Preliminary References Research Articles

Friendly Takeover, or: the Power of the ‘First Word’. The German Constitutional Court Embraces the Charter of Fundamental Rights as a Standard of Domestic Judicial Review

Five decades of interaction between the Bundesverfassungsgericht and the Court of Justice – Reversal of the Solange decisions – Jurisdictional upgrade of the Charter under domestic constitutional law – Continuity of the ultra vires and constitutional identity caveats – Differences between the First and Second Senate in the approach towards EU law – Preliminary references as a new normality – Projection of the experience and doctrinal rigour of the German fundamental rights case law on the European level – ‘Primary’ application of the Grundgesetz as pragmatic guidance – Gradual evolution of overarching standards – Ordinary courts as an institutional counterbalance to the Bundesverfassungsgericht – Insistence on leeway for relative national autonomy in the interpretation and application of the Charter.

Who is steering the jurisprudence of the European Court of Justice? The influence of Member State submissions on copyright law

AbstractThe juridification of the European policy process is increasingly fragile, and little understood. This study develops a novel methodology to investigate the influence of Member States on the rulings of the Court of Justice of the European Union (CJEU). The focus is on the domain of copyright law which has seen a dramatic escalation of preliminary references to the Court, indicating a normative void. Examining 170 documents relating to 42 cases registered between 1998 and 2015, we measure empirically the impact of submissions by Member States and the European Commission on the interpretation of copyright concepts. We show that France is the most influential country by some distance, both in terms of the number of interventions (an ‘investment’ in policy) and in terms of persuasive power (arguments adopted by the Court). The evidence also suggests that the departure of the UK from EU litigation will disturb the delicate balance of CJEU jurisprudence.

National courts and preliminary references: supporting legal integration, protecting national autonomy or balancing conflicting demands?

This article sheds new light on the role of national courts in the preliminary ruling procedure and European integration by examining: (1) whether national courts allow the Court of Justice of the European Union (CJEU) to decide politically sensitive cases and (2) whether national courts frame the cases by expressing support for an integration-friendly interpretation of EU law or by voicing an opinion in defence of the challenged national law. This study shows that the single most common court behaviour is to support legal integration by referring politically sensitive cases and expressing support for EU law. However, by examining the two choices together, this article also uncovers previously untheorised patterns of behaviour. These findings show that the national courts’ behaviour is not limited to either supporting or resisting integration. Instead, it is suggested that national courts may regularly contribute to striking a balance between EU integration and member state autonomy.

Arbitration cases and preliminary references to the European Court of Justice—an assessment of ‘the Danish Solution’

Abstract When a case, that is pending before a national court in one of the Member States of the European Union, requires a decision on the interpretation or validity of an EU legal measure, the national court can seek a preliminary ruling on the matter from the European Court of Justice before deciding the main action. In its preliminary ruling, the European Court of Justice establishes authoritatively the interpretation or validity of the relevant EU legislation. When EU law plays a role in commercial arbitration it may be very useful for arbitration tribunals to have access to the preliminary reference procedure. However, according to the Treaty on the Functioning of the European Union, only ‘a court or tribunal of a Member State’ can make a preliminary reference and this notion does not include commercial arbitration tribunals. In order to give arbitration tribunals access to the preliminary reference procedure Denmark has introduced a scheme which allows them to ask the ordinary Danish courts to make preliminary references on behalf of the arbitration tribunal. This article explains the Danish scheme and considers to what extent it provides a useful model for other Member States.

Viability and Stimulation of Human Stem Cells from the Apical Papilla (hSCAPs) Induced by Silicate-Based Materials for Their Potential Use in Regenerative Endodontics: A Systematic Review.

