scholarly journals Legal significance of the decisions of the court of the European Union concerning the application of commonwealth energy legislation in the energy sphere by other states-participants and issue on the use of such decisions by the courts of Ukraine in the resolution of relevant disputes

2021 ◽  
Author(s):  
Maryna Semenova
Keyword(s):  
European Union ◽  
Eu Law ◽  
The European Union ◽  
Legal Form ◽  
Member States ◽  
Association Agreement ◽  
Court Of Justice ◽  
European Court ◽  
Energy Community ◽  
The Eu

Problem setting. The Court of the European Union is a central term, which characterizes the entire court system of the European Union, which, without a doubt, includes three lanes: the Court of Justice, the Zagalny Court and special judges. Such an institute is aimed at accepting new acts of legal form and legal significance, and the very decision, the decision of the institution. The acceptance of such acts is a manifestation of the implementation of the judicial competence of the named institution, however, the link with the system is determined by the following: which may be the reason for the nature of precedent practice; both the established stench for the use of the Court itself by the Court of Justice itself, as well as by the other institutions, which have been approved by Article 13 of the Treaty on the European Union; what is the decision of the Court EU norms of law EU. Analysis of the meaningful nutrition is the subject of a complete dosage. Analysis of recent researches and publications. The legal meaning of the decision to the Court of the European Union and the possibility of implementing such decisions before the legislation of Ukraine. Target of research is to examine the status of decisions of the Court of Justice of the European Union as a precedent. Article’s main body. The research is devoted to the analysis of the legal significance of the decisions of the Court of Justice of the European Union on the application of acts of the legislation of the Energy Community in the field of energy by the courts of Ukraine in resolving relevant disputes. It is noted that the Court of Justice of the EU is a judicial institution of another legal order, an international organization – the European Union, whose practice is fundamental to the development of the rule of law in the European Union. However, it is stated that the national courts of the EU member states are tasked with the daily application of EU law in accordance with the principles of supremacy, direct action and responsibility of member states for compliance with EU law. It is established that the legal basis for the functioning of the electricity market is the Constitution of Ukraine, special laws, international treaties of Ukraine, approved by the Verkhovna Rada of Ukraine, and other legislation of Ukraine, according to which the subjects of power and courts In applying the provisions of this Law, the law enforcement practice of the Energy Community and the European Union shall be taken into account, in particular decisions of the Court of Justice of the European Union (European Court of Justice, General Court), the European Commission and the Energy Community Secretariat. Conclusions and prospects for the development. A systematic analysis of the norms of national and international law allows us to conclude that the provisions of the Association Agreement between Ukraine and the EU are part of the national legislation of Ukraine, its provisions are mandatory and binding throughout Ukraine. Therefore, the case law of the Court of Justice of the European Union is applicable to the courts of Ukraine in resolving disputes concerning the application of energy legislation in the field of energy by other member states in full in the same manner as for the application of European Court of Human Rights.

Review by Constitutional Courts of the Obligation of National Courts of Last Instance to Refer a Preliminary Question to the Court of Justice of the EU

2015 ◽  
Vol 16 (6) ◽  
pp. 1663-1700 ◽  
Author(s):  
Clelia Lacchi
Keyword(s):  
European Union ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
Constitutional Review ◽  
National Courts ◽  
Court Of Justice ◽  
Judicial Remedy ◽  
The Eu

The Constitutional Courts of a number of Member States exert a constitutional review on the obligation of national courts of last instance to make a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU).Pursuant to Article 267(3) TFEU, national courts of last instance, namely courts or tribunals against whose decisions there is no judicial remedy under national law, are required to refer to the CJEU for a preliminary question related to the interpretation of the Treaties or the validity and interpretation of acts of European Union (EU) institutions. The CJEU specified the exceptions to this obligation inCILFIT. Indeed, national courts of last instance have a crucial role according to the devolution to national judges of the task of ensuring, in collaboration with the CJEU, the full application of EU law in all Member States and the judicial protection of individuals’ rights under EU law. With preliminary references as the keystone of the EU judicial system, the cooperation of national judges with the CJEU forms part of the EU constitutional structure in accordance with Article 19(1) TEU.

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.

