Judicial Review of Soft Law before the European and the National Courts

2021 ◽  
Author(s):  
Mariolina Eliantonio
Keyword(s):  
Judicial Review ◽  
Soft Law ◽  
National Courts

The use and Enforcement of Soft Law by Australian Public Authorities

2014 ◽  
Vol 42 (1) ◽  
pp. 1-37 ◽  
Author(s):  
Greg Weeks
Keyword(s):  
Judicial Review ◽  
Public Law ◽  
Soft Law ◽  
Private Law ◽  
Public Authorities ◽  
Regulatory Aspects ◽  
Highly Effective ◽  
Judicial Remedies

Soft law is a pervasive phenomenon which is highly effective as a means of regulation in Australia, as it is in many other jurisdictions. This article will not focus on the regulatory aspects of soft law, but will examine the capacity of individuals to obtain remedies where public authorities fail to adhere to the terms of their published soft law. The available judicial remedies apply in very limited circumstances, both in private law actions (in tort or equity) and public law (judicial review) actions. Ultimately, the most effective ways to remedy breaches of soft law appear also to be ‘soft’, such as recommendations of the Ombudsman and discretionary schemes for ex gratia payments.

Judicial review of Common Foreign and Security Policy by the ECtHR and the (re)negotiation on the accession of the EU to the ECHR

2021 ◽  
pp. 1023263X2198824
Author(s):  
Maria José Rangel de Mesquita
Keyword(s):  
Judicial Review ◽  
Security Policy ◽  
Case Law ◽  
Regional Level ◽  
Judicial Control ◽  
National Courts ◽  
Foreign And Security Policy ◽  
Conclusion Section ◽  
The Relationship ◽  
The Eu

The article addresses the issue of judicial control of the implementation of Common Foreign and Security Policy at international regional level within the framework of the relaunching of the negotiation in view of the accession of the EU to the ECHR. Considering the extent of jurisdiction of the CJEU in respect of Common Foreign and Security Policy field in the light of its case law (sections 1 and 2), it analyses the question of judicial review of Common Foreign and Security Policy within international regional justice by the ECtHR in the light of the ongoing negotiations (section 3), in the perspective of the relationship between non-national courts (section 3.A), having as background the (2013) Draft Agreement of accession (section 3.B.1). After addressing the relaunching of the negotiation procedure (section 3.B.2) and the issue of CFSP control by the ECtHR according to the recent (re)negotiation meetings (section 3.B.3), some concrete proposals, including for the redrafting of the accession agreement, will be put forward (section 3.B.4), as well as a conclusion (section 4).

Judicial review of Common Foreign and Security Policy by the ECtHR and the (re)negotiation on the accession of the EU to the ECHR

2021 ◽  
Vol 28 (3) ◽  
pp. 356-370
Author(s):  
Maria José Rangel de Mesquita
Keyword(s):  
Judicial Review ◽  
Security Policy ◽  
Case Law ◽  
Regional Level ◽  
Judicial Control ◽  
National Courts ◽  
Foreign And Security Policy ◽  
Conclusion Section ◽  
The Relationship ◽  
The Eu

The article addresses the issue of judicial control of the implementation of Common Foreign and Security Policy at international regional level within the framework of the relaunching of the negotiation in view of the accession of the EU to the ECHR. Considering the extent of jurisdiction of the CJEU in respect of Common Foreign and Security Policy field in the light of its case law (sections 1 and 2), it analyses the question of judicial review of Common Foreign and Security Policy within international regional justice by the ECtHR in the light of the ongoing negotiations (section 3), in the perspective of the relationship between non-national courts (section 3.A), having as background the (2013) Draft Agreement of accession (section 3.B.1). After addressing the relaunching of the negotiation procedure (section 3.B.2) and the issue of CFSP control by the ECtHR according to the recent (re)negotiation meetings (section 3.B.3), some concrete proposals, including for the redrafting of the accession agreement, will be put forward (section 3.B.4), as well as a conclusion (section 4).

