The New Free Movement Architecture

2020 ◽  
pp. 9-40
Author(s):  
Jan Zglinski
Keyword(s):  
Judicial Review ◽  
European Court Of Justice ◽  
Free Movement ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Margin Of Appreciation ◽  
Long Time ◽  
Regulatory Decisions ◽  
National Legislatures

This chapter provides a conceptual analysis of judicial deference in free movement law. It argues that the reason for the growing relevance of deference in free movement cases is rooted in a shift in focus away from the scope of rights towards justification and proportionality. The European Court of Justice has created two deference doctrines: the margin of appreciation and decentralized judicial review. While the margin of appreciation doctrine is employed to pass certain regulatory decisions over to national legislatures and executives, decentralized judicial review is used to delegate responsibilities connected with free movement review to national courts. Both deference techniques represent a departure from the Cassis de Dijon approach, which has, for a long time, defined large parts of free movement adjudication, and have significant institutional consequences.

The Margin of Appreciation

2020 ◽  
pp. 67-96
Author(s):  
Jan Zglinski
Keyword(s):  
Statistical Analysis ◽  
Theory And Practice ◽  
European Court Of Justice ◽  
Free Movement ◽  
Domestic Institutions ◽  
Factors Influencing ◽  
Court Of Justice ◽  
European Court ◽  
Number Of Factors ◽  
Margin Of Appreciation

This chapter examines the application of the margin of appreciation in free movement cases. It identifies the doctrine’s legal scope and investigates the scenarios in which the European Court of Justice defers to national authorities. A statistical analysis suggests that there is a significant gap between theory and practice, with only a small number of factors influencing the way in which the margin of appreciation is used. The results show how much regulatory autonomy Member States retain in free movement law. They also expose which concerns the Court prioritizes in its jurisprudence and which decisions it feels safe, or forced, to delegate to domestic institutions.

Proportionality and Its Discontents

2020 ◽  
pp. 125-155
Author(s):  
Jan Zglinski
Keyword(s):  
Empirical Analysis ◽  
Judicial Review ◽  
Case Law ◽  
European Court Of Justice ◽  
Free Movement ◽  
Eu Law ◽  
Court Of Justice ◽  
European Court ◽  
Empirical Argument ◽  
Review Model

This chapter focuses on one element of judicial review which is particularly affected by deference: proportionality analysis. It argues that the connection between proportionality and deference is not accidental. Constitutional scholarship has overly focused on the benefits of proportionality analysis for judges. Yet, the test equally creates a series of duties which can become a burden, a burden which courts will try to reduce by resorting to deference techniques. The chapter offers a historical, theoretical, comparative and empirical argument in support of this thesis. It traces the development of proportionality in EU law and compares it with the American ‘standards of review’ model. An empirical analysis of free movement case law reveals that the more frequently the European Court of Justice applies proportionality, the more frequently it opts for deferential forms of scrutiny.

scholarly journals ¿Quién es el juez de los derechos fundamentales frente a la ley en el ámbito interno de aplicación del derecho comunitario?: (reflexiones sobre el control iusfundamental del derecho interno a la luz de la recepción nacional de los derechos fundamentales d

2007 ◽  
pp. 401 ◽  
Author(s):  
Juan Ignacio Ugartemendia Eceizabarrena
Keyword(s):  
Judicial Review ◽  
Point Of View ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
Legal Rules ◽  
Community Law ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
National Constitution

The aim of this article is firstly to describe the phenomenum of «national or state incorporation« of European Union Fundamental Rights.That is a process that was launched by the European Court of Justice with its judgment Wachauf in 1989, when it established that Member states were obliged to respect European Community Fundamental Rights in the implementation of Community law rules. It implies that those afore mentioned rights become parameters of conformity with Community Law and are to be used by national courts and judges when they are asked to control national authorities’ acts (including national legislure’s) taking into account those parameters. From this point of view, this work tries likewise to analyse how that incorporation affects the activity of judicial review of national acts in the light of fundamental rights as recognized by the National constitution. And specially when judicial review deals with Acts and other legal rules with same rank.

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.

Constitutional Courts, Preliminary Rulings and the “New Form of Law”: The Adjudication of the European Stability Mechanism

2015 ◽  
Vol 16 (6) ◽  
pp. 1771-1790 ◽  
Author(s):  
Samo Bardutzky
Keyword(s):  
Judicial Review ◽  
European Court Of Justice ◽  
The Other ◽  
Constitutional Courts ◽  
High Courts ◽  
Court Of Justice ◽  
European Court ◽  
The Supreme Court ◽  
European Stability Mechanism ◽  
New Form

In 2012 and 2013, we observed how the European Stability Mechanism (ESM) was adjudicated by “EU courts, plural”: a number of high courts of the Member States (among them “Kelsenian” constitutional courts as well as representatives of a more hybrid model of judicial review of constitutionality) and the European Court of Justice (CJEU) were seized by challenges to the mechanism. What attracted attention was the fact that only one court, the Supreme Court of Ireland, decided to submit a preliminary reference to the CJEU, while the other courts, as would appear from their judgments, did not even consider the option. This was a suboptimal example of judicial dialogue in the case of ESM adjudication.

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