scholarly journals Effective Judicial Protection in EU Law: an Evolving Principle of a Constitutional Nature

2019 ◽  
Vol 12 (2) ◽  
pp. 35-62
Author(s):  
Matteo Bonelli
Keyword(s):  
Case Law ◽  
Legal Order ◽  
Lisbon Treaty ◽  
Recent Case ◽  
Eu Law ◽  
Member States ◽  
National Courts ◽  
Court Of Justice ◽  
Judicial Protection ◽  
The Eu

Effective judicial protection emerged as a EU law principle in the 1980s, operating alongside the Rewe principles of equivalence and effectiveness as a standard to assess national procedures for the enforcement of EU law. This article argues that the codification of effective judicial protection in Article 19 TEU and 47 of the Charter, operated by the Lisbon Treaty, has stimulated an evolution of the principle, which is evident in the recent case law of the Court of Justice. Today, effective judicial protection operates not only as a procedural principle, but also as a more substantive and structural one, and has generally acquired broader constitutional relevance. This evolution has crucial effects on the EU legal order: most importantly, it affects the division of competences between Member States and the EU, and between the Court of Justice and national courts.

scholarly journals The ‘Territory of the Union’ in EU Citizenship Law: Charting a Route from Parallel to Integrated Narratives

2019 ◽  
Author(s):  
Niamh Nic Shuibhne
Keyword(s):  
Case Law ◽  
Legal Order ◽  
Eu Law ◽  
Member States ◽  
Court Of Justice ◽  
Union Citizenship ◽  
Union Territory ◽  
The Eu

Abstract This paper examines the growing significance of the ‘territory of the Union’ in EU citizenship law and asks what it reveals about Union citizenship in the wider system of the EU legal order. In doing so, it builds on scholarship constructing the idea of ‘personhood’ in EU law by adding a complementary dimension of ‘place-hood’. The analysis is premised on territory as a place within—but also beyond—which particular legal qualities are both produced by and reflect shared objectives or values. In that respect, the paper offers a comprehensive ‘map’ of Union territory as a legal construct, with the aim of uncovering what kind of legal place the territory of the Union constitutes as well as the extent to which it is dis-connectable from the territories of the Member States. It also considers how Union territory relates to what lies ‘outside’. It will be shown that different narratives of Union territory have materialized in the case law of the Court of Justice. However, it is argued that these segregated lines of reasoning should be integrated, both to reflect and to progress a composite understanding of Union territory as a place in which concerns for Union citizens, for Member States, and for the system underpinning the EU legal order are more consistently acknowledged and more openly weighed.

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.

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

scholarly journals Joined Cases A. K. v. Krajowa Rada Sądownictwa (C-585/18) and CP (C-624/18), DO (C-625/18) v. Sąd Najwyższy (C.J.E.U.)

2020 ◽  
Vol 59 (3) ◽  
pp. 459-486
Author(s):  
Joelle Grogan
Keyword(s):  
Judicial Independence ◽  
Eu Law ◽  
European Standard ◽  
Current Case ◽  
Member States ◽  
Eu Member States ◽  
Court Of Justice ◽  
Judicial Protection ◽  
National Measure ◽  
The Eu

Joined Cases C-585/18, C-624/18, and C-625/18 concerning the independence of the Disciplinary Chamber of the Sąd Najwyższy (Polish Supreme Court) is the latest in a series of European Union (EU) Member States requesting the Court of Justice of the EU (CJEU) to rule on the independence of their judicial systems. While the organization of justice systems within Member States is a competence of Member States (and thus not for the EU to determine or decide), the CJEU has held that Member States are nevertheless required to comply with obligations under EU law to ensure effective judicial protection and, as a necessary corollary, judicial independence. The significance of the current case lies in the formulation by the CJEU of a “European” standard of judicial independence, and its finding that national judges may set aside the jurisdiction of courts found not to be independent against that standard and to disapply any national measure (in accordance with the principle of the primacy of EU law over national law) that gives jurisdiction to a non-independent court.

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.