Courts

2018 ◽  
Author(s):  
Paul Craig
Keyword(s):  
Judicial Review ◽  
Necessary Condition ◽  
Judicial Control ◽  
National Courts ◽  
The Eu ◽  
The Way

The preceding chapter considered the foundations of judicial review in the EU. The discussion now turns to the EU Courts. The way in which the principles of review have developed has been affected by the jurisdictional divide between the CJEU and GC, and between these Courts and national courts. It will be argued that a necessary condition for an effective regime of judicial control is the existence of a rational judicial architecture, embracing the CJEU, GC, national courts, and agency boards of appeal.

Part V Judicial Review before the Court of Justice of the European Union, 3 Decentralized Judicial Review and Enforcement of EU State Aid Rules

2016 ◽  
Author(s):  
Kreuschitz Viktor ◽  
Nehl Hanns Peter
Keyword(s):  
European Union ◽  
Judicial Review ◽  
State Aid ◽  
Common Market ◽  
Final Decision ◽  
The European Union ◽  
Member States ◽  
National Courts ◽  
Court Of Justice ◽  
The Common

This chapter assesses the enforcement of EU State aid rules. The Commission is not the only authority involved in the monitoring of State aid. As regards the supervision of Member States' compliance with their obligations under Articles 107 and 108 TFEU, the national courts also have an important role to play. The implementation of that system of control is a matter for both the Commission and the national courts, their respective roles being complementary but separate. Whilst assessment of the compatibility of aid measures with the common market falls within the exclusive competence of the Commission, subject to review by the Courts of the European Union, it is for national courts to ensure the safeguarding, until the final decision of the Commission, of the rights of individuals faced with a possible breach by State authorities of the prohibition laid down by Article 108(3) TFEU.

Application of the EU CFR by National Courts in Purely Domestic Cases

2017 ◽  
Author(s):  
András Jakab
Keyword(s):  
Judicial Review ◽  
Fundamental Rights ◽  
Eu Law ◽  
Rights Protection ◽  
Left Behind ◽  
National Courts ◽  
Domestic Courts ◽  
Local Courts ◽  
Domestic Level ◽  
The Eu

This chapter argues that the most promising way to conceptualize the values of European constitutionalism in a judicially enforceable manner is through a creative reinterpretation of Article 51(1) EU CFR. It asserts that in order to create a fully fledged value community which benefits all its citizens equally, the CFR should become fully applicable in every case in its own right—even in purely domestic cases in domestic courts and even in the absence of a systemic failure of fundamental rights protection at the domestic level. This would mean that judicial review would be introduced across Europe via the supremacy of EU law. This judicial review would be decentralized in the sense that local courts could exercise it, but its unified application would be ensured by the preliminary procedure. The EU could thus become a ‘community of fundamental rights’ with nobody left behind.

Restricting Discretion: Judicial Review of Diplomatic Protection

2006 ◽  
Vol 75 (2) ◽  
pp. 279-307 ◽  
Author(s):  
Annemarieke Vermeer-Künzli
Keyword(s):  
Human Rights ◽  
International Law ◽  
Judicial Review ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
National Courts ◽  
Diplomatic Protection ◽  
International Law Commission ◽  
National Governments

AbstractIn the last 30 years, individuals have increasingly filed complaints against their national governments for failure to exercise diplomatic protection on their behalf, in particular in cases of serious violations of international human rights law. Despite the fact that diplomatic protection has traditionally been regarded as a discretionary right of states, the national courts have invariably decided to enter into the merits of the case and to review the exercise of diplomatic protection by the executive. Initially, a draft article on this subject was not accepted by the International Law Commission in the Draft Articles on first reading, but an encouraging provision was included in the Draft Articles adopted on second reading. The development discussed in this article shows support for an obligation to exercise diplomatic protection in case of serious violations of human rights law.

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