Effective judicial protection in judicial cooperation in civil matters and the Court of Justice of the European Union case law: the public policy clause and the absolute default of appearance as denial causes of judgments’ recognition and enforcement in E

2014 ◽  
pp. 147-161
Author(s):  
Joana Covelo de Abreu
Keyword(s):  
Public Policy ◽  
Case Law ◽  
Access To Justice ◽  
The European Union ◽  
Judicial Cooperation ◽  
Member States ◽  
The Public ◽  
Court Of Justice ◽  
Recognition And Enforcement ◽  
Judicial Protection

The Brussels I Regulation’s re-foundation by the New Brussels I Regulation was thought to secure reciprocal trust on justice administration among Member States and to grant full access to justice for those who inhabit and circulate in its territory. In a Union characterized by circulation freedoms and an internal market existence, those principles justify a situation in which judgments ruled by a Member State’s court are automatically recognised and enforced, in other Member-State, except when the defendant evokes the rules on denial of judgments’ recognition and enforcement. There would not be judicial cooperation and integration’s prosecution without trust – trust must exist among Member States’ courts and it must be felt by EU citizens so they can acknowledge that EU is actively seeking to improve their life and working conditions. The European Commission made constructive efforts to promote an exequatur’s abolition, making recognition and enforcement proceedings on the New Brussels I Regulation simpler (it even proposed to remove the “public policy” clause, which was not accepted). It is necessary to analyse howthe CJEU applies the rules on denial of judgments’ recognition and enforcement to perceive if the principle of an effective judicial protection is fulfilled under New Brussels I Regulation.

scholarly journals Public policy: united in diversity... within the marriage?

2021 ◽  
Vol 13 (2) ◽  
pp. 1022-1031
Author(s):  
Silvia Marino
Keyword(s):  
Public Policy ◽  
Case Law ◽  
The European Union ◽  
Judicial Cooperation ◽  
The Public ◽  
Court Of Justice ◽  
European Court ◽  
Definition Of ◽  
The Right ◽  
The Impact

The present paper tackles the development of the notion of public policy in the definition of the concept of marriage. It starts from brief remarks on the case law of the Court of Justice of the European Union in the field of the right to free movement of people and of the European Court of Human Rights on the right to private and family life. Then, it analyses the uncertainties stemming from the national divergences. Further, the impact of the Coman case on the applicability of EU measures on civil judicial cooperation and on the notion of public policy is examined. Conclusively, the paper submits some considerations on the modern function of the public policy.

The case law of the Court of Justice of the European Union on ‘judicial authority’ and issuing European arrest warrants

2021 ◽  
pp. 203228442110276
Author(s):  
Tricia Harkin
Keyword(s):  
Rule Of Law ◽  
Case Law ◽  
Public Prosecutor ◽  
The European Union ◽  
Advocate General ◽  
Member States ◽  
Court Of Justice ◽  
Judicial Authority ◽  
Criminal Matters ◽  
Judicial Protection

The case law of the Court of Justice from 2016 to 2019 on the interpretation of ‘judicial authority’ in Article 6(1) FD-EAW essentially examines whether a public prosecutor can be an issuing judicial authority and if so, how Member States’ systems for issuing EAWs ensure effective judicial protection for the person concerned. For the Advocate General, applying the Court’s ‘rule of law’ jurisprudence, effective judicial protection when deprivation of liberty is involved can only be assured by a body with the highest level of judicial independence, being a court. The Court’s broader approach of including public prosecutors with sufficiency of independence from the executive and requiring their decisions to be amenable to review by a court, when applied in practice arguably falls short of the requisite standard of effective judicial protection. There is also a lack of clarity about access to the interpretative jurisdiction of the Court by public prosecutors acting as judicial authorities. Effective judicial protection and EU cooperation in criminal matters would now be better served by the designation in all Member States of a court as the issuing judicial authority for the FD-EAW. This is against the background of the uniquely coercive nature of the EAW in terms of deprivation of liberty; the differences in Member States’ institutional arrangements for public prosecutors and the post-Lisbon effective constitutionalisation of judicial protection of rights of individuals.

