General Issues: Monism, Dualism and the European Legal Order Reconsidering the Relationship between International and EU Law:

2012 ◽  
pp. 5-33
Keyword(s):  
Legal Order ◽  
Eu Law ◽  
The Relationship

6. The relationship between EU and national law

2020 ◽  
pp. 154-178
Author(s):  
Sylvia de Mars
Keyword(s):  
National Court ◽  
Legal Order ◽  
Eu Law ◽  
The European Union ◽  
Eu Membership ◽  
Parliamentary Sovereignty ◽  
Domestic Courts ◽  
The Uk ◽  
The Impact ◽  
The Relationship

This chapter focuses on the relationship between EU law and national law. It first explores the jurisprudence on what is known as the doctrine of supremacy of EU law of the Court of Justice of the European Union (CJEU). When a national court observes that a national law clashes with an EU law, they must set aside that national law. The EU legal order would not work without a doctrine like supremacy: not only would domestic courts not be compelled to apply EU law instead of conflicting national law, but it is likely that different domestic courts would take different decisions as to whether to apply EU law over national law in a given scenario. The chapter then considers how supremacy has been received in Germany and the UK, looking at how the German and UK legal orders interact with EU law. It then addresses whether ‘parliamentary sovereignty’ is compatible with EU membership, and examines the impact of Brexit on the supremacy of EU law.

European and Domestic Law

2017 ◽  
Author(s):  
Bernard Stirn
Keyword(s):  
International Law ◽  
Public Law ◽  
Legal Order ◽  
Eu Law ◽  
The European Union ◽  
Legal Certainty ◽  
European Public ◽  
Domestic Courts ◽  
The Relationship ◽  
Domestic Law

Chapter 4 turns to the domestic law of the countries of Europe, arguing that the combination within European public law of EU law, the law of the ECHR, and of domestic law cannot be conceived of along the lines of a pyramidal hierarchy. The chapter examines the ways in which the different European domestic legal systems conceive of the relationship between international law and domestic law. The chapter then looks at the relationship between international law and domestic law through a constitutional lens, an approach which more and more domestic courts in Europe seem to be adopting. The chapter then turns to the integrated legal order of the European Union, a legal order distinct both from domestic and general international law. Finally, the chapter teases out and analyses four shared guiding principles of European public law: equality and non-discrimination; proportionality; subsidiarity; and legal certainty.

9. The Relationship Between EU Law and National Law:

2015 ◽  
Author(s):  
Paul Craig ◽  
Gráinne de Búrca
Keyword(s):  
Legal Order ◽  
Common Market ◽  
European Court Of Justice ◽  
Eu Law ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
The Relationship ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses the doctrine of supremacy of EU law, which was developed by the European Court of Justice (ECJ) based on its conception of the ‘new legal order’. The ECJ ruled that the aim of creating a uniform common market between different states would be undermined if EU law could be made subordinate to national law of the various states. The validity of EU law can therefore, according to the ECJ, never be assessed by reference to national law. National courts are required to give immediate effect to EU law, of whatever rank, in cases that arise before them, and to ignore or to set aside any national law, of whatever rank, which could impede the application of EU law. Thus, according to the ECJ, any norm of EU law takes precedence over any provision of national law, including the national constitutions. This broad assertion of the supremacy of EU law has not however been accepted without qualification by national courts, and the chapter examines the nature of the qualifications that have been imposed by some national courts.

10. The Relationship Between EU Law and National Law: Supremacy

EU Law ◽  
2020 ◽  
pp. 303-352
Author(s):  
Paul Craig ◽  
Gráinne de Búrca
Keyword(s):  
Legal Order ◽  
Common Market ◽  
European Court Of Justice ◽  
Eu Law ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
The Uk ◽  
The Relationship ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter discusses the doctrine of supremacy of EU law, which was developed by the European Court of Justice (ECJ) based on its conception of the ‘new legal order’. The ECJ ruled that the aim of creating a uniform common market between different states would be undermined if EU law could be made subordinate to national law of the various states. The validity of EU law can therefore, according to the ECJ, never be assessed by reference to national law. National courts are required to give immediate effect to EU law, of whatever rank, in cases that arise before them, and to ignore or to set aside any national law, of whatever rank, which could impede the application of EU law. Thus, according to the ECJ, any norm of EU law takes precedence over any provision of national law, including the national constitutions. This broad assertion of the supremacy of EU law has not however been accepted without qualification by national courts, and the chapter examines the nature of the qualifications that have been imposed by some national courts. The UK version contains a further section analysing the relevance of the supremacy of EU law in relation to the UK post-Brexit.

Legal Monism

2018 ◽  
Author(s):  
Paul Gragl
Keyword(s):  
Twentieth Century ◽  
International Law ◽  
Legal Order ◽  
Eu Law ◽  
Moral Dimension ◽  
Global Democracy ◽  
Form Part ◽  
Normative Conflicts ◽  
Theory Of Law ◽  
The Relationship

This book defends the theory of legal monism against dualism and pluralism. Whereas dualism holds that different bodies of law such as international and national law are entirely separate and pluralism argues that there are many potentially overlapping and heterarchical bodies of law, monism considers all law to form part of one unitary and hierarchically ordered legal order, be it international, EU, or national law. To this end, this book will use the pure theory of law of the Vienna School of Jurisprudence, which has—since its inception in the first half of the twentieth century—been largely ignored by legal theorists. On the basis of philosophical/epistemological, legal, and moral/political arguments, it will argue in favour of monism under the primacy of international law, i.e. that in cases of normative conflicts, international and EU law prevail over national law, and thereby restore the respect for international legal cooperation. In other words, it will argue that only this version of monism takes the law and the concept of legal validity seriously; that it can better describe and explain the relationship between legal orders and resolve normative conflicts than dualism and pluralism; and that it has a superior moral dimension, which can help bring about a cosmopolitan legal order under global democracy and peace.

