scholarly journals The Role of Subsidiarity and Proportionality Principles in the Development of a Future Digital Single Market and a Common European Contract Law

2020 ◽  
Vol 14 (1) ◽  
pp. 1178-1186
Author(s):  
Ovidiu Ioan Dumitru
Keyword(s):  
European Union ◽  
Member State ◽  
Contract Law ◽  
Single Market ◽  
European Court Of Justice ◽  
The European Union ◽  
European Contract ◽  
Court Of Justice ◽  
European Court ◽  
European Contract Law

AbstractFrom the far beginning of the European Communities, with broader objective of creating a perfect unique market for the member states, it must be underlined the importance of the results of the harmonisation process of the contract law and the single market and that, in time, the institutions struggled in their tumultuous work for fulfilling the indicated objectives to overcome the interventions from each Member State, interested, also, in shaping a great and prosperous common market, but trying, subsequently, to reason with their traditions, culture, ideological and political choices. The legislation on single market and European contract law is a subjected to the three guiding principles of the European Union: the principle of conferral, which empowers the European Union in terms of competence, the principle of subsidiarity, which underlines the European Union’s competence in a certain field that is shared with a Member State and the principle of proportionality, which applies if the first two principles are validated, dealing with the how the European Union should legislate. However, there are some critics who express their worries in that there are insufficient empirical proofs for redefining the harmonisation process. Taking into account the criticism, the European Court of Justice has ruled in numerous occasions that the authorisation to harmonise laws, with the scope of safeguarding the proper functioning of the European internal market does not grant the European Union a carte blanche in order to interfere with the sake of harmonisation any law it wishes. The way the above indicated principles maintained their roles provided by the treaties or they were subject of modification, by enrichment or limitation, by the caselaw provided by the European Court of Justice, we must investigate in order to picture a possible “finale” of our Single Market and this paper will concentrate of the influence of subsidiarity and proportionality on the fields most dynamic in the past years, the Digital Single Market and its contract law. This paper wishes to clarify how the two fundamental principles, of subsidiarity and proportionality, provided in time by the modifying treaties and consolidated by the European Court of Justice, influenced the evolution of the legislation regarding the Single Market and how those two may help or block the future evolution in the context of a continuous pressure coming from the development of the digital framework and online contracts.

scholarly journals The European Court of Justice and the Policy Process

2018 ◽  
Author(s):  
Susanne K. Schmidt
Keyword(s):  
European Union ◽  
Member State ◽  
Case Law ◽  
European Court Of Justice ◽  
The European Union ◽  
Member States ◽  
Administrative Practices ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

The European Court of Justice is one of the most important actors in the process of European integration. Political science still struggles to understand its significance, with recent scholarship emphasizing how closely rulings reflect member states’ preferences. In this book, I argue that the implications of the supremacy and direct effect of the EU law have still been overlooked. As it constitutionalizes an intergovernmental treaty, the European Union has a detailed set of policies inscribed into its constitution that are extensively shaped by the Court’s case law. If rulings have constitutional status, their impact is considerable, even if the Court only occasionally diverts from member states’ preferences. By focusing on the four freedoms of goods, services, persons, and capital, as well as citizenship rights, the book analyses how the Court’s development of case law has ascribed a broad meaning to these freedoms. The constitutional status of this case law constrains policymaking at the European and member-state levels. Different case studies show how major pieces of EU legislation cannot move beyond case law but have to codify its principles. Judicialization is important in the EU. It also directly constrains member-state policies. Court rulings oriented towards individual disputes are difficult to translate into general policies, and into administrative practices. Policy options are thereby withdrawn from majoritarian decision-making. As the Court cannot be overruled, short of a Treaty change, its case law casts a long shadow over policymaking in the European Union and its member states, undermining the legitimacy of this political order.

6 Responsibility, 6.5 Bosphorus Hava Yollari Turizm veTicaret Anonim Sirketi v Ireland , App. No. 45036/98, European Court of Human Rights, 30 June 2005

2016 ◽  
Author(s):  
Lock Tobias
Keyword(s):  
European Union ◽  
Member State ◽  
Fundamental Rights ◽  
International Organization ◽  
European Court Of Justice ◽  
The European Union ◽  
Concrete Case ◽  
Court Of Justice ◽  
European Court ◽  
The Relationship

In Bosphorus the ECtHR introduced the so-called Bosphorus presumption: if a member state of an international organization acted in compliance with an obligation arising from its membership and had no discretion, there is a rebuttable presumption that the member state has complied with its obligations under the ECHR provided that the organization itself ensures a protection of fundamental rights equivalent to what the Convention requires. The Court considered that the European Union met this test. If an organization provides equivalent protection, the presumption can be rebutted, but only if this protection was manifestly deficient in the concrete case. By formulating the presumption the ECtHR showed a great deal of respect for the European Court of Justice and placed the relationship between the two European courts on relatively solid ground. A number of questions remain, however.

