Criminalization of irregular migration Between the domestic courts and the Court of Justice of the European Union

2021 ◽  
pp. 109-119
Author(s):  
Zuzanna Brocka
Keyword(s):  
European Union ◽  
The European Union ◽  
Irregular Migration ◽  
Court Of Justice ◽  
Domestic Courts

scholarly journals Made in Luxembourg: The fabrication of the law on jurisdiction of the court of justice of the European Union in the field of the Common Foreign and Security Policy

2018 ◽  
Author(s):  
Joni Heliskoski
Keyword(s):  
European Union ◽  
Security Policy ◽  
Legal Protection ◽  
Case Law ◽  
The European Union ◽  
Court Of Justice ◽  
Domestic Courts ◽  
Foreign And Security Policy ◽  
History Of ◽  
The Common

The article provides an analysis of the case law of the Court of Justice of the European Union on the interpretation of Articles 24 TEU, first paragraph, second subparagraph, and 275 TFEU governing the question of the Court’s jurisdiction in the field of the Common Foreign and Security Policy (CFSP). The article first describes the background of those provisions as they resulted from the Convention on the Future of Europe and the 2003-4 and 2007 Intergovernmental Conferences and then compares the Court’s understanding of its jurisdiction to the drafting history of the provisions concerned. The main conclusion of the study of the case law suggests that the Court views its jurisdiction over the CFSP more broadly than the jurisdiction envisaged by the drafters of the Treaties. In particular, the Court both interprets the exclusion from its jurisdiction of acts based on the Treaty’s CFSP provisions in a narrow fashion and is prepared to review the legality of CFSP acts not only through direct actions but also through references for a preliminary ruling. However, the article argues that the provision of adequate legal protection in the field of the CFSP necessarily requires both the Court of Justice and domestic courts of the Member States to play their respective roles.

scholarly journals Court of Justice of the European Union (Ninth Chamber), WT v Subdelegación del Gobierno en Guadalajara

2020 ◽  
Vol 22 (3) ◽  
pp. 457-462
Author(s):  
Diego Acosta
Keyword(s):  
European Union ◽  
Case Report ◽  
Preliminary Ruling ◽  
The European Union ◽  
Criminal Offence ◽  
Residence Permit ◽  
Court Of Justice ◽  
Domestic Courts ◽  
State Liability

Abstract This case report provides an account of the issues in the preliminary ruling of the Court of Justice of the European Union (CJEU) in the WT case. The case centres on the elements that need to be considered under Directive 2003/109 before expelling a third-country national, holding a long-term residence permit, who has committed a criminal offence. This case report discusses the interpretation of Article 12 of Directive 2003/109, in particular the concept of threat to public policy, describes the incorrect previous reading by the Spanish Supreme Court of that provision, the possible case for a state liability claim against Spain as a result of that, and the importance of the dialogue between lower-level domestic courts and the Court of Justice on migration matters.

The European Legal Order

2017 ◽  
Author(s):  
Bernard Stirn
Keyword(s):  
European Union ◽  
Human Rights ◽  
Legal Order ◽  
European Convention ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Domestic Courts ◽  
The Law ◽  
The Eu

Chapter 3 shows that the confluence of the law of the European Union and of the European Convention on Human Rights is a European legal order worthy of the name. It outlines the law of the European Union after the Lisbon Treaty, setting out its principles and the ways in which competences are shared in the EU post Lisbon, between the European Council, the Council, the Commission, the European Parliament, and the Court of Justice of the European Union. The chapter further sets out the outline of the system of rules of the European Union. Then the chapter turns to the characteristics of what has been termed a Europe of human rights, and how the European Court of Human Rights (ECHR), in conjunction with domestic courts, police the law of the European Convention on Human Rights. Finally, the chapter brings together the law of the European Union and the ECHR.

International Jurisdiction for Investor Claims Based on Prospectus Liability following CJEU 12.9.2018, C-304/17, Löber/Barclays

2021 ◽  
Vol 12 (1) ◽  
pp. 65-81
Author(s):  
Thomas Thiede ◽  
Steffen Lorscheider
Keyword(s):  
European Union ◽  
Financial Markets ◽  
Methodological Approach ◽  
Case Law ◽  
The European Union ◽  
Related Case ◽  
Procedural Law ◽  
Court Of Justice ◽  
Domestic Courts ◽  
Prospectus Liability

Abstract Lately, the value of many products on foreign financial markets has dropped considerably. As a result, affected investors regularly strive to hold the issuers of these products liable before domestic courts. In the following, the relevant European rules of international civil procedural law and the related case law of the Court of Justice of the European Union will be examined. Thereafter, a fresh methodological approach to the questions at hand will be presented.

