Supranational Differentiation and Enhanced Cooperation

2018 ◽  
Author(s):  
Daniel Thym
Keyword(s):  
Political Legitimacy ◽  
Legal Order ◽  
European Court Of Justice ◽  
European Law ◽  
Legal Basis ◽  
Community Law ◽  
Court Of Justice ◽  
European Court ◽  
The Common ◽  
Uniform Composition

The ‘unity dogma’ has long characterized European law discourse. In many of its landmark judgments, the European Court of Justice had recourse to the ‘unity argument’—such as in Costa v ENEL, where the Court stated that ‘the executive force of Community law cannot vary from one state to another … without jeopardizing the attainment of the objectives of the Treaty’. Unilateral national deviations could not be tolerated without the common rules ‘being deprived of their character as Community law and without the legal basis of the Community itself being called into question’. Other expressions of the ‘unity dogma’ include the principle of non-discrimination or the uniform composition of EU institutions. This contribution demonstrates that the asymmetric non-participation of some Member States in selected policy areas can be embedded into the supranational legal order. The main danger seems to be a structural weakening of political legitimacy.

Trawling for a remedy: state liability under Community law

Legal Studies ◽  
1997 ◽  
Vol 17 (2) ◽  
pp. 286-304 ◽  
Author(s):  
T A Downes
Keyword(s):  
Common Law ◽  
European Court Of Justice ◽  
European Law ◽  
Community Law ◽  
Court Of Justice ◽  
European Court ◽  
History Of ◽  
The Common ◽  
English Law ◽  
State Liability

This paper explores the implications for English law of the decision of the European Court of Justice in joined cases C-46/93 Brasserie du Pêcheur v Germany and C-48/93 R v Secretary of State for Transport, ex p Factortame (No 4) and subsequent decisions developing the principles enunciated therein. More specifically, it examines how the English law of torts is to accommodate the European law obligation to compensate, in appropriate circumstances, individuals suffering a loss as a result of a breach by the state of Community law. In confronting this question English law is engaged in the unfamiliar exercise of attempting to match a remedy to an already recognised right: the history of the common law, and the law of torts in particular, is of defining rights in the light of the existing remedies under which they could be asserted.

The European Court of Justice, More than a Teleological Court

1999 ◽  
Vol 2 ◽  
pp. 373-398 ◽  
Author(s):  
Albertina Albors Llorens
Keyword(s):  
European Court Of Justice ◽  
Common Denominator ◽  
Community Law ◽  
Court Of Justice ◽  
European Court ◽  
Legal Texts ◽  
The Media ◽  
The Common ◽  
Ec Law

The judgments of the Community judicature are often subject to intense scrutiny by the media and by academic writers. The European Court of Justice, in particular, is regularly accused of being by and large an “activist” court, namely a court that construes EC law in the light of the objective the judges are trying to pursue. In particular, it is argued that the European Court uses the teleological method of interpretation to enhance the effectiveness of Community law at the expense of the written legal texts. Several studies have been published on the supposed “activist” role of the European Court and as many (or more) have been written in defence of the Court. The common denominator of all these works is that they are selective.

The European Court of Justice, More than a Teleological Court

1999 ◽  
Vol 2 ◽  
pp. 373-398 ◽  
Author(s):  
Albertina Albors Llorens
Keyword(s):  
European Court Of Justice ◽  
Common Denominator ◽  
Community Law ◽  
Court Of Justice ◽  
European Court ◽  
Legal Texts ◽  
The Media ◽  
The Common ◽  
Ec Law

The judgments of the Community judicature are often subject to intense scrutiny by the media and by academic writers. The European Court of Justice, in particular, is regularly accused of being by and large an “activist” court, namely a court that construes EC law in the light of the objective the judges are trying to pursue. In particular, it is argued that the European Court uses the teleological method of interpretation to enhance the effectiveness of Community law at the expense of the written legal texts. Several studies have been published on the supposed “activist” role of the European Court and as many (or more) have been written in defence of the Court. The common denominator of all these works is that they are selective.

