On-Line Publication of Court Decisions in the EU: Report of the Policy Group of the Project Building on the European Case Law Identifierr

2017 ◽  
Author(s):  
Marc van Opijnen ◽  
Ginevra Peruginelli ◽  
Eleni Kefali ◽  
Monica Palmirani
Keyword(s):  
Case Law ◽  
Court Decisions ◽  
On Line ◽  
The Eu

scholarly journals Asymmetric cross-citations in private law: An empirical study of 28 supreme courts in the EU

2021 ◽  
pp. 1023263X2110146
Author(s):  
Sabrina D’Andrea ◽  
Nikita Divissenko ◽  
Maria Fanou ◽  
Anna Krisztián ◽  
Jaka Kukavica ◽  
...  
Keyword(s):  
Empirical Study ◽  
Case Law ◽  
Reciprocal Relationship ◽  
Court Decisions ◽  
Private Law ◽  
Mixed Result ◽  
Supreme Courts ◽  
Domestic Courts ◽  
Ease Of Access ◽  
The Eu

Recent years have seen a growing volume of research on citations between courts from different countries. This article fills a gap in the current literature by presenting and analysing cross-citations between the highest domestic courts responsible for matters of private law in the EU from 2000 to 2018. It addresses two main questions: first, to what extent do judges cite foreign case law in their decisions? Second, what may explain the varying levels of engagement of supreme courts with foreign case law? Our findings offer a mixed result as to the nature and frequency of such cross-citations. Overall, we identify 2984 cross-citations; yet, only in few instances do we find a reciprocal relationship between the supreme courts of two countries, while more generally an asymmetric picture emerges. The article also discusses whether problems with the ease of access to court decisions may partly be responsible for limitations in the use of cross-citations.

The Interaction of Judicial and Legislative Policymaking

2018 ◽  
Author(s):  
Susanne K. Schmidt
Keyword(s):  
Mutual Recognition ◽  
Case Law ◽  
Legislative Process ◽  
European Legislation ◽  
Eu Legislation ◽  
Political Preferences ◽  
General Rules ◽  
Judicial Policymaking ◽  
The Impact ◽  
The Eu

Chapter 4 systematizes the different ways that judicial policymaking can have an impact on European legislation. Identifying the codification of case-law principles in secondary law contributes to research on the EU in two important ways: it shows how EU legislation is embedded in case-law development, and that the impact of case law cannot be reduced to the question of compliance with single rulings. A differentiation is made between several types of judicial ‘shadow’ over the legislative process. Then the Services Directive and the regulation on the mutual recognition of goods are analysed. The principles of case law that were motivated by the specific circumstances of individual cases constrain the design of general rules. Secondary law cannot modify constitutional principles. At best, the legislature can hope to signal its political preferences to the Court.

scholarly journals A Populist Monster and the future of Constitutional Democracy

2021 ◽  
Vol 4 (1) ◽  
pp. 83-100
Author(s):  
Andraž Teršek
Keyword(s):  
Rule Of Law ◽  
Legal Protection ◽  
Constitutional Court ◽  
Court Decisions ◽  
Constitutional Democracy ◽  
Council Of Europe ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
The Social ◽  
The Eu

Abstract The central objective of the post-socialist European countries which are also Member States of the EU and Council of Europe, as proclaimed and enshrined in their constitutions before their official independence, is the establishment of a democracy based on the rule of law and effective legal protection of fundamental human rights and freedoms. In this article the author explains what, in his opinion, is the main problem and why these goals are still not sufficiently achieved: the ruthless simplification of the understanding of the social function and functioning of constitutional courts, which is narrow, rigid and holistically focused primarily or exclusively on the question of whether the judges of these courts are “left or right” in purely daily-political sense, and consequently, whether constitutional court decisions are taken (described, understood) as either “left or right” in purely and shallow daily-party-political sense/manner. With nothing else between and no other foundation. The author describes such rhetoric, this kind of superficial labeling/marking, such an approach towards constitutional law-making as a matter of unbearable and unthinking simplicity, and introduces the term A Populist Monster. The reasons that have led to the problem of this kind of populism and its devastating effects on the quality and development of constitutional democracy and the rule of law are analyzed clearly and critically.

Revisiting the risk of undesired appeal in investment treaty arbitration: is deference to the tribunal’s award still less likely in the ICSID context?

2021 ◽  
Author(s):  
Alexander J Marcopoulos
Keyword(s):  
Ad Hoc ◽  
De Novo ◽  
Case Law ◽  
Court Decisions ◽  
Investment Treaty ◽  
Investment Treaty Arbitration ◽  
The Way

Abstract Although they are generally not subject to appeal the way court decisions typically are, investor-State arbitration awards can be reviewed—and potentially set aside—in a number of ways and on various bases. In this respect, investor-State arbitration under the auspices of ICSID is notable in that it provides a self-contained system for the review of arbitral awards by ICSID-appointed ad hoc committees. In the period 2000–2010, this feature of the ICSID system attracted criticism as ad hoc committees appeared to be overreaching in their review of arbitral awards, exercising less deference to the tribunal’s decisions than what would be expected given the narrow bases for setting aside an award under the ICSID Convention. This article revisits the issue 10 years later, exploring whether ICSID practice has evolved in these areas and whether there remains a greater risk of unexpected de novo review by ICSID ad hoc committees. Looking at recent ICSID annulment decisions as well as the case law of arbitration-friendly jurisdictions, the article concludes that although the ICSID ad hoc committees have recently shown more restraint, they continue to interfere more with the tribunal’s reasoning and decisions than many courts exercising the same function.

