Biodiversity Litigation Before the Court of Justice of the European Union

Recent Decisions of the European Court of Justice of the European Union on Supplementary Protection Certificates: A Few Answers-Many Questions.

Reversing the Lens: In National Judiciaries the CJEU Trusts? Insights from EU Migration and Asylum Law Trust and distrust have been explored as drivers influencing the choices of national courts in the preliminary ruling procedure, that is, whether to hand over the case to the Court of Justice of the European Union (CJEU). This article proposes a novel account by reversing the roles to explore the CJEU’s trust and distrust in national judiciaries. While the reliance on national courts is inherent in the decentralised system of European Union (EU) law enforcement, the CJEU can impose significant limitations on national courts’ discretion in the application and enforcement of EU law. Trust and distrust in national judiciaries reflect the CJEU’s effort to reconcile averting claims of judicial activism with safeguarding the rule of law and promoting further European integration. Drawing on earlier literature on trust and distrust between judicial actors in Europe, this article conceptualises the CJEU’s trust and distrust in national judiciaries. It also establishes an analytical framework for analysing them through identifying trust-related considerations in the CJEU’s preliminary rulings: the intensity of interference with national procedural autonomy, the frequency of the use of deference to national courts, and the rigidity of the assessment of judicial independence. Zooming into the CJEU’s case law in a highly politicised area – EU migration and asylum law – suggests a shift from trust to distrust in national judiciaries. Having exposed vulnerabilities of Member States’ judicial structures, the rule of law and migration crises put into question the trustworthiness of national judiciaries and invite rethinking the judicial architecture of the EU.

On 12 December 2013, the Court of Justice of the European Union (CJEU) issued judgements in three cases that raised fundamental questions regarding the operation of the system of Supplementary Protection Certificates (SPCs) in Europe. The judgements given by the CJEU provide patent offices and national courts across Europe with important guidance on the circumstances under which SPC protection will be available. This guidance appears to set a higher standard with regard to the strength of the connection that is required between the nature of the active ingredient(s) that are authorised for sale and the ‘core inventive advance’ of the patent upon which the supplementary protection is based. Whilst providing a modicum of clarification, the 12 December judgements appear to follow in the footsteps of other of the CJEU's recent judgements in raising more questions than they answer. With this in mind, the various national patent offices and courts may well struggle to interpret parts the CJEU's rulings, or apply them to cases having different fact patterns. This is likely to lead to still further questions being referred to the CJEU on related points. However, given the sheer number of difficult questions that could now arise, it might also lead to questions about whether ‘tweaking’ the SPC legislation would be preferable to repeatedly presenting the CJEU with the increasingly challenging task of interpreting the present legislation in a clear, coherent and fair manner.

The constitutional courts play a paramount role within the European judicial area and form a specific branch of the judicial network, including the Court of Justice of the European Union (CJEU) and the European Court of Human Rights. Within the European Union (EU) with its specific compound structure, in which national legal orders and Union law reciprocally influence, complement, determine and affect each other, national constitutional courts and the CJEU are not only assigned with the common task to enforce EU law, but also to preserve its limits, first and foremost the principle of conferral and the constitutional identities of the Member States. The respect for these limits is an essential prerequisite for the Member State’s participation in the EU and repeatedly enshrined in the Treaties. In order to be able to fulfil this common tasks all sides need to engage in sincere cooperation and a dialectic process, the potential of which must not be curtailed by hierarchical perceptions.Whereas the national (constitutional) courts are obliged to respect the CJEU’s authority to ultimately decide on the interpretation of EU law in principle, it is the CJEU’s obligation to take their referrals seriously and thoroughly adress concerns brought forward. The constitutional courts of the Member States are assigned with the constitutional responsibility to accompany the process of European integration in order to ensure that sovereign rights are only transferred in line with the respective provisions as well as that the excercise of competences respects the limits laid down in the Treaties and does not interfere with the constitutional identities of theMember States. It is of course again for the CJEU to review whether EU institutions, bodies, offices, and agencies act within their mandate in the first place including a quite large tolerance for different interpretations. To the extend the CJEU, however, fails to assume this responsibility, it is for the constitutional courts of the Member States to step in. The desirable success of the European integration largely depends on an orderly, sustainable and generally accepted process in the long run to which the network of constitutional courts can make a decisive contribution, provided it is designed and lived as a true cooperation among equals. In this regard it is not only necessary to intensify the joint efforts, but also to evaluate possibilities to enhance the involvement of the national courts, in particular the establishment of a reverse preliminary ruling procedure. duty to give reasons, administrative measure, participation, administrative procedure

