Judicial Independence & National Judges in the Recent Case Law of the Court of Justice (original) (raw)
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Implementation of the “Checks and balances” principle as one of the milestones in modern democracies, demonstrates its full complexity when it comes to balancing guaranties of judicial independence and the need to prevent misinterpretation or abuse of the rights. Additional issue in that process is determination of the border line between constitutional and guaranties of judicial independence prescribed by law. Raising that issue opens various questions which go beyond the legal framework itself . Actually it tackles the historical, political and cultural country background. Furthermore, if analyzed from the prospective of the requirements defined in the accession negotiation process with the EU, constitutional guaranties of judicial independence become division criteria that challenge the idea of EU standards’ existence and their unselective application as an accession benchmark. Furthermore, lack of clear and objective criteria of (non)application of the EU standards’ might demotivate candidate countries in their efforts to achieve substantial reform results.
RULE OF LAW, INDEPENDENCE OF THE JUDICIARY AND PRIMACY OF EU LAW
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In courts we trust, or should we? Judicial independence as the precondition for the effectiveness of EU law, 2022
The present article argues that the EU possesses an arsenal of tools to address dissuasively rule of law problems in the Member States. This shows the double nature of the EU's separation of powers problem. Whereas some states suffer from rule of law decline and a lack of limitation of governmental powers, there is a risk of the crumbling of separation of powers at the EU level, too, where institutions fail to adequately address rule of law violations. Against the EU institution's lack of forceful action towards rule of law backsliding, domestic courts try to protect judicial independence increasingly via preliminary references. Also, they attempt preventing the proliferation of the consequences of rule of law decline via judicial cooperation in the mutual trust/mutual recognition domain. This article explores to what extent preliminary rulings can make up for the failure to use adequate EU tools of rule of law enforcement. 1 | RULE OF LAW DECLINE IN THE EU 1.1 | Rule of law decline in the national setting is an EU matter On the question whether there was such a thing as a 'European tradition', Winfried Hassemer, then vice president of the German Federal Constitutional Court, contended that Europeanness had an autonomous meaning: it is envisaged as 'a community of values ("Wertegemeinschaft"), representative of a certain tradition, which has created
2014
This new book aims to provide some insights on recent trends and patters in judicial dialogue between the Court of Justice of the European Union (hereinafter “CJEU”) and national courts (Constitutional Courts included). The book features seven contributions. Their order is not accidental: specific issues come after more general topics, these latter being dealt with within the first three chapters. The first article included in this book and written by Giuseppe Martinico serves as a relevant introduction to the subject-matter of this book. It aims at exploring the interesting issue of judicial application of the ECHR and EU law, in order to elucidate the vertical relationship between national judges (constitutional and common law alike) and these external legal sources. The second contribution is somehow related to the first one: Ioana Răducu discusses the dialogue between courts, and more precisely the way the former accept the decisions rendered by supranational courts and also the role played by the judicial dialogue in reducing the risk of conflicts between courts. Yet the emphasis placed by the author on this judicial dialogue is that of deference. The value of (judicial) dialogue in the EU, as discussed by the author, comes along with pragmatic advantages for both EU and domestic legal orders. The third chapter, authored by Juan A. Mayoral, approaches the issue of the use of preliminary ruling procedure and tries to establish determinants liable to explain differences in its use between new and old Member States. The value of this contribution lies especially in presenting original and comprehensive data on the use of preliminary references (1961-2011) in all 27 Member States and also in identifying differences in institutional dynamics at the national level. Giuseppe Bianco and Tatum Ragues present the interesting topic of balance between one fundamental freedom of the European Union (free movement of services) and fundamental rights, as it comes out from the approaches followed by the Court of Justice of the European Union in its rich case law. The authors emphasize the constitutional dimension of the principle of proportionality in the approach taken by the Court of Justice. Within the same preliminary ruling procedure, Ricardo García Antón approaches in the fifth chapter of this book the role played by the Court of Justice in the field of indirect taxation. Two fundamental questions are explained here: the judicial dialogue between the European court and national courts and the role adopted by the Court of Justice. According to the author, within this field, the Court adopts a more hierarchical role, rather than the traditional cooperative one: “the traditional functions of the CJEU within the preliminary reference system are being replaced by those which belong to a national Supreme Court” (p 116). This paradigm shift is explored at length. The sixth contribution, written by Mihaela Vrabie, approaches the status of the Charter of Fundamental Rights of the European Union in the framework of the preliminary reference procedure, also concerning the much debated issue of the field of application of the Charter with regard to Member States. The final chapter introduces the parallel application of the Charter of Fundamental Rights and the European Convention on Human Rights by Romanian courts, as pointed out by certain preliminary references to the Court of Justice made by the former, but also in certain decisions by which courts rejected requests of the parties to make references to the Court of Justice. Certain patterns in that regard are approached.
