scholarly journals Member States’ liability for judicial error resulting in breaches of European Union Law

2016 ◽  
Vol 17 (31) ◽  
pp. 64-76 ◽  
Author(s):  
Valentin Paul Neamt
Keyword(s):  
European Union ◽  
Case Law ◽  
European Law ◽  
The European Union ◽  
European Union Law ◽  
National Courts ◽  
European Court ◽  
Judicial Errors ◽  
State Liability ◽  
Judicial Error

Abstract This paper presents the remedies available to persons whose European law rights have been infringed by judgments given by national Courts. The paper firsts presents the concept of state liability for judicial errors in relation to European law, as it stems from the case-law of the Court of Justice of the European Union, then goes on to show how the European Court of Human Rights may give redress to such aggrieved parties. Finally, it discusses the differences in the possibility of redress given by the two courts and the compatibility between their approaches, finally leading to a discussion on the possible convergence of the two.

Comparative Law and European Union Law

2019 ◽  
pp. 523-556
Author(s):  
Sir Francis Jacobs
Keyword(s):  
European Union ◽  
Comparative Law ◽  
Case Law ◽  
Public Law ◽  
European Law ◽  
The European Union ◽  
European Union Law ◽  
European Court ◽  
Union Model

This chapter discusses three primary roles of comparative law in EU law. First, comparative law is used in the making and application of European law: for example, in the crafting and interpretation of European legislation and in the case law of the European Court of Justice. Second, European law has exerted a significant influence on other legal systems. A third role of comparative law relates to questions about the very nature of European law: how it is to be classified, or whether it is a novel form of ‘transnational law’. Civil and common law systems are also considered in relation to comparative law, along with the ‘components’ or ‘sources’ of European law: treaty provisions and constitutional principles, EU legislation, general principles of law, international law, and case law of the Court. The chapter concludes with an overview of the distinction between private law and public law, a comparison of EU and federal systems, and a survey of other transnational systems inspired by the European Union model.

scholarly journals Characteristics of Precedent: The Case Law of the European Court of Justice in Three Dimensions

2015 ◽  
Vol 16 (5) ◽  
pp. 1073-1098 ◽  
Author(s):  
Mattias Derlén ◽  
Johan Lindholm
Keyword(s):  
European Union ◽  
Case Law ◽  
Three Dimensions ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Court ◽  
Number Of Factors ◽  
The One

AbstractThe case law of the Court of Justice of the European Union (CJEU) is one of the most important sources of European Union law. However, case law's role in EU law is not uniform. By empirically studying how the Court uses its own case law as a source of law, we explore the correlation between, on the one hand, the characteristics of a CJEU case—type of action, actors involved, and area of law—and, on the other hand, the judgment's “embeddedness” in previous case law and value as a precedent in subsequent cases. Using this approach, we test, confirm, and debunk existing scholarship concerning the role of CJEU case law as a source of EU law. We offer the following conclusions: that CJEU case law cannot be treated as a single entity; that only a limited number of factors reliably affect a judgment's persuasive or precedential power; that the Court's use of its own case law as a source of law is particularly limited in successful infringement proceedings; that case law is particularly important in preliminary references—especially those concerning fundamental freedoms and competition law; and that initiating Member State and the number of observations affects the behavior of the Court.

11. Judicial Powers II

2021 ◽  
pp. 409-450
Author(s):  
Robert Schütze
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
European Law ◽  
The European Union ◽  
General Duty ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Procedural Autonomy ◽  
Compensatory Damages

This chapter discusses the ‘decentralized’ powers of the European Court of Justice. It looks at two specific constitutional principles that the Court has derived from the general duty of sincere cooperation: the principle of equivalence and the principle of effectiveness. Both principles have led to a significant judicial harmonization of national procedural laws. The chapter then turns to a third incursion into the procedural autonomy of national courts: the liability principle. While the previous two principles relied on the existence of national remedies for the enforcement of European law, this principle establishes a European remedy for proceedings in national courts. An individual can here, under certain conditions, claim compensatory damages resulting from a breach of European law. Importantly, the remedial competence of national courts is confined to national wrongs. They cannot give judgments on ‘European’ wrongs, as jurisdiction over the latter is—like the power to annul Union law—an exclusive power of the Court of Justice of the European Union. Finally, the chapter explores what happens in areas in which the Union has harmonized the remedial or jurisdictional competences of national courts.

10. Judicial Powers I

2021 ◽  
pp. 357-408
Author(s):  
Robert Schütze
Keyword(s):  
European Union ◽  
European Law ◽  
The European Union ◽  
Reference Procedure ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Central Pillar ◽  
Cooperative Federalism ◽  
Indirect Action

This chapter highlights the ‘centralized’ powers of the Court of Justice of the European Union. It begins with an analysis of the Court's annulment power. The power of judicial review is the founding pillar of a Union ‘based on the rule of law’. The chapter then moves to the remedial power of the European Court, and the question of when the Union legislative or executive branches will be liable to pay damages for an illegal action. It also investigates the Court's power to adjudicate disputes between parties. In addition to a number of direct actions (direct actions start directly in the European Court), the EU Treaties also envisage an indirect action starting in the national courts: the preliminary reference procedure. This procedure is the central pillar of the Union's cooperative federalism for it combines the central interpretation of Union law by the Court of Justice with the decentralized application of European law by the national courts.

