‘The referring court asks,in essence’: Is reformulation of preliminary questions by the Court of Justice a decision writing fixture or a decision‐making approach?

The Court of Justice can rephrase or otherwise depart from the questions referred to it by national courts under Article 267 of the Treaty of the Functioning of the European Union. It does so routinely: a practice known as reformulation. Legal literature often argues that reformulation is used to clarify national court questions and bring them within the scope of European Union law. The aim of the present article is to explore this claim systematically. To this end, it compiles a unique dataset consisting of the Orders for Reference, in which the referring courts embed the preliminary questions, and the judgments, in which the Court of Justice communicates the answers. The findings suggest that reformulation is a decision‐making approach rather than a fixture of decision writing. It's main function is to neutralize conflicts and Europeanise disputes. It underlines the Court's power to shape the preliminary ruling procedure and its outcomes.     

Game of courts: A tale of principles and institutions

The ontological, terminological and conceptual confusion that surrounds the concept of ‘general principles of European Union law’ is far from being resolved. The constitutional interlocutors—the Court of Justice of the European Union and the highest courts in Member States—have at times fiercely argued about their different understanding of general principles, whereas European legal scholarship has failed to convincingly clarify the intricacies surrounding this source of law. Instead of engaging with a more abstract, theoretical question of what general principles are, this paper reflects on the practical, functionalist question: how are they used by the Court of Justice and what are some of their functions and implications? To do so, it enquires into contextual, institutional and strategic features of the Court's behaviour and jurisprudence and responses of the highest national judiciaries to this jurisprudence. The aim is to offer an alternative account of the Court's jurisprudence on general principles.     

How Does the European Court of Justice Reason? A Review Essay on the Legal Reasoning of the European Court of Justice

This review essay analyses two significant recent contributions to the debate over the reasoning of the Court of Justice (CJ). These contributions highlight the impossibility of a wholly scientific and deductive approach to attributing ‘correct’ outcomes to the Court's case‐law. At the same time, their analysis adds significant findings for the debate over the Court's possible ‘activist’ or political role. Following from these contributions, this essay makes two arguments: firstly, that the inability of the Court to anchor its reasoning solely in a deductive form of legal reasoning should encourage the CJ to engage in a more advanced ‘constitutional dialogue’ with the EU's political institutions; and secondly, that truly understanding the Court's reasoning involves a closer analysis of the institutional and personal dynamics influencing Court decisions. Understanding European judicial reasoning may require a closer look at the social and political—as well as doctrinal—context within which European judges act.     

From vocational training to education: the development of a no‐frontiers education policy for Europe?

This article focuses on developments towards an EU educational policy. Education was not included as one of the Community competencies in the Treaty of Rome. The first half of the article analyses the way that the European Court of Justice and the Commission of the European Communities between them managed to develop a series of substantial Community programmes out of Article 128 on vocational training. The second half of the article discusses educational developments in the community following the Treaty on European Union and the Treaty of Amsterdam. Whilst the legal competence of the community now includes education, the author's argument is that the inclusion of an educational competence will not result in further developments to mirror those in the years before the Treaty on European Union. If the 1980s were a decade of expansion, the medium‐term future is likely to be one of consolidation.     

The rule of law as the lodestar of the European Convention on Human Rights: The Strasbourg Court and the independence of the judiciary

The rule of law is a constitutional principle under the European Convention on Human Rights. Throughout its history, the rule of law has been the lodestar guiding the development of the case-law of the European Court of Human Rights. In recent years, the normative impact of this principle has been increasing in the case-law of the Court, in particular in cases dealing with the independence of the judiciary. The article discusses the conceptual core of the rule of law under the Convention system as a fundamental component of “European public order”. Subsequently, the three-dimensional normative status of the rule of law is explored as well as the Court's statement that the principle is “inherent in all the Articles of the Convention”. On this basis, an in-depth analysis is undertaken of the application in recent Strasbourg case-law of the independence of the judiciary as a fundamental organic component of the rule of law. Finally, the author reflects on the “symbiotic” relationship in the field of judicial independence between the Strasbourg Court and the Court of Justice of the European Union.     