The Practices of ‘Splitting’ and ‘Common Accord’ Under Scrutiny: the European Parliament‘s Request for an Opinion of the European Court of Justice on the Istanbul Convention

2020 ◽  
Vol 45 (4) ◽  
pp. 472-486
Author(s):  
Elizaveta Samoilova
Keyword(s):  
European Union ◽  
Legal Framework ◽  
Special Focus ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
Forms Of Violence ◽  
Istanbul Convention ◽  
The Eu

Abstract With all eyes on the recent global COVID-19 pandemic, another pandemic has been growing in the shadows: violence against women. The Council of Europe’s Istanbul Convention creates a legal framework in order to protect women against all forms of violence. Its ratification process, however, has faced considerable challenges, particularly in the Central and Eastern European Member States. This article discusses the basic elements of the Istanbul Convention, reflects on the ratification process in the EU and its Member States, and sets out the main legal issues raised in the European Parliament’s request for an opinion (A-1/19 of 22 November 2019) to the Court of Justice of the European Union. Special focus is put on the choice of the correct EU legal basis and the practices of ‘splitting’ and ‘common accord’. This article argues that the European Parliament’s request for an opinion provides the perfect opportunity for the Court of Justice of the European Union to further clarify the law and the practice of concluding mixed agreements by the EU and its 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

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.

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.

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.

Negotiating Turkey's Membership to the European Union. Can the Member States Do As They Please?

2007 ◽  
Vol 3 (2) ◽  
pp. 269-284 ◽  
Author(s):  
Christophe Hillion
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
The European Union ◽  
Member States ◽  
Constitutional Order ◽  
European Union Enlargement ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

Limits to member states' discretion in European Union enlargement negotiations – Changing the fundamentals of the EU constitutional order through the conclusion of accession treaties – The case of Turkey – Caveats, precautions and fallback strategies in the ‘Negotiating Framework for Turkey’ – Enforcing the limits to member states' discretion in European Union enlargement negotiations – The jurisdiction of the European Court of Justice before ratification and after entry into force.

scholarly journals EU Values Are Law, after All: Enforcing EU Values through Systemic Infringement Actions by the European Commission and the Member States of the European Union

2021 ◽  
Author(s):  
Kim Lane Scheppele ◽  
Dimitry Vladimirovich Kochenov ◽  
Barbara Grabowska-Moroz
Keyword(s):  
European Union ◽  
Member State ◽  
Rule Of Law ◽  
Eu Law ◽  
The European Union ◽  
Basic Principles ◽  
Member States ◽  
The Rule Of Law ◽  
Court Of Justice ◽  
The Eu

Abstract Although compliance with the founding values is presumed in its law, the Union is now confronted with persistent disregard of these values in two Member States. If it ceases to be a union of Rule-of-Law-abiding democracies, the European Union (EU) is unthinkable. Purely political mechanisms to safeguard the Rule of Law, such as those in Article 7 Treaty of European Union (TEU), do not work. Worse still, their existence has disguised the fact that the violations of the values of Article 2 TEU are also violations of EU law. The legal mechanisms tried thus far, however, do not work either. The fundamental jurisprudence on judicial independence and irremovability under Article 19(1) TEU is a good start, but it has been unable to change the situation on the ground. Despite ten years of EU attempts at reining in Rule of Law violations and even as backsliding Member States have lost cases at the Court of Justice, illiberal regimes inside the EU have become more consolidated: the EU has been losing through winning. More creative work is needed to find ways to enforce the values of Article 2 TEU more effectively. Taking this insight, we propose to turn the EU into a militant democracy, able to defend its basic principles, by using the traditional tools for the enforcement of EU law in a novel manner. We demonstrate how the familiar infringement actions—both under Article 258 and 259 TFEU—can be adapted as instruments for enforcing EU values by bundling a set of specific violations into a single general infringement action to show how a pattern of unlawful activity rises to the level of being a systemic violation. A systemic violation, because of its general and pervasive nature, in itself threatens basic values above and beyond violations of individual provisions of the acquis. Certified by the Court of Justice, a systemic violation of EU law should call for systemic compliance that would require the Member State to undo the effects of its attacks on the values of Article 2. The use of Article 260 Treaty on the Functioning of the EU (TFEU) to deduct fines from EU funds due to be received by the troubled Member State would provide additional incentives for systemic compliance. We illustrate this proposed militant democratic structure by explaining and critiquing what the Commission and Court together have done to reign in the governments of Hungary and Poland so far and then showing how they can do better.

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