The Maastricht-Urteil of the German Constitutional Court of October 1993 has left a deep mark on
European Union law. Although some may consider it as part of legal history, the decision has never
been overruled, and the ideas behind it are very much alive. This paper tries to examine the legacy of
that decision. From a practical point of view, the paper focuses on the following issues: the current
situation in Germany; the influence on other constitutional or supreme courts and on constitutional
reforms in some Member States; the influence on the European Court of Justice and on the Treaty
establishing a Constitution for Europe. Regarding theory, three sections of the paper discuss a number
of widespread ‘idées reçues’ contained in the Maastricht-Urteil on notions such as the State,
constituent power (pouvoir constituant), and democracy. The next section presents the movement of
legal pluralism as an attempt to come to terms with the Maastricht-Urteil and its legacy. It criticises
the radical versions of legal pluralism in view of the damage they may cause to essential dimensions
of the rule of law. The final section reflects on the real motives behind the Maastricht-Urteil and its
legacy, and on possible future developments.
The European Court of Justice in Luxembourg has been issuing judgments since 1954. It is beyond doubt that this body has, in these judgments, influenced the nature of European integration, indeed the nature of Europe itself, in a far reaching manner. Over the years, this Court has been called upon many times to judge in cases and claims originating in wartime Europe. The first of these occurred in 1975 and there are still, in 2008, several cases rooted in the Second World War awaiting judgment. In other words, the legacy of what happened in Europe between 1933 and 1945 is very much a live, if not very well known, issue before the judges of the European Union. This paper examines how the European Court of Justice responds to wartime based claims and how its jurisprudence deals with the history of the Member States of the EU. It is, in other words a specific analysis of the Vergangenheitsbewältigung (the management of the past) by one institution of the Union. This analysis is framed within an appreciation of the difficulties inherent in confronting memories within the European Union. The Court of the Union is no different in this respect and it emerges as closed and restrained when faced with wartime narratives. This struggle to judicially handle its own history...
This paper analyzes the social recruitment of the European Court of Justice from the early 1950s to the late 1990s with special focus on the early days of the Court (1950s-1960s). Early European integration can be described as a series of struggles between opposing types and segments of national elites (political, bureaucratic, juridical, economic, intellectual), competing to define an institutional framework for this yet loosely institutionalized transnational space, and seeking to reproduce, through these institutions, their national power, positions and capital at the international level. As part of this process of institutionalization and differentiation of the European field of power, the European Court of Justice itself was (and still is) relatively heterogeneous. Composed of former parliamentarians, trade-unionists, economic or judiciary civil servants, academics and (but not solely) supreme courts’ judges, the “court” of “justice” perfectly reproduced these tensions between opposing types of capitals and legitimacies. As Norbert Elias once put it, “an initial antagonism and struggle for position between rival groups, may be found in the early history not only of professions, but of almost every institution”. I argue that these structural tensions not only strongly determined the internal logics of the institution...
The development of a uniform European trade mark law regime has taken so many different paths over the past decades that the state of the law is now more or less incomprehensible to everyone. The regime is primarily shaped by judicial creativity, and the Court of Justice of the European Union (CJEU, earlier the European Court of Justice, ECJ), has not even hesitated to set aside the letter of supranational statutes of central importance. The CJEU has explained this shift in power to make law, from the legislature to the court, simply by the need to interpret the legislation not solely on the basis of its wording, but also in light of the overall scheme and objectives of the system of which it is part. Besides the question of a democratic deficit, permeating the overall European unification process, the inconsistent application of trade mark statutes is disquieting. On one day, rights can be invoked to prevent registration of a trade mark only if use of that mark is likely to cause a change in the economic behaviour of purchasers. On another day, free riding on the reputation represented by the trade mark is an actionable infringement of the rights per se, in spite of the need for correlation between the rights to prevent registration and to prevent use of signs or expression in the course of trade. The position of the CJEU...
