European Court of Human Rights case law as a source of European Union law

2021 ◽  
Author(s):  
Dmytro Boichuk ◽  
Vitalii Hryhoriev
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Court ◽  
Legal Nature ◽  
The Eu

The article is devoted to the study of the legal nature of the decisions of the European Court of Human Rights as a source of law of the European Union. Within the scope of the doctrinal sources and the existing case law of the European Court of Human Rights and the Court of Justice of the European Union, the authors substantiate the logic of including existing the European Court of Human Rights case law in the EU law sources, citing arguments based on the EU law and the case law.

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.

scholarly journals Refl ections on the Principle of Equal Treatment in EU Law and the Jurisprudence of the Court of Justice of the European Union and the European Convention on Human Rights

2020 ◽  
Vol 9 (1) ◽  
pp. 5-23
Author(s):  
Marija Daka
Keyword(s):  
European Union ◽  
Human Rights ◽  
Equal Treatment ◽  
European Convention ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Court ◽  
Complex Approach

The paper presents some of the most relevant aspects of European nondiscrimination law established th rough European Union law and the European Convention on Human Rights, looking also at the evolution of the norms and milestones of case-law on equal treatment within the two systems. The paper gives an overview of the non-discrimination concept as interpreted by the Court of Justice of the European Union and by the European Court of Human Rights. We examine the similar elements but also give insight into conceptual differences between the two human rights regimes when dealing with equal treatment. The differences mainly stem from the more complex approach taken by EU law although, based on analysed norms, cases, and provisions, the aspects of equal treatment in EU law are largely consistent with the practice of the ECtHR. Lastly, the paper briefl y places the European non-discrimination law within the multi-layered human rights system, giving some food for thought for the future potential this concept brings.

Narratives of Constitutionalization in the European Union Court of Justice and in the European Court of Human Rights’ Case Law

ICL Journal ◽  
2017 ◽  
Vol 11 (1) ◽  
pp. 11-41
Author(s):  
Maurizio Arcari ◽  
Stefania Ninatti
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Legal Systems ◽  
The European Union ◽  
European Union Law ◽  
The Core ◽  
Court Of Justice ◽  
European Court

Abstract Constitutionalization is a peculiar process which characterizes the whole fabric of modern international law. It may however display different levels of evolution and different implications when distinct legal sub-systems are considered: this appears to be especially true at the European level, in particular in the context of the European Union law and of the European Convention on Human Rights. This article aims at unveiling the key elements of the constitutionalization process as developed by the judges sitting in Luxembourg and Strasbourg. In their relevant case law, both the EU Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) have identified the core concepts and elements lying behind the constitutionalization of their respective legal systems. The analysis of the ECJ and ECtHR case law will be divided into two different parts dealing with the internal dimension from one side, and external one from the other side. While presenting nuances and implications that are linked to the diverse degree of integration of the two legal systems, it may be submitted that the core elements of constitutionalization depicted by the Luxembourg and Strasbourg judges reveal some common patterns.

Legal conflict between the EU and the republic of Poland regarding polish judicial reform

2021 ◽  
Author(s):  
Ivan Yakovyuk ◽  
Suzanna Asiryan ◽  
Anastasiya Lazurenko
Keyword(s):  
European Union ◽  
Judicial Reform ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
Legal Nature ◽  
Constitutional Tribunal ◽  
The Republic ◽  
The Eu

Problem setting. On October 7, 2021, the Constitutional Tribunal of the Republic of Poland ruled in favor of Polish law over European Union law, which in the long run may violate the principles according to which the Union operates and the rights enjoyed by citizens of the state. Such a precedent can further serve as a basis for identical decisions of the bodies of constitutional jurisdiction of those states that have problems in fulfilling their obligations in the European community. Analysis of recent researches and publications. The problems of the functioning of the bodies of the European Union, the implementation of their decisions and the general status in EU law are widely studied in national science. In particular, many scholars have studied the legal nature of the EU, including: TM Anakina, VI Muravyov, NM Ushakov, A. Ya. Kapustina, NA Korolyova, Yu. Yumashev, BN Topornin, OYa Tragniuk, SS Seliverstov, IV Yakovyuk and others. Target of research is to establish the foundations of EU law in the functioning of Union bodies, especially the Court, as well as to determine the hierarchy of national law and EU law. Article’s main body. Over the years, the Court has, within its jurisdiction, issued a large number of judgments which have become the source of the Union’s Constituent Treaties and of EU law in general. Over the last two decades, the powers of the Court of Justice have changed significantly. In particular, this is due to the adoption of the Lisbon Treaty, which amended the EU’s founding treaties on the powers of the Court, then the reform of the European Court took place in 2015-2016, which concerned a change in the organizational structure of the Court. Despite the generally well-established case law of the Court of Justice of the European Union on the unification of the observance by the Member States of the basic principles of the European Union, the Constitutional Tribunal of the Republic of Poland adopted a decision on 7 October. Conclusions and prospects for the development. Following the decision of the Constitutional Court, the Polish authorities found themselves in a situation that significantly complicated its internal and external situation. The way out of which requires answers to fundamental questions about the legal nature of the EU. Undoubtedly, this is an issue not only between Poland and the EU, but also between other member states.