scholarly journals Fixed-Term work: Recent developments in the case law of the Court of Justice of the European Union

2019 ◽  
Vol 11 (1) ◽  
pp. 66-89
Author(s):  
Anne Pieter van der Mei
Keyword(s):  
European Union ◽  
Case Law ◽  
The European Union ◽  
Member States ◽  
Framework Agreement ◽  
The Public ◽  
Court Of Justice ◽  
Recent Developments ◽  
Permanent Workers ◽  
Service Employment

This contribution provides an analytical overview of recent case law of the Court of Justice of the European Union on the framework agreement on fixed-term work (FTW agreement). The cases discussed virtually all concerned fixed-term work in the public sector and, in essence, raise the delicate question of whether the non-discrimination rule and the rules on fighting abuse of successive fixed-term employment relationships, demand from Member States to sacrifice classic notions of public service employment. The case law reveals that the Court leaves the Member States considerable discretion in hiring fixed-term workers instead of permanent workers or civil servants.

scholarly journals Art. 22(4) Brussels i regulation and its successoronly only apply to cases concerned with the actual registration or validityof the listed ip rights. Commentary on the Judgment of the Court of Justice of the European Union of 5 october 2017, c-341/16 = Artículo 22.4 del Reglamento Bruselas I y su sucesor solo se aplican a los casos relacionados con el registro efectivo o la validez de los derechos de propiedad intelectual enumerados. Comentario de la Sentencia del Tribunal de Justicia de la Unión Europea de 5 de octubre de 2017, c-341/16

2019 ◽  
Vol 11 (1) ◽  
pp. 937
Author(s):  
Kilian Sendlmeier
Keyword(s):  
European Union ◽  
Member State ◽  
Case Law ◽  
The European Union ◽  
Judicial Cooperation ◽  
Member States ◽  
Trade Marks ◽  
Court Of Justice ◽  
General Provision

Abstract: The CJEU reaffirms its established case law on Art. 22(4) Brussels I Regulation (No. 44/2001) and interprets the provision narrowly. Courts in member states in which patents, trade marks, designs, or similar rights that are required to be deposited or registered, have jurisdiction only in cases that are actually concerned with the registration or validity of these IP rights. A case concerned with the potential ownership of such rights falls within the general provision of Art. 2(1) Brussels I and, therefore, is to be brought before courts in the member state where the defendant is domiciled.Keywords: Judicial cooperation in civil and commercial matters, Brussels I Regulation (No. 44/2001), Jurisdiction under Art. 2(1) and Art. 22(4) Brussels I Regulation, jurisdiction in proceedings concerned with IP rights, registration of property of a trade markResumen: El Tribunal de Justicia de la Unión Europea mantiene su jurisprudencia establecida sobre el Art. 22.4 del Reglamento (CE) nº 44/2001 de Bruselas I e interpreta este artículo en sentido estricto. Los tribunales de los Estados miembros en los que se exige el depósito o el registro de patentes, marcas, dibujos y modelos u otros derechos similares solo son competentes en los casos en que se la posible titularidad de ese derecho entra en el ámbito de la disposición general del Art. 2.1 del Reglamento Bruselas I y, por lo tanto, debe ser llevado ante los tribunales de aquel estado miembro en el que el demandado esté domiciliado.Palabras clave: Procedimiento prejudicial, Cooperación judicial en materia civil y mercantil, Reglamento (CE) n° 44/2001, Competencia judicial, Artículo 2, apartado 1, Competencia de los órganos jurisdiccionales del domicilio del demandado, Artículo 22, punto 4, Competencia exclusiva en materia detítulos de propiedad intelectual, inscripción como titular de una marca.