Fonte: Instituto Universitário EuropeuPublicador: Instituto Universitário Europeu
Tipo: Artigo de Revista Científica
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Although the governments of the member states of the European Community (EC) have always had a principal role in fashioning EC policies and norms, from the 1960s through the 1980s the European Court of Justice played a key role in imposing a compliance regime with these norms that has resembled in its structure and rigor the constitutional order of a federal state. To an extent unprecedented in other international organizations, states have found themselves locked into this regime and unable to enjoy the more common international legal compliance latitude. Interestingly, member state courts, legislatures, and governments seemed, by and large, to accept the new constitutional regime 'imposed' by the European Court with a large measure of equanimity-a veritable 'quiet revolution.' In this essay, the author restates the principal features of the new order and then explores the possible reasons that explain the acceptance and endorsements of the European Court by major constituencies in the member states. In the conclusion, the author hints at factors that bode a much rougher future relationship between the European Court and its national interlocutors.
The article compares the case law of the EU Court of Justice and of the US Supreme Court in the field of due process for suspected terrorists and identifies a common pattern of increate judicial scrutiny on the action of the political branches of government.
The EU Charter of Fundamental Rights has been incorporated into European constitutional law ten years after it was adopted by the EU institutions. In that time the Charter developed from a ‘solemn proclamation’ to a persuasive authority before the European Courts and now a binding Charter for the EU. It has been referred to in the case-law of both the European Court of Justice and the European Court of Human Rights. However, the Charter’s history and future are the subject of political contest and academic debate. Along with the accession to the European Convention on Human Rights, it is likely to provide much scope for debate in coming years. This paper assesses the Charter’s development from a proposal to increase EU legitimacy to its current status as the Union’s own Bill of Rights. It examines the rights protected by the Charter, their sources and how they may be interpreted in light of the ‘Explanations’ in the Official Journal. The case-law of the European Courts on the Charter is catalogued and analysed to determine the Charter’s likely value in human rights litigation. Finally, the chapter analyses the application of the Charter across the EU and considers its implications in the Member States that have limited its effect. Three related themes are woven throughout the analysis: the conflicting motivations of the Member States and the EU institutions...
This doctoral thesis inquires into the role and perspectives of the ‘European’ (mandatory) and ‘USA’ (persuasive) constitutional models of the right to freedom of expression for the constitutional debate in Central and Eastern Europe (CEE). This survey is based on the study of socio-legal developments in the Czech Republic, Hungary, and Poland, embracing the period of post-communist transition until 2010. The research focuses on three controversial issues in the realm of freedom of speech, namely (1) hate speech, (2) historical revisionism, and (3) pornography, before the U.S. Supreme Court and European Court of Human Rights. The essential novelty of the project is an assessment of European standards of free speech and non-discrimination beyond the mechanisms of the Council of Europe, encompassing the relevant aspects of EU law (judgements of the European Court of Justice and harmonised instruments) as mandatory standards for courts and legislators, including those in CEE. The research methodology transcends a standard case law assessment (comparative constitutional, public international, and EU law), normative jurisprudence and analytical philosophy, incorporating critical approaches stemming from post-structuralist scrutiny...
In March 2010, the Court of Justice of the European Union (CJEU or Court) handed down its judgment in the long awaited case of Rottmann. This paper explores some of the implications of this important judgment through a series of comments placed contemporaneously on the EUDO Citizenship website and a conclusion finally revised by Jo Shaw in November 2011. The judgment clarifies the relationship between EU citizenship and national citizenship, stating that a withdrawal of national citizenship which results in a person ceasing to be an EU citizen altogether ‘by reason of its nature and consequences’ falls within the scope of EU law and is thus subject to review by national courts and the Court of Justice in the light of the requirements of EU law. The conclusion as to whether national authorities have overstepped the mark will be made in the light of a proportionality test. While Rottmann itself represents an interesting jumping off point for further reflection on the EU/national citizenship nexus, its broader interest partly lies in the fact that it sits – with the benefit of some hindsight – at the beginning of a new period of judicial activism on the part of the Court of Justice in relation to the scope and character of EU citizenship. This broader context is surveyed by Shaw in the concluding thoughts.; Setting the scene: the Rottmann case introduced
Jo Shaw 1
The entirely conventional supremacy of Union citizenship and rights
Gareth T. Davies 5
Two Sovereign States vs. a Human Being: CJEU as a Guardian of Arbitrariness in Citizenship Matters
Dimitry Kochenov 11
Some comments on Rottmann and the "personal circumstances" assessment in the Union citizenship case law
Michael Dougan 17
The correlation between the status of Union citizenship...