In Tech We Trust? Fixing the CJEU's Evolutionary Interpretation of the Prohibition of General Monitoring Obligations in the Era of Automated Content Moderation

This chapter gives an original response to one of the central questions asked in this book: to what extent does the Court of Justice of the European Union (CJEU) impact domestic political and legal systems and what are its implications? More specifically, how might the CJEU increase the impact of its rulings and legal mandates in national judiciaries and legal systems? This question is crucial if we understand that national courts are the key decentralised enforcers of the European Union (EU) law responsible for ensuring the effectiveness of EU law and the rulings and mandates imposed by the Court. EU scholars have already offered several legalist and institutionalist responses to why national courts participate in this process of legal integration in the EU and, most importantly, why they follow the mandates and rulings from the CJEU. This chapter innovates in this regard by introducing trust between judges as a new mechanism for enhancing the cooperation and compliance by national courts with the CJEU jurisprudence and EU legal mandates. The chapter describes the conditions under which national judges trust the CJEU to identify how the Court can promote trust in its role as a supreme adjudicator in the EU law system.

The personal scope of the Charter of Fundamental Rights of the European Union (the Charter) is an area that still needs to be defined by the Court of Justice of the European Union (CJEU). The issue surrounding the personal scope entails the question of who can claim the protection of fundamental rights. A particularly controversial matter has proved to be the question whether, and if so under what circumstances, private legal entities and public authorities can invoke fundamental rights. This article aims to provide a detailed examination of the ‘landscape’ the CJEU must take into account when dealing with the personal scope of the Charter in the future. Firstly, this landscape is made up of the background and objectives of the EU and the European Convention on Human Rights (ECHR) legal systems. Secondly, it is shaped by the personal scope application of the Charter as interpreted by the CJEU so far, and the personal scope application of the ECHR as interpreted by the European Court of Human Rights (ECtHR). Finally, the application by Member State courts of fundamental rights, via the Charter, ECHR and constitutional rights, forms an element in this landscape. An examination of these aspects will provide answers to the question of how the three main players on the European fundamental rights stage – the CJEU, the ECtHR and the national courts – have applied the personal scope of their fundamental rights up to now. This also encompasses answers to the question of how these applications relate to the different background and objectives of the ECHR and the EU legal systems. These answers will provide the CJEU with tools to deliver well-informed rulings on the personal scope of Charter provisions in the future.

This chapter focuses on the Court of Justice of the European Union (CJEU), which comprises two courts: the CJEU and the General Court. It first provides an overview of the CJEU’s structure and functions, and then discusses some of its main rulings and their significance. It further considers rulings on the powers of the institutions, some key legal judgments made in response to questions referred to the CJEU by national courts, the impact of CJEU rulings on EU policy, and post-Maastricht trends in the CJEU and EU law. It also assesses the evolving political reactions towards the judgments of the Court, along with the debate over whether the member states have been able to effectively curb the CJEU’s radical jurisprudence.

The preliminary reference procedure has long been envisaged as a judicial dialogue between the Court of Justice of the European Union (CJEU) and national courts. However, in reality the relationship between the courts appears to be closer to a relationship of living apart together than to a happy marriage between equal partners. In this contribution, we study the use of so-called provisional answers as a means for national supreme administrative courts to send signals to the CJEU and to start a dialogue about the proper interpretation of EU law. Our analysis of case law and survey results, combined with the outcomes of interviews with judges from ten of the highest administrative courts and with judges and Advocate Generals from the CJEU, reveals there are both practical reasons and fundamentally different views on judicial law making behind the lack of dialogue. On a deeper level, there appears to be a lack of mutual trust that prevents supreme administrative courts from making better use of provisional answers to inform the CJEU and for the CJEU to take the supreme administrative courts more seriously.

Criticizing the Horizontal Direct Effect of the EU General Principle of Equality

The purpose of the preliminary reference procedure is to ensure a uniform application and interpretation of Community law across all the Member States, including European fundamental rights as enshrined in the Charter of Fundamental Rights of the European Union. The entry into force of the Charter has reinforced the authority of the Court of Justice of the European Union (CJEU) in the field of fundamental rights adjudication. But the Charter may also be a new source of conflicts between the jurisdiction of the CJEU and the jurisdiction of national constitutional courts. Indeed, compliance with the indirect rulings over national law contained in the CJEU decisions became something logical for the national ordinary courts from the beginning of the integration process, but it was not the same for national constitutional courts. Most of them have always disliked the idea of asking for the CJEU's opinion on a conflict of law involving national constitutional provisions. The CJEU succeeded in establishing a legal doctrine through principles of Community law—supremacy and direct effect being the pioneers—that meant a material constitutionalization of the European Union (EU) law system. And for the national constitutional courts, such an understanding of EU law made a rival of the CJEU.