TAX PLANNING AND STATE AID UNDER THE EUROPEAN LAW

2021 ◽  
Vol 66 (05) ◽  
pp. 228-232
Author(s):  
Aygun Gunduz Guliyeva ◽  
Keyword(s):  
Key Words ◽  
Rule Of Law ◽  
Tax Avoidance ◽  
Tax Planning ◽  
State Aid ◽  
European Court Of Justice ◽  
European Law ◽  
The Rule Of Law ◽  
Court Of Justice ◽  
European Court

There is a strong link between funding criteria from government sources and the advantage and selectivity associated with classifying an event as government assistance. However, the selectivity criterion is very important when considering whether there is a banned state aid. Finally, the European Court of Justice no longer applies the rule of law and exclusion to selectivity. Instead, the selectivity review consists of two parts: whether a precaution is selective and whether preference is necessary and proportionate. Key words: EU, tax, tax avoidance, state aid, tax planning, competition

Judges and Policy Making Authority in the United States and the European Union

ICL Journal ◽  
2014 ◽  
Vol 8 (2) ◽  
Author(s):  
Antonios E. Kouroutakis
Keyword(s):  
Supreme Court ◽  
Legal System ◽  
The United States ◽  
Legal Order ◽  
European Court Of Justice ◽  
Judicial Activism ◽  
Court Of Justice ◽  
European Court ◽  
The Us ◽  
Us Supreme Court

AbstractInstitutions such as the US Supreme Court and the European Court of Justice in due time have developed a status of supremacy through judicial activism. The main target of the article is to identify the judicial activism exercised by these Courts and to reason its need in the legal order. In the first part the US Supreme Court and the European Court of Justice are placed in the overall polity that they belong to and the development of their status and their characteristics are analyzed. The major concern of the first part is to examine how those declared their supremacy and focus on major cases and their reason­ing.In the second part the extent of the judicial supremacy in each legal order is discussed and its effects in the decision making process are examined. The assumption that judicial activ­ism is acceptable only if it expresses consensus in the legal order is tested and it is argued that up to an extent, Judicial Activism does not distort the political agenda when it ex­presses the consensus of the legal system. Finally, it is argued that when such activism exceeds the boundaries of the consensus, the other actors in the legal system would even­tually react and would limit such activism.

scholarly journals The European Court of Justice: What are the Limits of its Exclusive Jurisdiction?

2009 ◽  
Vol 16 (3) ◽  
pp. 291-314 ◽  
Author(s):  
Tobias Lock
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Member States ◽  
International Courts ◽  
Community Law ◽  
Exclusive Jurisdiction ◽  
Court Of Justice ◽  
European Court ◽  
Academic Discussion

The article explores the limits of the ECJ's exclusive jurisdiction by addressing two main issues: firstly, whether there are exceptions to that exclusivity, such as the application of the CILFIT case law or the exclusion of Community law from the dispute. Secondly, it asks whether other international courts must respect the ECJ's jurisdiction over a case. The article commences by briefly discussing the ECJ's exclusive jurisdiction as it was established in Opinion 1/91 and the Mox Plant-Case and draws conclusions from this case law. It then addresses the above-mentioned points and comes to the conclusion that there are generally no exceptions to the ECJ's exclusive jurisdiction and that the only option open to Member States is to exclude Community law from a dispute (and even that option is subject to limitations). Furthermore, after exploring several routes advanced in the academic discussion, the article comes to the conclusion that other courts must respect the ECJ's jurisdiction and as a consequence declare the case inadmissible.

The Effect of WTO Dispute Settlement Rulings in the EC Legal Order: Reviewing Van Parys v Belgische Interventie- en Restitutiebureau (C-377/02)

2005 ◽  
Vol 6 (6) ◽  
pp. 1025-1032
Author(s):  
Delphine De Mey
Keyword(s):  
Dispute Settlement ◽  
National Court ◽  
Legal Order ◽  
European Court Of Justice ◽  
Court Of Justice ◽  
Wto Dispute Settlement ◽  
European Court ◽  
The Right ◽  
Community Legal Order

On 1 March 2005, the European Court of Justice (hereinafter ‘ECJ’ or ‘the Court’) got another opportunity to rule on the effect of recommendations and decisions of the WTO Dispute Settlement Body (hereinafter ‘DSB’) in the Community legal order. The ECJ concluded that an individual does not have the right to challenge, before a national court, the incompatibility of Community measures with WTO rules, even if the DSB had previously declared the Community legislation to be incompatible with those rules.

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