Social Legitimacy and the Court of Justice of the EU: Some Reflections on the Role of the Advocate General

2012 ◽  
Vol 14 ◽  
pp. 615-633 ◽  
Author(s):  
Alicia Hinarejos
Keyword(s):  
Public Support ◽  
Social Dimension ◽  
Constitutional Court ◽  
The European Union ◽  
Advocate General ◽  
Constitutional Courts ◽  
Social Legitimacy ◽  
Institutional Loyalty ◽  
Court Of Justice ◽  
Union Section

AbstractThe Court of Justice of the European Union (CJEU, Court of Justice or Court, for short) operates in circumstances that are similar to those of a national constitutional court; at the same time, some significant features set it apart and make it more difficult for the Court of Justice to command the institutional loyalty or public support that national constitutional courts seem to enjoy in Europe. This chapter will, first, offer a brief overview of how and why the Court acquired a markedly political, and problematic, role within the judicial and legal system of the Union (Section II). Section III will then examine the different concepts of legitimacy that may be applied to courts and their decisions, focusing more specifically on the social dimension of legitimacy. This chapter will argue that the fact that the Court of Justice has to operate in a transnational context leads to a shortfall in its social legitimacy, at least when compared to national constitutional courts in Europe. Finally, Section IV will focus on the figure of the Advocate General as a mechanism that may lend some extra social legitimacy to the Court and its decisions—obviously without solving the problem completely—and that, more generally, may foster dialogue, debate and deliberative democracy in the Union.

The German Constitutional Court and Preliminary References—Still a Match not Made in Heaven?

2015 ◽  
Vol 16 (6) ◽  
pp. 1491-1508
Author(s):  
Eva Julia Lohse
Keyword(s):  
European Union ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Court Of Justice ◽  
European Court ◽  
German Constitutional Court ◽  
In The Beginning ◽  
The Eu

So far, the German Constitutional Court (Bundesverfassungsgericht, henceforth:BVerfG) has only made a single preliminary reference to the (now) Court of Justice of the European Union (CJEU), despite frequent rulings on matters connected with European Union (EU) Law. Its apparent reluctance seemed odd considering the atmosphere of dialogue and cooperation which prevails between the non-constitutional courts and the EU courts. This situation might, however, have changed with the preliminary reference from January 2014, proving predictions on the perceived “most powerful constitutional court” and its relationship to the EU partly wrong. The legal effects of its preliminary reference on the interpretation of Articles 119, 123, 127 ff. of the Treaty on the Functioning of the European Union (TFEU) and the validity of Outright Monetary Transactions (OMT) by the European Central Bank (ECB) under EU Law are as yet unclear; although the Opinion of the Advocate General Cruz Villalón was delivered in the beginning of 2015, which did not confirm the doubts expressed by theBVerfGabout the conformity of the OMT programme with EU law. Nonetheless, the interpretative scheme and the normative questions as to the reluctance of theBVerfGremain the same after this single referral and offer explanations as to why theBVerfGhad for nearly sixty years not referred a question to the former European Court of Justice (ECJ).

European Integration Through Preliminary Rulings? The Case of the Bulgarian Constitutional Court

2015 ◽  
Vol 16 (6) ◽  
pp. 1591-1622
Author(s):  
Mihail Vatsov
Keyword(s):  
European Union ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
Special Issue ◽  
Constitutional Courts ◽  
Reference Procedure ◽  
Court Of Justice ◽  
The Eu ◽  
Do So

The preliminary reference procedure under Article 267 of the Treaty on the Functioning of the European Union (TFEU) is instrumental for the so-called “judicial dialogue” within the European Union (EU). The goals of the preliminary reference procedure are to ensure the uniform interpretation and application of EU law and to contribute to the harmonious development of the law throughout the EU. It was through the preliminary reference procedure to the Court of Justice of the European Union (CJEU) that the principles of direct effect and supremacy were developed. It took many years before the first request by a Constitutional Court was sent to the CJEU. So far, the Constitutional Courts of Belgium, Austria, Lithuania, Italy, Spain, France, Germany, and most recently Slovenia, have sent requests for preliminary rulings to the CJEU. By far the most active of these in sending requests has been the Belgian Court. The Portuguese Constitutional Court has indicated that it can request preliminary rulings from the CJEU but is yet to do so. In the other Member States (MS) with Constitutional Courts, references have not been sent yet, although worthy occasions in terms of EU-law-related cases have occurred, as also observed in various contributions in this special issue. These MSs include Bulgaria.