Fighting for Authority: Strategic Actions of National High Courts in the European Union

2019 ◽  
Vol 12 (2-2019) ◽  
pp. 419-433
Author(s):  
Stefanie Vedder
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
Eu Law ◽  
The European Union ◽  
Principal Agent Theory ◽  
Strategic Actions ◽  
High Courts ◽  
Court Of Justice ◽  
European Court ◽  
Lower Courts

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.

A Constitutional Court for Europe?

2004 ◽  
Vol 6 ◽  
pp. 1-34
Author(s):  
Anthony Arnull
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
European Council ◽  
Constitutional Court ◽  
The European Union ◽  
Constitutional Order ◽  
Court Of Justice ◽  
European Court ◽  
The Future ◽  
Draft Constitution

The purpose of this article is to consider the effect of the draft Treaty establishing a Constitution for Europe on the European Court of Justice (ECJ). At the time of writing, the future of the draft Constitution is somewhat uncertain. Having been finalised by the Convention on the Future of Europe in the summer of 2003 and submitted to the then President of the European Council, it formed the basis for discussion at an intergovernmental conference (IGC) which opened in October 2003. Hopes that the text might be finalised by the end of the year were dashed when a meeting of the IGC in Brussels in December 2003 ended prematurely amid disagreement over the weighting of votes in the Council. However, it seems likely that a treaty equipping the European Union with a Constitution based on the Convention’s draft will in due course be adopted and that the provisions of the draft dealing with the ECJ will not be changed significantly. Even if either assumption proves misplaced, those provisions will remain of interest as reflecting one view of the position the ECJ might occupy in a constitutional order of the Union.

6. The preliminary ruling (Article 267 TFEU)

2018 ◽  
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Reference Procedure ◽  
Procedural Law ◽  
Court Of Justice ◽  
European Court

This chapter examines the procedural law of the European Union (EU), focusing on Article 267 of the Treaty on the Functioning of the European Union (TFEU). It explains that Article 267 is the reference procedure by which courts in member states can endorse questions concerning EU law to the European Court of Justice (CoJ). Under this Article, the Court of Justice of the European Union (CJEU) has the jurisdiction to provide preliminary rulings on the validity and interpretation of acts of the institutions, bodies, offices, or agencies of the Union and on the interpretation of the Treaties.

Genesis and Development of Legal Protection before Community Courts: A review of Eva Drewes, Entstehen und Entwicklung des Rechtsschutzes vor den Gerichten der Europäischen Gemeinschaften, Duncker & Humblot, Berlin 2000.

2004 ◽  
Vol 5 (6) ◽  
pp. 741-745
Author(s):  
Timo Tohidipur
Keyword(s):  
European Union ◽  
Legal Protection ◽  
European Court Of Justice ◽  
Brute Force ◽  
The European Union ◽  
Community Based ◽  
Court Of Justice ◽  
European Court ◽  
Sectoral Approach ◽  
Community Courts

The emerging of an early idea, – the idea of a united Europe in peace replacing the destructive force of nationalism – could not have been a proper blueprint for the formation of a European Society until the brute force of the two World Wars prepared the ground for the awareness of political, economical, and social necessities. The first chapter in the book of the European Union regarding this founding idea was written back in 1951/52 by establishing the European Coal and Steel Community (ECSC) as a Community based upon law. At first, following Jean Monnet's sectoral approach toward integration in connection with the idea of supranationalism, unifying element should have been the supranational administrative body called “High Authority” (former name of the Commission in the first ESCS-Treaty). Given that the ECSC arose on the basis of law, one of the first and most important questions seemed to be the need of legal protection framing and balancing the power of the nearly almighty High Authority. This need should be satisfied by the establishment of a European Court of Justice (ECJ) as a permanent Court in the ECSC-Treaty. Although the shape of the former European Community has been immensely changed and extended through the years of integrational process, the once established ECJ still remains the judicial core in the institutional structure. But how did the system of legal protection react on the defiances of the integrational process?

Ne Bis Interpretatio In Idem?The Two Faces of theNe Bis In IdemPrinciple in the Case Law of the European Court of Justice

2017 ◽  
Vol 18 (1) ◽  
pp. 39-58 ◽  
Author(s):  
Alessandro Rosanò
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
European Court Of Justice ◽  
Antitrust Law ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Ne Bis In Idem ◽  
Regional Custom

The meaning ofidemin thene bis in idemprinciple is controversial in the case law of the Court of Justice of the European Union. In interpreting the provision of Article 54 of the Convention Implementing the Schengen Agreement, the court has emphasized the necessary requirement in the identity of the material acts while in antitrust law three requirements have been deemed necessary: (1) Identity of the facts, (2) unity of offender, and (3) unity of the legal interest protected. Despite the opinions of some Advocates General, the court has confirmed different interpretations of the same principle, depending on differences of the legal scope in question. A few years ago, however, the European Court of Human Rights proclaimed the criterion based on the identity of the material acts as the most suitable. This might push the Court of Justice of the European Union to correct its position in the antitrust field. Should this happen, this adjustment might serve as grounds to recognize the existence of a regional custom concerning thene bis in idemprinciple.

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