Comparative Law and European Union Law

2019 ◽  
pp. 523-556
Author(s):  
Sir Francis Jacobs
Keyword(s):  
European Union ◽  
Comparative Law ◽  
Case Law ◽  
Public Law ◽  
European Law ◽  
The European Union ◽  
European Union Law ◽  
European Court ◽  
Union Model

This chapter discusses three primary roles of comparative law in EU law. First, comparative law is used in the making and application of European law: for example, in the crafting and interpretation of European legislation and in the case law of the European Court of Justice. Second, European law has exerted a significant influence on other legal systems. A third role of comparative law relates to questions about the very nature of European law: how it is to be classified, or whether it is a novel form of ‘transnational law’. Civil and common law systems are also considered in relation to comparative law, along with the ‘components’ or ‘sources’ of European law: treaty provisions and constitutional principles, EU legislation, general principles of law, international law, and case law of the Court. The chapter concludes with an overview of the distinction between private law and public law, a comparison of EU and federal systems, and a survey of other transnational systems inspired by the European Union model.

scholarly journals Member States’ liability for judicial error resulting in breaches of European Union Law

2016 ◽  
Vol 17 (31) ◽  
pp. 64-76 ◽  
Author(s):  
Valentin Paul Neamt
Keyword(s):  
European Union ◽  
Case Law ◽  
European Law ◽  
The European Union ◽  
European Union Law ◽  
National Courts ◽  
European Court ◽  
Judicial Errors ◽  
State Liability ◽  
Judicial Error

Abstract This paper presents the remedies available to persons whose European law rights have been infringed by judgments given by national Courts. The paper firsts presents the concept of state liability for judicial errors in relation to European law, as it stems from the case-law of the Court of Justice of the European Union, then goes on to show how the European Court of Human Rights may give redress to such aggrieved parties. Finally, it discusses the differences in the possibility of redress given by the two courts and the compatibility between their approaches, finally leading to a discussion on the possible convergence of the two.

The Role of National Constitutional Courts in European Democracy

2017 ◽  
Author(s):  
Dieter Grimm
Keyword(s):  
European Union ◽  
Economic Liberalization ◽  
Democratic Legitimacy ◽  
European Law ◽  
The European Union ◽  
Constitutional Courts ◽  
European Court ◽  
European Democracy ◽  
And Function

This chapter examines the role of national constitutional courts in European democracy. It first provides an overview of national constitutional courts in Europe, focusing on the requirements that they impose on national institutions and the consequences of those requirements at the treaty level—i.e., transferring national powers to the European Union and regulating how these powers are exercised; at the level of the EU’s exercise of these powers; and at the level of implementing European law within national legal systems. The chapter also discusses how the European Court of Justice’s jurisprudence enabled the European treaties to function as a constitution; the non-political mechanism of EU decisions and how it promotes economic liberalization; and how the design and function of European primary law undermine democracy. The chapter suggests that the democratic legitimacy imparted to the EU’s decisions by its citizens can only develop within the framework of the European Parliament’s powers.

scholarly journals Characteristics of Precedent: The Case Law of the European Court of Justice in Three Dimensions

2015 ◽  
Vol 16 (5) ◽  
pp. 1073-1098 ◽  
Author(s):  
Mattias Derlén ◽  
Johan Lindholm
Keyword(s):  
European Union ◽  
Case Law ◽  
Three Dimensions ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Court ◽  
Number Of Factors ◽  
The One

AbstractThe case law of the Court of Justice of the European Union (CJEU) is one of the most important sources of European Union law. However, case law's role in EU law is not uniform. By empirically studying how the Court uses its own case law as a source of law, we explore the correlation between, on the one hand, the characteristics of a CJEU case—type of action, actors involved, and area of law—and, on the other hand, the judgment's “embeddedness” in previous case law and value as a precedent in subsequent cases. Using this approach, we test, confirm, and debunk existing scholarship concerning the role of CJEU case law as a source of EU law. We offer the following conclusions: that CJEU case law cannot be treated as a single entity; that only a limited number of factors reliably affect a judgment's persuasive or precedential power; that the Court's use of its own case law as a source of law is particularly limited in successful infringement proceedings; that case law is particularly important in preliminary references—especially those concerning fundamental freedoms and competition law; and that initiating Member State and the number of observations affects the behavior of the Court.