Judicial Protection against Plans and Programmes Affecting the Environment

2016 ◽  
Vol 13 (3-4) ◽  
pp. 294-324
Author(s):  
Lorenzo Squintani ◽  
Ernst J.H. Plambeck
Keyword(s):  
European Union ◽  
National Level ◽  
Case Law ◽  
Access To Justice ◽  
The European Union ◽  
Short Term ◽  
Reference Procedure ◽  
Court Of Justice ◽  
Aarhus Convention ◽  
Judicial Protection

Despite the importance of access to justice in the context of plans and programmes affecting the environment, no single eu secondary law measure requires Member States to ensure effective judicial protection against such acts, and thus access to the preliminary reference procedure. At national level, this could lead to the absence of procedures to ensure effective judicial protection against plans and programmes. The Netherlands is used in this contribution as an example of the presence of such a lacuna. We argue that the lack of effective judicial protection against plans and programmes affecting the environment is in breach of both the Aarhus Convention and eu law. The duty to reconsider definitive acts, as established under the case law of the Court of Justice of the European Union, can serve as a short-term solution to offer effective judicial protection by the backdoor.

The preliminary ruling procedure at the court of justice of the European Union and transformation of European anti-discrimination law

2020 ◽  
Vol 2020 (3) ◽  
pp. 66-72
Author(s):  
Elena Sorokina
Keyword(s):  
Legal System ◽  
Essential Feature ◽  
Preliminary Ruling ◽  
The European Union ◽  
Judicial Cooperation ◽  
Member States ◽  
National Courts ◽  
Court Of Justice ◽  
Protection Of Human Rights ◽  
The Eu

The preliminary ruling procedure is an essential feature of the EU legal system, which is a unique cooperation tool as part of the dialogue between the Court of Justice of the EU and national courts of the Member States. Its main purpose is to ensure uniform interpretation and application of the provisions of EU law with all Member States and to preserve the uniformity of the European legal system. The continuous use by national courts of the Member States of the mechanism of preliminary ruling and constructive inter-judicial cooperation, the Court of Justice has developed an extremely extensive case law on the prohibition of discrimination and with the result to introduce substantial changes in European anti-discrimination law.The preliminary rulings of the Court of Justice have shown its inclination to expand notions of what constitutes discrimination and in most cases the Court prompt by the desire to interpret the provisions of European law so as to ensure the full effectiveness of the law, as well as a willingness to promote and strengthen protection against discrimination in Europe. While the protection against discrimination on some grounds is stronger than others, however, the preliminary rulings of the Court of Justice are important contribution to the transformation of anti-discrimination law, promote change in the national legislation of the Member States and provide the more effective protection of human rights in general.

NON-DISCRIMINATORY TRADE RESTRICTIONS AFTER KECK

2002 ◽  
Vol 61 (1) ◽  
pp. 1-52
Author(s):  
Alan Dashwood
Keyword(s):  
Case Law ◽  
Sales Promotion ◽  
Trade Restrictions ◽  
Member States ◽  
The Public ◽  
Court Of Justice ◽  
Equivalent Effect ◽  
The One ◽  
Domestic Products ◽  
By Products

IN its Keck judgment—famous or notorious according to taste—the Court of Justice drew a distinction, for the purposes of the application of the prohibition in Article 28 EC against measures having equivalent effect to quantitative restrictions (“MEEQRs”), between two categories of national measures. On the one hand were “product requirements”: measures specifying requirements to be met, in order to obtain access to the market of a Member State, by products coming from other Member States where they are lawfully manufactured and marketed, like the minimum alcohol requirement for fruit liqueurs in Cassis de Dijon (Case 120/78 [1997] E.C.R. 649). Such product requirements are liable to constitute MEEQRs, and therefore require specific justification, in order to escape prohibition, on one of the public interest grounds recognised by Community law. On the other hand was the category of measures described in the judgment as “provisions restricting or prohibiting certain selling arrangements”. An example was the legislation at issue in the main proceedings in Keck, which prohibited the resale of products below their purchase price, thereby depriving retailers of a form of sales promotion. Other examples, attested by the case law post-Keck, are measures regulating advertising methods, the kind of shop in which goods of a certain description can be sold, shops’ opening hours and Sunday trading. National provisions in this latter category are not normally such as to hinder trade between Member States under the test formulated by the Court in Dassonville (Case 8/74 [1974] E.C.R. 837, at para. 5), and so do not call for justification; not, that is, “so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and those from other Member States”: see Joined Cases C-267 and 268/9 [1993] E.C.R. I-6097, at paras. 15–17.

