The Margin of Appreciation

2020 ◽  
pp. 67-96
Author(s):  
Jan Zglinski
Keyword(s):  
Statistical Analysis ◽  
Theory And Practice ◽  
European Court Of Justice ◽  
Free Movement ◽  
Domestic Institutions ◽  
Factors Influencing ◽  
Court Of Justice ◽  
European Court ◽  
Number Of Factors ◽  
Margin Of Appreciation

This chapter examines the application of the margin of appreciation in free movement cases. It identifies the doctrine’s legal scope and investigates the scenarios in which the European Court of Justice defers to national authorities. A statistical analysis suggests that there is a significant gap between theory and practice, with only a small number of factors influencing the way in which the margin of appreciation is used. The results show how much regulatory autonomy Member States retain in free movement law. They also expose which concerns the Court prioritizes in its jurisprudence and which decisions it feels safe, or forced, to delegate to domestic institutions.

11. Free movement of goods II: non-tariff barriers

2020 ◽  
pp. 287-318
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
European Commission ◽  
Case Law ◽  
European Court Of Justice ◽  
Free Movement ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Free Movement Of Goods

This chapter examines European Union (EU) law concerning non-tariff barriers to free movement of goods. It describes member states’ attempts to influence imports and the way the European Commission and the European Court of Justice (CoJ) handled these issues. This chapter explains the provisions of the relevant legislation for non-tariff barriers, which include Articles 34, 36, and 35 of the Treaty on the Functioning of the European Union (TFEU). It also analyses example cases including ‘Dassonville’, ‘Cassis de Dijon’, and post ‘Keck’ case law. It concludes with a consideration of the latest trend of cases concerning product use and residual rules.

Mutual Trust in Criminal Matters: the European Court of Justice gives a first interpretation of a provision of the Convention implementing the Schengen Agreement

2003 ◽  
Vol 4 (3) ◽  
pp. 253-262 ◽  
Author(s):  
Nadine Thwaites
Keyword(s):  
Mutual Recognition ◽  
Common Knowledge ◽  
Internal Market ◽  
Small Extent ◽  
European Court Of Justice ◽  
Free Movement ◽  
Mutual Trust ◽  
Court Of Justice ◽  
European Court ◽  
Criminal Matters

It is common knowledge that the Internal Market is based on the notion of free movement which, in turn, rests on four basic freedoms (goods, persons, services and capital). The European Court of Justice (hereinafter “Court”) has always interpreted these freedoms broadly while construing the exceptions to these freedoms strictly. This approach was to no small extent based on a presumption of mutual trust and mutual recognition among Member States. It allowed the Court, in many cases, to ensure free movement within the Internal Market without having to await the adoption of harmonised European Community measures.

Free Movement of Services versus National Labour Law and Industrial Relations Systems: Understanding the Laval Case from a Swedish and Nordic Perspective

2008 ◽  
Vol 10 ◽  
pp. 493-523 ◽  
Author(s):  
Mia Rönnmar
Keyword(s):  
European Integration ◽  
Industrial Relations ◽  
Eu Enlargement ◽  
European Court Of Justice ◽  
Free Movement ◽  
Labour Law ◽  
Court Of Justice ◽  
European Court ◽  
Free Movement Of Persons ◽  
The Eu

European integration, the internal market and free movement of persons and services are important aspects of EC labour law and EU industrial relations. As a result of EU enlargement and the emphasis on free movement within the EU, the problems of posting of workers, low-wage competition and social dumping are high on the agenda. This is illustrated by the epochal and much-debated Laval and Viking cases from the European Court of Justice (ECJ).

The New Free Movement Architecture

2020 ◽  
pp. 9-40
Author(s):  
Jan Zglinski
Keyword(s):  
Judicial Review ◽  
European Court Of Justice ◽  
Free Movement ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Margin Of Appreciation ◽  
Long Time ◽  
Regulatory Decisions ◽  
National Legislatures

This chapter provides a conceptual analysis of judicial deference in free movement law. It argues that the reason for the growing relevance of deference in free movement cases is rooted in a shift in focus away from the scope of rights towards justification and proportionality. The European Court of Justice has created two deference doctrines: the margin of appreciation and decentralized judicial review. While the margin of appreciation doctrine is employed to pass certain regulatory decisions over to national legislatures and executives, decentralized judicial review is used to delegate responsibilities connected with free movement review to national courts. Both deference techniques represent a departure from the Cassis de Dijon approach, which has, for a long time, defined large parts of free movement adjudication, and have significant institutional consequences.

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