This article aims to highlight the relevance of judicial trust in international courts, focusing on national judges' trust in the Court of Justice of the European Union (CJEU). EU scholars have put a great deal of effort into explaining how legal and political factors affect the use of preliminary references by national courts. However, there is still a gap in the literature on the development of trust as a functional principle encouraging co‐operation between national and international courts. This article explores the nature, causes and potentials of judicial trust for the EU judicial system. A theory is offered in the article, which links national judges' trust in the CJEU to their corporatist identification and profile, to their attitudes towards the EU, and to their beliefs about the CJEU's ability to provide decisions that: 1) offer a clear guidance on European Union law, and 2) will not undermine Member States' legal order.

This article considers whether national courts may act as catalyst of normalization of Common Foreign and Security Policy, in cases on the merits of which prima facie the Court of Justice of the European Union (CJEU) does not have jurisdiction. First, regardless of the exact scope of the CJEU’s jurisdiction, this contribution surveys arguments in favour (the principle of conferral and of effective judicial protection, expression of the value of the rule of law) and against (the notion of autonomy and consistency of EU law) the jurisdiction of national courts. It concludes in favour of the former option. Second, it considers whether national courts may act as agents of ‘normalization’ of CFSP, where this word means the application of general rules of EU law to this policy even in the absence of express literal provision in the Treaty. It argues that national courts may act as catalyst for the normalization of this policy in so far as they can, through the preliminary ruling procedure, give an opportunity to the CJEU to rule on (at least some) CFSP acts.

The aim of the paper is to unpack the recent developments relating to the disputes arising from the ΕU originated Water Legislation in the wake of the Court of Justice of the European Union (CJEU) judgments in the Wasserleitungsverband Nördliches Burgenland and Others (C-197/18) and IL and Others (C- 535/18) Cases respectively. A first issue which is analysed, concerns the contribution of the CJEU Judgments in terms of filling the absence of EU minimum procedural standards, particularly with respect to the standing rights of the natural persons to challenge the decisions of the competent authorities not to take the necessary measures to combat nitrates pollution and the decisions approving infrastructure projects with effects on the water bodies. Issues concerning the standard of review of the respective decisions, which may go beyond the ‘manifest error of assessment’ criterion and the conditions under which direct effect is recognized to the provisions of the EU Environmental Directives, are also discussed. The main conclusion is that the discussed Rulings made a positive contribution in terms of enhancing access to justice before national courts, mainly by ensuring the standing rights of the individual applicants through the enrichment of the concept of those ‘directly concerned’ with the element of the ‘legitimate use’ of the protected environmental good and by reaffirming the Court’s thesis for the direct effect of the provisions of the EU Environmental Directives, which focuses on the obligations of the competent authorities. The Court’s thesis in the IL and Others Case concerning the discretion of MS to limit the pleas which can be permissibly submitted by the individual applicants with regard to the procedural defects does not, though, clarify the issue in a manner that would ensure effective access to justice before national courts. EU Water Legislation, Access to Justice, the Concept of ‘DirectConcern’, Direct Effect, Standard of Review

By ratifying the Aarhus Convention in 2005 the EU committed itself to guaranteeing broad access to justice in environmental matters both at the national and the EU level. Yet, in spite of the clear-cut obligations incumbent upon the EU, EU courts have consistently rebuked pleas for a softening of the standing requirements in the context of direct actions against EU acts that might have an impact on the environment and/or public health. In addition, the internal review procedure set out by the 2006 Aarhus Regulation has been interpreted so restrictively by the EU institutions that that its added value in the stride toward better access to courts in environmental matters remains ephemeral at best. This led the General Court to finding that the Aarhus Regulation, by excluding general EU acts from the scope of internal review, was in breach of Article 9(3) of the Aarhus Convention. In its recent rulings of 13 January 2015, however, the Court of Justice of the EU (CJEU) overruled the General Court by holding that the Aarhus Regulation could not be reviewed in light of the Aarhus Convention. With its refusal to use Article 9(3) of the Aarhus Convention as a reference criterion for the purpose of reviewing the EU’s compliance with the Aarhus Convention’s obligations, the CJEU avoided tackling the unsatisfactory level of judicial protection in environmental cases at the EU level. This paper argues that the rulings of the CJEU are to be qualified as a significant step backwards for judicial protection in environmental matters at the EU level. It is established that, instead of addressing the current failings of the EU with respect to access to justice in environmental cases, the CJEU’s hands-off approach paves the way for yet another decade of non-compliance by the EU in the realm of access to justice in environmental cases.