Le juge et la coutume internationale : perspective de l’Union européenne et de la Cour de justice

2013 ◽  
Vol 12 (2) ◽  
pp. 217-241
Author(s):  
Jiří Malenovský
Keyword(s):  
European Union ◽  
Direct Effect ◽  
Case Law ◽  
Legal Order ◽  
Customary Law ◽  
The European Union ◽  
Binding Force ◽  
Court Of Justice ◽  
Cour De Justice ◽  
Over Time

Abstract Jiří Malenovský presents the perspective of the European Union (EU) and of the Court of Justice of the European Union (CJEU) with regard to the issue of the judge and international custom. His presentation focuses notably on (I) the EU’s contribution to the formation of customary rules and on (II) the various approaches taken by the CJEU over time as to the binding force of international custom in the EU’s legal order. Furthermore, Jiří Malenovský illustrates (III) the various degrees of openness towards international custom in the case-law of the CJEU. He also presents (IV) the criteria used by the CJEU in its cautious attempts to identify both the existence and the content of the rules of international customary law. Finally, he provides information with regard to (V) the CJEU’s evaluation of the direct effect/applicability and enforceability of customary international rules.

scholarly journals The European Union and WTO law: a nexus of reactive, coactive, and proactive approaches

2007 ◽  
Vol 6 (1) ◽  
pp. 45-87 ◽  
Author(s):  
ANTONIS ANTONIADIS
Keyword(s):  
European Union ◽  
Direct Effect ◽  
Political Institutions ◽  
Legal Order ◽  
The European Union ◽  
Comprehensive View ◽  
Court Of Justice ◽  
Community Legal Order ◽  
The Eu

Ranging from the denial of direct effect to WTO law by the Court of Justice to a WTO-friendly legislative culture currently booming in the EU's political institutions, different approaches towards WTO law have been adopted within the EU. This article classifies the different approaches into reactive, coactive, and proactive by drawing on their common characteristics. The principal aim is to explore the considerations shaping the development of the different approaches and to argue that these stem from the interaction between the judiciary and the legislature. In doing so, this article purports to provide a comprehensive view of the application of WTO law within the Community legal order.

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 interpretation complying with EU law manifested in the case law unifying judgment No. 15/2013 of the Portuguese Supreme Court of Justice

2016 ◽  
Vol 2 ◽  
pp. 82-96
Author(s):  
Carla Machado
Keyword(s):  
European Union ◽  
Supreme Court ◽  
Case Law ◽  
Legal Order ◽  
The Other ◽  
Eu Law ◽  
The European Union ◽  
The Public ◽  
Court Of Justice ◽  
The One

This article aims to address the interpretation that has been made by Portuguese courts in relation to the concept of “communication of the work to the public” enshrined in Article 3 (1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001, duly transposed into the Portuguese legal order by Law No. 50/2006 of 24 August, which culminated in the drafting of the case law unifying judgment No. 15/2013. By verifying its content and analysing the case law of the Court of Justice of the European Union (hereinafter CJEU), concerning the interpretation of that concept, we conclude that the said case law unifying judgment does not comply with EU law. Therefore, we will list, on the one hand, the inherent consequences regarding the upkeep of the interpretation that has been held by the Portuguese judicial authorities and, on the other, we will suggest solutions for the resolution of similar cases by appealing to the principle of conforming interpretation.

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

Abstract While 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.

The Court of Justice of the European Union and the Armenian Legal Order

2020 ◽  
pp. 199-219
Author(s):  
Narine Ghazaryan
Keyword(s):  
European Union ◽  
National Court ◽  
Case Law ◽  
Legal Order ◽  
Constitutional Court ◽  
The European Union ◽  
Court Of Justice ◽  
The Republic ◽  
Partnership Agreement ◽  
The Eu

