The Dialogue on the European Law of Civil Procedure between the Court of Justice and National Courts from a German Perspective

2020 ◽  
pp. 161-174
Author(s):  
Wolfgang Hau
Keyword(s):  
Civil Procedure ◽  
European Law ◽  
National Courts ◽  
Court Of Justice

11. Judicial Powers II

2021 ◽  
pp. 409-450
Author(s):  
Robert Schütze
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
European Law ◽  
The European Union ◽  
General Duty ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Procedural Autonomy ◽  
Compensatory Damages

This chapter discusses the ‘decentralized’ powers of the European Court of Justice. It looks at two specific constitutional principles that the Court has derived from the general duty of sincere cooperation: the principle of equivalence and the principle of effectiveness. Both principles have led to a significant judicial harmonization of national procedural laws. The chapter then turns to a third incursion into the procedural autonomy of national courts: the liability principle. While the previous two principles relied on the existence of national remedies for the enforcement of European law, this principle establishes a European remedy for proceedings in national courts. An individual can here, under certain conditions, claim compensatory damages resulting from a breach of European law. Importantly, the remedial competence of national courts is confined to national wrongs. They cannot give judgments on ‘European’ wrongs, as jurisdiction over the latter is—like the power to annul Union law—an exclusive power of the Court of Justice of the European Union. Finally, the chapter explores what happens in areas in which the Union has harmonized the remedial or jurisdictional competences of national courts.

10. Judicial Powers I

2021 ◽  
pp. 357-408
Author(s):  
Robert Schütze
Keyword(s):  
European Union ◽  
European Law ◽  
The European Union ◽  
Reference Procedure ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Central Pillar ◽  
Cooperative Federalism ◽  
Indirect Action

This chapter highlights the ‘centralized’ powers of the Court of Justice of the European Union. It begins with an analysis of the Court's annulment power. The power of judicial review is the founding pillar of a Union ‘based on the rule of law’. The chapter then moves to the remedial power of the European Court, and the question of when the Union legislative or executive branches will be liable to pay damages for an illegal action. It also investigates the Court's power to adjudicate disputes between parties. In addition to a number of direct actions (direct actions start directly in the European Court), the EU Treaties also envisage an indirect action starting in the national courts: the preliminary reference procedure. This procedure is the central pillar of the Union's cooperative federalism for it combines the central interpretation of Union law by the Court of Justice with the decentralized application of European law by the national courts.

Reflectarea jurisprudenței Curții de Justiție a Uniunii Europene privind clauzele abuzive în materia executării silite în dreptul român, în special în ceea ce privește regimul contestației la executare

2021 ◽  
Vol 2021 (2021) ◽  
pp. 208-224
Author(s):  
Mirela STANCU ◽  
Keyword(s):  
European Union ◽  
Present Article ◽  
Case Law ◽  
Civil Procedure ◽  
Point Of View ◽  
The European Union ◽  
National Legislation ◽  
National Courts ◽  
Court Of Justice ◽  
Unfair Terms

"Although the jurisprudence of the Court of Justice of the European Union is commonly reflected in the practice of the national courts, unfortunately, more than ten years after Romania's accession to the European Union, there are still some syncopations at the legislative level. There are an example in that sense some of the provisions of the Romanian Code of Civil Procedure relating to the contestation against the forced execution (contestatia la executare). Indeed, on closer examination, it appears that these provisions do not fully comply with the requirements which, according to the jurisprudence of the Court of Justice of the European Union, must be respected by national legislation in order to stop the application of unfair terms in contracts concluded by a professional with consumers. The present article aims at such an examination of the provisions of the Romanian Code of Civil Procedure regarding the contestation against the forced execution from the perspective of the jurisprudence of the Court of Justice of the European Union in the field of unfair terms. Thus, after having identified from the jurisprudence of the Court of Justice the requirements that must be met by national legislation in order to stop the application of unfair terms in contracts concluded by a professional with consumers, the provisions of the Romanian Code of Civil Procedure relating to the contestation against the forced execution, the stay of execution and the time limit for the contestation will be examined from the perspective of the said jurisprudence. Finally, and without claiming to be exhaustive, in this article, the author also puts forward a possible interpretation of the national provisions examined from the point of view of the case law of the Court of Justice."

10. Judicial Powers I

2021 ◽  
pp. 357-408
Author(s):  
Robert Schütze
Keyword(s):  
European Union ◽  
European Law ◽  
The European Union ◽  
Reference Procedure ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Central Pillar ◽  
Cooperative Federalism ◽  
Indirect Action

This chapter highlights the ‘centralized’ powers of the Court of Justice of the European Union. It begins with an analysis of the Court’s annulment power. The power of judicial review is the founding pillar of a Union ‘based on the rule of law’. The chapter then moves to the remedial power of the European Court, and the question of when the Union legislative or executive branches will be liable to pay damages for an illegal action. It also investigates the Court’s power to adjudicate disputes between parties. In addition to a number of direct actions (direct actions start directly in the European Court), the EU Treaties also envisage an indirect action starting in the national courts: the preliminary reference procedure. This procedure is the central pillar of the Union’s cooperative federalism for it combines the central interpretation of Union law by the Court of Justice with the decentralized application of European law by the national courts.