The Italian Constitutional Court Case Law on Competition Law and Free Trade within the Framework of the European Union Legal System

ICL Journal ◽  
2016 ◽  
Vol 10 (3) ◽  
Author(s):  
Elisabetta M. Lanza
Keyword(s):  
European Union ◽  
Free Trade ◽  
Legal System ◽  
Case Law ◽  
Court Case ◽  
Constitutional Court ◽  
The European Union ◽  
European Union Law ◽  
The One

AbstractThis paper analyzes the path paved by the Italian Constitutional Court (ICC) in order to reconcile the series of its inconsistent judgments dealing with free trade, right to economic initiative, and freedom of competition. For this purpose, this article aims at investigating the role of the Italian Constitutional Court in the ‘constitutionalization’ of free trade and freedom of competition and at assessing the relationship between European Union policies and the Constitutional Court interpretation thereof.The last decade demonstrates, on the one hand, that the European Union law has influenced the domestic case law and, on the other hand, that, in turn, the European Union legal system has been ‘constitutionalized’ through the introduction of social and constitutional principles deriving from the Member States’ Constitutions.

“A Very Eden of the Innate Rights of Man”? A Marxist Look at the European Union Treaties and Case Law

1997 ◽  
Vol 22 (03) ◽  
pp. 581-618 ◽  
Author(s):  
Gustav Peebles
Keyword(s):  
European Union ◽  
Case Law ◽  
The European Union ◽  
Integration Process ◽  
Commodity Fetishism ◽  
Exchange Value ◽  
Eu Integration ◽  
European Court ◽  
The Eu

In this paper I approach the European Union Treaties (Rome and Maastricht) and the European Court of Justice's jurisprudence from a Marxist standpoint. I argue that the treaties and case law of the European Union (EU) revolve around the rights of things (commodities), rather than of people. People primarily gain rights within the EU by demonstrating that they embody exchange value and are therefore personified commodities; people are not accorded rights merely for being human. In essence, the treaties and case law have enshrined Marx's notion of commodity fetishism, which Marx asserted to be a social mystification, into transparent law. Focusing on the grand scheme of the treaties' jurisdiction in this manner also illuminates the role of the court as it struggles to balance the demands of capital's self-valorization with fundamental human rights. I then consider the consequences of this balancing act for the EU integration process. I argue that this phenomenon as a whole also carries implications for EU civil society and for notions of legal equality among persons.

Narratives of Constitutionalization in the European Union Court of Justice and in the European Court of Human Rights’ Case Law

ICL Journal ◽  
2017 ◽  
Vol 11 (1) ◽  
pp. 11-41
Author(s):  
Maurizio Arcari ◽  
Stefania Ninatti
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Legal Systems ◽  
The European Union ◽  
European Union Law ◽  
The Core ◽  
Court Of Justice ◽  
European Court

Abstract Constitutionalization is a peculiar process which characterizes the whole fabric of modern international law. It may however display different levels of evolution and different implications when distinct legal sub-systems are considered: this appears to be especially true at the European level, in particular in the context of the European Union law and of the European Convention on Human Rights. This article aims at unveiling the key elements of the constitutionalization process as developed by the judges sitting in Luxembourg and Strasbourg. In their relevant case law, both the EU Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) have identified the core concepts and elements lying behind the constitutionalization of their respective legal systems. The analysis of the ECJ and ECtHR case law will be divided into two different parts dealing with the internal dimension from one side, and external one from the other side. While presenting nuances and implications that are linked to the diverse degree of integration of the two legal systems, it may be submitted that the core elements of constitutionalization depicted by the Luxembourg and Strasbourg judges reveal some common patterns.