The chapter analyses the limited impact of Court of Justice of the European Union (CJEU) case law on the legal order of the Republic of Armenia. Despite Armenia’s geographic proximity to the EU, CJEU precedents feature in only two cases of the Constitutional Court of Armenia. In both cases, CJEU case law is seen merely as part of comparative international legal practice, informing the judgment of the national court, rather than affecting the ratio per se. The chapter analyses the main reasons behind the apparent lack of CJEU impact on Armenian judicial practice and the legal order more generally. These include, for example, low intensity in bilateral relations between the EU and Armenia and cognitive barriers. The chapter also addresses the main features of the Comprehensive and Enhanced Partnership Agreement and covers future possibilities for judicial interaction between the two legal orders.

scholarly journals The Right to Be Heard in the European Union – Case Law of the Court of Justice of the European Union

2016 ◽  
Vol 1 (1) ◽  
pp. 264
Author(s):  
Pranvera Beqiraj (Mihani)
Keyword(s):  
Decision Making ◽  
European Union ◽  
Case Law ◽  
Legal Order ◽  
Decision Making Process ◽  
The European Union ◽  
Court Of Justice ◽  
Individual Measure ◽  
Right To Good Administration ◽  
The Right

The right to be heard as a fundamental right within the Europen legal order was included in the right to good administration in the Charter of Fundamental Right of the European Union and imposes that every person has the right to be heard before any individual measure which would affect him or er adversely is taken. However, the Court of Justice of the European Union has a consolidated jurisprudence regarding the right to be heard which has already recognized it as a general principle and fundamental right. This paper will analyze this case law , which determine the nature of the decision-making process where this right must be applied, the nature of the decision taken and the way the interests of the person concened are affected. For this purpose different decisions of the Court of Justice of the European Union are taken under study.

Possession of significant quantity of narcotic drugs – problem overview in the context of the judgment by the Court of Justice of the European Union dated 11 June 2020 C-634/18

2021 ◽  
Vol 2(24) ◽  
pp. 341-356
Author(s):  
Katarzyna Tkaczyk-Rymanowska
Keyword(s):  
European Union ◽  
Drug Addiction ◽  
Criminal Law ◽  
Case Law ◽  
Legal Order ◽  
The European Union ◽  
National Courts ◽  
Court Of Justice ◽  
Case Basis ◽  
Narcotic Drugs

In the judgment of 11 June 2020, the Court of Justice of the European Union took the position that it is not contradictory to the community regulations for courts to decide, on a case-by-case basis, whether or not in a specific case the quantity of drugs possessed by the offender is significant and therefore the penalty should be made more severe. The interpretation of the concept of a ‘significant quantity’ of drugs may be left for the national courts to decide on a case-by-case basis on condition that this interpretation is reasonably foreseeable. This article presents an opinion in the discussion of the problems generated by the concept of significant quantities of narcotic drugs in the Polish criminal law, as specified in article 62(2) of the Act on Counteracting Drug Addiction of 29 July 2005. Most of all, however, the doubts that the judgment of the Court of Justice may raise in the context of the Polish legal order and recognised (and very diverse) case-law.

scholarly journals Differences Between the Recognition and Enforcement of Authentic Instruments and the Recognition and Enforcement of Judgments

Lexonomica ◽  
2021 ◽  
Vol 13 (1) ◽  
pp. 1-16
Author(s):  
Maria Dymitruk ◽  
Jacek Gołaczyński ◽  
Maria Kaczorowska ◽  
Piotr Rodziewicz
Keyword(s):  
European Union ◽  
Case Law ◽  
Legal Order ◽  
The European Union ◽  
Cross Border ◽  
Court Of Justice ◽  
Recognition And Enforcement ◽  
The Subject ◽  
Definition Of

The subject of the article is to analyse and compare the specificity of judgments and authentic instruments in terms of cross-border recognition and enforcement under the Brussels I Recast Regulation framework. Particular focus has been put on the practical aspects of the definition of an authentic instrument. Selected detailed issues arising against this background have been discussed with reference to the Polish legal order as well as the case-law of the Court of Justice of the European Union (CJEU). Based on the undertaken considerations, some proposals have been formulated regarding the enhancement of the free circulation of authentic instruments within the European Union.

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