Mixed Agreements: The EU Law Fundamentals

2018 ◽  
Author(s):  
Joni Heliskoski
Keyword(s):  
European Union ◽  
Case Law ◽  
International Agreements ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
Basic Characteristics ◽  
Mixed Agreements ◽  
The Eu

Whatever terminology one might wish to employ to describe the form of integration constituted by the European Union and its Member States, one fundamental attribute of that arrangement has always been the division, as between the Union and its Member States, of competence to conclude international agreements with other subjects of international law. Today, the fact that treaty-making competence—as an external facet of the more general division of legal authority—is divided and, to some extent, shared between the Union and its Member States is reflected by some of the opening provisions of the Treaty on European Union and the Treaty on the Functioning of the European Union. Notwithstanding the changes to the scope and nature of the powers conferred upon the Union, resulting from both changes to primary law and the evolution of the case law of the Court of Justice of the European Union (CJEU), the basic characteristics of the conferment as an attribution of a limited kind has always been the same; there has always existed a polity endowed with a treaty-making authority divided between and, indeed, shared by, the Union and its Member States. In the early 1960s mixed agreements—that is, agreements to which the European Union

Making Treaties and Other International Agreements

2019 ◽  
pp. 238-256
Author(s):  
Marise Cremona
Keyword(s):  
European Union ◽  
Foreign Relations ◽  
International Agreements ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Executive Discretion ◽  
External Powers ◽  
Mixed Agreements ◽  
The Eu

This chapter examines the foreign relations law of the European Union concerning the making of treaties and other international agreements. It first outlines the sources of EU law on treaty-making and the legal and constitutional context in which EU treaty-making takes place. It then turns to the law relating to the process of treaty negotiation and to the signature, provisional application, and conclusion of treaties, identifying the ways in which the specific legal characteristics of the European Union as a treaty maker are reflected in its foreign relations law. These include the principle of conferred powers, whereby all treaty-making power must be conferred expressly or impliedly by the EU Treaties, and the institutional balance of powers. For the European Union, treaty-making is not a manifestation of sovereignty and cannot be regarded as simply a matter of executive discretion; the policy balance of a projected treaty and its relation to the European Union’s general objectives may be subject to judicial assessment. The member states remain sovereign subjects of international law and, as a matter of EU law, the European Union’s external powers do not necessarily displace those of the member states. As a result, the European Union and member states will often enter into treaties together, although there are no formal rules in the EU system, apart from the general mutual duties of cooperation, governing the negotiation and conclusion of such “mixed agreements.”

The European Union

2018 ◽  
Author(s):  
Lisa Waddington
Keyword(s):  
European Union ◽  
Case Law ◽  
International Agreements ◽  
Eu Law ◽  
The European Union ◽  
Advocate General ◽  
Persons With Disabilities ◽  
Court Of Justice ◽  
The Status ◽  
The Eu

The EU’s accession to the Convention on the Rights of Persons with Disabilities (CRPD) implies an important role for the Court of Justice of the European Union (CJEU). Given that the Court has the task of interpreting the CRPD as an instrument of EU law and, in particular, ensuring that EU secondary legislation is interpreted in a manner which is compatible with the Convention wherever possible, it is not surprising to find references to the CRPD in a number of judgments and Opinions of its Advocate General rendered both before, and primarily after, the conclusion of the CRPD by the EU. This chapter explores those judgments and Opinions in some depth, looking at the status of international agreements concluded by the EU; how the CRPD has been incorporated into EU law; and discussing case law that has referred to the CRPD, and analysing the extent to and way in which the CJEU has interpreted the CRPD.

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.

Legal conflict between the EU and the republic of Poland regarding polish judicial reform

2021 ◽  
Author(s):  
Ivan Yakovyuk ◽  
Suzanna Asiryan ◽  
Anastasiya Lazurenko
Keyword(s):  
European Union ◽  
Judicial Reform ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
Legal Nature ◽  
Constitutional Tribunal ◽  
The Republic ◽  
The Eu

