scholarly journals A positivist approach to rights of nature in the European Union

2021 ◽  
Vol 12 (2) ◽  
pp. 205-227
Author(s):  
Yaffa Epstein ◽  
Hendrik Schoukens
Keyword(s):  
European Union ◽  
Legal Rights ◽  
Eu Law ◽  
The European Union ◽  
Public Interest Litigation ◽  
National Courts ◽  
Legal Obligations ◽  
Rights Of Nature ◽  
Explicit Recognition ◽  
The Eu

A growing number of jurisdictions throughout the world have recognized some type of legal rights of nature. This jurisprudential trend has thus far made few inroads in Europe. However, its apparent absence is misleading. In this article we argue that, explicit or not, nature as protected by European Union (EU) law already has certain legal rights in the Hohfeldian sense because other entities have legal obligations towards it. Moreover, we argue that recent decisions of the Court of Justice of the EU can be interpreted to support our claim that nature, as protected by EU law, already enjoys some legal rights that cannot be trumped by mere utilitarian interests, and that these rights can in turn be recognized and applied by national courts. We further suggest that public interest litigation can contribute to developing rights for nature in Europe, even absent any explicit recognition of these rights in EU law or in national legislation.

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.

Reading the Tea Leaves: The Polish Constitutional Tribunal and the Preliminary Ruling Procedure

2015 ◽  
Vol 16 (6) ◽  
pp. 1543-1568
Author(s):  
Aleksandra Kustra
Keyword(s):  
European Union ◽  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
Tea Leaves ◽  
National Courts ◽  
Legal Provisions ◽  
Constitutional Tribunal ◽  
The Relationship ◽  
The Eu

The main purpose of the preliminary ruling procedure is to prevent divergences in judicial decisions applying European Union (EU) law and to ensure the uniform interpretation of EU legal provisions across Member States. The procedure, introduced in the Founding Treaties, has provided a platform for the Court of Justice of the European Union (hereafter, the ECJ or the CJEU) to deliver seminal judgments that have progressively defined the relationship between national and EU legal systems, among others. The procedure has also helped the ECJ to develop fundamental principles of EU law, including direct effect, indirect effect (i.e., the interpretation of national law in line with directives) and primacy. Being one of the most important aspects of the EU judicial system, the procedure provided by Article 267 of the Treaty on the Functioning of the European Union (hereafter, TFEU) has had an immense impact on the harmonious development of EU law and the way in which national courts and EU courts interact and communicate.

Administrative Procedure and Judicial Review in the European Union

2021 ◽  
pp. 47-49
Author(s):  
Matteo Gnes
Keyword(s):  
European Union ◽  
Judicial Review ◽  
Eu Law ◽  
The European Union ◽  
Administrative Procedure ◽  
Administrative Action ◽  
National Courts ◽  
The Common ◽  
Procedural Requirement ◽  
The Eu

This chapter assesses administrative procedure and judicial review in the European Union. The requirement of judicial oversight of administrative action, which results from the common constitutional traditions of the Member States of the EU, is a general principle of EU law, and it is applicable both to proceedings before the Court of justice and before national courts, when EU law is invoked before them. The EU courts carry out a generalized review on any binding acts. Although there are certain differences between acts that may be challenged according to the different remedies provided by EU law, in order to be challengeable, the acts must fulfil several conditions. The most important are: they must be binding and produce legal effects, be definitive and be taken by EU institutions in the exercise of their competencies. Article 263 TFEU provides that the acts of EU institutions may be annulled on grounds of 'lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers'. Acts or failure to act may give rise to the liability of EU institutions.

scholarly journals References for a Preliminary Ruling to the European Union Court of Justice: The Substantive Criteria of Admissibility

2019 ◽  
Vol 14 (4) ◽  
pp. 131-156 ◽  
Author(s):  
Elena A. Sorokina
Keyword(s):  
European Union ◽  
National Court ◽  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Legal Traditions ◽  
National Courts ◽  
Acceptability Criteria ◽  
The Eu

