UK Withdrawal from the EU: Supremacy, Indirect Effect and Retained EU Law

2022 ◽  
Author(s):  
Asif Hameed
Keyword(s):  
Indirect Effect ◽  
Eu Law ◽  
The Eu

2. Supremacy, direct effect, indirect effect, and state liability

2018 ◽  
Author(s):  
Matthew J. Homewood
Keyword(s):  
Member State ◽  
Direct Effect ◽  
Indirect Effect ◽  
National Court ◽  
Legal Order ◽  
Eu Law ◽  
Key Concepts ◽  
State Liability ◽  
The Eu

This chapter discusses the key concepts within the EU legal order: supremacy, direct effect, indirect effect, and state liability. The doctrine of supremacy dictates that EU law takes precedence over conflicting provisions of national law. If a provision of EU law is directly effective, it gives rise to rights upon which individuals can rely directly in the national court. If an EU measure is not directly effective, a claimant may be able to rely on it through the application of indirect effect, which requires national law to be interpreted in accordance with relevant EU law. State liability gives rise to a right to damages where an individual has suffered loss because a Member State has failed to implement a directive or has committed other breaches of EU law.

scholarly journals Indirect Effect of EU Law under Constitutional Scrutiny – the Overview of Approach of Czech Constitutional Court

2016 ◽  
Vol 16 (1) ◽  
pp. 69-82
Author(s):  
Ondrej Hamuľák ◽  
Tanel Kerikmäe
Keyword(s):  
Czech Republic ◽  
Indirect Effect ◽  
Case Law ◽  
State Responsibility ◽  
Constitutional Court ◽  
Eu Law ◽  
Arrest Warrant ◽  
European Arrest Warrant ◽  
Ideal Tool ◽  
The Eu

Summary The paper deals with the non-normative impacts of the EU law in the national legal systems (Czech Republic in particular) and focuses on the approach of the Czech Constitutional Court (CCC) towards the so-called principle of indirect effect of EU law. The authors examine the case law of CCC and offer the conclusions about the place, constitutional relevance and (national) limits of the EU-consistent interpretation of national law. CCC up to date case law clearly indicates that a EU-consistent interpretation is the most ideal tool for meeting the Czech Republic’s membership obligations. But it is simultaneously a tool for preserving the autonomy of the national authorities applying law and reduces possible tensions between supranational and nation law. CCC accepts the indirect effect broadly and used this concept even in controversial cases (European arrest warrant, State responsibility for damages etc.). But still it does not approach this effect without reservations. CCC points on the necessity to protect the fundamental constitutional values (‘Solange’ concept) even in connection with the duty of EU-consistent interpretation.

2. Supremacy, direct effect, indirect effect, and state liability

2020 ◽  
pp. 22-46
Author(s):  
Matthew J. Homewood
Keyword(s):  
Member State ◽  
Direct Effect ◽  
Indirect Effect ◽  
National Court ◽  
Legal Order ◽  
Eu Law ◽  
Key Concepts ◽  
State Liability ◽  
The Eu

This chapter discusses the key concepts within the EU legal order: supremacy, direct effect, indirect effect, and state liability. The doctrine of supremacy dictates that EU law takes precedence over conflicting provisions of national law. If a provision of EU law is directly effective, it gives rise to rights upon which individuals can rely directly in the national court. If an EU measure is not directly effective, a claimant may be able to rely on it through the application of indirect effect, which requires national law to be interpreted in accordance with relevant EU law. State liability gives rise to a right to damages where an individual has suffered loss because a Member State has failed to implement a directive or has committed other breaches of EU law.

A refusal to grant access to a grid within the provision of crude oil transfer services as an example of a prohibited abuse of a dominant position in the EU and Polish competition law

2018 ◽  
Vol 5 (2) ◽  
pp. 199 ◽  
Author(s):  
Wojciech Paweł SZYDŁO
Keyword(s):  
Crude Oil ◽  
Competition Law ◽  
Eu Law ◽  
The European Union ◽  
Dominant Position ◽  
Oil Companies ◽  
Effective Competition ◽  
Oil Pipelines ◽  
Transfer Services ◽  
The Eu

Aim: The paper discusses cases in which a refusal by an energy enterprise to connect other enterprises to the network is treated as a prohibited abuse of the enterprise's dominant position and, equally, will represent behavior prohibited by art. 12 of the Treaty on the Functioning of the European Union and by art. 9 par. 2 item 2 of the Competition and Consumer Protection Law as well as legal consequences of such refusal. It is important to pinpoint such cases since the EU sectoral regulation does not provide for obligating any undertakings which manage and operate oil pipelines to enter into contracts with other undertakings such as contracts on connecting into their network or contracts on providing crude oil transfer services. Conditions for accessing oil pipelines and selling their transfer capacities are determined by the owners of the networks: private oil companies in the countries across which the pipelines are routed. These conditions are not governed by the EU law.  Furthermore, the very obligation of connecting other entities to own network by energy undertakings operating in the oil transfer sector in Poland will only arise from generally applicable provisions of the Polish competition law.  Design / Research methods: The purpose of the paper has been reached by conducting a doctrinal analysis of relevant provisions of Polish and EU law and an analysis of guidelines issued by the EU governing bodies. Furthermore, the research included the functional analysis method which analyses how law works in practice. Conclusions / findings: The deliberations show that a refusal to access the network will be a manifestation of a prohibited abuse of a dominant position and will be a prohibited action always when the dominant's action is harmful in terms of the allocation effectiveness. It will be particularly harmful when delivery of goods or services objectively required for effective competition on a lower level market, a discriminatory refusal which leads to elimination of an effective competition on the consequent market, a refusal leading to unfair treatment of consumers and an unjustified refusal. Originality / value of the article: The paper discusses the prerequisites which trigger the obligation to connect entities to own network by energy undertakings operating in the oil transfer sector. The obligation has a material impact on the operations of the oil transmitting undertakings, in particular on those who dominate the market. The regulatory bodies in the competition sector may classify a refusal of access to own network by other enterprises as a prohibited abuse of the dominant position, exposing such undertakings to financial consequences.Implications of the research: The research results presented in the paper may be used in decisions issued by the President of the OCCP and in judgement of Polish civil courts and EU courts. This may cause a significant change in the approach to classifying prohibited practices to prohibited behavior which represent abuse of the dominant position. The deliberations may also prompt the Polish and EU legislator to continue works on the legislation.

