Why do lower courts refer in the absence of a legal obligation? Irish eagerness and Dutch disinclination

2019 ◽  
Vol 26 (6) ◽  
pp. 770-791
Author(s):  
Jasper Krommendijk
Keyword(s):  
The Netherlands ◽  
Legal Obligation ◽  
Preliminary Ruling ◽  
Lower Court ◽  
National Courts ◽  
Court Of Justice ◽  
Lower Courts ◽  
The Difference ◽  
Willingness To Refer ◽  
The Eu

The majority of requests for a preliminary ruling from the EU Court of Justice comes from lower national courts. This is surprising because such courts are, contrary to the highest national courts, not obliged to refer on the basis of Article 267 TFEU. This article examines why Dutch and Irish lower courts have decided to refer or not in the absence of such a legal obligation. It does so on the basis of an analysis of court decisions complemented with 45 interviews with judges and legal secretaries. The article shows that there is a wide variety of reasons (not) to refer, including pragmatic and practical considerations. Politico-strategic reasons play a smaller role than one would expect on the basis of the literature to date. The most important factor affecting the courts’ willingness to refer is the way in which lower court judges see their role in relation to the highest court(s). This factor also explains the difference between Ireland and the Netherlands. While most Irish references are made by lower courts, around two thirds of the references in the Netherlands stem from the highest courts. Most Irish judges adopted a ‘better sooner than later’ logic, while the majority of Dutch judges emphasized that the highest courts have more time and expertise.

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.

Case Report on Kadzoev, 30 November 2009

2010 ◽  
Vol 12 (3) ◽  
pp. 361-371 ◽  
Author(s):  
Elitsa Mincheva
Keyword(s):  
Case Report ◽  
Fundamental Rights ◽  
Preliminary Ruling ◽  
Irregular Migrants ◽  
National Courts ◽  
Court Of Justice ◽  
Broad Interpretation ◽  
The Eu

AbstractThe detention periods authorized by Directive 2008/115 sparked significant criticism both within and without the EU. In its preliminary ruling of 30 November 2009, the Court of Justice countered concerns that a further erosion of the fundamental rights of irregular migrants might occur due to a broad interpretation of the directive by national courts.

scholarly journals The Use of the Preliminary Ruling Procedure by Czech Courts: Historical Retrospective and Beyond

2019 ◽  
Vol 9 (4) ◽  
pp. 150-172
Author(s):  
Václav Stehlík ◽  
David Sehnálek
Keyword(s):  
European Union ◽  
Supreme Court ◽  
Constitutional Court ◽  
Preliminary Ruling ◽  
The European Union ◽  
Court Of Justice ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Eu

Abstract The article analyses the use of the preliminary ruling procedure by the Czech courts in the 15 years of the Czech membership in the European Union. It presents statistics of cases lodged to the EU Court of Justice and refers to the most important decisions. The article compares the practise of both lower courts as well as courts of last instance, namely the Supreme Court and the Supreme Administrative Court. It also outlines the attitude of the Czech Constitutional Court towards this procedure.

Standards for Independent Oversight

2017 ◽  
Author(s):  
Nico van Eijk
Keyword(s):  
The Netherlands ◽  
European Court Of Justice ◽  
Data Retention ◽  
Digital Rights ◽  
National Courts ◽  
Court Of Justice ◽  
Intelligence Services ◽  
European Court ◽  
The Uk ◽  
Point Of Departure

The point of departure for this chapter is the decision of the European Court of Justice in the Digital Rights Ireland case, which annulled the European Data Retention Directive, in part because the use of retained data was not made subject to independent oversight. Next, it examines judgments from the national courts of the Netherlands and the UK, also focusing on the independent oversight issue, declaring invalid the data retention laws of those two countries. From the Digital Rights Ireland case and others, seven standards for oversight of intelligence services can be drawn: the oversight should be complete; it should encompass all stages of the intelligence cycle; it should be independent; it should take place prior to the imposition of a measure; it should be able to declare a measure unlawful and to provide redress; it should incorporate the adversary principle; and it should have sufficient resources.

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.

Article 51 of the EU Charter of Fundamental Rights from the Perspective of the National Judge

2021 ◽  
Vol 13 (4) ◽  
pp. 53-85
Author(s):  
Petr Mádr
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
National Courts ◽  
Track Record ◽  
Court Of Justice ◽  
Relevant Case ◽  
Charter Of Fundamental Rights ◽  
Scope Of Application ◽  
The Eu ◽  
Academic Debate

This article contributes to the growing scholarship on the national application of the EU Charter of Fundamental Rights ('the Charter') by assessing what challenges national courts face when dealing with Article 51 of the Charter, which sets out the Charter's material scope of application. In keeping with this aim, the relevant case law of the Court of Justice of the EU (CJEU) – with its general formulas, abstract guidance and implementation categories – is discussed strictly from the perspective of the national judge. The article then presents the findings of a thorough study of the case law of the Czech Supreme Administrative Court (SAC) and evaluates this Court's track record when assessing the Charter's applicability. National empirical data of that kind can provide valuable input into the CJEU-centred academic debate on the Charter's scope of application.

