bluuebunny/crossref_metadata_2025_split huggingface dataset:
The Court of Justice as a Labour Court
Authors: Davies ACL 
Published: March 2013

AbstractMany legal systems have specialist labour courts with jurisdiction over individual employment disputes or collective labour disputes or both. The literature identifies a number of possible justifications for the use of specialist labour courts. This chapter will engage in a critical examination of this literature in order to develop a framework for analysing the performance of courts (whether specialist or otherwise) in deciding labour law cases. We shall then apply that framework to some of the recent case law of the Court of Justice of the European Union.
A ‘Minefield of Misreckonings’: Europe’s Constitutional Pluralism
Authors: Christodoulidis Emilios 
Published: March 2013

AbstractThe paper is a critique of ‘constitutional pluralism’, as increasingly called upon to compensate for the social and democratic deficits of the European project, and of ‘constitutionalisation’ as compensating for the absence of any semblance of ‘constituent power’ at the European level. The substitution has been largely successful in redefining the terms of the debate. My interest in this paper, more specifically, is with constitutionalisation as a process of ‘becoming-constitutional’, the conditions of that process, and the criteria of ascription of constitutionality. My argument is that it involves a constitutive coupling with constitutional pluralism, such that allows even the current crisis to be portrayed as an ‘opportunity’ for Europe’s alleged ‘social market economy for the 21st century’ to ‘come out stronger’, its progress at no point obstructed or derailed by the peoples’ of Europe resistance to it.
An Illusion of Protection and an Assumption of Responsibility: The Possibility of Swedish State Liability afterLaval
Authors: van Leeuwen Barend 
Published: March 2013

AbstractThis chapter will look deeper into the question of horizontal direct effect in the Viking and Laval cases by focusing on the effects of the Laval judgment. It will be submitted that the Laval case was an example of the horizontal enforcement of the vertical right to be protected by the State against interference with one’s free movement rights under EU law. The trade union acted within a legislative framework which had been established by the State and which provided protection to the trade union. The CJEU’s judgment established that this protection had been illusory, and the Swedish State assumed responsibility by amending two pieces of legislation. However, the reasoning of the CJEU did not sufficiently recognise the vertical nature of the proceedings. As a result, the Swedish Labour Court granted Francovich damages against the trade union, but these damages did not adequately compensate Laval for its losses. Therefore, the extension of horizontal direct effect to trade unions has resulted in inadequate judicial protection in this case. In future cases which present themselves as cases between two private parties the CJEU should more carefully investigate the responsibility of the State. A more careful investigation would open up the possibility of a Francovich claim against the State, if the State bore responsibility for breaches of EU law committed by private parties.
The Purpose of the EU Procurement Directives: Ends, Means and the Implications for National Regulatory Space for Commercial and Horizontal Procurement Policies
Authors: Arrowsmith Sue 
Published: March 2013

AbstractThere currently appears to be considerable confusion amongst regulators and stakeholders over the purpose of the EU’s directives on public procurement and lack of a clear vision of what the directives seek to achieve. Against this background this article has two objectives. First, it seeks to provide a framework for understanding the directives’ functions and their relationship with national policy. In this respect it identifies the ends and means that the directives do, or could, adopt and/or which have been ascribed to them, and considers the implications of each for national regulatory space. Secondly, for each of the ends and means it suggests a specific legal interpretation of its actual and potential role in the EU’s legal framework.It is argued that the directives seek to promote the internal market and that they seek to do so solely by three means—prohibiting discrimination, implementing transparency, and removing barriers to access. It rejects, on the other hand, certain broader conceptions of the directives, including that they promote a single market by standardising procedures; that they replicate in the public market the competitive process of the private market; and that they seek value for taxpayers’ money. It is argued that rejection of these broader functions has important implications for the scope of national regulatory space, both as regards the ‘commercial’ aspects of public procurement—notably ensuring value for money and an efficient procurement process—and as regards ‘horizontal’ policies in the sense of policies that promote social and environmental objectives through public procurement.
European Fundamental Rights and the Member States: From ‘Selective’ to ‘Total’ Incorporation?
Authors: Schütze Robert 
Published: March 2013

AbstractIn parallel with American constitutional thought, there exists a doctrine of incorporation in the European legal order. European fundamental rights will thus not exclusively limit the European institutions. They may—in certain situations—equally apply to the public authorities of the Member States. This chapter looks at the incorporation doctrine across the three sources of European fundamental rights. With three distinct sources of fundamental rights, the constitutional principles governing the European incorporation doctrine are unsurprisingly more complex than the American incorporation doctrine. What are the similarities and dissimilarities between the European and the American incorporation doctrine? The Union presently favours selective over total incorporation. In this respect, it emulates the American constitutional order. Yet the European doctrine nonetheless differs strikingly from the classic American doctrine. For unlike the latter, the European legal order has not made incorporation dependent on the type of fundamental right at issue. The European doctrine has, by contrast, made the incorporation of Union fundamental rights into national legal orders dependent on the type of Member State action.
Protection Against Acts Harmful to Human Health and the Environment Adopted by the EU Institutions
Authors: de Sadeleer Nicolas , Poncelet Charles 
Published: March 2013