A powerful narrative exists in European Union Law that argues that the Union and its main legal actor, the European Court of Justice, have placed the individual at the centre of the European project. The creation of the European individual (worker/consumer/producer/employer...) is largely the result of a legal technique which consists in granting individuals with subjective rights opposable to the Member States. EU legislation and jurisprudence are replete with such rights. In the past two decades, the language of market rights has developed in the grammar and semantic of citizenship rights. This paper is an attempt to address some of the shortcomings of this construction by relying on the concept of status. A concept of status has recently emerged in the case law of the European Court of Justice. The paper argues that, beyond its purely rhetorical value, the concept may be constructed in normative terms so as to offer a new conceptualization of individual autonomy at the EU level. A conception that preserves the emancipatory character of EU law but is more sensitive to the protection of affected interests.; La langue du droit de l’Union -- La souveraineté transnationale du sujet du droit de l’Union -- Le concept de personne et la transformation du cadre de l’autonomie -- L’idée de statut et le souci du concret -- L’émergence d’un «droit transitionnel» -- «Je veux...
This book delves into the rationale, components of, and responses to accusations of judicial activism at the European Court of Justice. Detailed chapters from academics, practitioners and stakeholders bring diverse perspectives on a range of factors – from access rules to institutional design and to substantive functions – influencing the European Court’s political role. Each of the contributing authors invites the reader to approach the debate on the role of the Court in terms of a constantly evolving set of interactions between the EU judiciary, the European and national political spheres, as well as a multitude of other actors vested in competing legitimacy claims. The book questions the political role of the Court as much as it stresses the opportunities – and corresponding responsibilities – that the Court’s case law offers to independent observers, political institutions and civil society organisations.; -- 1. Introduction : the European Court of Justice as a political actor / Elise Muir, Mark Dawson and Bruno de Witte
-- 2. The political face of judicial activism : Europe's law-politics imbalance / Mark Dawson
-- 3. The least dangerous branch of European governance? The European Court of Justice under the checks and balances doctrine / Marcus Höreth
-- 4. Maybe not activist enough? On the Court's alleged neoliberal bias in its recent labor cases / Clemens Kaupa
-- 5. The Court of Justice : a fundamental rights institution among others / Elise Muir
-- 6. Actively talking to each other : the Court and the political institutions / Vassilis Hatzopoulos
-- 7. The European Court of Justice in the face of scientific uncertainty and complexity / Ellen Vos
-- 8. The European Court of Justice and the duty to respect sensitive national interests / Loïc Azoulai
-- 9. A cautionary tale : some insights regarding judicial activism from the national experience / Maartje de Visser
-- 10. Judicial activism and the European Court of Justice : how should academics respond? / Anthony Arnull
-- 11. The potential of civil society and human rights organizations through third-party interventions before the European Courts : the EU's area of freedom...
Fonte: Instituto Universitário EuropeuPublicador: Instituto Universitário Europeu
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This collection of essays aims to look afresh at an institution which, although already the subject of numerous academic analyses and extensive legal research, remains of central importance to all who are interested in the development of European Union law and policy. Various contributions seek to develop particular avenues of analysis which, despite the significant increase in the range and volume of literature on the Court of Justice, have not yet been very fully explored. They include a legal-philosophical account of the ECJ's reasoning, a sociological analysis of patterns of litigation before the Court, and an investigation of the impact and presence of gender in the Court's work and on its institutional position. Other contributions look anew at the more topical and sometimes controversial subject of the relationship between national courts and the Court of Justice, both under the preliminary reference procedure and in other contexts, and a final essay considers the likely effect on the Court of Justice and the Court of First Instance of the reforms to the judicial structure proposed during the Nice Intergovernmental Conference.; 1: G. de Búrca: Introduction
2: H. Schepel and E. Blankenburg: Mobilizing the European Court of Justice
3: J. Bengoextea...
