scholarly journals The interpretation complying with EU law manifested in the case law unifying judgment No. 15/2013 of the Portuguese Supreme Court of Justice

2016 ◽  
Vol 2 ◽  
pp. 82-96
Author(s):  
Carla Machado
Keyword(s):  
European Union ◽  
Supreme Court ◽  
Case Law ◽  
Legal Order ◽  
The Other ◽  
Eu Law ◽  
The European Union ◽  
The Public ◽  
Court Of Justice ◽  
The One

This article aims to address the interpretation that has been made by Portuguese courts in relation to the concept of “communication of the work to the public” enshrined in Article 3 (1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001, duly transposed into the Portuguese legal order by Law No. 50/2006 of 24 August, which culminated in the drafting of the case law unifying judgment No. 15/2013. By verifying its content and analysing the case law of the Court of Justice of the European Union (hereinafter CJEU), concerning the interpretation of that concept, we conclude that the said case law unifying judgment does not comply with EU law. Therefore, we will list, on the one hand, the inherent consequences regarding the upkeep of the interpretation that has been held by the Portuguese judicial authorities and, on the other, we will suggest solutions for the resolution of similar cases by appealing to the principle of conforming interpretation.

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

2015 ◽  
Vol 16 (5) ◽  
pp. 1073-1098 ◽  
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.

From Washington with Love—Investor–State Arbitration and the Jurisdictional Monopoly of the Court of Justice of the European Union

2010 ◽  
Vol 12 ◽  
pp. 425-453
Author(s):  
Philip Strik
Keyword(s):  
European Union ◽  
Dispute Settlement ◽  
Case Law ◽  
Legal Order ◽  
Forum Shopping ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
International Dispute ◽  
The Eu

AbstractWhile investor–State arbitration is to a large extent detached from the EU legal order, EU law has recently started to be invoked in investor-State arbitration proceedings. In the context of intra-EU bilateral investment treaties, the Commission has expressed the view that investor-State arbitration gives rise to a number of ‘arbitration risks’ for the EU legal order. Not only can it solicit investors to engage in forum-shopping, but it can also result in questions of EU law not being litigated in Member State or Union courts. This chapter explores the extent to which the compatibility of investor–State arbitration with the EU legal order is in issue. It examines the main features of investor-State arbitration as concerns its interplay with the EU legal order, as well as the Court of Justice’s case law on issues of compatibility between systems of international dispute settlement and the EU legal order. The chapter highlights that the way in which investor–State arbitral tribunals handle issues of EU law, as well as the involvement of interested parties, may foster the synergy between investor–State arbitration and the EU legal order.

From Washington with Love—Investor–State Arbitration and the Jurisdictional Monopoly of the Court of Justice of the European Union

2010 ◽  
Vol 12 ◽  
pp. 425-453
Author(s):  
Philip Strik
Keyword(s):  
European Union ◽  
Dispute Settlement ◽  
Case Law ◽  
Legal Order ◽  
Forum Shopping ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
International Dispute ◽  
The Eu

Abstract While investor–State arbitration is to a large extent detached from the EU legal order, EU law has recently started to be invoked in investor-State arbitration proceedings. In the context of intra-EU bilateral investment treaties, the Commission has expressed the view that investor-State arbitration gives rise to a number of ‘arbitration risks’ for the EU legal order. Not only can it solicit investors to engage in forum-shopping, but it can also result in questions of EU law not being litigated in Member State or Union courts. This chapter explores the extent to which the compatibility of investor–State arbitration with the EU legal order is in issue. It examines the main features of investor-State arbitration as concerns its interplay with the EU legal order, as well as the Court of Justice’s case law on issues of compatibility between systems of international dispute settlement and the EU legal order. The chapter highlights that the way in which investor–State arbitral tribunals handle issues of EU law, as well as the involvement of interested parties, may foster the synergy between investor–State arbitration and the EU legal order.