AbstractThis chapter examines whether the EU has duly implemented its obligations regarding access to justice in environmental matters. On the one hand, EU courts remain hardly accessible to individuals seeking to challenge acts harmful to human health and the environment adopted by the EU institutions. In this regard, the Lisbon amendment of the standing requirements for non-privileged applicants has not radically changed the situation. In the light of recent decisions of the General Court, it appears that the latter has as yet resorted to a restrictive interpretation of the new prerequisites laid down in Article 263(4) TFEU. On the other hand, the internal review mechanism of EU environmental measures as provided for under secondary law does not live up to its objective of enhancing legal protection. In addition to the limited scope thereof, the EU institutions have shown much reluctance to be challenged. Therefore, it may be concluded that EU citizens are not provided with effective remedies. This represents a significant issue given the essential enforcement deficit of environment law. Arguably the EU legal system scarcely complies with the letter and the spirit of the Århus Convention with respect to access to justice.
Securing Trust in the Court of Justice of the EU: The Influence of the Advocates General
Authors: Albors-Llorens Albertina 
Published: March 2013

AbstractThis chapter examines the influence of the Advocates General in promoting trust in the work of the Court of Justice of the European Union. While it accepts that it may be difficult to quantify this influence—given the non-binding nature of the Opinions—it argues that the work of the Advocates General has an impact in securing confidence in the Court. This conclusion is supported by an examination of three possible levels of the influence exerted by the Advocates General, which are considered in the chapter in descending order of abstraction. The first and most abstract dimension of this influence is that provided by the institutional characteristics of the office of Advocate General and the role associated to it. The second dimension is the general contribution of the Opinions to the development of the case law. Finally, the chapter looks at the contribution of the Advocates General in the specific context of cases involving conflicting rights and interests and particularly in cases where fundamental human rights collide with essential Treaty objectives and freedoms—like the free movement of goods or persons—an area where trust in the work of the Court is crucial to ensure the legitimacy of the Union.
The Advocate General: A Key Actor of the Court of Justice of the European Union
Authors: Clément-Wilz Laure 
Published: March 2013

AbstractIt is argued that the Advocate Generals have helped to create a distinct and identifiable body of EU law. In the context of increasingly complex legislation and legal structures, the Advocate Generals have also contributed to improving the coherence of legislation and case law. It is also argued that the legal texts and practice firmly place the Advocate General at the same time within the CJEU and yet outside the Court. The institutional and functional rules governing the role of the Advocate General do have an impact on the judicial decision-making process. Some suggestions for reforming the role of the Advocate General in order to integrate the Advocate General more fully within the Court and to strengthen the role are also made.
Paths for Constitutional Thinking ‘Beyond the State’?
Authors: Gibbs Alun 
Published: March 2013

AbstractIn this chapter I consider the role that the constitutional state has played in restricting our sense of the possibilities of constitutional thinking and I trace the connections between the modernist state and metaphysical thinking. In doing so I hope to suggest that constitutional thinking does not need to be tied to the ‘state’ and instead concerns the commitment to what I term ‘enduring truths’. These truths are enduring, I argue, precisely because they cannot be confined to any particular epoch of constitutional undertaking, whether we call it the ‘pre-state’, ‘state’ or ‘post-state’. To explore these issues I have taken the debate surrounding the mature example of a political community which is said to be ‘beyond constitutionalism’—the European Union. My argument is that it is irrelevant to tie the problem of the EU’s constitutional future to the legacy of the state or to abandon constitutionalism itself in favour of a prospective procedural administrative accountability. What is now required is a commitment to a constitutional possibility for the renewal of the enduring truths of constitutional life rather than a steadfast adherence to the conventional metaphysics of the constitutional state.
The Notion of Consensus as a Route to Democratic Adjudication?
Authors: Petkova Bilyana 
Published: March 2013