Decision 22/2016. (XII. 5.) AB on the Interpretation of Article E)(2) of the Fundamental Law

2017 ◽  
Vol 111 (2) ◽  
pp. 468-475 ◽  
Author(s):  
Ágoston Mohay ◽  
Norbert Tóth
Keyword(s):  
European Court Of Justice ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
Eu Member States ◽  
Court Of Justice ◽  
European Court ◽  
Fundamental Law

In a case of first impression, the Constitutional Court of Hungary (CCH or Court) ruled on November 30, 2016 that, in exceptional cases, it is competent to consider whether Hungary's obligations to the European Union (EU) violate fundamental individual rights (including human dignity) or Hungarian sovereignty as protected by the Hungarian Constitution. The decision places Hungary squarely within the growing group of EU member states whose constitutional courts have decided that, despite the decisions of the European Court of Justice regarding the primacy of EU law, EU member states are not compelled to violate their domestic constitutional obligations in carrying out their shared EU commitments.

scholarly journals ¿Es real el diálogo entre tribunales? Cuestión prejudicial y control de constitucionalidad por vulneración de derechos y libertades fundamentales

2017 ◽  
pp. 529
Author(s):  
Encarnación Roca Trías ◽  
Susana García Couso
Keyword(s):  
Fundamental Rights ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
The European Union ◽  
Constitutional Courts ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
National Constitution

Es de sobra conocida la tensión existente entre los Tribunales Constitucionales de los Estados miembros y el Tribunal de Justicia de la Unión Europea a raíz del planteamiento de cuestiones prejudiciales ante el TJUE en supuestos en los que, aunque el asunto se plantee como una cuestión interpretativa del derecho de la Unión, comprende, además, un problema de derechos fundamentales susceptibles de ser controlados, también, constitucionalmente. Ambos procedimientos terminan con una decisión de compatibilidad con los derechos fundamentales. Este artículo pretende hacer una reflexión acerca de los problemas que suscita el hecho de que dos Tribunales —TJUE y TC— competentes en materia de protección de derechos fundamentales, y, al mismo tiempo, interpretadores de un mismo ordenamiento jurídico, puedan emitir juicios paralelos sobre una misma norma que ha sido sometida a su control y con parámetros diferentes de control: la Carta de Derechos Fundamentales de la Unión Europea y la Constitución.This paper purports to reflect on the complex issues that arise from the fact that both the European Court of Justice and the national constitutional court have the power to adjudicate on fundamental rights and that, therefore, on the basis of the application of different rules — the Charter of Fundamental Rights of the European Union and the national Constitution — they can occasionally arrive at different decisions. National courts are more and more aware of this dual avenue to challenge national regulations, through the preliminary reference to the ECJ and through the reference to the Constitutional Court of constitutional doubts with regard to national legislation. In consequence, national Constitutional Courts must accommodate into this new scenario.

