scholarly journals The Principle of Mutual Trust in EU Law and Policy

2021 ◽  
Vol 106 (6) ◽  
pp. 144-154
Author(s):  
Vadim Voynikov ◽  
Keyword(s):  
Member State ◽  
Internal Market ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
Mutual Trust ◽  
Eu Law ◽  
Law And Policy ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

Mutual trust is one of the central principles of the area of freedom, security and justice and the whole EU. Despite the fact, that mutual trust is not stipulated in founding treaties, this principle has been widely developed by the European Court of Justice. The purpose of this article is to identify the legal and political components of mutual trust in the EU, as well as the approaches to its implementation. The author comes to the conclusion that the principle of mutual trust originated from the internal market, however its development is mostly associated with the area of freedom, security and justice. Mutual trust in the EU presupposes that a member state does not need additional verification that another member state respects Union law and fundamental rights. Initially, the principle of mutual trust was given the absolute character, but in the post-Lisbon period, “blind trust” was replaced by the “earned trust”, which implies the possibility, in exceptional cases, to refuse mutual trust to another member state if the latter violates fundamental rights. Despite the development of the concept of mutual trust by the European Court of Justice and other EU institutions, recently there has been a serious deficit of interstate trust within the Union. In this regard, the principle of mutual trust is becoming declarative.

scholarly journals Fill in the Gaps: EU Sanctioning Requirements to Improve Member State Enforcement of EU Environmental Law

2010 ◽  
Vol 7 (2) ◽  
pp. 135-162
Author(s):  
Roel Meeus
Keyword(s):  
Member State ◽  
Environmental Law ◽  
Lisbon Treaty ◽  
European Court Of Justice ◽  
Eu Law ◽  
Court Of Justice ◽  
European Court ◽  
State Governance ◽  
The Eu

AbstractThe enforcement deficit in EU environmental law would stem from bad Member State governance of the autonomy they traditionally enjoy regarding the enforcement of EU law. Both the EU legislator and the European Court of Justice take steps to 'fill in the gaps' and develop sanctioning requirements to improve Member State enforcement of EU (environmental) law. These requirements are discussed in this article. The Eco Crime Directive 2008/99/EC and the Ship Source Pollution Directive 2005/35/EC, the latter as recently amended, deserve some particular attention. Also the novelties of the Lisbon Treaty are considered.

The CETA Opinion of the European Court of Justice and its Implications—Not that Selfish After All

2019 ◽  
Vol 22 (3) ◽  
pp. 503-521 ◽  
Author(s):  
Christian Riffel
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
European Court Of Justice ◽  
Court System ◽  
Eu Law ◽  
Investment Protection ◽  
Constitutional Principle ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

Abstract In Opinion 1/17, the European Court of Justice (ECJ) found the investment court system compatible with European Union (EU) law. The ruling concerned the mechanism in the Comprehensive Economic and Trade Agreement (CETA) but the Court’s reasoning is equally applicable to other investment courts as established, for example, in the EU’s investment protection agreements with Singapore and Vietnam. This outcome was far from clear, given that in the past the accession to international dispute settlement bodies regularly foundered on the autonomy of the EU legal order. The present article parses the CETA Opinion and explores its implications. It particularly focuses on autonomy as a constitutional principle and its advancement in Opinion 1/17. Importantly, the ECJ accepted the superiority of a court created by international agreement in relation to the said agreement. Furthermore, it clarified that it is not prerequisite for the Court to rule first on the meaning to be given to an act of EU law before that act can be the subject matter of an investment dispute. Finally, the pdrerogative of the EU to autonomously set the level of protection of a public welfare goal must be secured in a treaty for the EU to join it.