Bringing together a variety of outlooks from comparative law, legal theory, organizational sociology, socio-legal studies or political science, this Joint Working Papers explores the cognitive equipment through which international judges perform their role. The notion of 'fabric', borrowed from the Science and technology studies, and Bruno Latour in particular, is used here as a common entrypoint enabling to consider altogether the (legal and non-legal, formal and unformal) tools and templates that contribute to shape international judicial decision-making: 'best practices', judicial compendia, routinized legal repertoires, legal methodologies, standard operational modes, etc…; -- Antoine Vauchez, Introduction 1
-- Part 1. Actors and Know-How 3
-- Antoine Vauchez, The European Themis and its Social Fabric. Review, Reflections and New Directions for Studies of the European Court of Justice 5
-- Iyiola Solanké, The Advocate General and the Practices of International Jurisprudence 15
-- Cristina Dallara, The Definition of ‘Best Judicial Practices’ by Judicial and Legal Expert Networks and Commissions 21
-- Part 2. Methods and Tools 33
-- Bilyana Petkova, The Role of Majoritarian Activism in Precedent Formation at the European Court of Human Rights 35
-- Jérome Porta...
This contribution analyses the relationship between international law and Community law in the light of two recent European Court of Justice (ECJ) cases on Article 307 EC, that is, the Kadi and bilateral investment treaties (BITs) judgments. The analysis discusses two concepts: (1) the concept of the 'very foundations of the Community legal order' and (2) the concept of 'hypothetical incompatibility'. The main argument that is advanced in this contribution is that with these two concepts, the ECJ has identified a constitutional dimension of Article 307 EC that hitherto has not been generally recognized. More specifically, it is argued that the main aim and result of this new line of jurisprudence is to protect the autonomy of European law from international law interferences by excluding as much as possible any conflicts between European and international law. In this sense, Article 307 EC is a tool for the ECJ to act as a gatekeeper by regulating the relationship between international law and Community law. Moreover, it is argued that the concept of the 'very foundations of the Community legal order' very much resembles the approach of the Federal German Constitutional Court, which in turn illustrates that the ECJ is performing the function of a true constitutional court of Europe. Accordingly...
This edited collection appraises the role, self-perception, reasoning and impact of the European Court of Justice on the development of EU external relations law. Against the background of the recent recasting of the EU Treaties by the Treaty of Lisbon and at a time when questions arise over the character of the Court’s judicial reasoning and the effect of international legal obligations in its case law, it discusses the contribution of the Court to the formation of the EU as an international actor and the development of EU external relations law, and the constitutional challenges the Court faces in this context. To what extent does the position of the Court contribute to a specific conception of the EU? How does the EU’s constitutional order, as interpreted by the Court, shape its external relations? The Court still has only limited jurisdiction over the EU’s common foreign and security policy: why has this decision been taken, and what are its implications? And what is the Court's own view of the relationship between court(s) and foreign policy, and of its own relationship with other international courts? The contributions to this volume show that the Court’s influence over EU external relations derives first from its ability to shape and define the external competence of the EU and resulting constraints on the Member States...
Examining Board: Professor Miguel Maduro, European University Institute (Supervisor) Professor Mattias Kumm, European University Institute Professor Neil Komesar, University of Wisconsin Professor Christoph Möllers, Humboldt Universität, Berlin.; Defence date: 5 June 2013; The thesis seeks to widen our understanding of the general principle of equality within European Union law. In its approach it is theoretically ambitious yet grounded in case law analysis. After an introduction into the origins of the notion of equality, the thesis sets out to deconstruct the adjudication by the European Court of Justice as well as by selected Member State courts on some of the most pressing issues of European equality law via the means of comparative institutional analysis. More specifically, it examines the diversity of applied standards of testing by the European Court of Justice, its handling of reverse discrimination and its dealing with affirmative action. Moreover, it looks at the Austrian and German case law on reverse discrimination. Through this exercise, the thesis illustrates that the judges are in their decisions both guided by reaching a 'fair' outcome to the cases and by reflections on their ability to rule on egalitarian issues. The work describes in detail how institutional considerations inform judicial decisions in matters of equality. Building on the finding that institutional thinking influences judicial decision making...