National Procedural Autonomy and General EU Law Limits

2019 ◽  
Vol 12 (2) ◽  
pp. 5-34
Author(s):  
Rob Widdershoven
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Eu Law ◽  
Procedural Law ◽  
Court Of Justice ◽  
European Court ◽  
Recent Approach ◽  
Procedural Autonomy ◽  
Judicial Protection ◽  
The Eu

This article examines the recent approach of the European Court of Justice of the EU towards the applicability of procedural national law in cases falling within the scope of Union law. It argues that the Court increasingly assesses such rules within the framework of the principle of effective judicial protection, as bindingly codified in Article 47 of the Charter of Fundamental Right of the EU since December 2009. This test is gradually replacing the rather deferential test on the Rewe principles of equivalence and effectiveness and implies a further limitation of procedural autonomy of the Member States. The reason for the shift seems to be the necessity to coordinate the Court's case law on Article 47 CFR with the case law of the European Court of Human Rights on Article 6 ECHR, because this coordination requires the application of a similar standard by both European Courts. As a result, the importance of, in particular, the Rewe principle of effectiveness, has already decreased to a considerable extent and might decrease further in future. Nevertheless, it is not to be expected that this standard will be abolished completely. First, because it may provide an adequate standard for assessing procedural issues that are not related to effective judicial protection or Article 47 CFR. Secondly, because incidentally it may be used by the Court for modifying national procedural law with a view to the effective application of substantive EU rules.

scholarly journals Goods in Transit and Intellectual Property Under the EU Law and Caselaw of the Court of Justice

2014 ◽  
Vol 14 (2) ◽  
pp. 93-104
Author(s):  
Radim Charvát
Keyword(s):  
Intellectual Property ◽  
Member State ◽  
Case Law ◽  
Trade Mark ◽  
State Courts ◽  
Eu Law ◽  
Member States ◽  
Court Of Justice ◽  
In Transit ◽  
The Eu

Abstract The paper addresses the issue whether customs authorities of Member States are entitled to suspend or detain goods in transit (i.e., products directing from one non- Member State to another non-Member State through the EU) and the evolving case-law of the Court of Justice related to this matter. Prior to the judgment in Philips and Nokia cases, a so-called manufacturing fiction theory was applied by some Member State courts (especially Dutch courts). According to this theory, goods suspended or detained by customs authorities within the EU were considered to be manufactured in the Member State where the custom action took place. In the Philips and Nokia judgments, the Court of Justice rejected this manufacturing fiction theory. But the proposal for amendment to the Regulation on Community trade mark and the proposal of the new Trademark directive, as a part of the trademark reform within the EU, go directly against the ruling in the Philips and Nokia cases and against the Understanding between the EU and India.

Effective Judicial Protection: some recent developments – moving to the essence

2020 ◽  
Vol 13 (2) ◽  
pp. 175-190 ◽  
Author(s):  
Sacha Prechal
Keyword(s):  
Case Law ◽  
Eu Law ◽  
Judicial Decision ◽  
Concrete Case ◽  
Effective Protection ◽  
Court Of Justice ◽  
Recent Developments ◽  
Judicial Protection ◽  
The Relationship ◽  
The Eu

This article looks briefly into the evolution of the principle of effective judicial protection in EU law and into the relationship between the different manifestations of that principle, which is by now given expression in Article 47 CFR, Article 19 TEU and various provisions of secondary law. Next, it focusses on recent developments in the case law of the Court of Justice of the EU, which concern two central aspects of the principle of effective judicial protection: the compliance with court judgments and the independence of the judiciary. As far as the first topic is concerned, two rather extreme cases addressed the issue what should be done, as a matter of EU law, in situations where a public authority refuses to comply with a final judicial decision. Then the article continues by discussing the independence of the judiciary as a key rationale for the principle of effective protection. In particular, it summarizes the increasingly detailed requirements to be satisfied in order to protect the independence of judges and indicates how an alleged lack of independence should be assessed in a concrete case.

scholarly journals National Security and Retention of Telecommunications Data in Light of Recent Case Law of the European Courts

2021 ◽  
pp. 1-29
Author(s):  
Marcin Rojszczak
Keyword(s):  
National Security ◽  
Gold Standard ◽  
Case Law ◽  
Legal Order ◽  
Fundamental Rights ◽  
Recent Case ◽  
Data Retention ◽  
Court Of Justice ◽  
General Obligation ◽  
The Eu

The Court of Justice is once again clarifying the limits of the application of data retention laws – General obligation to retain data exceeds the limits of what is strictly necessary within a democratic society – The national security exception does not preclude a judicial assessment of the legitimacy of its application – The existence of a genuine and specific threat as a premise for the use of untargeted data retention measures – The possibility of searching for the gold standard of data retention based on algorithmic processing – Different perceptions of the Court of Justice position by the referring courts – The Conseil d'État’s position distorts the idea of the protection of fundamental rights that is enshrined in the EU legal order

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

Abstract While 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.

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