Good Judgment: The European Court of Justice as a Context-Conscious Lawmaker. by Urška Šadl (Oxford: Hart Publishing, 2024)

Journal Article The Application of EC Law by National Courts: The Free Movement of Goods by Malcolm A. Jarvis, Clarendon Press, Oxford, 1998, lxviii + 472 pp and We, The Court: The European Court of Justice and the European Economic Constitution by Miguel Poiares Maduro, Hart Publishing, Oxford, 1998, xii + 194 pp Get access Joanne Scott Joanne Scott Search for other works by this author on: Oxford Academic Google Scholar Yearbook of European Law, Volume 18, Issue 1, 1998, Pages 723–726, https://doi.org/10.1093/yel/18.1.723 Published: 01 November 1998

Sweden's state pharmacies may lose hold over drug sales

INTRODUCTION One of the principal constitutional functions of the European Court of Justice (ECJ) is to secure legitimacy of the European Union (EU) system of governance by protecting the fundamental values on which this system is said to rest. This role of the ECJ – as a guardian of democracy, fundamental rights and the rule of law – is complicated by the multi-layered nature of the EU's sources of legal authority: the EU institutions and the law-making bodies of Member States (MSs), and by the heavy reliance on the co-operation of National Courts (NCs) in building up and maintaining the EU's legal system. I focus on providing an overview of selected problems that are directly related to the ECJ's legitimising role, and I will do so from the perspective of the ECJ's constitutional politics. First, I will consider whether the alleged prioritising – by the ECJ – of the principles of integrity of the EU legal system and economic regulations over constitutional values – such as fundamental rights and democracy – amounts to an ideological project that undermines the legitimacy of the EU law. I will focus on instances where the ECJ failed to recognise concerns of the NCs related to the standard of protection of these values in the EU law for the sake of protecting its own authority and the uniformity of the EU law. Historically, these concerns were most famously identified in the so-called ‘supremacy’ challenges, but there was also a string of other cases where the protection of market freedoms clashed with fundamental rights and other constitutional principles. Th is period of the ECJ jurisprudence took a more rights-friendly turn in cases such as Omega and Schmidberger . The more recent NCs challenges yet again put the ECJ under pressure, this time because of its reluctance to recognise the higher standards of fundamental rights protection related to criminal trials in national constitutions over those existing in the EU law. The string of the European Arrest Warrant (EAW) cases seems to suggest that the ECJ yet again entered a path of prioritising the supremacy of the EU law over substantive constitutional objectives.

MEP warns of growing threat of patient mobility

This contribution deals with the assignment of cases to reporting judges and judicial formations at the European Court of Justice (ECJ). EU lawyers generally consider the ECJ’s system of case assignment to be one of the most problematic features in the Court’s decision-making process. They perceive a strong tension with the right to a fair trial. In this contribution, I aim to understand why the Court maintains a system that has been under severe attack for a long time. By closely analyzing the practice of case assignment between 2003 and 2019, I argue that the ECJ’s assignment system is an important mechanism for the Court’s institutional success. It has allowed the Court to maintain a sense of common purpose, a strong and persistent idea of its mandate as a guardian of the effectiveness and primacy of EU law. I identify three key functions case assignment performs. First, supporting jurisprudential stability and continuity by creating an ‘elite group’ of judges who writes the bulk of the most important ECJ decisions. Second, integrating new ECJ judges through gradually assigning them more difficult cases thereby structuring a learning process for becoming a full-fledged ECJ judge. And third, the ECJ’s system of case assignment has helped to maintain what is generally lost in courts of the ECJ’s size: a place where all 27 ECJ judges and 11 Advocates General are informed on all incoming cases, jointly engage in systematizing the ECJ’s case law and framing the Court’s agenda.

Contents: 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 Horeth 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 Loic 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 Role and Potential of Civil Society and Human Rights Organizations through Third Party Interventions Before the European Courts: The Case of the EU's Area of Freedom, Security and Justice Sergio Carrera and Bilyana Petkova 12. Strategies Developed by - and Between - National Governments to Interact with the ECJ Mielle Bulterman and Corinna Wissels Index

This Dissertation studies the jurisdiction of European and national courts over the rights of the consumer of air traffic. The Dissertation has highlighted the role of the European Court of Justice in protecting the rights of consumers of air traffic. The role of the European Court of Justice is to interpret the law and to ensure its uniform application in all EU Member States. The EU Court of Justice also resolve the legal disputes arising between the national governments of the Member States and The European Court of Justice. In addition, it has the right to penalize airlines for violating passenger rights. The Dissertation also highlighted the role of national courts in protecting the rights of consumers of air traffic. The Dissertation has shown that the national courts of the Member States have jurisdiction not only to examine cases but also to engage in judicial dialogue with the European Court of Justice. There are often conflicts between European and national courts. The Dissertation has also highlighted the power of national courts to choose whether to uphold the judgments of the European Court of Justice. Finally, the Dissertation identified that there is harmonization of European and Greek law to protect consumers' rights of air traffic since most European directives have been incorporated into Greek law.

This chapter explores a different issue raised by the Andean Tribunal of Justice's (ATJ's) origins as a legal transplant — when do international judges engage in expansive judicial lawmaking? Although many scholars assert that international courts are hard-wired for self-aggrandizement, this comparative study of the ATJ and the European Union's Court of Justice (ECJ) reveals that the political contexts in which courts are embedded are critical to how expansively they interpret their authority. Hence this chapter develops the Andean Community analogue to Joseph Weiler's famous account of the ECJ's transformation of Europe. It explores how variations in political support for integration over time have influenced lawmaking by international judges in the Andes and in Europe. The chapter focuses in particular on the ATJ's refusal to follow the ECJ in transforming the Andean Community's founding treaty, the Cartagena Agreement, into a constitutional blueprint for regional integration.

