The Court of Justice as a policy actor: the case of the Acquired Rights Directive

Legal Studies ◽  
1998 ◽  
Vol 18 (3) ◽  
pp. 336-359
Author(s):  
Jo Hunt
Keyword(s):  
European Community ◽  
Structural Changes ◽  
Employment Relationship ◽  
Member States ◽  
Policy Actor ◽  
Court Of Justice

In 1977, the Council of the European Community unanimously adopted Directive 77/187/EEC on the approximation of laws of the member states relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses, or parts of businesses. The first half of the 1970s had witnessed an ever increasing incidence of business restructuring throughout the territory of the Community. Concern over the possible impact of such structural changes on affected employees prompted the introduction of the Acquired Rights Directive, which, according to its preamble, had the primary purpose of providing ‘for the protection of employees in the event of a change of employer, in particular to ensure that their rights are safeguarded’. In the event that a transfer of an undertaking results in a change of employer, the directive provides for the automatic transfer of the employment relationship from the old employer (the transferor) to the new employer (the transferee).

The European Community, the European Court of Justice and the Law of the Sea

2008 ◽  
Vol 23 (4) ◽  
pp. 643-713 ◽  
Author(s):  
Sonja Boelaert-Suominen
Keyword(s):  
International Law ◽  
European Community ◽  
Dispute Settlement ◽  
European Court Of Justice ◽  
Law Of The Sea ◽  
Member States ◽  
Court Of Justice ◽  
Fishery Policy ◽  
European Court ◽  
The Law

AbstractThe European Community has gradually increased its focus on marine and maritime affairs, starting with the Community's Fishery Policy in the 1970s and culminating recently in the 2007 Blue Book on an Integrated Maritime Policy of the European Union. The Community's increased clout over marine and maritime matters has been reflected also in the case law of the European Court of Justice. From the outset the Court has given great impetus to the Community's efforts to assert its external competence in matters related to fisheries and conservation of biological resources of the sea. Even so, the Court has thus far only occasionally been confronted with public international law questions pertaining to the law of the sea. However, the few cases in which the Court has addressed such issues are worthy of note. For example, the Court has ruled on whether Member States should be allowed to rely on the international law of the sea in order to derogate from obligations under Community law; whether Member States should be allowed to prefer the dispute settlement provisions set out in the 1982 United Nations Convention on the Law of the Sea over the Community's own dispute settlement system; and on whether private parties may invoke arguments derived from the customary or conventional international law of the sea to challenge the validity of Community legislation pertaining to marine and maritime matters. The resulting judgments of the European Court of Justice have often turned out to be landmark cases, although some of them have tended to divide academic opinion.

Lawyers, Judges, and the Making of a Transnational Constitution

1981 ◽  
Vol 75 (1) ◽  
pp. 1-27 ◽  
Author(s):  
Eric Stein
Keyword(s):  
Mass Media ◽  
International Law ◽  
European Community ◽  
Type Structure ◽  
Direct Integration ◽  
Member States ◽  
Community Law ◽  
Court Of Justice ◽  
Benign Neglect ◽  
The Mass Media

Tucked away in the fairyland Duchy of Luxembourg and blessed, until recently, with benign neglect by the powers that be and the mass media, the Court of Justice of the European Communities has fashioned a constitutional framework for a federal-type structure in Europe. From its inception a mere quarter of a century ago, the Court has construed the European Community Treaties in a constitutional mode rather than employing the traditional international law methodology. Proceeding from its fragile jurisdictional base, the Court has arrogated to itself the ultimate authority to draw the line between Community law and national law. Moreover, it has established and obtained acceptance of the broad principle of direct integration of Community law into the national legal orders of the member states and of the supremacy of Community law within its limited but expanding area of competence over any conflicting national law.

The Andean Tribunal of Justice and its Interlocutors

2017 ◽  
Author(s):  
Karen J. Alter ◽  
Laurence R. Helfer
Keyword(s):  
Intellectual Property ◽  
European Community ◽  
National Court ◽  
Referral Patterns ◽  
Member States ◽  
National Courts ◽  
The Andes ◽  
Court Of Justice ◽  
Cross Country ◽  
International Adjudication

This chapter presents data on national court interactions with the Andean Tribunal. It analyzes case referral patterns from each of the five member states and discusses cross-country variations. The chapter also explains the resistance of some national courts to referring cases and how that resistance was eventually overcome. In addition, this chapter highlights the fundamentally different nature of the Andean Tribunal of Justice's (ATJ's) relationships with national judges as compared to the analogous relationships in the European Community (EC). In Europe, the symbiosis between the European Union's Court of Justice (ECJ) and national courts helped to build integration through law. In the Andes, effective international adjudication is mostly an island confined to intellectual property (IP) disputes. Domestic administrative agencies that review IP applications are the ATJ's primary interlocutors and compliance partners; national judges have remained largely passive intermediaries.