Kadi and the Role of the Court of Justice of the European Union in the International Legal Order

2013 ◽  
Vol 15 ◽  
pp. 587-617
Author(s):  
Veronika Fikfak
Keyword(s):  
European Union ◽  
Active Role ◽  
Legal Order ◽  
Constitutional Court ◽  
The European Union ◽  
National Courts ◽  
Court Of Justice ◽  
Domestic Courts ◽  
International Legal Order

AbstractThis chapter investigates the role of the Court of Justice of the European Union (CJEU) in the international legal order in light of its decision in Kadi and the forthcoming Kadi II. It focuses on establishing how the Court perceives its relationship with the UN Security Council and its position in the international legal order. The CJEU’s approach is analysed by identifying the characteristics of review adopted by it as a ‘constitutional court of a municipal legal order’. In this context, the chapter reveals how the CJEU’s review resembles that employed by domestic courts seeking to give force to the same or similar actions of international institutions and shows which motives may have led the CJEU to follow the practice of national courts in constructing its relationship with the international organs. This practice is contrasted with Advocate General Bot’s desire to depart from the image of an all-powerful but isolated CJEU, a court ignorant of other legal orders. Bot insists that what the CJEU ought to do in Kadi II is adopt both a more modest, deferential role in reviewing international sanctions and a rather more active role as a participant in the international legal order.

scholarly journals Article 3(5) TEU a decade on: Revisiting ‘strict observance of international law’ in the text and context of other EU values

2021 ◽  
pp. 1023263X2110151
Author(s):  
Rupert Dunbar
Keyword(s):  
European Union ◽  
International Law ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
Balanced Approach ◽  
Court Of Justice ◽  
External Relations ◽  
Domestic Courts ◽  
The Eu

Article 3(5) of the Treaty on the European Union concerns EU external relations and was a new provision of the Lisbon Treaty. It has been seized upon by scholars for its reference to ‘strict observance of international law’ by the EU in its relations with the wider world. However, recent case law in the Court of Justice of the European Union has demonstrated little movement towards this supposed ideal. This article supports the fact that rigid and unquestioning adherence to international law has not emerged in case law, particularly as Article 3(5) TEU also mandates that the Union ‘uphold and promote its values and interests’. By taking a broader view of both the text and context of Article 3(5) TEU in EU law as a whole, and through consideration of the limited demands international law places on domestic courts, the article argues that – contrary to current literature – a more expressly balanced approach towards respect for international law is required and should be nurtured in the case law.

scholarly journals Objective justification, less discriminatory alternatives, and the ‘Great Repeal Bill’

2017 ◽  
Vol 17 (3) ◽  
pp. 195-212
Author(s):  
Michael Connolly
Keyword(s):  
European Union ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
Indirect Discrimination ◽  
Domestic Courts ◽  
Apparent Reason ◽  
The Uk ◽  
Domestic Law ◽  
The Eu

On the 13 July of this year, the UK Government published the European Union (Withdrawal) Bill, 1 more commonly called the ‘Great Repeal Bill’. Aside from the repeal of the European Communities Act 1972 (and with it the proposed ousting of the jurisdiction of the Court of Justice), the Bill’s purpose is to ‘convert the acquis’ of EU law and preserve any UK law implementing EU law.2 This will include ‘workers’ rights’ and with it their employment discrimination rights.3 The efficacy of such a move will be limited if the British judges fail to adopt the same interpretations of these rights as their counterparts in the Court of Justice in Luxembourg. Over the years of Britain’s membership, there have been many references to Luxembourg to clarify the meaning of particular aspects of the discrimination provisions, with the Court generally giving a more liberal interpretation than the domestic courts had suggested would be their preference. One element of the law largely untouched by this process is the objective justification defence to claims of indirect discrimination. This is because the domestic courts have maintained a fiction that their interpretation is consistent with the EU formula. For no apparent reason, the domestic courts have reworded the EU formula while labelling it as being no different. This presents a major challenge for the Bill. It would be all too easy for Parliament to assume all is well with this aspect of workers’ rights, especially when the judges tell them so. Using a handful of cases, this article exposes the shortfalls within the domestic law and suggests some solutions. It is not the purpose of this article to discuss the Bill (which no doubt is due for many amendments), but to focus on one important aspect of discrimination law, both pre- and post-Brexit.

