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.

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.

scholarly journals INTERNATIONAL JURISDICTION RULES IN MATTERS OF PARENTAL RESPONSIBILITY IN THE EUROPEAN UNION AND BOSNIA AND HERZEGOVINA: THE CONCEPT OF HABITUAL RESIDENCE V. NATIONALITY

2012 ◽  
Vol 2 (2) ◽  
pp. 4-14
Author(s):  
Jasmina Alihodžić ◽  
Keyword(s):  
European Union ◽  
Bosnia And Herzegovina ◽  
European Court Of Justice ◽  
Eu Law ◽  
The European Union ◽  
Parental Responsibility ◽  
Habitual Residence ◽  
International Jurisdiction ◽  
Court Of Justice ◽  
European Court

The rules of jurisdiction in matters of parental responsibility contained in the Brussels II bis Regulation are based on the concept of habitual residence, while the legislation in B&H in this area gave priority to the principle of nationality. Analyzing these concepts, the author of the paper points to the importance of interpreting the concept of habitual residence by the European Court of Justice, and gives possible directions for reform of the relevant provisions of the PIL Act in terms of their compliance with EU law.

11. Free movement of goods II: non-tariff barriers

2020 ◽  
pp. 287-318
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
European Commission ◽  
Case Law ◽  
European Court Of Justice ◽  
Free Movement ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Free Movement Of Goods

This chapter examines European Union (EU) law concerning non-tariff barriers to free movement of goods. It describes member states’ attempts to influence imports and the way the European Commission and the European Court of Justice (CoJ) handled these issues. This chapter explains the provisions of the relevant legislation for non-tariff barriers, which include Articles 34, 36, and 35 of the Treaty on the Functioning of the European Union (TFEU). It also analyses example cases including ‘Dassonville’, ‘Cassis de Dijon’, and post ‘Keck’ case law. It concludes with a consideration of the latest trend of cases concerning product use and residual rules.

Understanding ICSID Article 54

2020 ◽  
Author(s):  
George A Bermann
Keyword(s):  
European Union ◽  
National Court ◽  
Secretary General ◽  
European Court Of Justice ◽  
Eu Law ◽  
The European Union ◽  
Legislative History ◽  
Court Of Justice ◽  
European Court ◽  
State Practice

Abstract To the surprise of many, questions have recently arisen over the scope of inquiry, if any, that a national court may, consistent with Article 54 of the ICSID Convention, make in connection with the enforcement of an ICSID award. It has long been assumed in many, if not most, quarters that a national court is privileged to condition enforcement of an ICSID Convention award on a single simple requirement, viz. that the award be certified by the Secretary-General of ICSID. Until recently, doubts over whether that is so have been raised in a very small number of jurisdictions. But the Commission of the European Union has taken the view that an ICSID Convention award may be denied enforcement if it is contrary to a principle of “autonomy” of EU law and, based on its judgment in Achmea case in connection with non-ICSID awards, the European Court of Justice most likely takes the same view. This suggests that the European Union regards violation of EU public policy, more generally, as a defense to enforcement of an ICSID award. Based on text, object and purpose, legislative history, and predominant state practice, this position appears to run seriously afoul of the ICSID Convention. At the same time, some meaning must be given to the language in Article 54 according to which an ICSID award must be enforced by a national court “as if it were a final judgment of a court” of the enforcing State. The author finds that the understanding of Article 54 that best reflects all pertinent considerations is that it imposes on courts the modest requirement that they subject the enforcement of ICSID awards to no more restrictive or onerous procedures than they impose on the enforecement of national judgments.

4. Sources and forms of EU law

2020 ◽  
pp. 100-130
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
Legal System ◽  
International Agreements ◽  
European Court Of Justice ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

This chapter examines the forms and sources of European Union (EU) law. It describes the nature of the EU legal system and discusses the classification of various elements of EU law, which include institutional laws, procedural laws, and substantive laws. It explains that the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) are the principal sources of law for the Union. Other sources include regulations, Directives, procedural requirements, and international agreements and conventions. This chapter also discusses the contribution of the European Court of Justice (CJEU) to the sources of EU law.

11. Free movement of goods II: non-tariff barriers

2018 ◽  
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
European Commission ◽  
European Court Of Justice ◽  
Free Movement ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
Free Movement Of Goods

This chapter examines European Union (EU) law concerning non-tariff barriers to free movement of goods. It describes member states’ attempts to influence imports and the way the European Commission and the European Court of Justice (CoJ) handled these issues. This chapter explains the provisions of the relevant legislation for non-tariff barriers, which include Articles 34, 36, and 35 of the Treaty on the Functioning of the European Union (TFEU). It also analyses example cases including ‘Dassonville’, ‘Cassis de Dijon’, and ‘Keck’.

4. Sources and forms of EU law

2018 ◽  
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
Legal System ◽  
International Agreements ◽  
European Court Of Justice ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

This chapter examines the forms and sources of European Union (EU) law. It describes the nature of the EU legal system and discusses the classification of various elements of EU law, which include institutional laws, procedural laws, and substantive laws. It explains that the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) are the principal sources of law for the Union. Other sources include regulations, Directives, procedural requirements, and international agreements and conventions. This chapter also discusses the contribution of the European Court of Justice (CoJ) to the sources of EU law.

The Zuchtvieh-Export GmbH v. Stadt Kempten Case—The Triggering of a Substantial Link to ‘Export’ EU Animal Welfare Law?

2017 ◽  
Author(s):  
Anna Oriolo
Keyword(s):  
European Union ◽  
Animal Welfare ◽  
Welfare Policy ◽  
European Court Of Justice ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Environmental Norms

In the 2015 judgment in the Zuchtvieh-Export GmbH v. Stadt Kempten case, the European Court of Justice extended EU standards on animal welfare beyond the Union’s boundaries, stating that the requirements relating to watering and feeding intervals as well as the duration of journeys and resting periods also apply to those stages of the transport taking place outside the European Union. In addition to representing a landmark judgment in the sphere of improving EU animal welfare policy, in the author’s view, this case is particularly innovative as it indicates a Court of Justice’s novel trend to export EU law to third states, offering a substantial link to the “territorial extension” of EU social and environmental norms to non-EU states.

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.

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.

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