EU Non-Refoulement: (The Irrelevance of) Territoriality and Pre-Border Controls

2017 ◽  
Author(s):  
Violeta Moreno-Lax
Keyword(s):  
International Human Rights Law ◽  
Eu Law ◽  
Human Rights Law ◽  
Refugee Law ◽  
Functional Understanding ◽  
Scope Of Application ◽  
International Refugee Law ◽  
Border Controls ◽  
The Eu

This chapter identifies the content and scope of application of the EU prohibition of refoulement. Following the ‘cumulative standards’ approach, the analysis incorporates developments in international human rights law (IHRL) and international refugee law (IRL). Taking account of the prominent role of the ECHR and the Refugee Convention (CSR51) as sources of Article 19 CFR, these are the two main instruments taken in consideration. The scope of application of Articles 33 CSR51 and 3 ECHR will be identified in turns. Autonomous requirements of EU law will be determined by reference to the asylum acquis as interpreted by the CJEU. The main focus will be on the establishment of the territorial reach of EU non-refoulement. The idea that it may be territorially confined will be rejected. Drawing on the ‘Fransson paradigm’, a ‘functional’ understanding of the ‘implementation of EU law’ standard under Article 51 CFR will be put forward, as the decisive factor to determine applicability of Charter provisions. The implications of non-refoulement for the different measures of extraterritorial control considered in Part I will be delineated at the end.

A Union of Peoples

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,

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

2015 ◽  
Vol 16 (6) ◽  
pp. 1663-1700 ◽  
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.

scholarly journals The notion of ‘employer’: Towards a uniform European concept?

2021 ◽  
pp. 203195252199115
Author(s):  
Matthijs van Schadewijk
Keyword(s):  
Functional Approach ◽  
Working Relationships ◽  
Eu Law ◽  
Member States ◽  
Corporate Groups ◽  
European Legislation ◽  
Contractual Approach ◽  
First Time ◽  
The Eu ◽  
The Way

The growth in multilateral working relationships (e.g. agency work, chains of sub-contracting and corporate groups) is causing Member States to increasingly scrutinise their traditional, contractual approach to the notion of ‘employer’. So far, little attention has been paid to the boundaries and limits that EU law sets when defining the employer. The lack of attention may have come to an end with the recent AFMB judgment, in which the Court ruled, for the first time, that the concept of employer in a provision of EU law had to be given an autonomous and uniform interpretation throughout the EU. Starting from the AFMB judgment, the author analyses the concept of employer in EU law. The author finds that the concept of employer in EU law can be described as ‘uniform in its functionality’: in EU law, the national concept of the employer is never absolute, but the circumstances and the way in which the national concept must be set aside depend on the context and the objective of the European legislation in question. Through this functional approach, EU law partly harmonises the various national approaches to the concept of the employer. Nevertheless, a lack of specific reasoning on the part of the Court may grant the Member States considerable leeway to uphold their own views on the concept.

The EU as an “enforcement patchwork”: the impact of national enforcement for compliance with EU water law in Spain and Britain

2013 ◽  
Vol 34 (2) ◽  
pp. 331-353 ◽  
Author(s):  
Mónica García Quesada
Keyword(s):  
Waste Water Treatment ◽  
National Level ◽  
State Level ◽  
Detailed Examination ◽  
Deterrent Effect ◽  
Eu Law ◽  
Wide Range ◽  
The Uk ◽  
The Impact ◽  
The Eu

AbstractFailures of compliance with European Union (EU) directives have revealed the EU as a political system capable of enacting laws in a wide range of different policy areas, but facing difficulties to ensure their actual implementation. Although the EU relies on national enforcement agencies to ensure compliance with the EU legislation, there is scarce analysis of the differential deterrent effect of national enforcement in EU law compliance. This article examines the enforcement of an EU water directive, the Urban Waste Water Treatment Directive, in Spain and the UK. It focuses on the existing national sanctions for disciplining actors in charge of complying with EU requirements, and on the actual use of punitive sanctions. The analysis shows that a more comprehensive and active disciplinary regime at the national level contributes to explain a higher degree of compliance with EU law. The article calls for a detailed examination of the national administrative and criminal sanction system for a more comprehensive understanding of the incentives and disincentives to comply with EU law at the national state level.

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