The Jurisdiction of the European Court of Justice to Give Preliminary Rulings on the Interpretation of Mixed Agreements

2000 ◽  
Vol 69 (4) ◽  
pp. 395-412 ◽  
Author(s):  
Keyword(s):  
International Law ◽  
Case Law ◽  
European Court Of Justice ◽  
Member States ◽  
Court Of Justice ◽  
First Case ◽  
European Court ◽  
The World ◽  
Article 50 ◽  
Mixed Agreements

AbstractThis article is about the scope of the jurisdiction of the European Court of Justice to interpret, under Article 234 of the EC Treaty, international agreements which include among their contracting parties the European Community, all or some of its Member States and one or more other subjects of international law and which fall partly within the competence of the Community and partly within the competence of the Member States (so-called ‘mixed agreements’). In particular, the article addresses the question of whether, and if so to what extent, the Court's jurisdiction covers those provisions of mixed agreements which have been concluded under Member State powers. New light has been shed upon the question of jurisdiction by the Court's judgment in Case C-53/96 Hermès v. FHT concerning the interpretation of Article 50 of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) annexed to the 1994 Agreement establishing the World Trade Organization (WTO) – the first case where the jurisdiction issue is addressed by the Court outside the context of association agreements. The article analyses the judgment and its implications in the light of both the Court's earlier case law and the legal and policy considerations at stake when the scope of the Court's jurisdiction is determined.

scholarly journals The European Court of Justice: What are the Limits of its Exclusive Jurisdiction?

2009 ◽  
Vol 16 (3) ◽  
pp. 291-314 ◽  
Author(s):  
Tobias Lock
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Member States ◽  
International Courts ◽  
Community Law ◽  
Exclusive Jurisdiction ◽  
Court Of Justice ◽  
European Court ◽  
Academic Discussion

The article explores the limits of the ECJ's exclusive jurisdiction by addressing two main issues: firstly, whether there are exceptions to that exclusivity, such as the application of the CILFIT case law or the exclusion of Community law from the dispute. Secondly, it asks whether other international courts must respect the ECJ's jurisdiction over a case. The article commences by briefly discussing the ECJ's exclusive jurisdiction as it was established in Opinion 1/91 and the Mox Plant-Case and draws conclusions from this case law. It then addresses the above-mentioned points and comes to the conclusion that there are generally no exceptions to the ECJ's exclusive jurisdiction and that the only option open to Member States is to exclude Community law from a dispute (and even that option is subject to limitations). Furthermore, after exploring several routes advanced in the academic discussion, the article comes to the conclusion that other courts must respect the ECJ's jurisdiction and as a consequence declare the case inadmissible.

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.

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.

scholarly journals (In)certezze giuridiche sulla situazione della Crimea: una «mappa» dei casi pendenti o decisi davanti alle corti europee

2019 ◽  
Author(s):  
Sara De Vido
Keyword(s):  
Human Rights ◽  
International Law ◽  
Case Law ◽  
Current Situation ◽  
European Court Of Justice ◽  
Court Of Justice ◽  
European Court

The purpose of this chapter is to analyse the case of Crimea from an international law perspective, by reflecting on the numerous pending cases in front of the European Court of Human Rights and on two cases decided by the European Court of Justice. The chapter will not take a position on the legitimacy or not of the facts that led to the current situation. It will rather focus on the current de facto situation, case law, and on two pivotal notions in international law: sovereignty and jurisdiction.

scholarly journals The 346 Clause of TFEU Regulation in Different EU Member States

Teisė ◽  
2019 ◽  
Vol 113 ◽  
pp. 123-138
Author(s):  
Vilius Kuzminskas
Keyword(s):  
European Union ◽  
Case Law ◽  
European Court Of Justice ◽  
The European Union ◽  
Member States ◽  
Eu Member States ◽  
Court Of Justice ◽  
European Court

The article discloses the fixed exclusion regulation of Clause 346 in the Treaty of Function of the European Union in different EU member states. A further assessment of different relevant judicial approaches to regulation are disclosed and evaluated in accordance with the European Court of Justice case law and procurement in the defense area doctrine.

