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.

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.

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.

Negotiating the Foundations of European Law, 1950–57: The Legal History of the Treaties of Paris and Rome

2012 ◽  
Vol 21 (3) ◽  
pp. 339-356 ◽  
Author(s):  
ANNE BOERGER-DE SMEDT
Keyword(s):  
Legal History ◽  
European Court Of Justice ◽  
European Law ◽  
Court Of Justice ◽  
European Court ◽  
Conscious Choice ◽  
History Of ◽  
The 1960S

AbstractThis article analyses how the seeds for the development of European law from the 1960s onwards were sown in the foundational treaties. It argues that despite the fact that both European treaties embodied a conscious choice by the majority of the governments not to establish the European Communities on a constitutional basis, a small number of politicians and jurists managed nonetheless to insert the potential for the constitutional practice. Following a chronological account of each set of negotiations, the article untangles the complex ideas and decisions, which crafted both the legal shape of the treaties and the jurisdiction of the new European Court of Justice.

Constructing and Legitimating: Transnational Jurist Networks and the Making of a Constitutional Practice of European Law, 1950–70

2012 ◽  
Vol 21 (3) ◽  
pp. 399-415 ◽  
Author(s):  
ALEXANDRE BERNIER
Keyword(s):  
European Court Of Justice ◽  
European Law ◽  
Archival Material ◽  
Court Of Justice ◽  
European Court ◽  
History Of ◽  
Social Scientific ◽  
French Association ◽  
Legal Integration

AbstractSocial scientific explanations of the role of European law associations in the making of a new European legal order argue that they were critical in empowering the European Court of Justice and defining the results of European legal integration. However, these approaches fail to highlight the complex context in which these associations evolved. By exploring the history of the French Association des juristes européens from 1951 to 1970 on the basis of comprehensive archival material, this paper provides a more contextualised understanding of what appears as a struggle with limited impact on the French reception of European law.

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.

Pushing Back: What Happens When Member States Resist the European Court of Justice? A Multi-Modal Approach to the History of European Law

2012 ◽  
Vol 21 (3) ◽  
pp. 417-435 ◽  
Author(s):  
BILL DAVIES
Keyword(s):  
Legal System ◽  
Legal History ◽  
National Level ◽  
European Court Of Justice ◽  
European Law ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
History Of ◽  
System Focus

AbstractEstablished explanations of the development of the European legal system focus on the decisive power of the Court of Justice in determining the system's practice and parameters. Even accounts highlighting the various interlocutors involved with the Court are ultimately drawn to Luxembourg as the fulcrum of decision. However, these approaches neglect the equally constitutive role played by national courts, particularly when resisting the European Court of Justice (ECJ). By analysing the important consequences of the German Constitutional Court's Solange decision of 1974, this paper argues that we must complicate our retelling of the European Union's (EU) legal history by rethinking the importance of national-level agency.

scholarly journals Establishing a Constitutional Practice of European Law: The History of the Legal Service of the European Executive, 1952–65

2012 ◽  
Vol 21 (3) ◽  
pp. 375-397 ◽  
Author(s):  
MORTEN RASMUSSEN
Keyword(s):  
European Court Of Justice ◽  
Legal Philosophy ◽  
Legal Service ◽  
European Law ◽  
Academic Field ◽  
Archival Material ◽  
Court Of Justice ◽  
European Court ◽  
History Of

AbstractThe origins of the constitutional practice of European law clearly lie in the two famous rulings of the European Court of Justice (ECJ) Van Gend en Loos (1963) and Costa v. E.N.E.L (1964). Despite this, very little is known for sure about the genesis of the ECJ's interpretation or the dynamics within the Court at the time. Most accounts focus on the role of the ECJ in revolutionising European law. Using recently disclosed archival material, this article traces the role of the Legal Service of the European executive in the development of the constitutional practice. It demonstrates that the Legal Service played a crucial role both in terms of devising the legal philosophy behind the two rulings and in the establishing of a professional and academic field of European law, which would underpin the constitutional practice. At the same time it shows that the ECJ – although it adopted the legal philosophy recommended by the Legal Service – did this in a cautious and restricted manner to minimise national resistance.

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

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