European Union—accession of the Community to the European Convention on Human Rights— competence of the Community under Article 235 of the Treaty Establishing the European Community—need to amend the Treaty

1996 ◽  
Vol 90 (4) ◽  
pp. 664-669 ◽  
Author(s):  
Judith Hippler Bello ◽  
Juliane Kokott ◽  
Frank Hoffmeister
Keyword(s):  
European Union ◽  
Human Rights ◽  
European Community ◽  
European Convention ◽  
Advisory Opinion ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
National Jurisdiction

Opinion 2/94, Accession of the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms. 17 Hum. Rts. L.J. 51 (1996).European Court of Justice, March 28, 1996.On April 26, 1995, die Council of the European Union requested an opinion on whether accession of the European Community to the European Convention on Human Rights (ECHR) was compatible with the Treaty Establishing the European Community (Treaty). In its request, the Council of the European Union stated that no decision on opening negotiations could be taken before the Court pronounced on die compatibility of accession with the Treaty. The Council argued that, even though a text of the envisaged agreement did not yet exist, the legal issues regarding accession were sufficientiy clear for the Court to provide an advisory opinion. The Council made clear that accession should not have any effect on the reservations entered by member states, which would “continue to apply in the areas falling within national jurisdiction.” It also explained that the “Community would agree to submit to the machinery for individual petitions and inter-State applications; actions between the Community and its Member States would, however, have to be excluded in recognition of the monopoly conferred in such matters by Art. 219 of the EC Treaty on the Court of Justice.”

The exercise of giving way to 'giving in'—some aspects of the Member States' EURATOM obligations revisited

2009 ◽  
Vol 6 (4) ◽  
pp. 481-493
Author(s):  
Ilina Cenevska
Keyword(s):  
European Community ◽  
Nuclear Energy ◽  
Case Law ◽  
Grey Zone ◽  
Legal Regime ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
Academic Researchers ◽  
Energy Community

AbstractAlthough an issue far from the spotlight of attention of academic researchers, it is often said that the European Atomic Energy Community Treaty (EURATOM) and the obligations incumbent on the member states under this Treaty account for a greater loss of national sovereignty than envisaged by the European Community Treaty and its internal market component as arguably the most 'communautaire' component of all. Article 84 of the EURATOM Treaty excludes the application of the Treaty from cases of military uses of nuclear energy, nevertheless, on several occasions the European Court of Justice (ECJ) had to pronounce itself on the legal 'grey zone' issue of what is indeed considered as peaceful use of nuclear energy and the legal regime to be applied thereby. This was the substance of the issues raised in cases C-61/03 Commission v. UK and C-65/04 Commission v. UK. Through a comparative analysis of the relevant case law it is interesting to observe how in the matter of defining the EURATOM competences the ECJ is adamant to the use of 'policy-oriented' arguments, otherwise affluently used with respect to affording new competences to the European Community (EC), EURATOM's 1957 contemporary.

5 Obligations of International Organizations, 5.1 Case 21-24/72, International Fruit Company v Produktschap voor Siergewassen , Court of Justice of the EC, [1972] ECR 1219

2016 ◽  
Author(s):  
Kuijper Pieter Jan
Keyword(s):  
European Community ◽  
Direct Effect ◽  
International Organizations ◽  
Member States ◽  
Court Of Justice ◽  
The Eu

The International Fruit Company case is rightly famous for two reasons: (1) the succession of the European Community to its member states in the General Agreement on Tariffs and Trade (GATT) and (2) the lack of direct effect of art. XI (the prohibition of quantitative restrictions) and of the GATT in general. On point (2) the case has largely lost its initial relevance, since the Court of Justice (ECJ), though still of the same view with respect to the GATT’s successor, the WTO, has considerably developed and refined its initial reasoning. It is on point (1) that the case has continued importance, because it sheds light on the comparable, but different situation in which the EU effectively follows the rules of international organizations or of treaty bodies, to which all member states are parties, but without the possibility for the EU to accede to these organizations and treaty bodies.