AbstractBuilding on the theory of democratic constitutionalism, I assess the political implications of the constitutional space formed by the Court of Justice of the European Union (CJEU), the European Court of Human Rights (ECtHR) and national constitutional courts in Europe. Democratic constitutionalism helps situate the role of constitutional courts in stimulating a degree of consensus, necessary for governance of heterogeneous communities such as the United States and the European Union. Questions of legitimacy and confidence in the judiciary come to the fore. I examine a mechanism used by the US Supreme Court, the CJEU and the ECtHR alike to foster democratic constitutionalism: in order to confront challenges to judicial legitimacy and remain responsive to the extra-judicial environment, these courts rely on majoritarian trends, or consensus, inspired by, but not limited to, the constitutional law of federal states and member countries.
How Regulatory Networks Shaped Institutional Reform under the EU Telecoms Framework
Authors: Boeger Nina , Corkin Joseph 
Published: March 2013

AbstractThis chapter considers the evolving institutional responses to the challenge of regulating telecoms in the EU, taking in the Commission’s push for creating an EU agency versus the resilience of the transnationally networked model, which is usually attributed to the Member States’ sovereignty reflex. Were recent negotiations over the reform of the Regulatory Framework for telecoms, concluded in 2009, simply a turf-war in which the Commission sought to extend the EU’s role against resistance from the Member States, or did the national telecoms regulators and their existing transnational network influence the eventual compromise to retain the soft law, networked model, albeit with some hardening? Characterised as a classic integration struggle, the Member States’ intergovernmental instincts were pitched against the Commission’s supranational instincts and its preference for instruments of control premised on the centralised exercise of hierarchical power. But this chapter paints a more fine-grained picture of the negotiation’s dynamics and especially the influence of the national regulatory authorities (NRAs) and their existing transnational network; a community of expertise that stood to have its role either strengthened or diminished in the revised institutional architecture. In doing so, the chapter moves beyond orthodox (intergovernmental and neofunctionalist) accounts of these dynamics to take an institutionalist approach that is better suited to analysing the EU as a mature system of governance.
Perfectionism in European Law
Authors: Bomhoff Jacco 
Published: March 2013

AbstractEuropean law manifests powerful perfection-seeking internal dynamics, nudging—even compelling—legal actors to strive to make the European legal order ‘the best it can be’. This chapter uses a comparative approach to show that this perfectionism is contingent (that is, not necessarily shared by all legal orders), and that it is a highly distinctive characteristic of European legalism specifically. Uncovering the hidden dynamics of this juridical perfectionism is an important step towards rethinking European law’s agency and its correlate: our own ability to shape European integration through law.
Behavioural Economics and the Autonomous Consumer
Authors: Scholes Annette Nordhausen 
Published: March 2013

AbstractThis chapter takes as its starting point the ‘information approach’ which is the basis of current EU consumer protection legislation. It argues that the findings of behavioural economics suggest that the ‘information approach’ does not in practice achieve the protection of the consumer which it is trying to achieve. Insights and techniques gained from behavioural economics can be used as the basis for more effective consumer protection legislation, while at the same time respecting the principle of consumer autonomy which is the fundamental (though sometimes unstated) principle of EU internal market law.
A Fourth in the Court: Why Are There Advocates General in the Court of Justice?
Authors: Bobek Michal 
Published: March 2013

AbstractWhy are there Advocates General in the Court of Justice of the European Union? A standard answer to this question is likely to be either a simple textual reference (because the Treaty provides for them); or an appeal to authority (because the original framers of the Treaties put them there, inspired by the French legal system); or a rather pragmatic appeal to their on-going utility (because they assist the Court and they do a great job); or any combination of these three. All of these explanations are valid. This contribution, however, attempts to go a little deeper in discerning what may be the ideological justification for Advocates General in the Court of Justice. It does so by carrying out a historical and comparative study concerning their origins and systemic justification from the vantage point of a national lawyer coming from a Member State that does not know any type of a ‘fourth in the court’.The first part of the contribution explains which factors have considerably eroded the position of Advocates General in the course of the last decade and why questions concerning their role and its justification became topical. Second, the commonly invoked reference to the French inspiration for introducing Advocates General is critically examined. It is suggested that justifications once provided with respect to the office of commissaire du gouvernement in the Conseil d’État can hardly be used on the European level with respect to Advocates General. Third, possibilities of internal justification of the role of Advocates General are examined: are Advocates General providing any unique assistance to the Court of Justice, which could not be provided for in different ways? With a negative answer to the latter question, the last part of the argument offers a simple yet solid overreaching justification as to why there should be Advocates General in the Court of Justice.
Social Legitimacy and the Court of Justice of the EU: Some Reflections on the Role of the Advocate General
Authors: Hinarejos Alicia 
Published: March 2013

