Decoding the Amsterdam and Karlsruhe Courts' post-LM Rulings (Part I) verfassungsblog.de/luxembourgs-unworkable-test-to-protect-the-rule-of-law-in-the-eu (original) (raw)
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VerfassungsBlog, 18 April,, 2020
A key rule of law case illustrating the conversation taking place between national judges and the Court of Justice about the how-to of rule of law protection is the CJEU’s LM ruling dealing with the implementation of the European Arrest Warrant (EAW) (July 2018; for analysis, see here). In it the CJEU developed a test to balance mutual trust and individual rights, particularly the right to a fair trial. The Rechtbank Amsterdam, more specifically its international legal assistance chamber (Internationale Rechtshulpkamer), and the Karlsruhe Oberlandesgericht applied Luxembourg’s LM test with respect to Polish suspects in a series of recent (interlocutory) rulings. This national case-law is interesting both for its immediate outcome (suspension of surrenders) and its implicit message to Luxembourg: “Sorry, we tried, but your test is unworkable.”
Domestic Courts Pushing for a Workable Test to Protect the Rule of Law in the EU
2020
, the Oberlandesgericht Karlsruhe passed a decision in a surrender case that we expect to shape the future of the LM-test (Ausl 301 AR 15/19; for a first analysis, see here). Its decision can be seen not only as a result of Luxembourg's unworkable LM test but also as an acknowledgement of the effect of Poland's muzzle law on the independence of its judiciary. Shortly after, Rechtbank Amsterdam engaged with this decision, thus making it more likely that the CJEU will have to move forward and develop its test into a more meaningful one.
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Note that this paper uses the new numbering of Treaty provisions in force since 1 December 2009, except where necessary to the understanding]. so as to provide for more comprehensive explanations of the ECJ decision-making process and law-making dynamics in the EU. Litigation, out of the radar of European legal and political scholarship? Legal scholarship dedicates a lot of attention to the Court, but it consists largely in dissecting, praising, criticizing or forecasting European jurisprudential developments, or in appraising their applications and impact, or lack thereof, in the member states. There are, of course, exceptions to these trends. Legal scholars have investigated at some length the contribution made by national courts which, by using, or refraining from using, the preliminary rulings mechanism (now Article 267 TFEU), and by resorting to a mix of compliance and defiance with European rulings, gave more or less implicit guidance to the European Court (e.g. Slaughter, Stone Sweet and Weiler 1998, Alter 2001). A smaller group of scholars looked at the part played by other actors in EU level litigation. Examining EU level litigation patterns, they found out that the ECJ's docket was monopolized by the Commission, governments, transnational corporate groups and a few interest groups (i.e. women rights and environmental groups) (Harding 1992, Harlow 1992, Cullen and Charlesworth 1999). The few empirical legal accounts of litigation impact converged in finding that the Court's case law, or at least its fundamental aspects, were 'driven' and 'framed' essentially by national courts (Weiler 1994), the Commission (Stein 1981), and the Court's Advocates General (Burrows and Greaves, 2007). Those authors who studied the ECJ's argumentative strategy (i.e. the fictional 'reconstruction' of its decision-making, rather than the decision-making process itself) developed explanations which highlighted judicial autonomy, because the Court was able to justify its rulings based on accepted legal argumentative styles (Bengoetxea 1997). However, some did stress that the Court was not completely 'insensitive' to its political environment, and that the Court was willing to limit the scope of application of Treaty provisions to protect measures or values which reflected a consensus amongst the member states ('majoritarian activist', Maduro 1999). Yet, in general, EU level litigation and its impact on EU law and policy developments, remains largely out of legal studies' radar (but see Rawlings 1993,
THE USE OF ECtHR CASE LAW BY THE COURT OF JUSTICE AFTER LISBON Th e View of Luxembourg Insiders
Th is article examines how and why the Court of Justice examines and cites the case law of the ECtHR aft er the entry into force of the Charter of Fundamental Rights in 2009. Th e Court's practice will be sketched on the basis of 20 interviews with judges, référendaires and Advocates General at the Court of Justice. It will be shown that the Court of Justice has examined and cited the Strasbourg case law less frequently and extensively. Several reasons will be given for this, primarily on the basis of the observations of the interviewees as to their readiness to cite the Strasbourg case law. Th is includes a growing awareness that both courts are diff erent as well as strategic reasons related to the wish to develop an autonomous interpretation of the Charter.