The preliminary ruling procedure at the court of justice of the European Union and transformation of European anti-discrimination law

2020 ◽  
Vol 2020 (3) ◽  
pp. 66-72
Author(s):  
Elena Sorokina
Keyword(s):  
Legal System ◽  
Essential Feature ◽  
Preliminary Ruling ◽  
The European Union ◽  
Judicial Cooperation ◽  
Member States ◽  
National Courts ◽  
Court Of Justice ◽  
Protection Of Human Rights ◽  
The Eu

The preliminary ruling procedure is an essential feature of the EU legal system, which is a unique cooperation tool as part of the dialogue between the Court of Justice of the EU and national courts of the Member States. Its main purpose is to ensure uniform interpretation and application of the provisions of EU law with all Member States and to preserve the uniformity of the European legal system. The continuous use by national courts of the Member States of the mechanism of preliminary ruling and constructive inter-judicial cooperation, the Court of Justice has developed an extremely extensive case law on the prohibition of discrimination and with the result to introduce substantial changes in European anti-discrimination law.The preliminary rulings of the Court of Justice have shown its inclination to expand notions of what constitutes discrimination and in most cases the Court prompt by the desire to interpret the provisions of European law so as to ensure the full effectiveness of the law, as well as a willingness to promote and strengthen protection against discrimination in Europe. While the protection against discrimination on some grounds is stronger than others, however, the preliminary rulings of the Court of Justice are important contribution to the transformation of anti-discrimination law, promote change in the national legislation of the Member States and provide the more effective protection of human rights in general.

Determinants of socio-economic transformations of technological systems: theoretical and methodical aspects

2020 ◽  
pp. 102-111
Author(s):  
Svitlana Shults ◽  
Olena Lutskiv
Keyword(s):  
Economic Growth ◽  
Economic Development ◽  
Structural Changes ◽  
Member States ◽  
Social Transformations ◽  
Technological Basis ◽  
Eu Member States ◽  
Technological Paradigm ◽  
Technological Paradigms ◽  
The Eu

Technological development of society is of unequal cyclic nature and is characterized by changing periods of economic growth, stagnation phases, and technological crises. The new wave of technological changes and new technological basis corresponding to the technological paradigm boost the role of innovations and displace the traditional factors of economic growth. Currently, intellectual and scientific-technical capacity are the main economic development resources. The use of innovation and new knowledge change the technological structure of the economy, increase the elements of the innovative economy, knowledge economy, and digital economy, i.e. the new technological paradigm is formed. The paper aims to research the basic determinants of technological paradigms’ forming and development, and determining their key features, as well as to analyze social transformations of the EU Member States and Ukraine. The paper focuses attention on the research of the features of social transformations. The structural transformations are analyzed based on the Bertelsmann Transformation Index that estimates the quality of democracy, market economy, and political governance. The transformation processes are assessed on the example of the EU Member States and Ukraine. The authors argue that social transformations and structural changes in the economy are related to the change of technological paradigms that boost the economic modernization and gradual progressive development of humanity in general. The nature and main determinants of 5 industrial and 2 post-industrial technological paradigms are outlined. Their general features and main areas of basic technologies implementation emerging in the realization of a certain technological paradigm are explained. The conclusions regarding the fact that innovative technologies and available scientific-technological resources define the main vector of economic development are made. The new emerging technological paradigm is of strategic importance for society development.

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.

The case law of the Court of Justice of the European Union on ‘judicial authority’ and issuing European arrest warrants

2021 ◽  
pp. 203228442110276
Author(s):  
Tricia Harkin
Keyword(s):  
Rule Of Law ◽  
Case Law ◽  
Public Prosecutor ◽  
The European Union ◽  
Advocate General ◽  
Member States ◽  
Court Of Justice ◽  
Judicial Authority ◽  
Criminal Matters ◽  
Judicial Protection

The case law of the Court of Justice from 2016 to 2019 on the interpretation of ‘judicial authority’ in Article 6(1) FD-EAW essentially examines whether a public prosecutor can be an issuing judicial authority and if so, how Member States’ systems for issuing EAWs ensure effective judicial protection for the person concerned. For the Advocate General, applying the Court’s ‘rule of law’ jurisprudence, effective judicial protection when deprivation of liberty is involved can only be assured by a body with the highest level of judicial independence, being a court. The Court’s broader approach of including public prosecutors with sufficiency of independence from the executive and requiring their decisions to be amenable to review by a court, when applied in practice arguably falls short of the requisite standard of effective judicial protection. There is also a lack of clarity about access to the interpretative jurisdiction of the Court by public prosecutors acting as judicial authorities. Effective judicial protection and EU cooperation in criminal matters would now be better served by the designation in all Member States of a court as the issuing judicial authority for the FD-EAW. This is against the background of the uniquely coercive nature of the EAW in terms of deprivation of liberty; the differences in Member States’ institutional arrangements for public prosecutors and the post-Lisbon effective constitutionalisation of judicial protection of rights of individuals.

Sign in / Sign up

Export Citation Format

Share Document