Blood clot formation in the apical third of the root canal system has been shown to promote further root development and reinforcement of dentinal walls by the deposition of mineralized tissue, resulting in an advancement from traditional apexification procedures to a regenerative endodontic treatment (RET) for non-vital immature permanent teeth. Silicate-based hydraulic biomaterials, categorized as bioactive endodontic cements, emerged as bright candidates for their use in RET as coronal barriers, sealing the previously induced blood clot scaffold. Human stem cells from the apical papilla (hSCAPs) surviving the infection may induce or at least be partially responsible for the regeneration or repair shown in RET. The aim of this study is to present a qualitative synthesis of available literature consisting of in vitro assays which analyzed the viability and stimulation of hSCAPs induced by silicate-based hydraulic biomaterials. A systematic electronic search was carried out in Medline, Scopus, Embase, Web of Science, Cochrane and SciELO databases, followed by a study selection, data extraction, and quality assessment following the PRISMA protocol. In vitro studies assessing the viability, proliferation, and/or differentiation of hSCAPs as well as their mineralization potential and/or osteogenic, odontogenic, cementogenic and/or angiogenic marker expression in contact with commercially available silicate-based materials were included in the present review. The search identified 73 preliminary references, of which 10 resulted to be eligible for qualitative synthesis. The modal materials studied were ProRoot MTA and Biodentine. Both bioceramic materials showed significant positive results when compared to a control for hSCAP cell viability, migration, and proliferation assays; a significant up-regulation of hSCAP odontogenic/osteogenic marker (ALP, DSPP, BSP, Runx2, OCN, OSX), angiogenic growth factor (VEGFA, FIGF) and pro-inflammatory cytokine (IL-1α, IL-1β, IL-6, TNF-α) expression; and a significant increase in hSCAP mineralized nodule formation assessed by Alizarin Red staining. Commercially available silicate-based materials considered in the present review can potentially induce mineralization and odontogenic/osteogenic differentiation of hSCAPs, thus prompting their use in regenerative endodontic procedures.

Headscarves return to the CJEU: Unfinished business

In 2017, the CJEU brought out its judgments in two cases concerning bans on the wearing of Islamic headscarves at work as possible discrimination on the grounds of religion or belief under Directive 2000/78/EC. These judgments led to heavy criticism, mainly because the CJEU did not do a rigorous proportionality test and left a number of questions open. Two recent preliminary references from courts in Germany present the CJEU with an opportunity to expand on the earlier judgments and to answer the questions they left open. It is submitted that the CJEU should deal with this unfinished business in a way which respects Europe’s religious diversity and ensures that the ground of religion and belief does not become the poor relation of EU anti-discrimination law.

That's an Order! The Orders of the CJEU and the Effect of Article 99 RoP on Judicial Cooperation

The benefits of timely justice and rigorous judicial argument are impossible to overstate and hard to reconcile. In its struggle to deliver both, the Court of Justice of the European Union has initiated several reforms of its procedures. The so-called adjudicating orders arguably achieve the impossible: They fast-track recurring questions while safeguarding legal coherence. The present article unpacks this premise. It shows that seemingly inconsequential procedural amendments, often overlooked by scholars, give the Court full control over relevant European legal problems, and centralize its power. Concretely, the analysis introduces a typology of orders of the Court, to demonstrate the unique legal character of adjudicating orders. It then investigates their effects against the backdrop of manifold procedural reforms and institutional adjustments. The findings indicate that the greatest efficiency gains follow reforms, which the Court initiates and implements in relative anonymity. Moreover, the use of adjudicating orders increases in response to a sudden and considerable increase of legally similar preliminary references from one Member State. An equal increase of references from the courts of several Member States has no such effect. The findings suggest that the Court uses adjudicating orders to disengage from 'local' problems and unilaterally terminate the conversations with resolute national courts. Thereby, the preliminary reference procedure, envisaged and promoted as a collaborative tool, transforms into a centralized mechanism of speedy and authoritative dispute resolution.

Active Control for Wall Drag Reduction: Methods, Mechanisms and Performance

Active reducing the skin friction drag of vehicles (such as missiles, rockets, aircraft, high-speed train, submarines, etc.) during the navigation process can improve the respond speed effectively, save the energy consumption and increase the endurance time. As lots of active drag reduction methods were proposed for different applications, a review article is urgently needed to guide researchers to choose suitable methods for their pre-research. In this review, the generation mechanisms of skin friction drag under the action of disturbing the turbulent boundary layer are discussed, and the main active drag reduction methods are summarized. According to the actuation modes, we divided the active drag reduction methods into: drag reduction based on wall motion; drag reduction based on volume force control; drag reduction based on wall deformation and drag reduction based on micro vibration generated by piezoelectric actuator. The development status, drag reduction mechanisms, typical structures and drag reduction performance of each active drag reduction method are discussed and summarized in this work, which can provide preliminary research references for those who are engaged in the research of active wall drag reduction.