Judicial review of Common Foreign and Security Policy by the ECtHR and the (re)negotiation on the accession of the EU to the ECHR

2021 ◽  
pp. 1023263X2198824
Author(s):  
Maria José Rangel de Mesquita
Keyword(s):  
Judicial Review ◽  
Security Policy ◽  
Case Law ◽  
Regional Level ◽  
Judicial Control ◽  
National Courts ◽  
Foreign And Security Policy ◽  
Conclusion Section ◽  
The Relationship ◽  
The Eu

The article addresses the issue of judicial control of the implementation of Common Foreign and Security Policy at international regional level within the framework of the relaunching of the negotiation in view of the accession of the EU to the ECHR. Considering the extent of jurisdiction of the CJEU in respect of Common Foreign and Security Policy field in the light of its case law (sections 1 and 2), it analyses the question of judicial review of Common Foreign and Security Policy within international regional justice by the ECtHR in the light of the ongoing negotiations (section 3), in the perspective of the relationship between non-national courts (section 3.A), having as background the (2013) Draft Agreement of accession (section 3.B.1). After addressing the relaunching of the negotiation procedure (section 3.B.2) and the issue of CFSP control by the ECtHR according to the recent (re)negotiation meetings (section 3.B.3), some concrete proposals, including for the redrafting of the accession agreement, will be put forward (section 3.B.4), as well as a conclusion (section 4).

scholarly journals Social values and public procurement in health: can ‘smart’ procurement enhance justice in health?

2020 ◽  
Vol 30 (Supplement_5) ◽  
Author(s):  
V Mezeiova
Keyword(s):  
Case Law ◽  
Social Aspect ◽  
Health It ◽  
Health Governance ◽  
Ethics And Economics ◽  
Economics Of Health ◽  
Effectiveness And Efficiency ◽  
Health Justice ◽  
The Impact ◽  
The Eu

Abstract Governments spend 29% of total expenditure on procurement while the second largest area is health. However, the important question is what the impact of these expenditures on health is. Can one buy health justice through procurement? In order to answer this issue, the study firstly analyses theory of global health governance to substantiate whether procurement is a health governance tool whose efficiency and effectiveness determines health outcomes. Secondly, health as a social aspect is scrutinised because its governance and procurement have to be driven by a normative value. Within the study, health justice is justified to be such a value as it is a significant public health factor in practice. Following this normative claim, the study uses analysis of legislation, case law and examples from procurement practice to show whether procurement law can enhance health justice. In terms of methodology, the study establishes a normative framework of governance in health, health justice and procurement. On that basis, it distinguishes procurement categories (procurement of health, and procurement for health) and concludes what it is in procurement that health justice is transformed into. In order to answer the core research question, the study analyses harmonised transnational EU legislation, policy, case law of the CJEU, and examples from practice through stages of supply framework - at input, output and outcome. The study leads to a conclusion that procurement serves as a tool of governance in health. In order to reach effectiveness and efficiency of procurement in health, it is submitted that procurement needs to reflect on the argument of ethics and economics of health. Health inequalities are an operationalized factor to reach this. The EU procurement law enables to consider health justice. However, it is restricted by the requirement of proportionality. Therefore, health justice is perceived as distortion, rather than a goal of competition to be enhanced. Key messages In order to reach effectiveness and efficiency of procurement in health, it is submitted that procurement needs to reflect on argument of ethics and economics of health. The EU procurement law enables to consider health justice. However, it is rather perceived as distortion, than a goal of competition to be enhanced.

Judicial review of Common Foreign and Security Policy by the ECtHR and the (re)negotiation on the accession of the EU to the ECHR

2021 ◽  
Vol 28 (3) ◽  
pp. 356-370
Author(s):  
Maria José Rangel de Mesquita
Keyword(s):  
Judicial Review ◽  
Security Policy ◽  
Case Law ◽  
Regional Level ◽  
Judicial Control ◽  
National Courts ◽  
Foreign And Security Policy ◽  
Conclusion Section ◽  
The Relationship ◽  
The Eu

The article addresses the issue of judicial control of the implementation of Common Foreign and Security Policy at international regional level within the framework of the relaunching of the negotiation in view of the accession of the EU to the ECHR. Considering the extent of jurisdiction of the CJEU in respect of Common Foreign and Security Policy field in the light of its case law (sections 1 and 2), it analyses the question of judicial review of Common Foreign and Security Policy within international regional justice by the ECtHR in the light of the ongoing negotiations (section 3), in the perspective of the relationship between non-national courts (section 3.A), having as background the (2013) Draft Agreement of accession (section 3.B.1). After addressing the relaunching of the negotiation procedure (section 3.B.2) and the issue of CFSP control by the ECtHR according to the recent (re)negotiation meetings (section 3.B.3), some concrete proposals, including for the redrafting of the accession agreement, will be put forward (section 3.B.4), as well as a conclusion (section 4).

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.

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.

Sign in / Sign up

Export Citation Format

Share Document