scholarly journals Article 3(5) TEU a decade on: Revisiting ‘strict observance of international law’ in the text and context of other EU values

2021 ◽  
pp. 1023263X2110151
Author(s):  
Rupert Dunbar
Keyword(s):  
European Union ◽  
International Law ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
Balanced Approach ◽  
Court Of Justice ◽  
External Relations ◽  
Domestic Courts ◽  
The Eu

Article 3(5) of the Treaty on the European Union concerns EU external relations and was a new provision of the Lisbon Treaty. It has been seized upon by scholars for its reference to ‘strict observance of international law’ by the EU in its relations with the wider world. However, recent case law in the Court of Justice of the European Union has demonstrated little movement towards this supposed ideal. This article supports the fact that rigid and unquestioning adherence to international law has not emerged in case law, particularly as Article 3(5) TEU also mandates that the Union ‘uphold and promote its values and interests’. By taking a broader view of both the text and context of Article 3(5) TEU in EU law as a whole, and through consideration of the limited demands international law places on domestic courts, the article argues that – contrary to current literature – a more expressly balanced approach towards respect for international law is required and should be nurtured in the case law.

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

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 EU Foreign Relations Law as a Field of Scholarship

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 321-325 ◽  
Author(s):  
Joris Larik
Keyword(s):  
European Union ◽  
International Law ◽  
Foreign Relations ◽  
Legal Order ◽  
International Organization ◽  
Eu Law ◽  
The European Union ◽  
External Relations ◽  
Scholarly Attention ◽  
The Eu

EU external relations law is a doubly peculiar field of scholarship that has attracted significant scholarly attention over the last several decades. It is both part of EU law—considered a “new legal order” distinct from international law—and it is concerned with the European Union as a global actor, a “strange animal” in that the EU is neither a state nor a classical international organization.

scholarly journals Objective justification, less discriminatory alternatives, and the ‘Great Repeal Bill’

2017 ◽  
Vol 17 (3) ◽  
pp. 195-212
Author(s):  
Michael Connolly
Keyword(s):  
European Union ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
Indirect Discrimination ◽  
Domestic Courts ◽  
Apparent Reason ◽  
The Uk ◽  
Domestic Law ◽  
The Eu

On the 13 July of this year, the UK Government published the European Union (Withdrawal) Bill, 1 more commonly called the ‘Great Repeal Bill’. Aside from the repeal of the European Communities Act 1972 (and with it the proposed ousting of the jurisdiction of the Court of Justice), the Bill’s purpose is to ‘convert the acquis’ of EU law and preserve any UK law implementing EU law.2 This will include ‘workers’ rights’ and with it their employment discrimination rights.3 The efficacy of such a move will be limited if the British judges fail to adopt the same interpretations of these rights as their counterparts in the Court of Justice in Luxembourg. Over the years of Britain’s membership, there have been many references to Luxembourg to clarify the meaning of particular aspects of the discrimination provisions, with the Court generally giving a more liberal interpretation than the domestic courts had suggested would be their preference. One element of the law largely untouched by this process is the objective justification defence to claims of indirect discrimination. This is because the domestic courts have maintained a fiction that their interpretation is consistent with the EU formula. For no apparent reason, the domestic courts have reworded the EU formula while labelling it as being no different. This presents a major challenge for the Bill. It would be all too easy for Parliament to assume all is well with this aspect of workers’ rights, especially when the judges tell them so. Using a handful of cases, this article exposes the shortfalls within the domestic law and suggests some solutions. It is not the purpose of this article to discuss the Bill (which no doubt is due for many amendments), but to focus on one important aspect of discrimination law, both pre- and post-Brexit.

scholarly journals The Application of International Law in the Court of Justice of the European Union: Proportionality Rising

2021 ◽  
Vol 22 (4) ◽  
pp. 557-592
Author(s):  
Rupert Dunbar
Keyword(s):  
European Union ◽  
International Law ◽  
Case Law ◽  
The European Union ◽  
Legal Certainty ◽  
International Treaty ◽  
Customary International Law ◽  
Court Of Justice ◽  
External Relations ◽  
Frequent Absence

AbstractApplication of international treaty and customary international law at the Court of Justice of the European Union (CJEU) is increasingly recognized by scholars as problematic regarding legal certainty. This Article seeks to illustrate why this is and to propose reform. Through comparing judicial approaches in the application of international law at the CJEU to its approach in internal case law, it is argued that in the frequent absence of proportionality in external case law the Court has utilized, redeployed, or varied other judicial devices in an effort to retain the discretion which proportionality affords. These are argued to effect legal certainty and established concepts of justice within the EU legal system. Accordingly, it is submitted that proportionality should be transplanted fully and openly to external relations case law and that support for this can be extrapolated from existing literature.

