(Br)Exit from the European Union – Control, Autonomy and the Evolution of EU Law

National high courts in the European Union (EU) are constantly challenged: the European Court of Justice (ECJ) claims the authority to declare national standing interpretations invalid should it find them incompatible with its views on EU law. This principle noticeably impairs the formerly undisputed sovereignty of national high courts. In addition, preliminary references empower lower courts to question interpretations established by their national ‘superiors’. Assuming that courts want to protect their own interests, the article presumes that national high courts develop strategies to elude the breach of their standing interpretations. Building on principal-agent theory, the article proposes that national high courts can use the level of (im-) precision in the wording of the ECJ’s judgements to continue applying their own interpretations. The article develops theoretical strategies for national high courts in their struggle for authority.

Download Full-text

A Union of Peoples

10.1093/oso/9780198854173.001.0001 ◽

2020 ◽

Author(s):

Pavlos Eleftheriadis

Keyword(s):

European Union ◽

International Law ◽

Political Theory ◽

Domestic Institutions ◽

Eu Law ◽

The European Union ◽

Rival Theory ◽

Law Of Nations ◽

Domestic Law ◽

The Eu

This book offers a legal and political theory of the European Union. Many political and legal philosophers compare the EU to a federal union. They believe that its basic laws should be subject to the standards of constitutional law. They thus find it lacking or incomplete. This book offers a rival theory. If one looks more closely at the treaties and the precedents of the European courts, one sees that the substance of EU law is international, not constitutional. Just like international law, it applies primarily to the relations between states. It binds domestic institutions directly only when the local constitutions allow it. The member states have democratically chosen to adapt their constitutional arrangements in order to share legislative and executive powers with their partners. The legal architecture of the European Union is thus best understood under a theory of dualism and not pluralism. According to this internationalist view, EU law is part of the law of nations and its distinction from domestic law is a matter of substance, not form. This arrangement is supported by a cosmopolitan theory of international justice, which we may call progressive internationalism. The EU is a union of democratic peoples, that freely organize their interdependence on the basis of principles of equality and reciprocity. Its central principles are not the principles of a constitution, but cosmopolitan principles of accountability, liberty, and fairness,

Download Full-text

Communicable and Other Infectious Diseases

The Oxford Handbook of Comparative Health Law ◽

10.1093/oxfordhb/9780190846756.013.48 ◽

2020 ◽

Author(s):

Markus Frischhut

Keyword(s):

Public Health ◽

European Union ◽

Infectious Diseases ◽

Disease Transmission ◽

Eu Law ◽

The European Union ◽

Ethical Perspective ◽

Health Measures ◽

Environment Agency ◽

And Control

This chapter discusses the most important features of EU law on infectious diseases. Communicable diseases not only cross borders, they also often require measures that cross different areas of policy because of different vectors for disease transmission. The relevant EU law cannot be attributed to one sectoral policy only, and thus various EU agencies participate in protecting public health. The key agency is the European Centre for Disease Prevention and Control. Other important agencies include the European Environment Agency; European Food Safety Authority; and the Consumers, Health, Agriculture and Food Executive Agency. However, while integration at the EU level has facilitated protection of the public's health, it also has created potential conflicts among the different objectives of the European Union. The internal market promotes the free movement of products, but public health measures can require restrictions of trade. Other conflicts can arise if protective public health measures conflict with individual human rights. The chapter then considers risk assessment and the different tools of risk management used in dealing with the challenges of infectious diseases. It also turns to the external and ethical perspective and the role the European Union takes in global health.

Download Full-text

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

German Law Journal ◽

10.1017/s2071832200021301 ◽

2015 ◽

Vol 16 (6) ◽

pp. 1663-1700 ◽

Cited By ~ 3

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.

Download Full-text

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

German Law Journal ◽

10.1017/s2071832200021040 ◽

2015 ◽

Vol 16 (5) ◽

pp. 1073-1098 ◽

Cited By ~ 10

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.

