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.

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.

Composing Europe’s Fundamental Rights Area: A Case for Discursive Pluralism

2015 ◽  
Vol 17 ◽  
pp. 210-246
Author(s):  
Louise HALLESKOV STORGAARD
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
Eu Law ◽  
Rights Protection ◽  
Court Of Justice ◽  
European Court ◽  
Normative Basis ◽  
The Relationship ◽  
The Eu

AbstractThis article offers a perspective on how the objective of a strong and coherent European protection standard pursued by the fundamental rights amendments of the Lisbon Treaty can be achieved, as it proposes a discursive pluralistic framework to understand and guide the relationship between the EU Court of Justice and the European Court of Human Rights. It is argued that this framework – which is suggested as an alternative to the EU law approach to the Strasbourg system applied by the CJEU in Opinion 2/13 and its Charter-based case law – has a firm doctrinal, case law and normative basis. The article ends by addressing three of the most pertinent challenges to European fundamental rights protection through the prism of the proposed framework.

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.

Square Pegs and Round Holes: The Free Movement of Persons Under EEA Law

2017 ◽  
Vol 19 ◽  
pp. 165-186
Author(s):  
Christian NK FRANKLIN
Keyword(s):  
Free Trade ◽  
Case Law ◽  
Fundamental Principle ◽  
Free Movement ◽  
Trade Association ◽  
Eu Law ◽  
European Free Trade Association ◽  
Court Of Justice ◽  
Free Movement Of Persons ◽  
The Eu

AbstractWhilst the European Union’s aim of achieving an ‘ever closer Union’ is not an objective of EEA cooperation, homogeneity demands that we follow the same path: as the Union gets ever closer, so too does EEA cooperation, in light of the demands of the fundamental principle of homogeneity. This is particularly well demonstrated by looking at developments in the field of the free movement of persons. The case law of the Court of Justice of the European Free Trade Association (EFTA Court) in this field shows that in situations where homogeneity is put to the test, there seems little to suggest that a more national sovereignty-friendly approach has been adopted than under EU law. Notwithstanding the integral differences between the EU and EEA legal constructs, the EFTA Court has proven highly adept at keeping pace with EU developments in the field through a number of bold and creative interpretations of EEA law, and by using different tools to arrive at uniform conclusions.

scholarly journals Copyright and Artificial Creation: Does EU Copyright Law Protect AI-Assisted Output?

2021 ◽  
Author(s):  
P. Bernt Hugenholtz ◽  
João Pedro Quintais
Keyword(s):  
Original Work ◽  
Case Law ◽  
Copyright Law ◽  
Step Test ◽  
Eu Law ◽  
Legal Analysis ◽  
Court Of Justice ◽  
Eu Copyright Law ◽  
The Eu

AbstractThis article queries whether and to what extent works produced with the aid of AI systems – AI-assisted output – are protected under EU copyright standards. We carry out a doctrinal legal analysis to scrutinise the concepts of “work”, “originality” and “creative freedom”, as well as the notion of authorship, as set forth in the EU copyright acquis and developed in the case-law of the Court of Justice. On this basis, we develop a four-step test to assess whether AI-assisted output qualifies as an original work of authorship under EU law, and how the existing rules on authorship may apply. Our conclusion is that current EU copyright rules are generally suitable and sufficiently flexible to deal with the challenges posed by AI-assisted output.

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 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.

scholarly journals La tutela judicial de los derechos fundamentales en el ámbito de aplicación nacional del derecho de la Unión Europea : recientes acotaciones del Tribunal de Justicia y del Tribunal ConstitucionalEspañol = The judicial protection of fundamental rights in the sphere of the national application of EU law : recent remarks by the Court of Justice and by the Spanish Constitutional Court

2013 ◽  
pp. 391
Author(s):  
Juan Ignacio Ugartemendia Eceizabarrena
Keyword(s):  
National Level ◽  
Fundamental Rights ◽  
National Standards ◽  
Constitutional Court ◽  
Eu Law ◽  
Court Of Justice ◽  
European Court ◽  
El Sistema ◽  
Judicial Protection ◽  
The Eu

Este artículo es un estudio relativo a la tutela judicial de los Derechos Fundamentales cuando se aplica Derecho de la Unión en el ámbito interno, y a cuáles son los principales problemas con los que se topa el Juez nacional que aplica el Derecho de la Unión al llevar a cabo dicha función protectora. El trabajo, dicho de forma más concreta, se centra en el examen de una serie de recientes y decisivas resoluciones jurisdiccionales, dictadas tanto por parte del Tribunal de Justicia de la Unión Europea como por parte del Tribunal Constitucional Español, que analizan problemas y señalan soluciones relativas a esas cuestiones, además de mostrar cuál es la evolución y el estado de la situación al respecto. Se trata de resoluciones que abordan cuestiones de fondo, como, por ejemplo: ¿hasta qué punto es posible utilizar estándares nacionales de protección de los Derechos Fundamentales en situaciones conectadas con el Derecho de la Unión o con su aplicación, en lugar de utilizar el sistema de protección de los Derechos Fundamentales de la Unión Europea? Y asimismo, resoluciones que atienden a cuestiones de dimensión más procesal como la de dirimir hasta qué punto tiene autonomía el Juez nacional a la hora de plantear una petición prejudicial (se entiende a la hora de tutelar derechos reconocidos por normas de la Unión) en relación a las normas procesales nacionales.This article deals with the judicial protection of fundamental rights when EU Law is applied at national level and the main problems national judges have to deal with when applying EU Law as protectors of rights. More precisely, the work is focused on the examination of some recent and decisive judicial decisions, both by the European Court of Justice and by the Spanish Constitutional Court which analyze the problems and address the solutions to those questions besides showing the evolution and current situation in that regard. They are decisions that deal with the merits as for example to which extent it might be possible to use national standards of protection of fundamental rights in situations connected to EU Law or to its application instead of using the system of protection of EU human rights. Likewise, they are decisions which handle with more procedural questions as for example to what extent national judges are autonomous to file a preliminary question (it is understood that when it comes time to protect rights acknowledged by the EU) relative to national procedural rules.

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.

The Relationship between the EU and Member States in Constitutional Case Law: A Comparison between Western and Eastern Europe

2008 ◽  
Vol 10 ◽  
pp. 189-198
Author(s):  
Constance Grewe
Keyword(s):  
Turning Point ◽  
Case Law ◽  
Eastern European ◽  
European Law ◽  
Eu Law ◽  
Constitutional Courts ◽  
Member States ◽  
The Relationship ◽  
Constitutional Identity ◽  
The Eu

It is indeed a crucial moment now that Central and Eastern European (CEE) countries have begun to join the EU. The Maastricht Treaty was itself, in several respects, a turning point in European construction; Member States then became aware of the increasing influence of EU law and started to defend their autonomy against the ‘attacks’ stemming from it. With the accession of the CEE states, the ‘Solange story: a story about national constitutional courts resisting a straightforward surrender of national legal sovereignties, and insisting on their own role as guardians of any further transfer of powers from the national to the European level’, can now enter into ‘its chapter 3’. National or constitutional identity is the main arm of resistance, and these national reactions require a rethinking of the relationship between national and European law.

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