AbstractThe Court of Justice of the European Union (CJEU, Court of Justice or Court, for short) operates in circumstances that are similar to those of a national constitutional court; at the same time, some significant features set it apart and make it more difficult for the Court of Justice to command the institutional loyalty or public support that national constitutional courts seem to enjoy in Europe. This chapter will, first, offer a brief overview of how and why the Court acquired a markedly political, and problematic, role within the judicial and legal system of the Union (Section II). Section III will then examine the different concepts of legitimacy that may be applied to courts and their decisions, focusing more specifically on the social dimension of legitimacy. This chapter will argue that the fact that the Court of Justice has to operate in a transnational context leads to a shortfall in its social legitimacy, at least when compared to national constitutional courts in Europe. Finally, Section IV will focus on the figure of the Advocate General as a mechanism that may lend some extra social legitimacy to the Court and its decisions—obviously without solving the problem completely—and that, more generally, may foster dialogue, debate and deliberative democracy in the Union.
The Fight against Terrorism, Fundamental Rights and the EU Courts: The Unsolved Conundrum
Authors: Nanopoulos Eva 
Published: March 2013

AbstractUsing the example of anti-terrorism measures, this chapter looks at the difficulties experienced by the Court of Justice of the EU (CJEU) in reconciling the conflicting demands of fundamental rights protection and public security. It shows that under the current arrangements, the CJEU cannot have regard to information which has not gone through a proper adversarial hearing, even in cases where disclosure of the relevant information will jeopardise the public interest. The chapter thus envisages the possibility for reform. It examines, in particular, the special advocate procedure and the sort of difficulties that its transposition in the EU context would give rise to.
Advocates General and Grand Chamber Cases: Assistance with the Touch of Substitution
Authors: Łazowski Adam 
Published: March 2013

AbstractThe aim of this chapter is to analyse the role of Advocates General in Grand Chamber cases. The latter are supposed to be the crème de la crème of the case law. Alas, this is not always the case as some of the judgments are poorly argued and with quite limited legal reasoning. This chapter demonstrates that formally the role of Advocates General in Grand Chamber cases is the same as in other cases where the Court of Justice sits in different compositions. Several examples are given proving that assistance of the Advocates General is sometimes followed and sometimes rejected by the Grand Chamber. However, a selection of judgments discussed in the last section of the chapter demonstrates another phenomenon. When the Grand Chamber limits the judicial discourse to the minimum it enhances the role of the Advocates General as their Opinions become the only source of reasoning. If that happens we are arguably dealing with assistance with the touch of substitution.
The Euro Area Crisis and Constitutional Limits to Fiscal Integration
Authors: Hinarejos Alicia 
Published: March 2013

AbstractAgainst the backdrop of the current euro area crisis and the imbalance at the heart of the Economic and Monetary Union, this chapter will explore the current state of fiscal integration, as well as its likely future and limits. It will do so by, first, creating a ‘map to fiscal integration’ that takes into account the degree of legalisation of state cooperation, as well as the subject-matter of particular fiscal rules. The three measures or packs of measures adopted by the euro countries since the start of the crisis will be discussed and located within this map to fiscal integration. The chapter will show that a distinction can be drawn between (1) what will be referred to here as ‘balance rules’, or rules that concern budgetary discipline and balance, and (2) substantive rules or measures that concern the allocation of resources within a state and thus have a distributive or redistributive effect. Once the state of play of fiscal integration is clear, the chapter will turn to the shape of future integration in this area, arguing that further fiscal integration—or legal integration that goes beyond balance rules and crosses into the (re)distributive area—is severely limited by the current Treaties and that, moreover, even a hypothetical Treaty amendment with a view to creating a full EU fiscal policy of this kind would run into significant theoretical problems, both as a matter of EU law and of national constitutional law.
Allowing the Right Margin: The European Court of Human Rights and The National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?
Authors: Spielmann Dean 
Published: March 2013

AbstractThe doctrine of the national margin of appreciation is well established in the case law of the European Court of Human Rights. In applying this essentially judge-made doctrine, the Court imposes self-restraint on its power of review, accepting that domestic authorities are best placed to settle a dispute. The areas in which the doctrine has most often been applied will be presented here, looking at various examples from case law. After a brief overview of the doctrine’s origin, the analysis will focus on the situations in which the margin has been allowed or denied. Does it relate merely to factual and domestic-law aspects of a case? What is the scope of the margin of appreciation when it comes to interpreting provisions of the European Convention on Human Rights? What impact does an interference (whether disproportionate or not) with a guaranteed right have on the margin allowed? Is there a second-degree or ‘reverse’ margin of appreciation, whereby discretionary powers can be distributed between executive and judicial authorities at domestic level? Lastly it is noteworthy that Protocol No 14, now ratified by all Council of Europe Member States, enshrines in Article 12—at least to some extent—an obligation to apply a margin of appreciation. One essential question remains: by allowing any margin of a certain width, is the European Court simply waiving its power of review or is it attributing responsibility to the domestic courts in the interest of a healthy subsidiarity?