Download Full-text

Public Sector Purchase Programme (PSPP) Case

International Law Reports ◽

10.1017/ilr.2020.41 ◽

2021 ◽

Vol 192 ◽

pp. 451-511

Keyword(s):

European Union ◽

Constitutional Court ◽

Eu Law ◽

The European Union ◽

European Central ◽

Court Of Justice ◽

Basic Law ◽

Federal Constitutional ◽

German Federal Constitutional Court ◽

German Federal Constitutional

451Economics, trade and finance — European Monetary Union — Fiscal sovereignty — Public debt — Monetary policy — Economic policy — European Union — Asset purchase programme — Quantitative easing — Central banks — European Central Bank — European System of Central Banks — BundesbankTreaties — Treaty-making powers — Constitutional limitations on treaty-making powers — Transfers of powers by States to intergovernmental and other transnational authorities — Whether compatible with constitutional prerogatives of national parliament — Overall budgetary responsibility — Basic Law of GermanyInternational organizations — European Union — Powers — Member States as masters of the treaties — Principle of conferral — Whether Union having competence to determine or extend its own powers — Principle of subsidiarity — Court of Justice of the European UnionRelationship of international law and municipal law — European Union law — Interpretation — Application — Judgment of Court of Justice of the European Union — Weiss — Principle of proportionality — Whether application of EU law having absolute primacy — Whether German Federal Constitutional Court having absolute duty to follow judgment of Court of Justice of the European Union — Compatibility with Basic Law of Federal Republic of Germany — Openness of German Basic Law to European integration — Whether purchase programme ultra vires — Whether ultra vires acts applicable in Germany — Whether having binding effect in relation to German constitutional organsJurisdiction — European Union institutions — Whether jurisdiction of German Federal Constitutional Court extending to Court of Justice of the European Union and European Central Bank — Whether acts of EU institutions subject to national constitutional review — Ultra vires review — Review of core identity of national constitution — Whether application of EU law having absolute primacy — Whether absolute duty to follow judgment of Court of Justice of the European Union — The law of Germany

Download Full-text

If in Doubt, Leave it Out? EU Precaution in WTO Regulatory Space

European Journal of Risk Regulation ◽

10.1017/s1867299x00000039 ◽

2010 ◽

Vol 1 (1) ◽

pp. 20-30 ◽

Cited By ~ 1

Author(s):

James Flett

Keyword(s):

European Union ◽

Political Authority ◽

The Other ◽

The Political ◽

International Level ◽

Eu Law ◽

The European Union ◽

International Organisations ◽

Balanced Approach ◽

Available Information

This article reviews the way in which the concept of precaution, as commonly referenced in EU law, is received in the WTO. It argues that precaution is not a principle, but one facet of a principle of making rational judgments based on available information, the other facet of which is “that risk is worth taking”. Systematically pursuing high cost measures in response to low risks is not a balanced approach, and has probably contributed to the scepticism with which the concept is viewed in the WTO. However, this article goes on to argue that, without needing to be a principle, precaution is the determining legal feature in the SPS Agreement, because, unlike in the European Union, there is no legislative harmonisation of SPS measures at international level, WTO Members being free to set their own appropriate level of protection. In fact, the concept of precaution is relevant in the context of many other WTO provisions and is in some respects quite close to the concept of subsidiarity. Notwithstanding this, the first WTO SPS cases, driven by regulatory exporters and an interventionist WTO, have excessively emphasised scientific issues, masking policy judgments that the WTO has neither the legal nor the political authority to sustain. The article concludes that the proper way forward necessitates closer political, legal and administrative links between the WTO and other relevant international organisations, and a move away from consensus in the latter.

Download Full-text

Diplomatic Protection in EU Law: What’s New under the Sun?

The Hague Journal of Diplomacy ◽

10.1163/1871191x-12341274 ◽

2014 ◽

Vol 9 (2) ◽

pp. 150-175 ◽

Cited By ~ 1

Author(s):

Federico Forni

Keyword(s):

European Union ◽

International Law ◽

European Commission ◽

European Community ◽

The Sun ◽

International Agreement ◽

Eu Law ◽

The European Union ◽

Diplomatic Protection ◽

Effective Role

Summary This article aims to assess which subjects could offer diplomatic protection in third countries to European citizens and/or European Union legal persons on the basis of eu law. The absence of a common standard of assistance and the lack of specific agreements with third states has de facto excluded the diplomatic protection ex Article 23 of the Treaty on the Functioning of the European Union (tfeu, formerly the tec or Treaty establishing the European Community). Yet the practice shows cases in which the European Commission claimed the infringement of the rights of eu citizens and eu corporations in cases of violation of an international agreement concluded by the Union, or in cases of a breach of general international law in a matter of eu exclusive competence. These evidences indicate that the eu could play an effective role in ensuring the protection of European citizens in third countries in situations in which the eu member states have transferred their competences to the European Union. However, these actions remain discretional, since the ‘duty to protect’ is far from achieved both in eu and in international law.