The preliminary ruling procedure as stipulated by Article 276 of the Treaty on the functioning of the European Union had a significant impact on the de-ve lop ment of EU law and became a collaborative tool as part of the dialogue bet-ween supranational and national judges.The mechanism of preliminary ruling enables to ensure a uniform interpretation and application of the provisions of EU law with all member states and consti tutes an instrumental element for preserving the uniformity of the European legal system.When developing the mechanism of preliminary ruling at EU level one consi-dered constitutional & legal traditions of member states, however, for long periods, the EU was perceived as "exotic" one and its impact on the national law was often underesti mated. Initially there were no any clear concepts how the mechanism of preliminary ruling would work. The EU court encouraged national judges of member states to use this mechanism; however, gradually it started introducing certain acceptability criteria in respect of such requests.The practice of the EU Court was summarized in the updated Rules of Procedure of 25 September 2012. During the period from 2014 to 2018, the number of cases sub mitted for preliminary ruling procedure was increasingly growing. Consequently, natio nal courts had started using this procedure relatively intensively and the con so-li dation of acceptability criteria created no serious problems for them.The imposition by the EU Court of minimal requirements towards the substance of requests does not reduce their number, since the acknowledgement of a re quest as inadmissible does not prevent a national court from sending a repeated re quest. However, it contributes to the improvement of quality and efficiency of the pre li mi-nary ruling procedure. The establishment of the respective requirements is necessary to ensure that the EU Court could provide national courts with an interpretation of EU law useful for resolution of a specific dispute and ensure constructiveness of the dialogue.

The Impact of EU law on National Judiciaries: Polish Administrative Courts and their Participation in the Process of Legal Integration in the EU

2011 ◽  
Vol 12 (3) ◽  
pp. 930-956
Author(s):  
Urszula Jaremba
Keyword(s):  
European Union ◽  
Main Role ◽  
Eu Law ◽  
The European Union ◽  
National Courts ◽  
Administrative Courts ◽  
The Impact ◽  
Total Impact ◽  
Legal Integration ◽  
The Eu

Since May 2004 Polish administrative courts have passed a great deal of judgments in which the law of the European Union (formerly European Community law) has played either the main role or a subsidiary role in the proceedings. This article seeks to examine how the above-mentioned courts comply with the expectations which are put on them by EU law and how they participate in the process of legal integration within the EU. In this context, the author scrutinizes how the national judiciary adjudicating in the administrative law area understands, interprets, employs and applies the systemic principles of EU law such as: supremacy, and (in) direct effect and effectiveness. In addition, the participation of national courts in the process of a dialogue with the Court of Justice of the European Union through the preliminary ruling procedure is captured. The analysis is not aimed at being exhaustive and focuses solely on the total impact of EU law on the national judiciary and the general trends in the judicial application of EU law, that is to say the overall reception of EU law and the dimension of the EU-friendliness displayed by Polish administrative courts.

The European Union and the Council of Europe

2021 ◽  
pp. 267-314
Author(s):  
Steven Gow Calabresi
Keyword(s):  
European Union ◽  
Common Law ◽  
Eu Law ◽  
The European Union ◽  
Council Of Europe ◽  
National Courts ◽  
Nation States ◽  
European Court ◽  
Size Population ◽  
The Eu

This chapter discusses two final supranational mixed civil law and common law jurisdictions, which are comparable in size, population, and GDP to the United States of America, to India, to the former British Empire, and to Brazil. These jurisdictions had two common law members prior to Brexit becoming a reality in 2020: the United Kingdom and Ireland. These two supranational jurisdictions are, of course, the European Union (EU) and the Council of Europe. The origins and growth of the power of judicial review in the EU is a very complicated tale of federalism umpiring giving rise to judicial power. The European Court of Justice (ECJ) successfully asserted its power between 1963 and 1989 to hear individual rights claims, as it enlisted the member courts of the EU over that period of time in the project of enforcing EU law as being supreme over the later-in-time law of the EU nation-states. The ECJ persuaded the national courts of the EU’s member states that (1) EU law had a direct effect in the member nations, and (2) that EU law was supreme over the post-1958 laws enacted by the EU member nations. The chapter then explains the origins and growth in power of the Council of Europe’s European Court of Human Rights (ECHR). This enterprise began for rights from wrongs reasons and has grown in power for supranational umpiring reasons.