Die essential facilities doctrine wurde im amerikanischen Antitrust-Recht ausgearbeitet und ist im Jahre 1977 durch eine Entscheidung des Court of Appeals des District of Columbia und damit erstmals durch ein höheres Gericht der USA anerkannt worden. Die Ursprünge dieser Doktrin liegen in einer Tradition des Common Law und einer Entscheidung des Supreme Court von 1912. Die Europäische Kommission hat erstmals in ihren Hafen-Entscheidungen der Jahre 1992 bis 1994 von wesentlichen Einrichtungen gesprochen und auf die Kriterien der essential facilities doctrine zurückgegriffen. Auch der europäischen Gerichtsbarkeit sind einschlägige Fälle unterbreitet worden, zuletzt der Fall Bronner. Die Gerichte scheuen sich aber, die spezielle Doktrin ausdrücklich anzuerkennen, und greifen statt dessen auf die allgemeine Rechtsprechung zur Geschäftsverweigerung zurück, die der Europäische Gerichtshof seit den 70-er Jahren entwickelt hat. Die Entscheidungen der europäischen Gerichte und die essential facilities doctrine stimmen aber inhaltlich überein. Bei der Doktrin handelt es sich deshalb wohl um eine Untergruppe der Geschäftsverweigerung.; The essential facilities doctrine was developed in American Antitrust-Law and has been accepted by the Court of Appeals of the District of Columbia and thus by a higher U.S.-court for the first time in 1977. The roots of this doctrine lie in a tradition of Common Law and in a decision of the Supreme Court in 1912. The European Commission has mentionned essential facilities for the first time in its decisions concerning ports in the years 1992 to 1994 and has relied on the criteria of the essential facilities doctrine. The european jurisdiction has also examined such cases...
http://dx.doi.org/10.5007/2177-7055.2014v35n69p19This article examines the current framework for a “European” recognition of social rights starting from the main relevant Council of Europe and European Union sources. Through a review of the main challenges faced by such a debated category of entitlements in the European context, we will discuss the actual effectiveness of their protection and the potential risks implied in skeptical positions towards supranational commitments perceived as exceedingly pervasive. References to selected case law from the European Court of Human Rights and the European Court of Justice will not only highlight the obstacles related to the enactment of “European” social rights provisions, but also point out the presence of interpretive tools that may actively help in overcoming them.; http://dx.doi.org/10.5007/2177-7055.2014v35n69p19 Il presente contributo esamina le attualipossibilità di un riconoscimento “europeo” per i diritti sociali attraverso l’analisi delle principali fonti del Consiglio d’Europa e dell’Unione Europea che li riguardano. Ripercorrendo le difficoltà emerse nell’inserimento di tale controversa categoria di diritti nei documenti “europei” fondamentali, ci si interrogherà quindi sull’effettivo grado di protezione che questa inclusione garantisce e sui rischi che l’insofferenza nei confronti di vincoli sovranazionali ritenuti eccessivamente penetranti può comportare. Alcuni riferimenti alle principali decisioni emesse dalla Corte Europea dei Diritti dell’Uomo e dalla Corte di Giustizia Europea mostreranno non soltanto le difficoltà interpretative incontrate nell’applicazione delle norme esaminate...
In the ongoing effort to staunch the Euro crisis, last Friday saw the signing of a stringent new fiscal compact to limit budget deficits and debt, by 25 EU member states. The European Court of Justice has taken on a new role to enforce these provisions by enacting severe penalties on non-compliant countries. Damian Chalmers argues that the Court’s record has been very little scrutinized. In a second part of his case tomorrow, he argues that ECJ is too institutionally enmeshed with European Union policy-making in general. It cannot now serve its original purpose, and we should examine what alternative options exist.