Download Full-text

Legal conflict between the EU and the republic of Poland regarding polish judicial reform

Law and innovative society ◽

10.37772/2309-9275-2021-2(17)-10 ◽

2021 ◽

Author(s):

Ivan Yakovyuk ◽

Suzanna Asiryan ◽

Anastasiya Lazurenko

Keyword(s):

European Union ◽

Judicial Reform ◽

Eu Law ◽

The European Union ◽

Member States ◽

Court Of Justice ◽

Legal Nature ◽

Constitutional Tribunal ◽

The Republic ◽

The Eu

Problem setting. On October 7, 2021, the Constitutional Tribunal of the Republic of Poland ruled in favor of Polish law over European Union law, which in the long run may violate the principles according to which the Union operates and the rights enjoyed by citizens of the state. Such a precedent can further serve as a basis for identical decisions of the bodies of constitutional jurisdiction of those states that have problems in fulfilling their obligations in the European community. Analysis of recent researches and publications. The problems of the functioning of the bodies of the European Union, the implementation of their decisions and the general status in EU law are widely studied in national science. In particular, many scholars have studied the legal nature of the EU, including: TM Anakina, VI Muravyov, NM Ushakov, A. Ya. Kapustina, NA Korolyova, Yu. Yumashev, BN Topornin, OYa Tragniuk, SS Seliverstov, IV Yakovyuk and others. Target of research is to establish the foundations of EU law in the functioning of Union bodies, especially the Court, as well as to determine the hierarchy of national law and EU law. Article’s main body. Over the years, the Court has, within its jurisdiction, issued a large number of judgments which have become the source of the Union’s Constituent Treaties and of EU law in general. Over the last two decades, the powers of the Court of Justice have changed significantly. In particular, this is due to the adoption of the Lisbon Treaty, which amended the EU’s founding treaties on the powers of the Court, then the reform of the European Court took place in 2015-2016, which concerned a change in the organizational structure of the Court. Despite the generally well-established case law of the Court of Justice of the European Union on the unification of the observance by the Member States of the basic principles of the European Union, the Constitutional Tribunal of the Republic of Poland adopted a decision on 7 October. Conclusions and prospects for the development. Following the decision of the Constitutional Court, the Polish authorities found themselves in a situation that significantly complicated its internal and external situation. The way out of which requires answers to fundamental questions about the legal nature of the EU. Undoubtedly, this is an issue not only between Poland and the EU, but also between other member states.

Download Full-text

The Rise and Expressions of Consistency in EU Law: Legal and Strategic Implications for European Integration

Cambridge yearbook of European legal studies ◽

10.1017/s1528887000003037 ◽

2013 ◽

Vol 15 ◽

pp. 139-167

Author(s):

Ester Herlin-Karnell ◽

Theodore Konstadinides

Keyword(s):

European Union ◽

European Integration ◽

Case Law ◽

Eu Law ◽

The European Union ◽

Treaty Of Lisbon ◽

Legal Principles ◽

Division Of Powers ◽

Court Of Justice ◽

Scope Of Application

Abstract The principle of consistency has a prominent place in EU law. In the Treaty of Lisbon, it constitutes an umbrella under which a number of legal principles of EU law follow as corollaries. Consistency manifests itself within both horizontal and vertical levels of governance. This chapter will unpack this principle and will focus on the broader implications of consistency for the division of powers in EU law. In doing so, the authors aim to discuss the rise of consistency in EU law and decrypt its various constitutional expressions in order to determine its scope of application. Two notions of consistency are presented: a formal one that appears in the Treaty of Lisbon and a strategic one, prominent in the case law of the Court of Justice of the European Union (CJEU). It is argued that consistency is relevant to both traditional (integrationist) and alternative (differentiated) routes to European integration. The chapter concludes by discussing whether the undefined nature of ‘consistency’ puts it at risk of becoming an empty vessel.

Download Full-text