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

The German Constitutional Court and Preliminary References—Still a Match not Made in Heaven?

2015 ◽  
Vol 16 (6) ◽  
pp. 1491-1508
Author(s):  
Eva Julia Lohse
Keyword(s):  
European Union ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Court Of Justice ◽  
European Court ◽  
German Constitutional Court ◽  
In The Beginning ◽  
The Eu

So far, the German Constitutional Court (Bundesverfassungsgericht, henceforth:BVerfG) has only made a single preliminary reference to the (now) Court of Justice of the European Union (CJEU), despite frequent rulings on matters connected with European Union (EU) Law. Its apparent reluctance seemed odd considering the atmosphere of dialogue and cooperation which prevails between the non-constitutional courts and the EU courts. This situation might, however, have changed with the preliminary reference from January 2014, proving predictions on the perceived “most powerful constitutional court” and its relationship to the EU partly wrong. The legal effects of its preliminary reference on the interpretation of Articles 119, 123, 127 ff. of the Treaty on the Functioning of the European Union (TFEU) and the validity of Outright Monetary Transactions (OMT) by the European Central Bank (ECB) under EU Law are as yet unclear; although the Opinion of the Advocate General Cruz Villalón was delivered in the beginning of 2015, which did not confirm the doubts expressed by theBVerfGabout the conformity of the OMT programme with EU law. Nonetheless, the interpretative scheme and the normative questions as to the reluctance of theBVerfGremain the same after this single referral and offer explanations as to why theBVerfGhad for nearly sixty years not referred a question to the former European Court of Justice (ECJ).

14. The European Union

2017 ◽  
Author(s):  
Berthold Rittberger
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
Legal Rules ◽  
Constitutional Order ◽  
Constitutional Principle ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

This chapter examines how the European Union acquired distinctive constitution-like features. It begins with a discussion of three routes to constitutionalization: the first is through changes in the EU's primary law; the second focuses on ‘in between’ constitutionalization; and the third leads directly to the European Court of Justice and its jurisprudence. The chapter proceeds by discussing two developments that have shaped the EU constitutional order almost since the beginning: the emergence of a body of EU law constituting a set of higher-order legal rules, and the consolidation of the constitutional principle of representative democracy. It explains how the supremacy and direct effect of EU law, as well as the EU court's concern with the protection of fundamental rights, helped transform the EU into a constitutional polity. It also considers how the extension of the legislative, budgetary, and other powers of the European Parliament animated the constitutional principle.

Between Informal Dialogue and Official Criticism

2019 ◽  
Vol 21 (5) ◽  
pp. 409-420
Author(s):  
Anna Podolska
Keyword(s):  
European Union ◽  
Human Rights ◽  
Mutual Recognition ◽  
Case Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Proceedings

Abstract There are various forms of jurisdictional dialogue. In addition to drawing from the case law of another court or seeking direct assistance of such another court in passing the judgment, we can notice in practice situations when by issuing a verdict the courts are communicating with each other. The rulings of the Bundesverfassungsgericht, the Court of Justice of the European Union, and the European Court of Human Rights regarding the free movement of judgments in the European Union and protection of fundamental rights are the example of such activities. Each of these bodies was interpreting separately the extent to which the mechanisms of recognising and executing the judgments may interfere with the level of protection of fundamental rights. A common conclusion concerns assigning the priority to protection of fundamental rights, while individual bodies were determining differently the standards of such protection. The analysed judgments can be construed as a communication between these bodies. Although no direct discussion takes place between these courts, this is still a form of interaction which affects the development of the case law and understanding of the boundaries of mutual recognition of judgments and protection of human rights within judicial proceedings.

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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