The Advocate General: A Key Actor of the Court of Justice of the European Union

2012 ◽  
Vol 14 ◽  
pp. 587-613 ◽  
Author(s):  
Laure Clément-Wilz
Keyword(s):  
Case Law ◽  
Decision Making Process ◽  
Eu Law ◽  
The European Union ◽  
Judicial Decision ◽  
Advocate General ◽  
Judicial Decision Making ◽  
Court Of Justice ◽  
Legal Structures

AbstractIt is argued that the Advocate Generals have helped to create a distinct and identifiable body of EU law. In the context of increasingly complex legislation and legal structures, the Advocate Generals have also contributed to improving the coherence of legislation and case law. It is also argued that the legal texts and practice firmly place the Advocate General at the same time within the CJEU and yet outside the Court. The institutional and functional rules governing the role of the Advocate General do have an impact on the judicial decision-making process. Some suggestions for reforming the role of the Advocate General in order to integrate the Advocate General more fully within the Court and to strengthen the role are also made.

The European Union

2018 ◽  
Author(s):  
Lisa Waddington
Keyword(s):  
European Union ◽  
Case Law ◽  
International Agreements ◽  
Eu Law ◽  
The European Union ◽  
Advocate General ◽  
Persons With Disabilities ◽  
Court Of Justice ◽  
The Status ◽  
The Eu

The EU’s accession to the Convention on the Rights of Persons with Disabilities (CRPD) implies an important role for the Court of Justice of the European Union (CJEU). Given that the Court has the task of interpreting the CRPD as an instrument of EU law and, in particular, ensuring that EU secondary legislation is interpreted in a manner which is compatible with the Convention wherever possible, it is not surprising to find references to the CRPD in a number of judgments and Opinions of its Advocate General rendered both before, and primarily after, the conclusion of the CRPD by the EU. This chapter explores those judgments and Opinions in some depth, looking at the status of international agreements concluded by the EU; how the CRPD has been incorporated into EU law; and discussing case law that has referred to the CRPD, and analysing the extent to and way in which the CJEU has interpreted the CRPD.

scholarly journals The pivotal role of the case law of the Court of Justice of the European Union (CJEU) in protecting citizens’ rights

1970 ◽  
pp. 417-422
Author(s):  
Sofia Smirnova
Keyword(s):  
European Union ◽  
Indirect Effect ◽  
Case Law ◽  
Pivotal Role ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
Case Basis ◽  
Horizontal Direct Effect

The article examines the case law of the Court of Justice of the European Union (CJEU) and aims to exemplify the ways in which it clearly illustrates the principle of indirect effect. The article would argue that indirect effect has played a pivotal role in protecting citizens' rights, particularly in the absence of the horizontal direct effect of directives. The main cases explored in the article examine the ways in which the law of the European Union has been developing as it is constantly subject to interpretation. It is important to examine the case law of the European Union on a case-by-case basis, as with contextual change, changes the interpretation of the principles. The development of EU Law is incremental requiring a careful case-by-case analysis, as demonstrated in the article above by the cases of indirect effect.

scholarly journals Characteristics of Precedent: The Case Law of the European Court of Justice in Three Dimensions

2015 ◽  
Vol 16 (5) ◽  
pp. 1073-1098 ◽  
Author(s):  
Mattias Derlén ◽  
Johan Lindholm
Keyword(s):  
European Union ◽  
Case Law ◽  
Three Dimensions ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Court ◽  
Number Of Factors ◽  
The One

AbstractThe case law of the Court of Justice of the European Union (CJEU) is one of the most important sources of European Union law. However, case law's role in EU law is not uniform. By empirically studying how the Court uses its own case law as a source of law, we explore the correlation between, on the one hand, the characteristics of a CJEU case—type of action, actors involved, and area of law—and, on the other hand, the judgment's “embeddedness” in previous case law and value as a precedent in subsequent cases. Using this approach, we test, confirm, and debunk existing scholarship concerning the role of CJEU case law as a source of EU law. We offer the following conclusions: that CJEU case law cannot be treated as a single entity; that only a limited number of factors reliably affect a judgment's persuasive or precedential power; that the Court's use of its own case law as a source of law is particularly limited in successful infringement proceedings; that case law is particularly important in preliminary references—especially those concerning fundamental freedoms and competition law; and that initiating Member State and the number of observations affects the behavior of the Court.