Problem setting. On October 7, 2021, the Constitutional Tribunal of the Republic of Poland ruled in favor of Polish law over European Union law, which in the long run may violate the principles according to which the Union operates and the rights enjoyed by citizens of the state. Such a precedent can further serve as a basis for identical decisions of the bodies of constitutional jurisdiction of those states that have problems in fulfilling their obligations in the European community. Analysis of recent researches and publications. The problems of the functioning of the bodies of the European Union, the implementation of their decisions and the general status in EU law are widely studied in national science. In particular, many scholars have studied the legal nature of the EU, including: TM Anakina, VI Muravyov, NM Ushakov, A. Ya. Kapustina, NA Korolyova, Yu. Yumashev, BN Topornin, OYa Tragniuk, SS Seliverstov, IV Yakovyuk and others. Target of research is to establish the foundations of EU law in the functioning of Union bodies, especially the Court, as well as to determine the hierarchy of national law and EU law. Article’s main body. Over the years, the Court has, within its jurisdiction, issued a large number of judgments which have become the source of the Union’s Constituent Treaties and of EU law in general. Over the last two decades, the powers of the Court of Justice have changed significantly. In particular, this is due to the adoption of the Lisbon Treaty, which amended the EU’s founding treaties on the powers of the Court, then the reform of the European Court took place in 2015-2016, which concerned a change in the organizational structure of the Court. Despite the generally well-established case law of the Court of Justice of the European Union on the unification of the observance by the Member States of the basic principles of the European Union, the Constitutional Tribunal of the Republic of Poland adopted a decision on 7 October. Conclusions and prospects for the development. Following the decision of the Constitutional Court, the Polish authorities found themselves in a situation that significantly complicated its internal and external situation. The way out of which requires answers to fundamental questions about the legal nature of the EU. Undoubtedly, this is an issue not only between Poland and the EU, but also between other member states.

From Washington with Love—Investor–State Arbitration and the Jurisdictional Monopoly of the Court of Justice of the European Union

2010 ◽  
Vol 12 ◽  
pp. 425-453
Author(s):  
Philip Strik
Keyword(s):  
European Union ◽  
Dispute Settlement ◽  
Case Law ◽  
Legal Order ◽  
Forum Shopping ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
International Dispute ◽  
The Eu

AbstractWhile investor–State arbitration is to a large extent detached from the EU legal order, EU law has recently started to be invoked in investor-State arbitration proceedings. In the context of intra-EU bilateral investment treaties, the Commission has expressed the view that investor-State arbitration gives rise to a number of ‘arbitration risks’ for the EU legal order. Not only can it solicit investors to engage in forum-shopping, but it can also result in questions of EU law not being litigated in Member State or Union courts. This chapter explores the extent to which the compatibility of investor–State arbitration with the EU legal order is in issue. It examines the main features of investor-State arbitration as concerns its interplay with the EU legal order, as well as the Court of Justice’s case law on issues of compatibility between systems of international dispute settlement and the EU legal order. The chapter highlights that the way in which investor–State arbitral tribunals handle issues of EU law, as well as the involvement of interested parties, may foster the synergy between investor–State arbitration and the EU legal order.

scholarly journals The European Court of Justice and the Policy Process

2018 ◽  
Author(s):  
Susanne K. Schmidt
Keyword(s):  
European Union ◽  
Member State ◽  
Case Law ◽  
European Court Of Justice ◽  
The European Union ◽  
Member States ◽  
Administrative Practices ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

The European Court of Justice is one of the most important actors in the process of European integration. Political science still struggles to understand its significance, with recent scholarship emphasizing how closely rulings reflect member states’ preferences. In this book, I argue that the implications of the supremacy and direct effect of the EU law have still been overlooked. As it constitutionalizes an intergovernmental treaty, the European Union has a detailed set of policies inscribed into its constitution that are extensively shaped by the Court’s case law. If rulings have constitutional status, their impact is considerable, even if the Court only occasionally diverts from member states’ preferences. By focusing on the four freedoms of goods, services, persons, and capital, as well as citizenship rights, the book analyses how the Court’s development of case law has ascribed a broad meaning to these freedoms. The constitutional status of this case law constrains policymaking at the European and member-state levels. Different case studies show how major pieces of EU legislation cannot move beyond case law but have to codify its principles. Judicialization is important in the EU. It also directly constrains member-state policies. Court rulings oriented towards individual disputes are difficult to translate into general policies, and into administrative practices. Policy options are thereby withdrawn from majoritarian decision-making. As the Court cannot be overruled, short of a Treaty change, its case law casts a long shadow over policymaking in the European Union and its member states, undermining the legitimacy of this political order.