14. The European Union

2017 ◽  
Author(s):  
Berthold Rittberger
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
Legal Rules ◽  
Constitutional Order ◽  
Constitutional Principle ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

This chapter examines how the European Union acquired distinctive constitution-like features. It begins with a discussion of three routes to constitutionalization: the first is through changes in the EU's primary law; the second focuses on ‘in between’ constitutionalization; and the third leads directly to the European Court of Justice and its jurisprudence. The chapter proceeds by discussing two developments that have shaped the EU constitutional order almost since the beginning: the emergence of a body of EU law constituting a set of higher-order legal rules, and the consolidation of the constitutional principle of representative democracy. It explains how the supremacy and direct effect of EU law, as well as the EU court's concern with the protection of fundamental rights, helped transform the EU into a constitutional polity. It also considers how the extension of the legislative, budgetary, and other powers of the European Parliament animated the constitutional principle.

scholarly journals La tutela judicial de los derechos fundamentales en el ámbito de aplicación nacional del derecho de la Unión Europea : recientes acotaciones del Tribunal de Justicia y del Tribunal ConstitucionalEspañol = The judicial protection of fundamental rights in the sphere of the national application of EU law : recent remarks by the Court of Justice and by the Spanish Constitutional Court

2013 ◽  
pp. 391
Author(s):  
Juan Ignacio Ugartemendia Eceizabarrena
Keyword(s):  
National Level ◽  
Fundamental Rights ◽  
National Standards ◽  
Constitutional Court ◽  
Eu Law ◽  
Court Of Justice ◽  
European Court ◽  
El Sistema ◽  
Judicial Protection ◽  
The Eu

Este artículo es un estudio relativo a la tutela judicial de los Derechos Fundamentales cuando se aplica Derecho de la Unión en el ámbito interno, y a cuáles son los principales problemas con los que se topa el Juez nacional que aplica el Derecho de la Unión al llevar a cabo dicha función protectora. El trabajo, dicho de forma más concreta, se centra en el examen de una serie de recientes y decisivas resoluciones jurisdiccionales, dictadas tanto por parte del Tribunal de Justicia de la Unión Europea como por parte del Tribunal Constitucional Español, que analizan problemas y señalan soluciones relativas a esas cuestiones, además de mostrar cuál es la evolución y el estado de la situación al respecto. Se trata de resoluciones que abordan cuestiones de fondo, como, por ejemplo: ¿hasta qué punto es posible utilizar estándares nacionales de protección de los Derechos Fundamentales en situaciones conectadas con el Derecho de la Unión o con su aplicación, en lugar de utilizar el sistema de protección de los Derechos Fundamentales de la Unión Europea? Y asimismo, resoluciones que atienden a cuestiones de dimensión más procesal como la de dirimir hasta qué punto tiene autonomía el Juez nacional a la hora de plantear una petición prejudicial (se entiende a la hora de tutelar derechos reconocidos por normas de la Unión) en relación a las normas procesales nacionales.This article deals with the judicial protection of fundamental rights when EU Law is applied at national level and the main problems national judges have to deal with when applying EU Law as protectors of rights. More precisely, the work is focused on the examination of some recent and decisive judicial decisions, both by the European Court of Justice and by the Spanish Constitutional Court which analyze the problems and address the solutions to those questions besides showing the evolution and current situation in that regard. They are decisions that deal with the merits as for example to which extent it might be possible to use national standards of protection of fundamental rights in situations connected to EU Law or to its application instead of using the system of protection of EU human rights. Likewise, they are decisions which handle with more procedural questions as for example to what extent national judges are autonomous to file a preliminary question (it is understood that when it comes time to protect rights acknowledged by the EU) relative to national procedural rules.

National Procedural Autonomy and General EU Law Limits

2019 ◽  
Vol 12 (2) ◽  
pp. 5-34
Author(s):  
Rob Widdershoven
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Eu Law ◽  
Procedural Law ◽  
Court Of Justice ◽  
European Court ◽  
Recent Approach ◽  
Procedural Autonomy ◽  
Judicial Protection ◽  
The Eu

This article examines the recent approach of the European Court of Justice of the EU towards the applicability of procedural national law in cases falling within the scope of Union law. It argues that the Court increasingly assesses such rules within the framework of the principle of effective judicial protection, as bindingly codified in Article 47 of the Charter of Fundamental Right of the EU since December 2009. This test is gradually replacing the rather deferential test on the Rewe principles of equivalence and effectiveness and implies a further limitation of procedural autonomy of the Member States. The reason for the shift seems to be the necessity to coordinate the Court's case law on Article 47 CFR with the case law of the European Court of Human Rights on Article 6 ECHR, because this coordination requires the application of a similar standard by both European Courts. As a result, the importance of, in particular, the Rewe principle of effectiveness, has already decreased to a considerable extent and might decrease further in future. Nevertheless, it is not to be expected that this standard will be abolished completely. First, because it may provide an adequate standard for assessing procedural issues that are not related to effective judicial protection or Article 47 CFR. Secondly, because incidentally it may be used by the Court for modifying national procedural law with a view to the effective application of substantive EU rules.