‘External’ Case Law as a Source of Inspiration for the Court of Justice of the European Union

2020 ◽  
pp. 38-53
Author(s):  
Allan Rosas
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
The Other ◽  
The European Union ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Reverse Situation ◽  
Justice Judgments

Whilst the other contributions to this book focus on the extent to which the case law of the Court of Justice of the European Union (CJEU) is taken into account in EU neighbouring countries, notably by the national courts of these countries, this chapter deals with the reverse situation; that is, the extent to which the CJEU pays attention to the case law of both international courts and national courts of third countries. This is done mainly by looking at explicit references to such extraneous sources to be found in CJEU judgments and orders. The main focus is on the case law of the Court of Justice, but some information is also provided concerning the case law of the General Court. In the context of references to the European Court of Human Rights (ECtHR) case law contained in Court of Justice judgments, some examples are also given of references to CJEU judgments which can be found in the case law of the Human Rights Court.

10. Judicial Powers I

2021 ◽  
pp. 357-408
Author(s):  
Robert Schütze
Keyword(s):  
European Union ◽  
European Law ◽  
The European Union ◽  
Reference Procedure ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Central Pillar ◽  
Cooperative Federalism ◽  
Indirect Action

This chapter highlights the ‘centralized’ powers of the Court of Justice of the European Union. It begins with an analysis of the Court’s annulment power. The power of judicial review is the founding pillar of a Union ‘based on the rule of law’. The chapter then moves to the remedial power of the European Court, and the question of when the Union legislative or executive branches will be liable to pay damages for an illegal action. It also investigates the Court’s power to adjudicate disputes between parties. In addition to a number of direct actions (direct actions start directly in the European Court), the EU Treaties also envisage an indirect action starting in the national courts: the preliminary reference procedure. This procedure is the central pillar of the Union’s cooperative federalism for it combines the central interpretation of Union law by the Court of Justice with the decentralized application of European law by the national courts.

Narratives of Constitutionalization in the European Union Court of Justice and in the European Court of Human Rights’ Case Law

ICL Journal ◽  
2017 ◽  
Vol 11 (1) ◽  
pp. 11-41
Author(s):  
Maurizio Arcari ◽  
Stefania Ninatti
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Legal Systems ◽  
The European Union ◽  
European Union Law ◽  
The Core ◽  
Court Of Justice ◽  
European Court

Abstract Constitutionalization is a peculiar process which characterizes the whole fabric of modern international law. It may however display different levels of evolution and different implications when distinct legal sub-systems are considered: this appears to be especially true at the European level, in particular in the context of the European Union law and of the European Convention on Human Rights. This article aims at unveiling the key elements of the constitutionalization process as developed by the judges sitting in Luxembourg and Strasbourg. In their relevant case law, both the EU Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) have identified the core concepts and elements lying behind the constitutionalization of their respective legal systems. The analysis of the ECJ and ECtHR case law will be divided into two different parts dealing with the internal dimension from one side, and external one from the other side. While presenting nuances and implications that are linked to the diverse degree of integration of the two legal systems, it may be submitted that the core elements of constitutionalization depicted by the Luxembourg and Strasbourg judges reveal some common patterns.

11. Judicial Powers II

2021 ◽  
pp. 409-450
Author(s):  
Robert Schütze
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
European Law ◽  
The European Union ◽  
General Duty ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Procedural Autonomy ◽  
Compensatory Damages

This chapter discusses the ‘decentralized’ powers of the European Court of Justice. It looks at two specific constitutional principles that the Court has derived from the general duty of sincere cooperation: the principle of equivalence and the principle of effectiveness. Both principles have led to a significant judicial harmonization of national procedural laws. The chapter then turns to a third incursion into the procedural autonomy of national courts: the liability principle. While the previous two principles relied on the existence of national remedies for the enforcement of European law, this principle establishes a European remedy for proceedings in national courts. An individual can here, under certain conditions, claim compensatory damages resulting from a breach of European law. Importantly, the remedial competence of national courts is confined to national wrongs. They cannot give judgments on ‘European’ wrongs, as jurisdiction over the latter is—like the power to annul Union law—an exclusive power of the Court of Justice of the European Union. Finally, the chapter explores what happens in areas in which the Union has harmonized the remedial or jurisdictional competences of national courts.

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.

The European Court of Justice, National Governments, and Legal Integration in the European Union

1998 ◽  
Vol 52 (1) ◽  
pp. 149-176 ◽  
Author(s):  
Geoffrey Garrett ◽  
R. Daniel Kelemen ◽  
Heiner Schulz
Keyword(s):  
European Union ◽  
Case Law ◽  
European Court Of Justice ◽  
Equal Treatment ◽  
Theoretic Model ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Agricultural Imports ◽  
State Liability

We develop a game theoretic model of the conditions under which the European Court of Justice can be expected to take “adverse judgments” against European Union member governments and when the governments are likely to abide by these decisions. The model generates three hypotheses. First, the greater the clarity of EU case law precedent, the lesser the likelihood that the Court will tailor its decisions to the anticipated reactions of member governments. Second, the greater the domestic costs of an ECJ ruling to a litigant government, the lesser the likelihood that the litigant government will abide by it (and hence the lesser the likelihood that the Court will make such a ruling). Third, the greater the activism of the ECJ and the larger the number of member governments adversely affected by it, the greater the likelihood that responses by litigant governments will move from individual noncompliance to coordinated retaliation through new legislation or treaty revisions. These hypotheses are tested against three broad lines of case law central to ECJ jurisprudence: bans on agricultural imports, application of principles of equal treatment of the sexes to occupational pensions, and state liability for violation of EU law. The empirical analysis supports our view that though influenced by legal precedent, the ECJ also takes into account the anticipated reactions of member governments.

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