The case law of the Court of Justice of the European Union on ‘judicial authority’ and issuing European arrest warrants

2021 ◽  
pp. 203228442110276
Author(s):  
Tricia Harkin
Keyword(s):  
Rule Of Law ◽  
Case Law ◽  
Public Prosecutor ◽  
The European Union ◽  
Advocate General ◽  
Member States ◽  
Court Of Justice ◽  
Judicial Authority ◽  
Criminal Matters ◽  
Judicial Protection

The case law of the Court of Justice from 2016 to 2019 on the interpretation of ‘judicial authority’ in Article 6(1) FD-EAW essentially examines whether a public prosecutor can be an issuing judicial authority and if so, how Member States’ systems for issuing EAWs ensure effective judicial protection for the person concerned. For the Advocate General, applying the Court’s ‘rule of law’ jurisprudence, effective judicial protection when deprivation of liberty is involved can only be assured by a body with the highest level of judicial independence, being a court. The Court’s broader approach of including public prosecutors with sufficiency of independence from the executive and requiring their decisions to be amenable to review by a court, when applied in practice arguably falls short of the requisite standard of effective judicial protection. There is also a lack of clarity about access to the interpretative jurisdiction of the Court by public prosecutors acting as judicial authorities. Effective judicial protection and EU cooperation in criminal matters would now be better served by the designation in all Member States of a court as the issuing judicial authority for the FD-EAW. This is against the background of the uniquely coercive nature of the EAW in terms of deprivation of liberty; the differences in Member States’ institutional arrangements for public prosecutors and the post-Lisbon effective constitutionalisation of judicial protection of rights of individuals.

scholarly journals The Rise and Expressions of Consistency in EU Law: Legal and Strategic Implications for European Integration

2013 ◽  
Vol 15 ◽  
pp. 139-167
Author(s):  
Ester Herlin-Karnell ◽  
Theodore Konstadinides
Keyword(s):  
European Union ◽  
European Integration ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
Treaty Of Lisbon ◽  
Legal Principles ◽  
Division Of Powers ◽  
Court Of Justice ◽  
Scope Of Application

Abstract The principle of consistency has a prominent place in EU law. In the Treaty of Lisbon, it constitutes an umbrella under which a number of legal principles of EU law follow as corollaries. Consistency manifests itself within both horizontal and vertical levels of governance. This chapter will unpack this principle and will focus on the broader implications of consistency for the division of powers in EU law. In doing so, the authors aim to discuss the rise of consistency in EU law and decrypt its various constitutional expressions in order to determine its scope of application. Two notions of consistency are presented: a formal one that appears in the Treaty of Lisbon and a strategic one, prominent in the case law of the Court of Justice of the European Union (CJEU). It is argued that consistency is relevant to both traditional (integrationist) and alternative (differentiated) routes to European integration. The chapter concludes by discussing whether the undefined nature of ‘consistency’ puts it at risk of becoming an empty vessel.

Mixed Agreements: The EU Law Fundamentals

2018 ◽  
Author(s):  
Joni Heliskoski
Keyword(s):  
European Union ◽  
Case Law ◽  
International Agreements ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
Basic Characteristics ◽  
Mixed Agreements ◽  
The Eu

Whatever terminology one might wish to employ to describe the form of integration constituted by the European Union and its Member States, one fundamental attribute of that arrangement has always been the division, as between the Union and its Member States, of competence to conclude international agreements with other subjects of international law. Today, the fact that treaty-making competence—as an external facet of the more general division of legal authority—is divided and, to some extent, shared between the Union and its Member States is reflected by some of the opening provisions of the Treaty on European Union and the Treaty on the Functioning of the European Union. Notwithstanding the changes to the scope and nature of the powers conferred upon the Union, resulting from both changes to primary law and the evolution of the case law of the Court of Justice of the European Union (CJEU), the basic characteristics of the conferment as an attribution of a limited kind has always been the same; there has always existed a polity endowed with a treaty-making authority divided between and, indeed, shared by, the Union and its Member States. In the early 1960s mixed agreements—that is, agreements to which the European Union

From Washington with Love—Investor–State Arbitration and the Jurisdictional Monopoly of the Court of Justice of the European Union

2010 ◽  
Vol 12 ◽  
pp. 425-453
Author(s):  
Philip Strik
Keyword(s):  
European Union ◽  
Dispute Settlement ◽  
Case Law ◽  
Legal Order ◽  
Forum Shopping ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
International Dispute ◽  
The Eu