A Union of Peoples

2020 ◽  
Author(s):  
Pavlos Eleftheriadis
Keyword(s):  
European Union ◽  
International Law ◽  
Political Theory ◽  
Domestic Institutions ◽  
Eu Law ◽  
The European Union ◽  
Rival Theory ◽  
Law Of Nations ◽  
Domestic Law ◽  
The Eu

This book offers a legal and political theory of the European Union. Many political and legal philosophers compare the EU to a federal union. They believe that its basic laws should be subject to the standards of constitutional law. They thus find it lacking or incomplete. This book offers a rival theory. If one looks more closely at the treaties and the precedents of the European courts, one sees that the substance of EU law is international, not constitutional. Just like international law, it applies primarily to the relations between states. It binds domestic institutions directly only when the local constitutions allow it. The member states have democratically chosen to adapt their constitutional arrangements in order to share legislative and executive powers with their partners. The legal architecture of the European Union is thus best understood under a theory of dualism and not pluralism. According to this internationalist view, EU law is part of the law of nations and its distinction from domestic law is a matter of substance, not form. This arrangement is supported by a cosmopolitan theory of international justice, which we may call progressive internationalism. The EU is a union of democratic peoples, that freely organize their interdependence on the basis of principles of equality and reciprocity. Its central principles are not the principles of a constitution, but cosmopolitan principles of accountability, liberty, and fairness,

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.

scholarly journals Polish “Entrepreneur” and EU “Undertaking”: Multilingualism and Differences in Legal Identification

2017 ◽  
Vol 52 (1) ◽  
pp. 57-71
Author(s):  
Maciej Etel
Keyword(s):  
European Union ◽  
Member State ◽  
Precise Determination ◽  
Eu Law ◽  
The European Union ◽  
Economic Sphere ◽  
Polish Law ◽  
Legal Identification ◽  
The Eu

Abstract The European Union and its member-states’ involvement in the economic sphere, manifesting itself in establishing the rules of entrepreneurs’ functioning – their responsibilities and entitlements – requires a precise determination of the addressees of these standards. Proper identification of an entrepreneur is a condition of proper legislation, interpretation, application, control and execution of the law. In this context it is surprising that understanding the term entrepreneur in Polish law and in EU law is not the same, and divergences and differences in identification are fundamental. This fact formed the objective of this article. It is aimed at pointing at key differences in the identification of an entrepreneur between Polish and EU law, explaining the reasons for different concepts, and also the answer to the question: May Poland, as an EU member-state, identify the entrepreneur in a different way than the EU?

scholarly journals Divergence of romano-germanic and anglo-american legal systems on the example of brexit

2020 ◽  
pp. 144-153
Author(s):  
Tetjana Humeniuk
Keyword(s):  
European Union ◽  
European Integration ◽  
Practical Importance ◽  
Mutual Transformation ◽  
Eu Law ◽  
Legal Systems ◽  
The European Union ◽  
Political Processes ◽  
Anglo American ◽  
The Eu

Purpose. The purpose of the article is to analyze topical issues of divergence of the Romano-Germanic and Anglo-American legal systems on the example of Brexit. Methodology. The methodology involves a comprehensive study of theoretical and practical material on this subject, as well as formulation of relevant conclusions and recommendations. The following methods of scientific cognition were used in the research process: dialectical, terminological, formal and logical, comparative and legal, system and functional methods. Results. The study found that an important role in resolving conflicts between EU law and UK national law was played by the Court of Justice of the European Union which declared British legislation invalid since it was not in line with EU law. Thanks to the case law of the CJEU and the national courts of the United Kingdom, it has been possible to adjust and harmonize the interaction between EU law and the national law of this country. As European integration is formed on the basis of a supreme legal force created by external (supranational) bodies, the national bodies that form the national rules of British law inevitably give up part of their powers in favor of EU law. Brexit is just the beginning of a long series of problematic issues that will arise in the EU as a result of member states’ more or less serious objections to a radical course to deepen European integration. And under such conditions, there is a widespread understanding that finding clear and effective answers to new challenges requires finding new conceptual (and most importantly, effective) approaches to the future functioning of the EU, as old mechanisms and methods no longer work properly and do not resolve contradictions spreading and becoming more acute. Scientific novelty. The study shows that the withdrawal of Britain from the European Union initiates a large-scale process of mutual transformation of the legal systems of both parties, the effectiveness of which will be determined by the realities of European geopolitical environment as well as domestic political processes within Great Britain itself. Practical importance. Research materials can be used for comparative law studies.

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