Quantitative Evaluations and Error Source Analysis of Fengyun-2-Based and GPM-Based Precipitation Products over Mainland China in Summer, 2018

Satellite-based quantitative precipitation estimates (QPE) with a fine quality are of great importance to global water cycle and matter and energy exchange research. In this study, we firstly apply various statistical indicators to evaluate and compare the main current satellite-based precipitation products from Chinese Fengyun (FY)-2 and the Global Precipitation Measurement (GPM), respectively, over mainland China in summer, 2018. We find that (1) FY-2G QPE and Integrated Multi-satellitE Retrievals for GPM (IMERG) perform significantly better than FY-2E QPE, using rain gauge data, with correlation coefficients (CC) varying from 0.65 to 0.90, 0.80 to 0.90, and 0.40 to 0.53, respectively; (2) IMERG agrees well with rain gauge data at monthly scale, while it performs worse than FY-2G QPE at hourly and daily scales, which may be caused by its algorithms; (3) FY-2G QPE underestimates the precipitation in summer, while FY-2E QPE and IMERG generally overestimate the precipitation; (4) there is an interesting error phenomenon in that both FY-based and GPM-based precipitation products perform more poorly during the period from 06:00 to 10:00 UTC than other periods at diurnal scale; and (5) FY-2G QPE agrees well with IMERG in terms of spatial patterns and consistency (CC of ~0.81). These findings can provide valuable preliminary references for improving next generation satellite-based QPE retrieval algorithms and instructions for applying these data in various practical fields.

Ein Kampf um Autorität: Strategisches Handeln oberster nationaler Gerichte in der Europäischen Union

National high courts in the European Union (EU) are constantly challenged: the European Court of Justice (ECJ) claims the authority to declare national standing interpretations invalid should it find them incompatible with its views on EU law. This principle noticeably impairs the formerly undisputed sovereignty of national high courts. In addition, preliminary references empower lower courts to question interpretations established by their national ‘superiors’. Assuming that courts want to protect their own interests, the article presumes that national high courts develop strategies to elude the breach of their standing interpretations. Building on principal-agent theory, the article proposes that national high courts can use the level of (im-) precision in the wording of the ECJ’s judgements to continue applying their own interpretations. The article develops theoretical strategies for national high courts in their struggle for authority.

Determinants of efficiency growth of county-level public hospitals-evidence from Chongqing, China

BackgroundThe reform of county-level public hospitals is a breakthrough in the new era of healthcare reform in China and has attracted considerable attention since 2012. Continuous and efficient operations of hospital are primary concerns of this reform. To ensure the effectiveness of county-based intervention reform measures in Chongqing, it is significant to understand how hospital and county characteristics are associated with county-level public hospital efficiency due to significant development differences between counties. This study identifies the trajectory of hospital efficiency over time and determinants. It will also provide preliminary references for advancing reform.MethodsThis study employs data from the Chongqing Regional Health Information Platform, Chongqing Health and Family Planning Statistical Yearbook, and Chongqing Statistical Yearbook for 2012–2016. A three-level growth model is used to estimate the efficiency growth trajectories within the contexts of hospitals and counties.ResultsThe intra-hospital level factors that affect the initial efficiency include government financial assistance, daily charge per bed, total assets turnover, number of hospital healthcare technicians, and medical costs per 100-yuan medical income. Inter-hospital variance is explained by hospital type. Inter-county level factors affecting the growth rate include the number of healthcare technicians per 1000 people and population density of the county. The interaction effect of the number of hospital healthcare technicians, hospital type, and number of healthcare technicians per 1000 people on hospital efficiency growth is significant.ConclusionsThis study identifies determinants that contribute to efficiency changes in public county-hospitals over time by using a three-level growth model. The differences in efficiency are associated with intra-hospital, inter-hospital, and inter-county characteristics in Chongqing, which provides useful insight into government decision-making and the progress of reform. The stability and reasonable increase in the number of healthcare technicians in a county are the key factors that improve the efficiency. Further reform should focus on maternal and child healthcare hospitals for increasing investment and implementing government compensation.

Challenging EU constitutional law: The Italian Constitutional Court's new stance on direct effect and the preliminary reference procedure

AbstractThis article seeks to examine the relationship between EU law and the Italian legal order in light of the recent Italian Constitutional Court (ICC)’s jurisprudence attempting to redefine EU core principles. When fundamental rights are at stake, three assumptions are challenged: the determination of direct effect shall be a prerogative of the ECJ; EU directly effective provisions entail the disapplication of conflicting national law; judges have the discretion to refer preliminary references to the ECJ where a clarification on EU law is needed. The contribution argues that the judicial search for a balance between sovereignty and supranationality is undermined by the ICC's new resistance to the well‐established EU jurisprudence. In that respect, the paper posits that the ICC's activism is the result of an unjustified ‘argumentative self‐restraint’ of the ECJ vis‐à‐vis the evolution of EU foundational principles.