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 The Randstad Case: Melki Reloaded? The Fundamental Right to Effective Judicial Protection as Battleground for Judicial Supremacy in European Law

2021 ◽  
Vol 4 (1) ◽  
pp. 53-68
Author(s):  
Orlando Scarcello
Keyword(s):  
European Court Of Justice ◽  
Constitutional Court ◽  
European Law ◽  
Eu Law ◽  
Court Of Justice ◽  
European Court ◽  
Judicial Supremacy ◽  
Judicial Protection ◽  
The Eu

This paper will examine the recent preliminary reference to the European Court of Justice issued by the Italian Court of Cassation in the Randstad case, aimed at rearranging the internal constitutional separation between ordinary and administrative courts (article 111(8) of the Constitution). I will first provide some context on both the relations between Italian and EU courts (2.1) and on the confrontation between the Court of Cassation and the Constitutional Court in interpreting article 111 (2.2). I will then specifically examine the referring order to the Court of Justice of the EU (3), focusing on the role of general clauses of EU law as articles 4(3) and 19 TEU and 47 of the Charter in it. Finally, I will consider the instrumental use of EU law made by the Cassation to overcome an unpleasant constitutional arrangement. This aligns Randstad with previous cases such as Melki or A v. B and may foster constitutional conflict in the future. 

scholarly journals Prawo do prywatności osób prawnych podczas kontroli przedsiębiorstwa dokonywanej przez Komisję Europejską

2017 ◽  
Vol 107 ◽  
pp. 11-25
Author(s):  
Marta De Bazelaire De Ruppierre
Keyword(s):  
Competition Law ◽  
Fundamental Rights ◽  
Eu Law ◽  
Right To Privacy ◽  
The Right To Privacy ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
The Right ◽  
The Eu

THE RIGHT TO PRIVACY OF LEGAL PERSONS DURING THE EUROPEAN COMMISSION’S INSPECTIONSThe paper aims to discuss the application of the Charter of Fundamental Rights by the EU institutions in competition law proceedings, showing as an example the respect for the right to privacy of undertakings during the inspections carried out by the European Commission. Although exercising the control powers of the Commission potentially collides with a number of fundamental rights expressed in the Charter, it is the analysis of Art. 7 CFR that allows to depict the evolution of the EU’s approach to privacy of legal persons, showing the accompanying judicial dialogue, or lack thereof, between the European Court of Human Rights and the Court of Justice of the EU. The article short-defines the dawn raids, examines the application of Article 7 CFR to legal persons, highlighting the aspects of protection of domicile and secrecy of correspondence, compares the standards provided by ECHR and EU law, pondering also on how the CFR guarantees can be provided and effectively controlled. It also reflects on the issue whether the Court of Justice has a forerunner role in promoting fundamental rights of undertakings in matters of competition law.

Data Protection in EU Law

2011 ◽  
pp. 273-297 ◽  
Author(s):  
Maria Tzanou
Keyword(s):  
Data Protection ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
Eu Law ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Data Protection Directive ◽  
Data Flows ◽  
Court Of First Instance

This chapter aims to discuss the possibilities and limitations of the EU to provide for an effective and comprehensive data protection regime. In this respect, it presents an analysis of the data protection rules in EU law by examining the relevant constitutional and secondary law framework. It analyzes the jurisprudence of the European Court of Justice and the Court of First Instance on data protection issues, and argues that the European Court of Justice has interpreted an internal market measure (the Data Protection Directive) in such a way so as to foster the protection of fundamental rights. However, when it comes to the balancing between fundamental rights the Court leaves the question to be resolved by national courts. Finally, the contribution assesses the transborder data flows regime established by the Data Protection Directive and attempts to draw some conclusions on whether the ‘adequate protection’ test ensures a high protection in such flows.

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