Mixed Agreements: The EU Law Fundamentals

2018 ◽  
Author(s):  
Joni Heliskoski
Keyword(s):  
European Union ◽  
Case Law ◽  
International Agreements ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
Basic Characteristics ◽  
Mixed Agreements ◽  
The Eu

Whatever terminology one might wish to employ to describe the form of integration constituted by the European Union and its Member States, one fundamental attribute of that arrangement has always been the division, as between the Union and its Member States, of competence to conclude international agreements with other subjects of international law. Today, the fact that treaty-making competence—as an external facet of the more general division of legal authority—is divided and, to some extent, shared between the Union and its Member States is reflected by some of the opening provisions of the Treaty on European Union and the Treaty on the Functioning of the European Union. Notwithstanding the changes to the scope and nature of the powers conferred upon the Union, resulting from both changes to primary law and the evolution of the case law of the Court of Justice of the European Union (CJEU), the basic characteristics of the conferment as an attribution of a limited kind has always been the same; there has always existed a polity endowed with a treaty-making authority divided between and, indeed, shared by, the Union and its Member States. In the early 1960s mixed agreements—that is, agreements to which the European Union

Recognition and Enforcement

2016 ◽  
Author(s):  
Reinhard Bork ◽  
Renato Mangano
Keyword(s):  
Public Policy ◽  
Automatic Recognition ◽  
Mutual Trust ◽  
Member States ◽  
The Public ◽  
Recognition And Enforcement ◽  
Insolvency Proceedings ◽  
The Impact ◽  
Foreign Member

Automatic recognition of judgments rendered within the course of insolvency proceedings constitutes one of the fundamental principles of the EIR, as recognition is based on mutual trust and is crucial regarding maintenance of the universality of (main) insolvency proceedings. This chapter scrutinizes the mechanism through which recognition operates pursuant to the EIR. Recognition applies only to certain judgments handed down during insolvency proceedings; therefore, we must determine which types of judgment enjoy recognition pursuant to the EIR. Discussion then focuses on the impact of recognizing foreign judgments before exploring the public policy exception, this being the only ground upon which refusal of recognition may be based. As enforcement of judgments in foreign Member States may be necessary, the manner in which the EIR ensures the enforceability of judgments handed down during insolvency proceedings will also be observed.

scholarly journals Judicial Cooperation in Environmental Matters: Mapping National Courts’ Behaviour in Follow-up Cases

2018 ◽  
Vol 15 (2) ◽  
pp. 147-170
Author(s):  
Lorenzo Squintani ◽  
Dionne Annink
Keyword(s):  
Environmental Law ◽  
The European Union ◽  
Judicial Cooperation ◽  
Member States ◽  
National Courts ◽  
Court Of Justice ◽  
Almost All ◽  
Willingness To Cooperate ◽  
Large Corpus

The need to ensure a uniform interpretation and effective application of the large corpus of EU environmental regulation in the jurisdictions of the Member States remains a task of pivotal importance for the Court of Justice of the European Union (CJEU). A quick look at the CURIA database reveals that many judgments are handed down every year to clarify the meaning of EU environmental provisions. It is therefore important to study the proper functioning of the tandem composed of the CJEU and the national courts in this field of EU law. In that sense, this article responds to Bogojević’s call ‘to draw a grander map of judicial dialogues initiated across various Member States’. More specifically, the topic investigated by this article is how Dutch courts have followed up on responses received from the CJEU to their preliminary reference requests in the field of EU environmental law, until January 2017. Almost all the cases we have retrieved from the Netherlands show various degrees of willingness to cooperate with the CJEU. This article highlights the existence of three trends: full cooperation, gapped cooperation and withdrawn cooperation.

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