Solidarity in EU Law

2016 ◽  
Vol 23 (6) ◽  
pp. 965-983 ◽  
Author(s):  
Esin Küçük
Keyword(s):  
Case Law ◽  
Reciprocal Relationship ◽  
The European Union ◽  
Normative Force ◽  
Eu Legislation ◽  
Court Of Justice ◽  
Self Interest ◽  
Integrated Concept ◽  
The Eu ◽  
Do So

Solidarity, although widely used in EU legislation and the early jurisprudence of the Court of Justice of the European Union (CJEU), lacks a clear meaning. It appears as an amorphous concept whose contours change depending on the legal areas and the actors involved, and which generates differing levels of commitment. This article explores the attributes common to the different expressions of solidarity as a binding legal obligation in order to develop European solidarity as an integrated concept. It examines the meaning and boundaries of solidarity by focusing on the reasons that generate solidarity obligations under the EU Treaties and by analysing the case law where the CJEU has drawn on solidarity or could have drawn on it, but decided not to do so. The article concludes that while different aspects of solidarity are embodied in EU legislation, the concept has normative force mainly when it is driven by self-interest in a reciprocal relationship. Although references have been made to its ethical underpinnings, in the absence of a reciprocal return, the normative premises of solidarity have remained weak.

scholarly journals Has the Action for Failure to Act in the European Union Lost its Purpose?

2014 ◽  
Vol 7 (2) ◽  
pp. 209-226 ◽  
Author(s):  
Inga Daukšienė ◽  
Arvydas Budnikas
Keyword(s):  
European Union ◽  
Judicial Review ◽  
Scientific Literature ◽  
Case Law ◽  
The European Union ◽  
Eu Legislation ◽  
Court Of Justice ◽  
Legal Remedy ◽  
The Eu

ABSTRACT This article analyzes the purpose of the action for failure to act under article 265 of the Treaty on the Functioning of the European Union (TFEU). The statements are derived from the analysis of scientific literature, relevant legislation, practice of the European Union Court of Justice (CJEU) and the European Union General Court (EUGC). Useful information has also been obtained from the opinions of general advocates of the CJEU. The article of TFEU 265, which governs the action for failure to act, is very abstract. For this reason, a whole procedure under the article 265 TFEU was developed by the EU courts. The original purpose of the action for failure to act was to constitute whether European Union (EU) institution properly fulfilled its obligations under the EU legislation. However, in the course of case-law, a mere EU institution’s express refusal to fulfill its duties became sufficient to constitute that the EU institution acted and therefore action for failure to act became devoid of purpose. This article analyzes whether the action for failure to act has lost its purpose and become an ineffective legal remedy in the system of judicial review in the EU. Additionally, the action for failure to act is compared to similar national actions.

scholarly journals Free movement of workers in the EU and occupational pensions

2017 ◽  
Vol 19 (2) ◽  
pp. 141-157 ◽  
Author(s):  
Marion Del Sol ◽  
Marco Rocca
Keyword(s):  
Case Law ◽  
Legal Framework ◽  
Free Movement ◽  
The European Union ◽  
Occupational Pensions ◽  
Minimum Standards ◽  
Court Of Justice ◽  
Free Movement Of Workers ◽  
The Eu ◽  
Cross National

The European Union appears to be promoting at the same time both cross-national mobility of workers and an increased role for occupational pensions. There is, however, a potential tension between these two objectives because workers risk losing (some of) their pension rights under an occupational scheme as a consequence of their mobility. After long negotiations, the EU has addressed this issue through a minimum standards Directive. Shortly before the adoption of this Directive, the Court of Justice also delivered an important decision in the same field, in the case of Casteels v British Airways. By analysing the resulting legal framework for safeguarding pension rights under occupational schemes in the context of workers’ mobility, we argue that the application of the case law developed by the Court of Justice in the field of free movement of workers has the potential to offer superior protection compared to the Directive. We also highlight the fact that the present legal framework seems to afford a much fuller protection to the intra-company cross-national mobility of workers employed by multinational companies, while also seemingly favouring mobility for highly specialised workers.