Objectivity and Statutory Interpretation: End Use in the Canadian Customs Tariff

2009 ◽  
Vol 46 ◽  
pp. 3-54 ◽  
Author(s):  
Maureen Irish
Keyword(s):  
Case Law ◽  
Physical Characteristics ◽  
European Court Of Justice ◽  
Coding System ◽  
Statutory Interpretation ◽  
Court Of Justice ◽  
European Court ◽  
The World ◽  
End Use

SummaryThe Harmonized Commodity Description and Coding System (Harmonized System) has been adopted by the major trading nations of the world, including Canada. Decisions of the European Court of Justice are influential for interpretation of the Harmonized System. According to these decisions, goods should be classified under the Harmonized System on the basis of their physical characteristics, while factors that relate to use after importation should be considered only if they are reflected in the physical characteristics. The author rejects this narrow approach and argues that interpretation will be successful only if it is done in light of the full commercial context, including use after importation, advertising, distribution, and market indicators such as price. The article reviews Canadian case law since implementation of the Harmonized System in 1988 as well as some decisions interpreting the pre-1988 Canadian nomenclature, which contained many tariff items that depended on the end use of goods after importation.

scholarly journals Steigimosi laisvė po Cartesio bylos: ES inkorporavimo doktrinos trūkumas ir to padariniai

Teisė ◽  
2010 ◽  
Vol 75 ◽  
pp. 143-158
Author(s):  
Robertas Čiočys
Keyword(s):  
International Law ◽  
Case Law ◽  
European Court Of Justice ◽  
Private International Law ◽  
Freedom Of Establishment ◽  
Cross Border ◽  
Court Of Justice ◽  
European Court ◽  
Real Seat

This article defines private international law doctrines of incorporation and real seat and then turns to the analysis of freedom of establishment guaranteed by the EC Treaty. The article analyses judgments of the European Court of Justice, interpreting the freedom of establishment in cases where companies tried to transfer their seats across frontiers, especially in light of the newest judgment in this area in the Cartesio case. The analysis of case law shows the link between the freedom of establishment and private international law doctrines. The article is concluded by a discussion of opportunities that free­dom of establishment provides for companies, alternatives for cross-border business restructurings and implications of rising number of these activities. Straipsnyje apibūdinamos tarptautinės privatinės teisės taikomos inkorporavimo ir buveinės doktri­nos ir tada analizuojama EB steigimo sutarties garantuojama steigimosi laisvė. Aptariama Europos Tei­singumo Teismo praktika interpretuojant steigimosi laisvę bylose, kai bendrovės bandė perkelti buveinę už valstybės ribų. Atsižvelgiant į tai, kaip supratimą keičia naujausia byla šioje srityje − Cartesio. Teis­mo praktikos analizė parodo steigimosi laisvės ir tarptautinės privatinės teisės doktrinų ryšį. Straipsnis baigiamas aptariant galimybes, kurias bendrovėms suteikia steigimosi laisvė, ir alternatyvas, kuriomis jos gali pasinaudoti, siekdamos pertvarkyti verslą, kai tai apima kelias valstybes, bei šio reiškinio dažnė­jimo padarinius.

Part III Observance and Application of Treaties, 16 The European Courts and the Law of Treaties: The Continuing Story

2011 ◽  
Author(s):  
Kuijper Pieter Jan
Keyword(s):  
International Law ◽  
Case Law ◽  
European Court Of Justice ◽  
Vienna Convention ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Treaty Interpretation ◽  
The Law ◽  
The Eu

This chapter presents a critical analysis of the case law of the European Court of Justice and of the General Court relating to the application of the international law of treaties. It covers the some forty cases in which the Courts have referred explicitly to the Vienna Convention on the Law of Treaties 1969, and a few more where this happened implicitly, during the period 1998–2010. Inevitably the emphasis falls on the application of the rules of treaty interpretation to the international agreements concluded by the European Union (EU), but also to the founding treaties of the EU itself. The Courts have been confronted with great regularity with questions relating to the law of treaties and thus have become increasingly sophisticated in their use of it. The recent accusation that the Court is adverse to international law seems to be based on a few dramatic cases, not on the steady stream of smaller cases in which the law of treaties plays a role.

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