The Precedence of EU Law from the Perspective of Constitutional Pluralism

2009 ◽  
Vol 5 (3) ◽  
pp. 421-446 ◽  
Author(s):  
René Barents
Keyword(s):  
Constitutional Law ◽  
Legal Order ◽  
Eu Law ◽  
Integrated Or ◽  
Constitutional Pluralism ◽  
The Relationship

The position of EU law in the national legal order – Precedence of EU law – Relationship between legal orders – Foundation of precedence – Autonomous precedence v. precedence based on national constitutional law – The concept of an integrated or composed legal order as a false paradigm – The value of constitutional pluralism to explain the relationship between EU law and national law

10. The Relationship Between EU Law and National Law: Supremacy

EU Law ◽  
2020 ◽  
pp. 314-366
Author(s):  
Paul Craig ◽  
Gráinne de Búrca
Keyword(s):  
Legal Order ◽  
Common Market ◽  
European Court Of Justice ◽  
Eu Law ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
The Uk ◽  
The Relationship ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter discusses the doctrine of supremacy of EU law, which was developed by the European Court of Justice (ECJ) based on its conception of the ‘new legal order’. The ECJ ruled that the aim of creating a uniform common market between different states would be undermined if EU law could be made subordinate to national law of the various states. The validity of EU law can therefore, according to the ECJ, never be assessed by reference to national law. National courts are required to give immediate effect to EU law, of whatever rank, in cases that arise before them, and to ignore or to set aside any national law, of whatever rank, which could impede the application of EU law. Thus, according to the ECJ, any norm of EU law takes precedence over any provision of national law, including the national constitutions. This broad assertion of the supremacy of EU law has not however been accepted without qualification by national courts, and the chapter examines the nature of the qualifications that have been imposed by some national courts. The UK version contains a further section analysing the relevance of the supremacy of EU law in relation to the UK post-Brexit.

L'azione dell'Unione europea contro le discriminazioni basate sulla religione: l'impatto della giurisprudenza della Corte europea dei diritti umani

2012 ◽  
pp. 475-511
Author(s):  
Federico Casolari
Keyword(s):  
Human Rights ◽  
General Framework ◽  
Case Law ◽  
Legal Order ◽  
Equal Treatment ◽  
Freedom Of Religion ◽  
Eu Law ◽  
The Right ◽  
The Impact ◽  
The Eu

Law Although EU law has established a general framework concerning the fight against discriminations on the grounds of religion (namely as far as equal treatment in employment and occupation is concerned), the related ECJ case law is not very rich. This article tracks and evaluates the impact of the ECHR case law devoted to the freedom of religion on the interpretation and application of EU law concerning religion discriminations. It argues that the ECHR case law may contribute to identify the notion of ‘religion' which is relevant for EU law, while several arguments may be put forward against the application of the Strasbourg approach to the balancing between the right to quality based on religion and others human rights into the EU legal order.

scholarly journals Groźba popełnienia przestępstwa o charakterze terrorystycznym w ujęciu art. 115 § 20 k.k. – wybrane problemy wykładni

2019 ◽  
Vol 28 (3) ◽  
pp. 41
Author(s):  
Aneta Michalska-Warias
Keyword(s):  
Criminal Law ◽  
Criminal Code ◽  
Eu Law ◽  
Terrorist Threat ◽  
Special Part ◽  
New Type ◽  
The Relationship

<p>The paper discusses the concept of a terrorist threat in the light of Article 115 § 20 of the Polish Criminal Code. The author stresses the relationship between this term and the punishable threat described in the special part of the Criminal Code. The conducted analysis leads to the conclusion that the terrorist threat must be treated as a special type of the punishable threat and, as a result, many real terrorist threats may not meet the criteria of a forbidden act, e.g. because of the lack of an individualised victim. As a result, there appear serious doubts as to whether Polish criminal law meets the requirements of EU law referring to the criminalisation of terrorist threats and, therefore, the introduction of a new type of offence of a terrorist threat and some changes in Article 115 § 20 and Article 115 § 12 of the Criminal Code have been proposed.</p>

scholarly journals Extraterritoriality of EU law and human rights after Lisbon: The case of trade and public procurement

2018 ◽  
Author(s):  
Samantha Velluti ◽  
Vassilis P. Tzevelekos
Keyword(s):  
Human Rights ◽  
Public Procurement ◽  
Legal Order ◽  
International Human Rights Law ◽  
Eu Law ◽  
Human Rights Law ◽  
Special Issue ◽  
International Human Rights ◽  
International Human ◽  
The Eu

The paper introduces the theme and topics of this Special Issue on the extraterritoriality of EU law and human rights in the fields of trade and public procurement since the entry into force of the 2009 Treaty of Lisbon. It briefly explores the meaning of extraterritoriality in international (human rights) law and the EU legal order highlighting the complexity of such notion in both legal systems. In so doing, it provides the context and focus of analysis of the collection of papers that make up this Special Issue, which addresses a number of topical questions concerning the extraterritorial conduct of the EU, as well as the extraterritorial effects of EU law in those specific fields, from the perspective of human rights.

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