Anti-discrimination Case Law of the Court of Justice of the European Union before and after the Economic Crisis

2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Amalie Frese
Keyword(s):  
European Union ◽  
Economic Crisis ◽  
Case Law ◽  
The European Union ◽  
Direct Role ◽  
Legal Norms ◽  
Court Of Justice ◽  
Weak Evidence ◽  
Before And After ◽  
The Eu

Abstract Income inequality is at an all-time high in the Europe Union (EU). Implications from the economic crisis which broke out in 2008, and in particularly the austerity measures introduced by Governments in Eurozone countries receiving bailout programmes, created further inequalities, for example between men and women. This paper starts from the hypothesis that whereas other institutions in the EU have played a direct role in tackling the economic crisis, the Court of Justice of the European Union (CJEU) may have played a more indirect role, which nonetheless can have an overlooked value in particular for setting direction for legal norms of equality and anti-discrimination in Europe. The paper therefore addresses a legal-empirical question: To what extent does the anti-discrimination case law of the CJEU reflect the increased inequalities in Europe following the economic crisis? Based on a dataset of all anti-discrimination cases of the CJEU, I conduct a quantitative analysis of changes in the case law from before to after the economic crisis. I find that there is only weak evidence, which suggests that the case law of the CJEU reflects the increased inequalities following the economic crisis.

Mixed Agreements: The EU Law Fundamentals

2018 ◽  
Author(s):  
Joni Heliskoski
Keyword(s):  
European Union ◽  
Case Law ◽  
International Agreements ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
Basic Characteristics ◽  
Mixed Agreements ◽  
The Eu

Whatever terminology one might wish to employ to describe the form of integration constituted by the European Union and its Member States, one fundamental attribute of that arrangement has always been the division, as between the Union and its Member States, of competence to conclude international agreements with other subjects of international law. Today, the fact that treaty-making competence—as an external facet of the more general division of legal authority—is divided and, to some extent, shared between the Union and its Member States is reflected by some of the opening provisions of the Treaty on European Union and the Treaty on the Functioning of the European Union. Notwithstanding the changes to the scope and nature of the powers conferred upon the Union, resulting from both changes to primary law and the evolution of the case law of the Court of Justice of the European Union (CJEU), the basic characteristics of the conferment as an attribution of a limited kind has always been the same; there has always existed a polity endowed with a treaty-making authority divided between and, indeed, shared by, the Union and its Member States. In the early 1960s mixed agreements—that is, agreements to which the European Union

Civis Europeus Sum – Union Citizenship and the Influence of the Court of Justice of the European Union

2015 ◽  
Vol 23 (1) ◽  
pp. 71-80
Author(s):  
Verica Trstenjak
Keyword(s):  
Member State ◽  
Case Law ◽  
The European Union ◽  
Court Of Justice ◽  
Tax Relief ◽  
Personal Rights ◽  
Union Citizenship ◽  
Free Movement Of Persons ◽  
The Right ◽  
The Eu

Since its formation in 1950s as the economic community, the EU has created the monetary union and is increasingly evolving also into a political union – part of which is also a union or Europe of citizens. This article explores the development and the existing EU legislation and case law of the Court of Justice of the EU (CJEU) on Union citizenship. The article emphasises the importance of the case law of the CJEU for the development of this concept, focusing especially on the case law pertaining to access to social security benefits in another Member State, the rights of students, tax relief, and personal rights such as the right to write a name in a certain way and the right to family life. Case law of the CJEU has, inter alia, confirmed that even economically inactive Union citizens lawfully residing in another Member State have a right to access to social benefits under the same conditions as the Member State’s own nationals. The concept of the Union citizenship is of key importance in the development of EU law, as it expands the scope of the applicability of the provisions on free movement of persons and other fundamental freedoms. New challenges and questions linked to Union citizenship are arising over time, which should also be regulated at the EU level in the future. Therefore, further development of this concept can still be expected in the EU.

The self-perpetuation of EU constitutionalism in the area of free movement of persons: Virtuous or vicious cycle?

