scholarly journals Role Models of Politics Disguised in Technique

2021 ◽  
Vol 5 (2) ◽  
pp. 23-42
Author(s):  
Irene Marchioro
Keyword(s):  
Rule Of Law ◽  
Role Models ◽  
Fundamental Rights ◽  
The European Union ◽  
The Rule Of Law ◽  
Freedom Of Movement ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights

The article analyses two decisions of the European Court of Justice issued last year against Hungary, with the aim of outlining a new trend in the Court’s caselaw, where threats to the rule of law are confronted without making express reference to it. The profiles of the two judgements that are investigated are three, and namely: the timing of the procedures, the role of discrimination in the assessment of violations of the TFEU rules on the freedom of movement of capital and services, the assessment of violations of the Charter of Fundamental Rights of the European Union alongside TFEU violations. The purpose of the article is to prove that the infringement procedure under Art. 258 TFEU can be successfully used to hinder antidemocratic drifts and illiberal trends even when a case is designed as purely technical and the rule of law is not called in, which may ultimately shield the Court itself from accusations of being too politically involved in Member States’ affairs.

scholarly journals Values and the Rule of Law: Foundations of the European Union – An Inside Perspective from the ECJ

2018 ◽  
Vol 21 ◽  
pp. 1-17 ◽  
Author(s):  
Thomas Von Danwitz
Keyword(s):  
Rule Of Law ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
The European Union ◽  
The Rule Of Law ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
Universal Values ◽  
The Individual

Let us remember what has been written, ratified and set into force with the Treaty of Lisbon. The preamble of the Charter of Fundamental Rights starts out by stating: "The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values." And it goes on: "Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice." Even if a cynic might have considered these words to be merely a lip service unlikely to disturb the power-play European governments were so eagerly engaged in, the Charter nonetheless became the supreme law of the land and the preferred tools of the trade of a rather awkward species of beings, already of bad repute for relying on the mere wording of legal acts, and even worse, for taking rights seriously: judges - in particular those of the European Court of Justice.

CURRENT DEVELOPMENTS: IV. CITIZENSHIP AND HUMAN RIGHTS

2004 ◽  
Vol 53 (2) ◽  
pp. 493-501 ◽  
Author(s):  
Erika Szyszczak
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
International Obligations ◽  
Court Of First Instance

Citizenship and human rights continue to play an important role in the evolution of Community law. Both sets of principles have appeared in the case law of the European Courts and in the creation of a Constitutional document for Europe. Part II of the draft Constitution incorporates the Charter of Fundamental Rights of the Union. Additionally, the first report from the independent network of experts in fundamental human rights details the various international human rights obligations which the Member States are subject to, analysing Member State policy in a number of areas in the light of the international obligations.1Paradoxically, at a time when greater emphasis is being paid to the constitutional recognition of human rights there are indications of divisions between some of the Advocates General, the Court of First Instance and the European Court of Justice (the Court) on the constitutional role of fundamental rights in relation to access to justice.

The Domestic Reach of General Principles of Law: First City Trading Revisited

2008 ◽  
Vol 10 ◽  
pp. 199-214 ◽  
Author(s):  
Nick Grief
Keyword(s):  
Legal Status ◽  
Case Law ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
The European Union ◽  
Academic Evaluation ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
General Principles Of Law

This is a critical analysis—in the light of the Lisbon Treaty, the Charter of Fundamental Rights and recent European Court of Justice (ECJ) case law—of the judgment in R v MAFF, ex p First City Trading, or at least of that part of the judgment concerning the domestic reach of general principles of law. Laws J held that the legal status of the general principles ‘made’ by the ECJ is inferior to that of the principles enshrined in the Treaty, and that therefore the domestic reach of the former is narrower than that of the latter. In the years since the judgment was delivered, however, it does not appear to have been considered by the ECJ and there seems to have been little academic evaluation of its cogency and implications. One commentator considered that the distinction drawn by the judge seemed correct. Another was critical, asserting that ‘the distinction between principles based on Treaty provisions and general principles of law cannot be deduced from the case law of the Court of Justice’. The possible entry into force of the Treaty of Lisbon, which recognises that the Charter of Fundamental Rights of the European Union (and thus presumably the rights, freedoms and principles within it) has ‘the same legal value as the Treaties’, makes it appropriate to revisit the judgment and consider whether Laws J’s approach was correct.