AbstractWhile investor–State arbitration is to a large extent detached from the EU legal order, EU law has recently started to be invoked in investor-State arbitration proceedings. In the context of intra-EU bilateral investment treaties, the Commission has expressed the view that investor-State arbitration gives rise to a number of ‘arbitration risks’ for the EU legal order. Not only can it solicit investors to engage in forum-shopping, but it can also result in questions of EU law not being litigated in Member State or Union courts. This chapter explores the extent to which the compatibility of investor–State arbitration with the EU legal order is in issue. It examines the main features of investor-State arbitration as concerns its interplay with the EU legal order, as well as the Court of Justice’s case law on issues of compatibility between systems of international dispute settlement and the EU legal order. The chapter highlights that the way in which investor–State arbitral tribunals handle issues of EU law, as well as the involvement of interested parties, may foster the synergy between investor–State arbitration and the EU legal order.

scholarly journals National and Constitutional Identity in the Case Law of the Court of Justice of the European Union

2017 ◽  
Vol 1 (2) ◽  
pp. 6-27
Author(s):  
Ondrej Hamuľák ◽  
David Kopal ◽  
Tanel Kerikmäe
Keyword(s):  
European Union ◽  
National Identity ◽  
Main Part ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
Introductory Part ◽  
Before And After ◽  
Constitutional Identity

The aim of this paper is to determine the position of the CJEU towards the national identity with regard to its case law and whether the Court gives preference to the national identity or to the primacy of EU law during the balancing between the constitutional principles and the interests of member states with EU law. The introductory part of the paper addresses the insertion and the development of the national identity clause in the primary law. Its main part consists of analysis of the case law of the CJEU, as well as of the opinions of Advocates General, in the period before and after the adoption of the Treaty of Lisbon.

scholarly journals Why Attacks on Civic Space Matter in Strasbourg: The European Convention on Human Rights, Civil Society and Civic Space

2019 ◽  
pp. 13-37
Author(s):  
Antoine Buyse
Keyword(s):  
Human Rights ◽  
Civil Society ◽  
Case Law ◽  
European Convention ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
European Court ◽  
Civic Space ◽  
Work First

This article explores the role of the European Convention on Human Rights in addressing the issue of attacks on civic space, but also the potential effects of shrinking civic space on Strasbourg’s work. First, an overview of the notions of civil society and civic space is given, linking these concepts to democracy and human rights. Subsequently, the formal and informal roles for civil society in the judicial decision-making are discussed. Finally, the substantive protection offered to civil society and civic space under the ECHR and the case-law of the European Court of Human Rights is analysed. This article argues that the differentiations in theory on the varying contributions of civil society to democracy and human rights are to a large extent reflected in Strasbourg jurisprudence. Even more importantly, the ECHR system and civil society benefit from each other. This is why the current attacks on civic space are not just a problem for civil society itself, but also for the work of the European Court: it is submitted that a shrinking of civic space can also negatively affect the Strasbourg system, as the two are intertwined to a considerable extent.Received: 06 July 2019Accepted: 10 October 2019Published online: 20 December 2019

scholarly journals The interpretation complying with EU law manifested in the case law unifying judgment No. 15/2013 of the Portuguese Supreme Court of Justice

2016 ◽  
Vol 2 ◽  
pp. 82-96
Author(s):  
Carla Machado
Keyword(s):  
European Union ◽  
Supreme Court ◽  
Case Law ◽  
Legal Order ◽  
The Other ◽  
Eu Law ◽  
The European Union ◽  
The Public ◽  
Court Of Justice ◽  
The One

This article aims to address the interpretation that has been made by Portuguese courts in relation to the concept of “communication of the work to the public” enshrined in Article 3 (1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001, duly transposed into the Portuguese legal order by Law No. 50/2006 of 24 August, which culminated in the drafting of the case law unifying judgment No. 15/2013. By verifying its content and analysing the case law of the Court of Justice of the European Union (hereinafter CJEU), concerning the interpretation of that concept, we conclude that the said case law unifying judgment does not comply with EU law. Therefore, we will list, on the one hand, the inherent consequences regarding the upkeep of the interpretation that has been held by the Portuguese judicial authorities and, on the other, we will suggest solutions for the resolution of similar cases by appealing to the principle of conforming interpretation.

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