This chapter explains how the Andean Tribunal of Justice (ATJ) has significantly diverged from several foundational integration law doctrines developed by the European Union's Court of Justice (ECJ). As such, this updated analysis discusses how the ATJ refined the complemento indispensable principle to more clearly delineate the boundary between Community and national legal authority and to uphold the primacy of clear Andean rules. This principle is a doctrine that permits national laws and regulations to implement and fill gaps in Andean secondary legislation (known as Decisiones). The ATJ has also asserted the supremacy of Andean law over conflicting bilateral and multilateral treaties, and accepted preliminary references from administrative agencies and arbitral panels. In addition, the ATJ has for the first time addressed human rights, stating, albeit in dictum, that governments must prioritize the socio-economic rights of Community citizens over free trade and integration rules.

Where a parent company owns a controlling interest in a subsidiary resident in another Member State the question arises whether Article 43 EC Treaty (the freedom of establishment), Article 56 EC Treaty (the free movement of capital), or both articles may be relied upon by the taxpayer to challenge domestic law for breach of the EC Treaty. That is, is there a mandatory order of priority between these freedoms in such cases? This question has wide relevance since the freedom of establishment cannot be relied upon in third-country situations whereas the free movement of capital can. The European Court of Justice (ECJ) and several national courts have ruled on this question. However, the ECJ case law does not give clear guidance and national courts have come to opposite conclusions. This article gives an overview of the ECJ case law against the background of which the decisions of the national courts are analysed. We come to the conclusion that the question of which freedom takes priority is not an acte clair/acte éclairé. Given the current status of the question of the dominance of the freedoms, with opposite conclusions from national courts and the ECJ having adopted inconsistent approaches in its decisions, national courts should, in our view, no longer decide such questions without seeking a preliminary ruling from the ECJ. We urge the ECJ to deliver clear and consistent rules regarding this question.

Disharmonization in the Regulation of Transgenic Plants in Europe

This chapter focuses on the European Court of Justice (ECJ), one of the three courts that make up the Court of Justice of the European Union (CJEU); the others are the General Court and the EU Civil Service Tribunal. It first provides an overview of the ECJ’s structure and functions before discussing some of its main rulings and their significance. It then considers rulings on the powers of the institutions, some key legal judgments made in response to questions referred to the ECJ by national courts, the impact of ECJ rulings on EU policy, and post-Maastricht trends in the ECJ 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 lost control of the process of European integration because of the ECJ’s radical jurisprudence.

Can health survive the single market?

Recent case law suggests that the European courts are rethinking their position in respect of international law. On the one hand, the European Court of Justice (ECJ) is extending its case law on the WTO, denying ‘direct effect’ to all of its provisions, to other major international treaties, such as the United Nations Convention on the Law of the Sea (UNCLOS). In another recent judgment, the ECJ firmly said that it will not allow international agreements to jeopardize Europe's constitutional principles. These judgments might suggest that the ECJ is becoming more cautious, even skeptical toward international law. On the other hand, the WTO case law also illustrates that the ECJ has found more subtle ways than direct effect to give domestic law effect to international agreements. Examples are treaty-consistent interpretation, judicial dialogue with international tribunals, and transformation of international law into European legal principles. In this way, the ECJ is able to show respect to international law, which is indeed a core European value. At the same time, the ECJ maintains the power to act as a gatekeeper and resist those international legal norms that are considered inimical to the European legal order. On the whole the author welcomes this case law, albeit with some critical notes.

This paper envisions a global legal culture. This global legal culture will interact with the national legal cultures and will fundamentally change legal practice, even ostensibly local legal practice. Thus, there is a practical imperative in contemplating this evolving legal culture for all lawyers and legal scholars. US lawyers and US legal scholars face a special urgency because we are so far behind others in recognizing the practical importance of understanding the world's legal cultures. This paper hopes to initiate reflections on the blending of legal cultures in the world arena. The paper suggests two plausible vehicles for the creation of this legal culture: The World Trade Organization's Dispute Settlement Bodies, globalizing commercial legal cultures, and the United Nations' International Court of Justice, globalizing rights. These two tribunals not only suggest plausible global adjudicative systems, if not the final versions, but already provide some real world experience. The paper relies more directly on the experience of two more developed centralizing court systems, the US federal judiciary and the European system comprising the European Union's European Court of Justice (ECJ) and European Court of Human Rights. The European tribunals offer a recent and particularly valuable experience in the merging of national laws into a larger legal culture. In addition, the ECJ demonstrates the progression of open market adjudication into adjudication of nearly all of society's issues. The paper posits a blending of civil law thinking with common law thinking in evolving a global legal culture. This approach is more than transatlantic chauvism: these two legal models have migrated around the world, for good and bad reasons, so that they cover about 70% of the world's population. Because the paper anticipates a large portion of common law readers, it begins the analysis with a treatment of foundational aspects of civil law thinking and how that thinking might translate in the design of the global legal culture. Then the paper focuses on envisioning a global legal culture bringing together common law thinking, particularly the US version, and that of the civil law. The paper attempts to identify the tensions and to suggest possible resolution of these tensions. It notes the additional complication of merging the judicial philosophies of parliamentary and presidential governmental types. Again and with emphasis, the attention to the civil law and common law models support only a potential first generation of a global legal culture. Other legal cultures surely will have impact and the creative capacity of future generations will eventually be crucial. In the end, the paper merely hopes to offer a first stage framework, seeking to lay the groundwork for and encourage thinking about the dimensions of an emerging global legal culture.