The Cases of Edam Holland and Gouda Holland

2016 ◽  
Vol 7 (2) ◽  
pp. 444-450
Author(s):  
Vadim Mantrov
Keyword(s):  
European Union ◽  
The Netherlands ◽  
Geographical Origin ◽  
Case Law ◽  
Case Note ◽  
The Other ◽  
The European Union ◽  
Locus Standi ◽  
Court Of Justice ◽  
The One

Cases C-517/14 P and C-519/P, Schutzgemeinschaft Milch und Milcherzeugnisse e.V. v European Commission, Kingdom of the Netherlands, Nederlandse Zuivelorganisatie, unreported 24 October 2014 (Seventh Chamber).In the two related cases commented on, the Court of Justice of the European Union (CJEU) dealt with assessment of locus standi in the case of an applicant who disputed the validity of registration of two indications of geographical origin (IGOs), namely Edam Holland and Gouda Holland, being compound designations and containing a famous generic word designation (name), i.e. Edam and Gouda respectively. The importance of both cases relates, on the one hand, to the fact that registration of these IGOs was challenged on the basis of the generic names Edam and Gouda which are extensively used in practice, occupying a considerable market share. On the other, both cases could be a signal whether the CJEU re–affirms its restrictive approach to assessment of locus standi under Article 263 (4) TFEU. Although the CJEU re–affirmed its longstanding case law on restrictive assessment of locus standi also concerning registration of a compound geographical designation on the basis of a generic name, yet, as is argued in this case note, this approach did not take into account the specifics of registering IGOs (author's summary).

The Impact of the Court of Justice of the European Union on Tunisian Judges: Quo Vadis?

2020 ◽  
pp. 320-346
Author(s):  
Béligh Elbalti
Keyword(s):  
European Union ◽  
Legal Education ◽  
Case Law ◽  
Current Situation ◽  
The Other ◽  
The European Union ◽  
Court Of Justice ◽  
Quo Vadis ◽  
The One ◽  
The Impact

This chapter examines the question whether the Court of Justice of the European Union (CJEU) has exercised an influence on Tunisian judges and the extent of that influence. After explaining the general legal background of Tunisia as a legal system and the attitude of Tunisian judges towards foreign legal sources in general, the chapter explores the available case law of Tunisian courts in order to identify the areas of law where such an influence manifests itself. It shows that, generally speaking, Tunisian judges are quite open to foreign legal sources and frequently cite those sources in their judgments. However, when it comes to the case law of the CJEU, two opposite trends could be identified. On the one hand, the case law of Tunisian ordinary courts shows that the CJEU exercises little influence on Tunisian judges, despite extensive and diversified cooperation between the EU and Tunisia. On the other hand, the case law of the Competition Council shows that the Council is more willing to refer to CJEU decisions in deciding the cases pending before them. The chapter considers several reasons that are likely to explain this double aspect of the influence of the CJEU on Tunisian judges. It argues that the weakness of comparative research, legal education in general, as well as the role played by legal actors in Tunisia are among the main reasons behind the current situation.

scholarly journals La participación del público en la elaboración de planes con incidencia ambiental: algunas cuestiones irresueltas

2020 ◽  
pp. 75-106
Author(s):  
José Ignacio CUBERO MARCOS
Keyword(s):  
European Union ◽  
Environmental Assessment ◽  
Case Law ◽  
Strategic Environmental Assessment ◽  
The Other ◽  
The European Union ◽  
The Public ◽  
Aarhus Convention ◽  
The One ◽  
Spanish Legislation