2013 ◽  
Vol 2 (1) ◽  
pp. 125-150 ◽  
Author(s):  
ANJA WIESBROCK
Keyword(s):  
Mutual Influence ◽  
Case Law ◽  
Free Movement ◽  
The European Union ◽  
Court Of Justice ◽  
Inherent Feature ◽  
The Face ◽  
Initial Resistance ◽  
Free Movement Of Persons ◽  
The Eu

AbstractThis paper analyses the mutual influence and self-perpetuating cycle of legitimacy of EU legal scholars and the Court of Justice of the European Union (CJEU) in expanding and broadening the free movement rights of Union citizens and their family members. It is argued that legal scholars have played a dual role in promoting the constitutional paradigm of an ever-expanding scope of directly enforceable residence and movement rights in the EU. First, by presenting the expansion of free movement rights as an inevitable outcome of the EU constitutional order based on directly enforceable individual rights, scholars have played a significant role in legitimizing the jurisprudence of the Court in the face of initial resistance from the member states. Second, legal scholars have been an important source for the Court of Justice in developing its case law in this area. The Advocates General in their opinions have drawn on an expanding field of scholarship presenting the expansion of free movement rights as an inherent feature of the EU as a constitutional legal order. Spurred by the objective of turning the EU into more than an internal market, the opinions of the Advocates General have mostly been followed by the Court. Legal scholars have thus served not only as a legitimizing force, but also as a source of inspiration for the perceived constitutionalization of free movement rights in the EU.

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 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 Exploring the limits of social solidarity: welfare tourism and EU citizenship

2016 ◽  
Vol 2 ◽  
pp. 4-19 ◽  
Author(s):  
Sandra Mantu ◽  
Paul Minderhoud
Keyword(s):  
Case Law ◽  
Free Movement ◽  
Social Solidarity ◽  
Social Rights ◽  
The European Union ◽  
Eu Member States ◽  
Political Debates ◽  
Court Of Justice ◽  
Wide Scale ◽  
The Eu

Political debates concerning the free movement of (poor) EU citizens (mainly from the newer EU Member States) have focused upon the twin issues of abuse of free movement rights and welfare tourism, despite the lack of meaningful evidence that the two are actually taking place on a wide scale in the EU. This article discusses the increasing political contestation of EU mobility as captured by notions such as, welfare tourism and poverty migration. The analysis of the case law of the Court of Justice of the European Union on issues of social rights and EU citizenship shows a noticeable shift towards stricter interpretations of the scope of social solidarity for mobile EU citizens. We argue that the coupling of these two aspects of EU mobility raises questions about the scope of EU citizenship and its nature as a fundamental status.

scholarly journals The ‘Europe with the Regions’ before the Court of Justice

2019 ◽  
Vol 26 (2) ◽  
pp. 271-293 ◽  
Author(s):  
Carlo Panara
Keyword(s):  
Policy Making ◽  
Case Law ◽  
Soft Law ◽  
The Political ◽  
The European Union ◽  
Court Of Justice ◽  
The Status ◽  
The Right ◽  
Regional Languages ◽  
The Eu

This article analyses the case law of the Court of Justice of the European Union (CJEU) concerning the regions. It argues that there is a discrepancy between the progressive framing of a ‘Europe with the regions’ in the political sphere and the limited impact of the Court in this field. This discrepancy does not emerge everywhere, nor does it emerge with the same intensity in all sectors. Indeed, in a number of areas, the CJEU has acknowledged the role and responsibilities of the regions. Examples include the right/duty of the regions to implement EU obligations, the protection of regional languages, as well as the ‘sufficient autonomy’ test developed by the CJEU in relation to state aid. There is no ‘ideological opposition’ of the CJEU to an increasing ‘regionalisation’ of the EU. There are, however, structural hindrances that prevent the Court from promoting further advancements of the status of the regions in the European edifice, particularly as regards their participation in EU processes. Since the EU remains a ‘union of states’, the ‘Europe with the regions’ has developed so far, and is likely to continue to develop, via advancements reflected in policy-making practices, soft-law arrangements and Treaty amendments rather than via the ‘judge-made federalism’ of the Court.

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