Judicial empowerment expanded: Political determinants of national courts' cooperation with the CJEU

AbstractScholars in EU studies have developed diverse justifications for explaining why national judges cooperate with the Court of Justice of the European Union. In this regard, judicial empowerment theories have stressed the strategic importance of cooperation for empowering national courts vis‐à‐vis high courts and political actors. Nevertheless, these explanations have been restricted to the use of preliminary references by lower courts. This contribution expands the explanatory power of these approaches by exploring other potential scenarios and instruments that national judges can use to challenge the position of their governments and judicial superiors, for example, by emphasising the importance of CJEU precedent for their strategic behaviour. By offering new data collected from case‐law and surveys, this article offers a more systematic assessment of the relevance of cooperation for national judges to reinforce their authority against other institutions. The findings call for a revision of the traditional understanding of judicial empowerment theories.

Who refers most? Institutional incentives and judicial participation in the preliminary ruling system

ABSTRACTBy enabling the Court of Justice to engage domestic judges, the preliminary ruling mechanism is widely recognised to have played a major role in European integration. Yet both the incentives and motivation to cooperate with the Court of Justice are believed to vary significantly across domestic courts. We explore how domestic courts differ in their referral behaviour depending on the position they occupy in the juridical hierarchy using a novel dataset, which extends, complements and corrects data initially collected by Stone Sweet and Brunell (1998. ‘The European Court and the national courts: a statistical analysis of preliminary references, 1961–95’, Journal of European Public Policy 5 (1): 66–97). We find that first instance courts pioneered the use of the preliminary ruling procedure, but that appellate and peak courts subsequently overtook them. We explain these shifts by the combined effect of institutional consolidation, organisational design and legal rules. We argue that resort to Article 267 TFEU was initially ‘accidental’ but became institutionalised as more courts submitted references. This, in turn, allowed the division of labour underpinning the organisation of national judiciaries to reshape referral dynamics.

The impacts of blanket on CFETR ohmic breakdown

China Fusion Engineering Test Reactor (CFETR) design is under way, it is necessary to develop an optimized scenario for plasma breakdown and current ramp-up, and to evaluate the consequent design constraints. A good initial magnetization (IM) and volt-seconds optimization are carried out for the ohmic breakdown based on the 2D TokSys model, giving the maximum volt-seconds that the magnetic coils can provide. Take IM as the initial condition, the ohmic breakdowns on the conditions that the blanket has different equivalent resistivities and positions are optimized. Comparisons of the optimized values and the target values are made. The ohmic breakdown without blanket is calculated as well, as a reference, the minimum equivalent resistivity of blanket required to meet the breakdown condition is obtained. Both initial magnetization and ohmic breakdown optimization could serve as preliminary references for the CFETR coils and blanket designs.

Mitigation and Compensation Measures under the EU Habitats Directive in Selected Member States

This article aims at establishing how national courts interpret the concepts of mitigation and compensation measures under Article 6 of the Habitats Directive. Based on a comparative method of legal research, we focus on the implementation of Articles 6(3) and 6(4) of the Habitats Directive, as interpreted by the Court of Justice of the European Union in the Sweetman, Briels and Orleans cases, and its application in the courts of six Member States, i.e. France, Germany, the UK, the Netherlands, Italy and Bulgaria. Our study highlights national courts tendency to interpret the Habitats Directive and related national law so as to cover matters which have not explicitly been dealt with by the CJEU without asking for preliminary rulings. In each legal order, this lack of preliminary references comported a wrongful interpretation of Article 6(3) of the Directive. This finding shows that the lack of preliminary references affected the legal effectiveness of Article 6 HD.