European Court of Human Rights case law as a source of European Union law

2021 ◽  
Author(s):  
Dmytro Boichuk ◽  
Vitalii Hryhoriev
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Court ◽  
Legal Nature ◽  
The Eu

The article is devoted to the study of the legal nature of the decisions of the European Court of Human Rights as a source of law of the European Union. Within the scope of the doctrinal sources and the existing case law of the European Court of Human Rights and the Court of Justice of the European Union, the authors substantiate the logic of including existing the European Court of Human Rights case law in the EU law sources, citing arguments based on the EU law and the case law.

Public Law Concentrate

2019 ◽  
Author(s):  
Colin Faragher
Keyword(s):  
European Union ◽  
Separation Of Powers ◽  
Public Law ◽  
The European Union ◽  
European Union Law ◽  
Essential Information ◽  
Police Powers ◽  
Current State ◽  
House Of Lords

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. Public Law Concentrate looks at all aspects relevant to constitutional law including sources, the rule of law, and separation of powers. It details the role of the executive, constitutional monarchy, and the Royal Prerogative. It also looks at sovereignty of Parliament and European Union law. It covers topics such as administrative law, judicial review, human rights, police powers, public order, and terrorism. This new edition examines the constitutional issues raised by and the legal effect of the provisions of the European Referendum Act 2015, the European Union (Notification of Withdrawal) Act 2017, the European Union (Withdrawal) Act 2018, and the proposed European Union (Withdrawal Agreement) Bill. It also looks at the constitutional status of the Sewel Convention, legislative consent motion procedure, the use of secondary legislation by the executive to amend law and the separation of powers implications of Henry VIII Clauses, the constitutional role of the House of Lords in scrutinizing and amending primary legislation, the Speakers' Ruling in the House of Commons on Points of Order and the Contempt of Parliament Motion, the whip system, back bench revolts, confidence and supply agreements in government formation, and the current state of legislative and executive devolution in Northern Ireland. There are also full details of the key principle in the decision of the Court of Justice of the European Union in Wightman v Secretary of State for Exiting the European Union [2018] SLT 959.

Is German Religionsverfassungsrecht under threat from the European Union?

2020 ◽  
Vol 9 (1) ◽  
pp. 1-27
Author(s):  
Peter Unruh
Keyword(s):  
European Union ◽  
Constitutional Law ◽  
Case Law ◽  
European Law ◽  
The European Union ◽  
European Union Law ◽  
Labour Relations ◽  
Court Of Justice ◽  
Religious Associations ◽  
The Relationship

Abstract Two recent judgments of the Court of Justice of the European Union (CJEU) raise fundamental questions about the relationship between European Union Law and German religious constitutional law. This article outlines the German constitutional context for the law of labour relations within religious associations before considering those judgments in detail. The article argues that in its approach to religious occupational requirements and loyalty obligations the case law of the CJEU risks bringing about a fundamental change in German religious constitutional law. This is in breach of the terms of membership of Germany in the European Union and contrary to European law itself.

A Community of Law? ‘European’ Law and Judicial Politics: The Court of Justice and Beyond

2000 ◽  
Vol 35 (1) ◽  
pp. 3-26 ◽  
Author(s):  
Daniel Wincott
Keyword(s):  
European Union ◽  
Judicial Politics ◽  
European Law ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
The 1960S ◽  
Strategic Context ◽  
European Community Law

OVER THE LAST DECADE AND A HALF THE PART PLAYED BY THE European Court of Justice (ECJ) in the construction and operation of the European Union has become controversial. Relatively unnoticed beyond specialist legal circles in the 1960s, 1970s and early 1980s, the role of the Court featured prominently in the debates occasioned by the Treaty of Maastricht. In this article I consider the use of heroic and villainous imagery to describe the Court. After arguing that such imagery now conceals more than it reveals, I suggest that if its role is to be understood properly, the Court needs to be placed in strategic context. For convenience, the discussion of strategic context, which makes up the largest part of this article, is divided into five sections. In turn these sections consider member state executives, other European Union institutions, ‘European’ law(s), European Community law and actors in civil society (particularly litigants).

Sign in / Sign up

Export Citation Format

Share Document