The External Influence of the Court of Justice of the European Union

2020 ◽  
pp. 16-37
Author(s):  
Joanne Scott
Keyword(s):  
European Union ◽  
Case Law ◽  
International Agreements ◽  
Institutional Arrangements ◽  
External Influence ◽  
Eu Law ◽  
The European Union ◽  
Eu Legislation ◽  
Court Of Justice ◽  
Global Reach

This chapter explores aspects of Court of Justice of the European Union (CJEU) case law that highlight the role that this Court has played in enhancing the global reach of EU law and the influence of its own judgments abroad. It addresses two main themes. The first theme is concerned with the CJEU’s contribution in shaping the institutional arrangements established by international agreements concluded by the EU with its neighbouring countries, particularly as regards the role carved out for the CJEU within them. The CJEU has succeeded in enhancing its own role and interpretative authority within the framework of these agreements. The chapter argues that the CJEU has emerged as an agent of its own authority by jealously guarding its interpretative supremacy, as well as the autonomy of EU law. The second theme is concerned with CJEU case law addressing ‘global reach’ EU law. This includes EU law which is extraterritorial, or which gives rise to territorial extension. It also covers EU legislation, which serves as a catalyst for the ‘Brussels Effect’. It is argued that the CJEU has enhanced the external influence of EU law by interpreting broadly and upholding the lawfulness of global reach EU law. Taken together, these two themes exemplify the ways in which EU law, including CJEU judgments, can have influence in third countries. This analysis contributes to our understanding of why some judgments issued by the CJEU have proved to be particularly influential in third countries, as exemplified by the various chapters included in this volume.

Part II The Treaty-Makers, 6 Who Can Make Treaties? The European Union

2020 ◽  
Author(s):  
Cremona Marise
Keyword(s):  
European Union ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
International Treaty ◽  
Multilateral Agreements ◽  
International Responsibility ◽  
The Impact ◽  
Mixed Agreements ◽  
The Eu

This chapter examines the EU’s robust and complex treaty-making. The first section deals with the EU’s treaty-making capacity from the perspective of EU law, and then of international treaty practice. It examines the ways in which international treaty-making practice has accommodated EU participation in bilateral and in multilateral agreements. The second section discusses the legal effects of treaties concluded by the EU, first as regards the EU legal order, including their enforcement and interpretation by the Court of Justice of the European Union and the legal effects of mixed agreements. A discussion of the impact of EU treaty-making on the powers of the Member States follows: through the doctrines of exclusivity and pre-emption, the impact of EU law on treaties concluded by the Member States, and finally EU treaty-making from the perspective of international responsibility.

scholarly journals Article 3(5) TEU a decade on: Revisiting ‘strict observance of international law’ in the text and context of other EU values

2021 ◽  
pp. 1023263X2110151
Author(s):  
Rupert Dunbar
Keyword(s):  
European Union ◽  
International Law ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
Balanced Approach ◽  
Court Of Justice ◽  
External Relations ◽  
Domestic Courts ◽  
The Eu

Article 3(5) of the Treaty on the European Union concerns EU external relations and was a new provision of the Lisbon Treaty. It has been seized upon by scholars for its reference to ‘strict observance of international law’ by the EU in its relations with the wider world. However, recent case law in the Court of Justice of the European Union has demonstrated little movement towards this supposed ideal. This article supports the fact that rigid and unquestioning adherence to international law has not emerged in case law, particularly as Article 3(5) TEU also mandates that the Union ‘uphold and promote its values and interests’. By taking a broader view of both the text and context of Article 3(5) TEU in EU law as a whole, and through consideration of the limited demands international law places on domestic courts, the article argues that – contrary to current literature – a more expressly balanced approach towards respect for international law is required and should be nurtured in the case law.

scholarly journals Działalność gospodarcza poddana reglamentacji w świetle orzecznictwa Trybunału Sprawiedliwości na przykładzie prowadzenia gier hazardowych

2018 ◽  
Vol 114 ◽  
pp. 413-429
Author(s):  
Stanisław Biernat
Keyword(s):  
European Union ◽  
Economic Activity ◽  
Case Law ◽  
Internal Market ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Indirect Assessment ◽  
Court Of Justice

ECONOMIC ACTIVITY SUBJECTED TO REGLAMENTATION IN THE LIGHT OF THE CASE LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION EXEMPLIFIED BY CONDUCTING GAMBLINGIn EU law, conducting gambling is classified as the exercise of the freedoms of the internal market, regulated in the Treaty on the Functioning of the European Union. Conducting gambling is not currently regulated or harmonized at EU level, and therefore the regulation of gambling is the competence of Member States. EU law defining acceptable ways of regulating gambling in the Member States is now a judge-made law and the result of the creative jurisprudence of the Court of Justice of the European Union. So far, the Court has issued dozens of judgments in which it interpreted Treaty provisions proclaiming the freedoms of the internal market in the context of conducting gambling. These judgments provide a direct or indirect assessment of whether national law complies with EU law.

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