11. Judicial Powers II

2021 ◽  
pp. 409-450
Author(s):  
Robert Schütze
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
European Law ◽  
The European Union ◽  
General Duty ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Procedural Autonomy ◽  
Compensatory Damages

This chapter discusses the ‘decentralized’ powers of the European Court of Justice. It looks at two specific constitutional principles that the Court has derived from the general duty of sincere cooperation: the principle of equivalence and the principle of effectiveness. Both principles have led to a significant judicial harmonization of national procedural laws. The chapter then turns to a third incursion into the procedural autonomy of national courts: the liability principle. While the previous two principles relied on the existence of national remedies for the enforcement of European law, this principle establishes a European remedy for proceedings in national courts. An individual can here, under certain conditions, claim compensatory damages resulting from a breach of European law. Importantly, the remedial competence of national courts is confined to national wrongs. They cannot give judgments on ‘European’ wrongs, as jurisdiction over the latter is—like the power to annul Union law—an exclusive power of the Court of Justice of the European Union. Finally, the chapter explores what happens in areas in which the Union has harmonized the remedial or jurisdictional competences of national courts.

On the Application of European Law in (Not Only) the Courts of the New Member States: ‘Don’t Do as I Say’?

2008 ◽  
Vol 10 ◽  
pp. 1-34 ◽  
Author(s):  
Michal Bobek
Keyword(s):  
National Level ◽  
Case Law ◽  
European Law ◽  
The European Union ◽  
New Member States ◽  
National Courts ◽  
Court Of Justice ◽  
Domestic Courts ◽  
Official Languages ◽  
Ec Law

In the classical narratives of the story called European integration, national judges are said to have a ‘mandate’ under European law: they are ‘empowered’ by EC law or, in the less thrilling versions of the story, they simply become ‘Community judges’. Not only are national judges obliged to apply substantive EC law, they are also requested to apply it in the way required by the Court of Justice. How, precisely, national judges are asked to apply EC law in domestic courts has traditionally been portrayed through the case law of the Court of Justice; not much attention has been paid to the reality in national courts. Over the years, the case law of the Court of Justice has created an image of a veritable European judicial Hercules: a judge who reads in many of the official languages of the European Union; who knows not only all the relevant national and European law, which he or she applies ex officio, but also engages in comparative interpretation of the law; who identifies him- or herself with the European telos which he or she is applying on the national level; and so on.

scholarly journals Member state's lawlessness and European law – the case of Poland

2021 ◽  
Vol 12 (1) ◽  
Author(s):  
Robert Mezyk
Keyword(s):  
European Union ◽  
Political Influence ◽  
European Law ◽  
The European Union ◽  
Domestic Court ◽  
National Courts ◽  
Court Of Justice ◽  
Constitutional Tribunal ◽  
Enforcement Mechanisms ◽  
The Eu

Since 2015 the Polish authorities have undertaken numerous actions subordinating the country's judiciary to political influence. These steps met resistance from the European Union (EU), including proceedings by the European Commission and at the Court of Justice of the European Union (ECJ). The judgement of the ECJ in the case A.K. and Others v Sąd Najwyższy (2019) brought the situation to another level by empowering national courts to verify the independence of other domestic judicial bodies. While the ECJ empowered Polish judges to reject the domestic court-packing, the Polish state countered this with internal disciplinary sanctions. I discuss this tension and consider the upcoming conflict between the ECJ and the Polish Constitutional Tribunal (‘CT’). I conclude by highlighting the fact that whereas Poland breaches European law, the breach will be hard to rectify due to the lack of independent enforcement mechanisms on the side of the EU.

Pushing Back: What Happens When Member States Resist the European Court of Justice? A Multi-Modal Approach to the History of European Law

2012 ◽  
Vol 21 (3) ◽  
pp. 417-435 ◽  
Author(s):  
BILL DAVIES
Keyword(s):  
Legal System ◽  
Legal History ◽  
National Level ◽  
European Court Of Justice ◽  
European Law ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
History Of ◽  
System Focus

AbstractEstablished explanations of the development of the European legal system focus on the decisive power of the Court of Justice in determining the system's practice and parameters. Even accounts highlighting the various interlocutors involved with the Court are ultimately drawn to Luxembourg as the fulcrum of decision. However, these approaches neglect the equally constitutive role played by national courts, particularly when resisting the European Court of Justice (ECJ). By analysing the important consequences of the German Constitutional Court's Solange decision of 1974, this paper argues that we must complicate our retelling of the European Union's (EU) legal history by rethinking the importance of national-level agency.

The Puzzling Paradox Presented within the African Supranational Judicial Institutions: The ECOWAS Court of Justice

2020 ◽  
Vol 28 (Supplement) ◽  
pp. 86-109
Author(s):  
Kehinde Ibrahim
Keyword(s):  
Human Rights ◽  
West African ◽  
African Region ◽  
The West ◽  
Political Will ◽  
National Courts ◽  
Court Of Justice ◽  
West African Region

The judgments of the ECOWAS Court, which are final and immediately binding, are vital for the realisation of ECOWAS aims and objectives. The enforcement of its judgments is particularly important in the case of individuals whose enjoyment of fundamental human rights, as guaranteed under the ECOWAS Community laws, is dependent on effective enforcement. Yet, an existential puzzling paradox emanates through a poor record in the implementation of the ECOWAS Court's judgments. This problem, which is not limited to the West African region deserves scrutiny and concrete proposals. Legal and political considerations surface in assessing the existence of this paradox, and despite the lack of a consistent political will, to implement the decisions of ECOWAS Court relevant judicial actors have roles to play. National courts could take a bolder approach in complementing the work of the ECOWAS Court. The ECOWAS Court itself could put in place concrete mechanisms and adopt certain practices to address this poor record of non-implementation. It is yet to be seen how substantive mechanisms would work in practice.

Sign in / Sign up

Export Citation Format

Share Document