The application of the Charter of Fundamental Rights of the EU in Poland

The paper aims at summarizing the experience in application of the Charter of Fundamental Rights of the EU by Polish courts. From the perspective of the Polish Constitutional Court EU law, including the Charter, has a universally binding character on Poland and it has priority over national law with a statutory and subordinate status, but not over the Constitution. The scope of protection guaranteed by the Charter is generally consistent with that provided for in the Constitution. Due to the fact that Poland has acceded to the British and Polish Protocol, the binding force and scope of applicability of the Charter are the subject of controversy in doctrine and case law. Nevertheless, the Polish Constitutional Court as well as common and administrative courts generally do not question the validity of the Charter, referring in different ways to its provisions in their rulings. The Charter is generally applied not as the main basis for the ruling, but as an additional element justifying the position adopted on the basis of Polish law. The Polish Constitution and the Convention for the Protection of Human Rights and Fundamental Freedoms are more likely to be chosen by the parties and by the courts as sources of fundamental rights invoked in the proceedings than the Charter. References to the Charter either by parties to the proceedings or courts themselves are often inadequate due to the lack of fulfilment of the conditions specified in Article 51 (1) of the Charter. In several cases invoking the provisions of the Charter outside the scope of application of EU law led to inadmissibility of preliminary references based on the Charter addressed to the CJEU by Polish courts.

A hozzáadottérték-adó (áfa) gyakorlata az európai adójog (az EUB esetjoga), valamint a nemzeti adójog (a magyar közigazgatási bírósági gyakorlat) kölcsönhatásában

The present paper aims to give an overview on the contribution of the Hungarian courts in the form of preliminary references to the shaping of the interpretation of the European VAT rules. The current system of the European VAT is neutral and complex, and it involves several actors. However, the VAT system is a quickly developing field, new questions such as the one related to reverse VAT and its impact or the proportionality of sanctions have recently arisen. A cycle of questions and answers can be observed, as questions emerging in new tax cases are often built upon previous cases. The European Court of Justice had and still has to address issues like the responsibility of the invoice recipient, the conflict between tax neutrality and combating tax evasion, as well as the allocation of competences between national and EU levels. Many of the Hungarian cases can be considered important brickstones in developing the case law of the Court.

Paving the road to ‘legal revolution’: The Dutch origins of the first preliminary references in European law (1957–1963)

AbstractThis article reconsiders the driving forces behind the active role of Dutch courts in the early development of European law by analysing the histories of the 1962 Bosch and 1963 Van Gend en Loos preliminary references. The legal context of these path‐breaking references and their crucial impact on the development of a constitutional doctrine in European law are evident. Yet for understanding the emergence of the cases, their political and economic contexts need to be added to the well‐known favourable constitutional settlement from which they arose. Adding contingency to the narrative of the Netherlands as the proverbial ‘good European’, this article reports how the pavement for the ‘road to Luxembourg’ was made up of materials as diverse as an open stance towards international law, a black market in electronic equipment, and a dispute on the definition of Harnstoffharz.

(Just) Give Me A Reason …

Judicial systems often wrestle with whether to sacrifice always presenting thorough judicial reasoning for the sake of an effective leave-to-appeal system. The paper outlines issues of reference to the Luxembourg Court, particularly with regard to Estonian circumstances in light of the ECtHR judgment in Baydar v. the Netherlands. The interplay between EU law and the European Convention on Human Rights in this regard is considered first, along with the importance of giving reasons, courts’ authority, the different roles of domestic and European courts, the duty of referring questions to the CJEU and exemption, consequences of non-referral in EU law, the Strasbourg Court’s role in dialogue between national courts and the CJEU, etc. Examined next are such matters as influences on preliminary references in European Union law, summary reasoning and limits to the reasoning duty (especially with regard to the Ullens de Schooten case of the ECtHR), associated division of competencies between the Strasbourg and Luxembourg courts, and finally the reasoning of the ECtHR itself as good or bad example. The author then considers the Supreme Court of Estonia’s leave-to-appeal system and the national courts’ practice in relation to Baydar, concluding that, while reasoned judgments are important and a right, no right exists for the applicant’s case to be referred by a domestic judge to the Luxembourg Court, though it is vital that summary judgment not be arbitrary / manifestly unreasonable; that Estonian courts have made reasonable use of the preliminary reference procedure before the Luxembourg Court thus far; and that they should articulate well the reasoning for referral/non-referral for litigants. The author proposes that the Estonian Supreme Court explain, exceptionally in one refusal of leave to appeal (cf. the Netherlands), that the general requirements for granting leave to appeal cover also the situation of preliminary questions to the CJEU and C.I.L.F.I.T. arguments of the CJEU. Above all, neither the interplay between EU law and the European Convention on Human Rights nor the role of national courts finding their way in complex legal surroundings should be neglected.