LABURPENA: Lan honek honako hau azaltzen du: ingurumen ebaluazio estrategikoa eskatzen duten plan eta programak onartzeko prozedurak xedatutako araubideak dauzkan kontraesan eta hutsune juridiko batzuk. Espainiak Aarhus ituna berretsi zuenetik eta Europar Batasunak 2003/35 Zuzentaraua onartu zuenetik, barneko planen ingurumenaren inguruko ebaluaziorako prozeduretan, pertsonek parte hartzeko gabeziak erakusten ditu legediak. Alde batetik, barneko agintariek pertsonei emateko aurretiazko informazioa eskaintzeko garrantzia gutxietsi dute; bestetik, zalantzak sortu dira ondoko gai honetan: Oraindik ere zalantzak daude ingurumenaren arloan parte hartzeko baldintzak sektoreko legeriarekin edo legeria orokorrarekin nola artikulatzen diren. Izan ere, azken legeria horrek aurreikusten dituen bermeak eta parte hartzeko eskubide desberdinak dira eta, batzuetan, aurreratuagoak. Lanak xede izango du konponbide batzuk ekartzea, Aarhus itunaren interpretazio finalista batean eta EBJAk emandako jurisprudentzian oinarrituz. This work exposes some contradictions and legal gaps regarding the legislation that regulates the participation of people in the procedures aimed at passing plans and programmes subjected to the strategic environmental assessment. Since Spain ratified the Aarhus Convention and the European Union passed 2003/35 Directive, the Spanish legislation shows still shortcomings so as to achieve an effective participation in the environmental assessment of plans. On the one hand, domestic authorities have ignored how important is to supply previous information to the public; on the other, there are doubts about how the requirements of participation in the environmental field are articulated with those provided for in the specific or general legislation, that establishes guarantees and different rights to participate, sometimes more progressive. This works aims at bringing some solutions, in accordance with a finalist interpretation of the Aarhus Convention and with the developments in the case law of the CJEU. RESUMEN: Este trabajo expone algunas contradicciones y vacíos jurídicos que se desprenden de la legislación que regula la participación de las personas en los procedimientos dirigidos a la aprobación de planes y programas que requieran evaluación ambiental estratégica. Desde que España ratificara el Convenio de Aarhus y la Unión Europea dictase la Directiva 2003/35, la legislación interna todavía presenta carencias para el logro de una participación efectiva en los procedimientos para la evaluación ambiental de planes. Por un lado, las autoridades internas han ignorado la importancia de ofrecer información previa al público; por otro, todavía perviven dudas en torno al modo en que se articulan los requisitos de participación en materia medioambiental con la legislación sectorial o general, que también prevé garantías y reconoce derechos de participación distintos y, a veces, más avanzados. El trabajo tendrá por objeto aportar algunas soluciones, inspirándose en una interpretación finalista del Convenio de Aarhus y en el desarrollo jurisprudencial ofrecido por el TJUE.

scholarly journals Exploring the Autonomy of the European Union Legal Order

2021 ◽  
Vol 81 (1) ◽  
pp. 47-88
Author(s):  
Koen Lenaerts ◽  
José A. Gutiérrez-Fons ◽  
Stanislas Adam
Keyword(s):  
European Union ◽  
International Law ◽  
Legal Order ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
The One ◽  
The Right ◽  
Building Walls ◽  
The Eu

Two different dynamics govern the autonomy of the European Union (EU) legal order. On the one hand, autonomy seeks to define what EU law is not, i.e. it is not ordinary international law. Positively, on the other, autonomy seeks to define what EU law is, i.e. a legal order that has the capacity to operate as a self-referential system of norms that is both coherent and complete. Yet the concept of autonomy of the EU legal order in no way conveys the message that the EU and its law are euro-centric and that the Court of Justice of the European Union (the ‘Court of Justice’) seeks to insulate EU law from external influences by building walls that prevent the migration of legal ideas. Autonomy rather enables the Court of Justice to strike the right balance between the need to preserve the values on which the EU is founded and openness to other legal orders. The autonomy of the EU legal order is thus part of the very DNA of that legal order as it allows the EU to find its own constitutional space whilst interacting in a cooperative way with its Member States and the wider world.

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

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.

The Impact of the Court of Justice of the European Union on the Russian Legal System

2020 ◽  
pp. 143-172
Author(s):  
Paul Kalinichenko
Keyword(s):  
European Union ◽  
Legal System ◽  
Final Section ◽  
Legal Order ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
System P ◽  
The Impact ◽  
Russian Model

This chapter presents the findings of the author on the impact of the Court of Justice of the European Union (CJEU) on the Russian legal system. To start with, this chapter includes a brief description of the background to the modern Russian legal system and, in particular, the structure of the Russian judiciary. The contribution goes on to describe the Russian model for approximating its legal order with EU rules and standards, as well as adding some remarks on the application of EU law by the Russian courts. Then follows an explanation of the specifics of the database used, together with a description and analysis of citation of CJEU decisions by Russian courts in the period 2006–18. Conclusions and recommendations are presented in the final section of the chapter.

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

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