This article shows how the substantive bias at the core of the present socioeconomic constitution of the European Union is directly related to the characterization of economic freedoms (crucially, the right to freedom of establishment of corporations and the free movement of capital) as the key yardstick of European constitutionality. An empirically grounded reconstruction of the way in which the European Court of Justice applies the proportionality principle shows that the Luxembourg judges (1) assign the argumentative benefit to the holders of economic freedoms, (2) construct all other constitutional goods in the semblance of economic freedoms, and (3) use asymmetric proof standards when having to justify the adequacy and necessity of economic freedoms and other constitutional goods. As a result, under the cloth of projecting the way in which national constitutional courts review the constitutionality of legislation to the supranational level, the European Court of Justice has radically altered the substance of European constitutional law. In particular, the right to private property and entrepreneurial freedom (as operationalized through the four economic freedoms and the principle of undistorted competition) have been assigned an abstract and a concrete constitutional weight that places key public policies (social policies, tax policies, regulatory policies) off the realm of what is constitutionally possible. As a result, some of the collective goods at the core of the Democratic and Social Rechtsstaat have become extremely vulnerable. Focusing on the proportionality as practice by the European Court of Justice does not only provide us with insights into the nature and substance of European law, but also contributes to the general theoretical understanding of the principle of proportionality itself, in particular to a more detailed reconstruction of the relevant steps in proportionality review.
2013
The ECJ's Notion of 'Equivalent Effect' [to custom duties] Commission of the European Economic Community v. Grand Duchy of Luxembourg and Kingdom of Belgium Commission of the European Communities v. Kingdom of Belgium Questions Notes 2. The ECJ's Notion of "Discriminatory Effect" of a Charge "Having Equivalent Effect" Commission of the European Communities v. Italian Republic Sociaal Fonds voor de Diamantarbeiders v. S.A. Ch. Brachfeld & Sons and Chougol Diamond Co. Michel Humblot v. Directeur des Services Fiscaux Commission of the European Communities v. French Republic Questions Section 2. The Prohibition of Quantitative Restrictions and All Measures Having Equivalent Effect A: Nature, Purpose and Scope of ECT Articles 28 and 29 (ex. Art. 30 and 34) Criminal proceedings against Arthur Mathot Commission of the European Communities v. Ireland Commission of the European Communities v. French Republic Questions 1. Types of Measures Having Equivalent Effect Commission Directive 70/50/EEC of 22 December 1969 Criminal Proceedings against Jean-Pierre Guimont Consorzio per la Tutela del Formaggio Gorgonzola v. Käserei Champignon Hofmeister GmbH & Co. KG and Eduard Bracharz GmbH Questions Note 2. The "Hard Cases": The ECJ Evolving Jurisprudence Établissements Delhaize frères et Compagnie Le Lion SA v. Promalvin SA and AGE Bodegas Unidas SA Procureur du Roi v. Benoît and Gustave Dassonville Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein Toarfen Borough Council v. B & Q plc Criminal Proceedings against Bernard Keck and Daniel Mithouard Criminal Proceedings against Jacques Pistre, Michèle Barthes, Yves Milhau and Didier Oberti vi CONTENTS
Blind Date Between Familiar Strangers: The German Constitutional Court Goes Luxembourg!
German Law Journal
Preliminary references by national constitutional courts are not an everyday occurrence in Union law. No surprise, therefore, that they attract considerable publicity and give rise to a significant amount of academic comment. However, the recent preliminary request of the German Federal Constitutional Court (GFCC) in Gauweiler constitutes undoubtedly the most important and historic preliminary reference made thus far by a constitutional court. This is not only because it is the very first preliminary request of this particular court, inaugurating potentially a whole new era in its institutional relationships with the Court of Justice and paving the way for other national constitutional courts to make more regular recourse to the preliminary reference procedure; but also because it relates to an issue of central importance for the process of European integration with far reaching economic and political repercussions.