ACCOUNTABILITY MECHANISMS FOR HUMAN RIGHTS VIOLATIONS BY CSDP MISSIONS: AVAILABLE AND SUFFICIENT?

2016 ◽  
Vol 66 (1) ◽  
pp. 181-207 ◽  
Author(s):  
Stian Øby Johansen
Keyword(s):  
European Union ◽  
Human Rights ◽  
European Convention ◽  
Human Rights Violations ◽  
International Level ◽  
The European Union ◽  
Eu Member States ◽  
Court Of Justice ◽  
Domestic Courts ◽  
Defence Policy

AbstractThis article demonstrates that it is doubtful whether the accountability mechanisms available in connection with operative missions conducted under the EU's Common Security and Defence Policy (CSDP) provide a sufficient level of protection when human rights are violated. The assessment of the CSDP accountability mechanisms—the Court of Justice of the European Union, domestic courts of EU Member States, and other mechanisms at the international level—is conducted in light of the requirements laid down in Article 13 of the European Convention of Human Rights. The consequences of the insufficiency of these mechanisms for the EU's accession to the ECHR are also touched upon.

scholarly journals JUDICIAL REVIEW IN THE EU'S COMMON FOREIGN AND SECURITY POLICY

2017 ◽  
Vol 67 (1) ◽  
pp. 1-35 ◽  
Author(s):  
Panos Koutrakos
Keyword(s):  
European Union ◽  
Judicial Review ◽  
Security Policy ◽  
Case Law ◽  
Recent Case ◽  
The European Union ◽  
National Courts ◽  
Court Of Justice ◽  
Domestic Courts ◽  
Foreign And Security Policy

AbstractThe EU's Common Foreign and Security Policy (CFSP) was conceived of as an area ill-suited for full judicial review by the Court of Justice of the European Union. The Lisbon Treaty confers on the Court limited jurisdiction which the recent case law has interpreted in broad terms. This article will place this case law in the broader constitutional setting of the EU legal order and will provide a critical analysis of its implications for both the EU's and domestic courts. The analysis is structured on the basis of three main themes. The first is about the position of CFSP in the EU's constitutional architecture: the article will analyse the constitutional ambivalence that characterizes this position and how it is conveyed by the provisions of the Treaty on the European Union and the Treaty on the Functioning of the European Union governing the Court's jurisdiction. The second theme is about the recent case law, and the integrationist approach that the Court of Justice has adopted to the scope of its jurisdiction. The third theme is about national courts: the article will argue that recent case law has been too quick to dismiss them, and that primary law renders them an essential part of the judicial review system governing CFSP.

Kadi and the Role of the Court of Justice of the European Union in the International Legal Order

2013 ◽  
Vol 15 ◽  
pp. 587-617
Author(s):  
Veronika Fikfak
Keyword(s):  
European Union ◽  
Active Role ◽  
Legal Order ◽  
Constitutional Court ◽  
The European Union ◽  
National Courts ◽  
Court Of Justice ◽  
Domestic Courts ◽  
International Legal Order

AbstractThis chapter investigates the role of the Court of Justice of the European Union (CJEU) in the international legal order in light of its decision inKadiand the forthcomingKadi II. It focuses on establishing how the Court perceives its relationship with the UN Security Council and its position in the international legal order. The CJEU’s approach is analysed by identifying the characteristics of review adopted by it as a ‘constitutional court of a municipal legal order’. In this context, the chapter reveals how the CJEU’s review resembles that employed by domestic courts seeking to give force to the same or similar actions of international institutions and shows which motives may have led the CJEU to follow the practice of national courts in constructing its relationship with the international organs. This practice is contrasted with Advocate General Bot’s desire to depart from the image of an all-powerful but isolated CJEU, a court ignorant of other legal orders. Bot insists that what the CJEU ought to do inKadi IIis adopt both a more modest, deferential role in reviewing international sanctions and a rather more active role as a participant in the international legal order.

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