Infringement Procedure in the European Union. The importance of the preliminary procedure

2021 ◽  
Vol 65 (04) ◽  
pp. 144-146
Author(s):  
Sevil Əliheydər qızı Dəmirli ◽  
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
European Court Of Justice ◽  
European Law ◽  
The European Union ◽  
Important Place ◽  
The Rule Of Law ◽  
Judicial Practice ◽  
Court Of Justice ◽  
European Court

Judicial practice formed in the practice of the European Court of Justice belongs to the category of the main sources of law of European law. This practice was the source of law referred to by all Member States and their respective judicial authorities. The article discusses the important place of the preliminary proceedings in the case of violation of the contract by the Court. In practice, the proper conduct of preliminary proceedings shows that court time is used effectively in many disputes. This reflects the European Court's exceptional legal role in ensuring the rule of law and its direct force. The article can be used by university students, teachers, lawyers, researchers, European legal scholars and other practitioners Key words: contract violation, the preliminary proceedings, procedure, European Comission, European Court of Justice

The Relationship Between the EU Charter of Fundamental Rights and the European Convention on Human Rights: an Originalist Analysis

2015 ◽  
Vol 11 (3) ◽  
pp. 482-511
Author(s):  
Stephen Brittain
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
The Relationship

European Convention on Human Rights and the European Union Charter of Fundamental Rights: relationship – Teleological method of interpretation of the European Court of Justice: meaning, justifications, and criticisms – Originalist method of interpretation: meaning, justifications, and criticisms – Original meaning of Article 52(3) of the Charter: text, drafting history, case law – Conclusion: case law of European Court of Human Rights not strictly binding on the Court of Justice of the European Union.

Chasing the European Court of Justice: On Some (Political) Attempts to Hijack the European Integration Process

2012 ◽  
Vol 14 (3) ◽  
pp. 243-272
Author(s):  
Giuseppe Martinico
Keyword(s):  
Fundamental Rights ◽  
Lisbon Treaty ◽  
The European Union ◽  
Acquis Communautaire ◽  
Revision Process ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
State Interference ◽  
The Eu

Abstract This article gives some examples of State interference in the interpretative activity of the Court of Justice of the European Union (ECJ), looking at the 1990s, at the more recent past and, finally, at the clauses introduced by the Lisbon Treaty, which represents the latest link in the “semi-permanent Treaty revision process” (de Witte). The article is divided into three parts: the first part will introduce the peculiarities of the ECJ’s interpretative activity, briefly recalling the debate on the specificity of the interpretation of EU law. The second part will be devoted to some recent and less recent attempts to hijack of the acquis communautaire (“the past”), while the third part will focus on the recent novelties introduced by the Lisbon Treaty and on the Charter of Fundamental Rights of the EU (EUCFR) and its explanations (“the future”). Finally, some concluding remarks will be presented at the end of the article.

scholarly journals La aplicación judicial de la CDFUE; un decálogo a partir de la jurisprudencia del Tribunal de Justicia de la Unión Europea

2017 ◽  
pp. 333
Author(s):  
Rafael Bustos Gisbert
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
The European Union ◽  
Basic Point ◽  
Derechos Humanos ◽  
High Courts ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights

En este ensayo se pretende examinar cuáles son las pautas que ha de seguir el juez nacional cuando se enfrenta a la aplicación de la CDFUE. El punto de referencia básico en esta materia ha de ser la jurisprudencia sobre el tema del Tribunal de Justicia de la Unión Europea. De forma complementaria habrá de tenerse en cuenta la posición del Tribunal Constitucional y del Tribunal Europeo de Derechos Humanos. A partir de lo ocurrido en los casos más importantes hasta ahora planteados se pretende esclarecer cuándo y cómo ha de seguirse la jurisprudencia de los tres altos tribunales.This essay tries to establish the basic patterns that judges must follow when facing the adjudication of the Charter of Fundamental Rights of the European Union. The basic point of reference is the case law of the European Court of Justice. But they also must be take into account the case law of the Spanish Constitutional Court and the European Court of Human Rights. After the study of the most important cases in the topic, the essay attempts to clarify when and how to follow the jurisprudence of these High Courts.

scholarly journals Ne bis in idem: a separation of acts in transnational cases?

2015 ◽  
Vol 7 (2) ◽  
pp. 85-115
Author(s):  
Márk Némedi
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Ne Bis In Idem ◽  
Charter Of Fundamental Rights ◽  
Criminal Matters ◽  
The Eu

Abstract This paper analyses the case-law of the European Court of Justice on the substantive scope of ne bis in idem in transnational cases and evaluates the findings in light of the different concepts of legal interests inherent in the concept of crime as a material notion. I argue that the application of the interpretation of the ECJ to crimes against collective interests is insufficiently justified. As a result, the interpretation of ne bis in idem based on material facts appears only partially correct and a sense of distrust seems to be cemented between member states creating obstacles to a successful reform of the principle. Part one attempts to defend that the reasoning put forward by the court lacks relevance and evaluates how this affects mutual trust. Part two analyses this interpretation in the light of different forms of legal interest. Part three examines how later case-law has tried to explain the problematic interpretation of early cases and its relationship with the Charter of Fundamental Rights of the European Union. The article will conclude by summarising the findings which may put into perspective the more general challenges of cooperation in criminal matters within the EU.

scholarly journals Glosa do wyroku Trybunału Sprawiedliwości Unii Europejskiej z dnia 12 lutego 2015 r. w sprawie Sähköalojen ammattiliitto ry c/a Elektrobudowa Spółka Akcyjna (C‑396/13)

2019 ◽  
Vol 24 ◽  
pp. 191-209 ◽  
Author(s):  
Witold Kurowski
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
The European Union ◽  
Employment Relationships ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
Polish Law ◽  
Rome I

This paper aims to comment an important ruling concerning the Posted Workers Directive (Directive 96/71/EC). In the judgement C-396/13 (Sähköalojen ammattiliitto ry v. Elektrobudowa Spółka Akcyjna), the European Court of Justice providedits pro-worker’s interpretation of Art 3 of Directive 96/71/EC concerning the scope of the "minimum pay rate". The second issue raised by the European Court of Justice was the assignability of pay claims governed by Polish law based on Art 14 (2) of Rome I Regulation and prohibited under that law. In commented judgement, the Court admitted the assignment of claims arising from employment relationships in light of article 47 of the Charter of Fundamental Rights of the European Union and accepted the trade union’s right to represent the posted workers.

scholarly journals The rule of law and the EU’s response mechanisms in case of violation: a Romanian Case Study

ERA Forum ◽  
2021 ◽  
Author(s):  
Horatius Dumbrava
Keyword(s):  
European Union ◽  
European Commission ◽  
Rule Of Law ◽  
European Court Of Justice ◽  
Judicial Reform ◽  
The European Union ◽  
The Rule Of Law ◽  
Court Of Justice ◽  
European Court

AbstractThe judgment of the European Court of Justice of 18 May 2021 obliges Romania to review the judicial reform of 2017 – 2019. Otherwise the European Commission may activate the safeguard mechanisms provided by Arts. 37 and 38 of the Treaty of Accession of Romania to the European Union.The jurisprudence of the Court of Justice in all preliminary rulings relating to this Romanian judicial reform will have effects and will be an essential benchmark regarding the mechanisms established by the European Commission for all Member States relating to the rule of law - namely, the Rule of Law Mechanism and Regulation no. 2020/2092.

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