Constitutional Jurisdictions Between the Supremacy of the Constitution and the Primacy of European Union Law

De Jure ◽  
2021 ◽  
Vol 12 (2) ◽  
Author(s):  
Viktoriya Mingova ◽  
Keyword(s):  
European Union ◽  
Constitutional Court ◽  
Main Task ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
European Union Law ◽  
Member States ◽  
Court Of Justice ◽  
Unique Nature

The interaction between the national constitutional jurisdictions of the Member States and the Court of Justice of the European Union raises questions that often cannot be answered unequivocally. The focus of this debate is, of course, on the fundamental question of whether European Union law takes primacy over national constitutions. This study presents the jurisprudence of the Court of Justice on the establishment of the principle of autonomy of EU law in relation to the internal law of the Member States in its development, since it is precisely the positions it adopts that allow the Court of Justice to derive the principle of primacy over ‘any provision of internal law’ as a logical and natural consequence of the unique nature of EU law. On the other hand, since this integration activity of the Court of Justice is not the result of a conscious activity of the Member States, legitimated by their constitutions, the inevitable question arises of whether the results of the activity in question do not clash with the main task of the constitutional courts ‒ to ensure a coherent and uniform application of the law within the national legal order and above all in accordance with the constitution. The case law of the constitutional courts of the Member States presented in this study leads to the conclusion that they regard autonomy as a relative characteristic, which is why they reject the principle of absolute primacy of European Union law over constitutional rules. It seems that no constitutional court could abdicate its role as a court of ‘last word’ in this respect.

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.

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.

Public Sector Purchase Programme (PSPP) Case

2021 ◽  
Vol 192 ◽  
pp. 451-511
Keyword(s):  
European Union ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
European Central ◽  
Court Of Justice ◽  
Basic Law ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

451Economics, trade and finance — European Monetary Union — Fiscal sovereignty — Public debt — Monetary policy — Economic policy — European Union — Asset purchase programme — Quantitative easing — Central banks — European Central Bank — European System of Central Banks — BundesbankTreaties — Treaty-making powers — Constitutional limitations on treaty-making powers — Transfers of powers by States to intergovernmental and other transnational authorities — Whether compatible with constitutional prerogatives of national parliament — Overall budgetary responsibility — Basic Law of GermanyInternational organizations — European Union — Powers — Member States as masters of the treaties — Principle of conferral — Whether Union having competence to determine or extend its own powers — Principle of subsidiarity — Court of Justice of the European UnionRelationship of international law and municipal law — European Union law — Interpretation — Application — Judgment of Court of Justice of the European Union — Weiss — Principle of proportionality — Whether application of EU law having absolute primacy — Whether German Federal Constitutional Court having absolute duty to follow judgment of Court of Justice of the European Union — Compatibility with Basic Law of Federal Republic of Germany — Openness of German Basic Law to European integration — Whether purchase programme ultra vires — Whether ultra vires acts applicable in Germany — Whether having binding effect in relation to German constitutional organsJurisdiction — European Union institutions — Whether jurisdiction of German Federal Constitutional Court extending to Court of Justice of the European Union and European Central Bank — Whether acts of EU institutions subject to national constitutional review — Ultra vires review — Review of core identity of national constitution — Whether application of EU law having absolute primacy — Whether absolute duty to follow judgment of Court of Justice of the European Union — The law of Germany

A Constitutional Court for Europe?

2004 ◽  
Vol 6 ◽  
pp. 1-34
Author(s):  
Anthony Arnull
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
European Council ◽  
Constitutional Court ◽  
The European Union ◽  
Constitutional Order ◽  
Court Of Justice ◽  
European Court ◽  
The Future ◽  
Draft Constitution

The purpose of this article is to consider the effect of the draft Treaty establishing a Constitution for Europe on the European Court of Justice (ECJ). At the time of writing, the future of the draft Constitution is somewhat uncertain. Having been finalised by the Convention on the Future of Europe in the summer of 2003 and submitted to the then President of the European Council, it formed the basis for discussion at an intergovernmental conference (IGC) which opened in October 2003. Hopes that the text might be finalised by the end of the year were dashed when a meeting of the IGC in Brussels in December 2003 ended prematurely amid disagreement over the weighting of votes in the Council. However, it seems likely that a treaty equipping the European Union with a Constitution based on the Convention’s draft will in due course be adopted and that the provisions of the draft dealing with the ECJ will not be changed significantly. Even if either assumption proves misplaced, those provisions will remain of interest as reflecting one view of the position the ECJ might occupy in a constitutional order of the Union.

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