicial function. The successful deployment of resilience techniques can allow international courts to become significant actors in global governance during a time of crisis for the international liberal order.

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