This new book aims to provide some insights on recent trends and patters in judicial dialogue between the Court of Justice of the European Union (hereinafter “CJEU”) and national courts (Constitutional Courts included). The book features seven contributions. Their order is not accidental: specific issues come after more general topics, these latter being dealt with within the first three chapters. The first article included in this book and written by Giuseppe Martinico serves as a relevant introduction to the subject-matter of this book. It aims at exploring the interesting issue of judicial application of the ECHR and EU law, in order to elucidate the vertical relationship between national judges (constitutional and common law alike) and these external legal sources. The second contribution is somehow related to the first one: Ioana Răducu discusses the dialogue between courts, and more precisely the way the former accept the decisions rendered by supranational courts and also the...
German Law Journal, 2015
A. Are Constitutional Courts the "Most Disparaged Branch" in the EU Constitutional System? When debating the constitutionalization of EU law, different views emerge regarding the role of Constitutional Courts. Some scholars see these Courts as the institutions that, since the 1970s, have marked turning points in the construction of the European legal system, thanks to their case law on the protection of fundamental rights, democratic principle, and constitutional "counter limits". Constitutional Courts have provided and can provide invaluable inputs into the activity of the European institutions, particularly to the Court of Justice of the European Union (CJEU), so as to reconcile the national and the supranational.1 According to other scholars, however, Constitutional Courts can be seen as "the most disparaged branch" in the process of European integration, very often criticized for their The articles published in this Speciallssue have been selected, presented, and discussed on the occasion of the call for papers and the conference on The preliminary reference to the Court of Justice of the European Union by Constitutional Courts, held at LUISS Guido Carli University in Rome on 28-29 March 2014 in memory of Gabriella Angiulli, a PhD candidate who worked on this topic at LUISS University and at the University of Siena. The organization of the conference was possible thanks to the funds kindly provided by the Center for Parliamentary Studies, LUISS Guido Carli University, and the invaluable support of
SIEPS Report, 2021
The European Court of Justice is behind a recent and genuine enhancement of European constitutionalism, placing the rule of law, a long-established value and principle of EU law, at the centre stage. This rule of law-enhancing process of re-articulation of EU constitutionalism is ongoing and represents the Court of Justice’s incrementalist response to the process of rule of law backsliding which first emerged in Hungary before spreading to Poland. This volume aims to present and critically analyse this judicial response on a case-by-case basis taking the Court’s judgment in Case C-64/16, ASJP (Portuguese Judges) as a departure point and its judgment in Case C-896/19, Repubblika (Maltese Judges) as a provisional end point. By offering key excerpts and a critical assessment of the Court of Justice’s most important orders and judgments which have reshaped the meaning and scope of the EU rule of law principle and associated legal obligations since 2018, this casebook-style volume will be of interest to those wishing to gain an expert understanding of the importance and the added value of the Court’s orders and judgments, both taken individually and as a whole.
Polish Review of International and European Law, 2020
The paper addresses the issue of a judicial forum entitled to resolve conflicts between European Union law and national constitutional rules. First and foremost, the issue is discussed under the old primacy/supremacy of EU law controversy. The author seeks to answer whether the national law, including constitutional rules, of a Member State can be ineffective owing to being contradictory to EU law. If so, by whom can national laws be held ineffective? In other words, which of the two judicial fora (national and European) have the last word in these conflicts or who is the ultimate arbiter of the constitutionality of law within the European legal space? The author argues that legal reasoning should reconcile, on the one hand, the specificity of the EU’s unique legal order and effective application of its provisions and, on the other hand, the international legal status of the Member States and their constitutions. This approach leads to the conclusion that there is no ultimate judici...