Turkey and Europe: The Role of Migration

2013 ◽  
Vol 21 (3) ◽  
pp. 394-399
Author(s):  
Pieter Emmer
Keyword(s):  
European Union ◽  
Political Parties ◽  
The Netherlands ◽  
The European Union ◽  
Full Member ◽  
Turkish Immigrants ◽  
Eu Member States ◽  
The Difference ◽  
The Eu

In spite of the fact that negotiations have been going on for years, the chances that Turkey will eventually become a full member of the European Union are slim. At present, a political majority among the EU-member states headed by Germany seems to oppose Turkey entering the EU. In the Netherlands, however, most political parties are still in favour of Turkey's membership. That difference coincides with the difference in the position of Turkish immigrants in German and Dutch societies.

scholarly journals Support Schemes in Renewable Energy: Commentary to Judgment of the Court (Fifth Chamber) of 13 September 2017, ENEA S.A. v. Prezes Urzędu Regulacji Energetyki

2018 ◽  
Vol 2 (1) ◽  
pp. 171-183
Author(s):  
Nevin Alija
Keyword(s):  
European Union ◽  
Renewable Energy ◽  
European Commission ◽  
Environmentally Friendly ◽  
Preliminary Ruling ◽  
The European Union ◽  
Court Of Justice ◽  
The Supreme Court ◽  
Financial Penalty ◽  
The Eu

In its September 13th 2017 decision,1 the Court of Justice of the European Union (CJEU) decided on a request for a preliminary ruling by the Supreme Court of Poland (Sąd Najwyższy) in proceedings between ENEA S.A. (ENEA) and the president of the Urzędu Regulacji Energetyki (Office for the regulation of energy, URE) on the imposition by the latter of a financial penalty on ENEA for breach of its obligation to supply electricity produced by cogeneration. The judgment of the Court of Justice follows many decisions of the European Commission and judgments of the EU courts assessing the involvement of State resources in support schemes in energy, particularly with the aim of switching towards more environmentally friendly sources. This case reaffirms that support schemes may, in certain circumstances, fall outside the scope of the EU State aid rules.

scholarly journals The Interpretive Function of the CJEU and the Interrelationship of EU and National Levels of Consumer Protection

2017 ◽  
Vol 9 (2) ◽  
pp. E-180-E-215 ◽  
Author(s):  
Geraint Howells ◽  
Gert Straetmans
Keyword(s):  
Consumer Protection ◽  
Case Law ◽  
National Courts ◽  
European Consumer ◽  
Court Of Justice ◽  
Correct Information ◽  
Unfair Commercial Practices Directive ◽  
High Level ◽  
Flexible Application ◽  
The Eu

Abstract This paper analyses the ways in which the Unfair Contract Terms and Unfair Commercial Practices Directives try to steer a path between imposing a common European standard and allowing national variation. The open wording of the norms and safeguard clauses in both directives allows room for their flexible application. The differentiated role between the Court of Justice, as the interpreter of European law, and the national courts, as the party that applies it, provides a release valve to prevent any direct clashes and allows a subtle way for national perspectives to be reflected. The analysis finds that, irrespective of the underlying level of harmonisation, and with the backing of the European legislator’s intention of ensuring a high level of consumer protection, the CJEU is gradually painting the average European consumer with more realistic features. Here, the case law of the CJEU fulfils a bridging function between the labelling requirements in the Foodstuff Regulation, the transparency requirements in the Unfair Contract Terms Directive and the informed decision requirements in the Unfair Commercial Practices Directive. In these three domains the CJEU recognises that the level of customer attention may be suboptimal, even in the presence of comprehensive and correct information. The CJEU’s approach contributes to more convergence in consumer protection throughout the EU. Yet, in terms of legitimacy, it must be noted that in all cases the CJEU has maintained a clear distinction between interpretation and application. The particular constitutional legal order in which the CJEU operates only allows for a process whereby the contours of a more coherent European consumer protection policy are gradually revealed. In the absence of sufficient legislative guidance at the European and national levels, national courts may be increasingly informed by the case law of the CJEU in an effort to establish clearly desirable common expectations. Those who believe that, in practice, uniformity can be achieved overnight by simply adopting a common maximum norm appear over-optimistic.

Judicial Protection Under the Constitution

2004 ◽  
Vol 1 (1) ◽  
pp. 108-111 ◽  
Author(s):  
Spyridon Flogaitis ◽  
Andreas Pottakis
Keyword(s):  
Organisational Structure ◽  
Modus Operandi ◽  
High Court ◽  
National Courts ◽  
Locus Standi ◽  
Court Of Justice ◽  
Judicial Protection ◽  
The Impact ◽  
The Eu ◽  
Draft Constitution

The challenges for the system of judicial protection of the EU spring from two main developments: first, the enlargement of the EU, which inevitably affects all institutions of the Union, most notably their organisational structure and modus operandi, second, the deepening and widening of the areas falling within the scope of competences of the EU. Article I-28 Draft Constitution states that the Court of Justice of the EU shall include the ECJ, the High Court and specialised courts. These courts, together with the national courts of all levels, constitute the intricate nexus offering judicial protection in the EU. The issues that dominated debates on the reform of the system of judicial protection varied from the amendment of Article 230.4 EC on the locus standi of applicants, to the impact of the incorporation of the Charter of Human Rights and to the competences of the ECJ in the areas of the second and third pillar. They all relate to the deepening and widening of the Union through this Draft Constitution.

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