scholarly journals Pojęcie współmałżonka w prawie unijnym – uwagi na tle orzeczenia w sprawie Coman (C‑673/16)

Politeja ◽  
2020 ◽  
Vol 17 (3(66)) ◽  
pp. 103-117
Author(s):  
Ewa Kamarad
Keyword(s):  
European Union ◽  
International Law ◽  
Mutual Recognition ◽  
Private International Law ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
The Right ◽  
First Time ◽  
The Eu

The Term ‘Spouse’ in EU Law – Comments on the Judgment in the Coman Case (C‑ 673‑16) The paper concerns the judgment of 5 June 2018 issued by the Court of Justice of the European Union in the Coman case (C‑673‑16), in which the Court for the first time defined the term ‘spouse’ for the purpose of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. It discusses the consequences of the judgement and its relation to the traditional mechanisms of private international law and the EU principle of mutual recognition.

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.

Travauxto the EU Treaties: Preparatory Work as a Source of EU Law

2015 ◽  
Vol 17 ◽  
pp. 145-167 ◽  
Author(s):  
Samuli MIETTINEN ◽  
Merita KETTUNEN
Keyword(s):  
European Union ◽  
Case Law ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
Dynamic Interpretation ◽  
Charter Of Fundamental Rights ◽  
Preparatory Work ◽  
The Eu

AbstractThe Court of Justice of the European Union has historically rejected references to preparatory work in the interpretation of EU Treaties. However, the preparatory work for the EURATOM, Maastricht, and Constitutional Treaties have played a role in recent judgments. The ‘explanations’ to the Charter of Fundamental Rights are expressly approved in the current Treaties. We examine the emerging case law on preparatory work. Reference to the drafters’ intent does not necessarily support dynamic interpretation, and may potentially even ossify historical interpretations. Even if the consequence of their introduction is a conservative interpretation, their use raises questions of transparency and democracy, and complicates the already difficult task of interpreting the EU constitution.

scholarly journals Kwalifikacja w prawie prywatnym międzynarodowym Unii Europejskiej. Od kwalifikacji autonomicznej ku… kwalifikacji według kolizyjnej legis fori?

2019 ◽  
Vol 25 ◽  
pp. 107-122
Author(s):  
Krzysztof Pacuła
Keyword(s):  
European Union ◽  
International Law ◽  
Functional Characterization ◽  
Case Law ◽  
Private International Law ◽  
Eu Law ◽  
The European Union ◽  
Conflict Of Laws ◽  
Starting Point ◽  
The Eu

The terms ‘characterization’ (‘classification’) and ‘exercise of characterization’ refer in particular to the efforts made to determine which conflict of law rule — and in the sense presented in this paper, also rule on jurisdiction — which is part of the law of the forum State, should be applied to the circumstances of a particular case. In relation to the norms of private international law of the European Union, the triumph of an autonomous characterization at first sight seems undeniable. The term autonomous characterization (in principle — ‘autonomous interpretation’, the case law usually does not distinguish between exercise of characterization and exercise of interpretation) has been referred to over the last fifty years in order to describe the vast majority of operations of interpretation undertaken in relation to the norms of EU private international law. The contemporary concept of characterization in private law of the European Union, although consistently referred to as ‘autonomous’, does not fully meet the criteria thereof. The papers argues that while the starting point was the autonomous characterization in its pure form (stage one), over time it partially gave way to the place of characterization according to the EU law-oriented legis fori (stage two), and finally it was enriched with new elements which gave it the form of a specific functional characterization (stage three). It is not so much about the consistency of the results of the exercises of characterization with the universal understanding of certain concepts. Exercises of characterization are carried out through the prism of their effects, so as to ensure the effectiveness of the norms of EU law (effet utile) other than rules on conflict of laws and on jurisdiction.

European Court of Human Rights case law as a source of European Union law

2021 ◽  
Author(s):  
Dmytro Boichuk ◽  
Vitalii Hryhoriev
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Court ◽  
Legal Nature ◽  
The Eu

The article is devoted to the study of the legal nature of the decisions of the European Court of Human Rights as a source of law of the European Union. Within the scope of the doctrinal sources and the existing case law of the European Court of Human Rights and the Court of Justice of the European Union, the authors substantiate the logic of including existing the European Court of Human Rights case law in the EU law sources, citing arguments based on the EU law and the case law.

Sign in / Sign up

Export Citation Format

Share Document