The European Court of Justice – The Need for Change in a Changing World

The article, from a speech delivered at the 11th Liverpool Law ReviewAnnual Lecture at The Law School, Liverpool John Moore's University, November 2001, before invited guests and students, considers the role and position of the European Courts in achieving the objectives of the treaties and institutions of the European Union. It examines the current position of the Court of Justice of the European Communities and the Court of First Instance of the European Communities and the implications of the structural changes introduced by the Amsterdam Treaty. The article reflects upon how the future accession to the Union of new Member States may affect that situation. It also considers how changes proposed in the Treaty of Nice, when ratified, will enable the European Courts to meet future demands placed upon them. This revised version was published online in August 2006 with corrections to the Cover Date.     

‘Delegated’ Legislation in the (new) European Union: A Constitutional Analysis

This article brings classic constitutionalism to an analysis of delegated legislation in the European Union. To facilitate such a constitutional analysis, it starts with a comparative excursion introducing the judicial and political safeguards on executive legislation in American constitutionalism. In the European legal order, similar constitutional safeguards emerged in the last fifty years. First, the Court of Justice developed judicial safeguards in the form of a European non‐delegation doctrine. Second, the European legislator has also insisted on political safeguards within delegated legislation. Under the Rome Treaty, ‘comitology’ was the defining characteristic of executive legislation. The Lisbon Treaty represents a revolutionary restructuring of the regulatory process. The (old) Community regime for delegated legislation is split into two halves. Article 290 of the Treaty on the Functioning of the European Union (TFEU) henceforth governs delegations of legislative power, while Article 291 TFEU establishes the constitutional regime for delegations of executive power.     

Supreme Court Ruling Creates More Standing Room in the Already Heated Global Greenhouse Gas Movement

This article reviews the recent April 2, 2007 Supreme Court decision in the Massachusetts v. EPA, a highly important case regarding greenhouse gases. The case centered on the Court's review of EPA's denial of a petition to regulate greenhouse gas emissions from new motor vehicles. The Court required EPA to reconsider its denial. The Court found that. 1) the petitioners have standing to challenge EPA's denial of their petition; 2) the Court has the authority to review the denial of the petition; and 3) the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles. This article looks specifically at the Court's analysis of standing and jurisdiction by Justice Stevens, who wrote the Court's majority opinion, and two dissenting opinions by Justices Roberts and Scalia. Most interesting is how the closely divided Justices (5 to 4 decision) viewed, very differently, the issues regarding standing, the evidence that emissions from new motor vehicles are causing global warming and harm to Massachusetts, and the agency's judgment in denying the petition. Lastly, the article speculates on the impact of the decision and the current activities taking place at the state and regulated community level involving future regulation, litigation, and opportunities by various companies and coalitions to reduce greenhouse gas emissions. The article then presents five broad areas where companies that emit greenhouse gases should need to maintain or increase awareness to better position themselves in the global greenhouse gas movement.     

Punishment and Rights in European Union Citizenship: Persons or Criminals?

While European Union (EU) citizenship has traditionally been key to limiting criminalisation at national level, over recent years crime has become a criterion to distinguish between the good and the bad citizen, and to allocate rights according to that distinction. This approach has been upheld by the EU Court of Justice (CJEU) in its case‐law, where crimes show the offender's disregard for the societal values of the host Member States, and deny his/her integration therein. This article argues that citizenship serves to legitimate criminal law. The Court outlines two—counterposing—types of human being: the law‐abiding citizen and the criminal. The article shows the legal unsoundness of the Court's approach. It does so by analysing and locating the case‐law over a crime–citizenship spectrum, marked at its opposing ends by Duff's communitarian approach to criminal law, on the one hand, and Jakobs' criminal law of the enemy, on the other.     

Report of the Law Reform Commission of Tanzania on Congestion in Prisons

Since its formal inauguration in the year 2006, the Caribbean Court of Justice (CCJ) has arguably shown itself to be quite capable of effectively dispensing with its overarching aims of consistency, coherence and legal certainty in the process of adjudication. Indeed, through the adoption of a teleological approach to the construction of the Revised Treaty of Chaguramas, the CCJ has positioned itself as a major operational component in the new Caribbean legal order, serving, as the European Court of Justice as well as several domestic courts have done, to ensure transparency and accountability. The court’s relatively nuanced purpose-driven approach has arguably been the single biggest contributing factor to the region’s quickly evolving ‘indigenous jurisprudence’. Nevertheless, some of the court’s most recent original jurisdiction decisions reveal a growing trend towards judicial restraint. The varying degrees to which the CCJ has adopted a teleological approach to the interpretation of the Revised Treaty of Chaguramas, the concomitant effects of this important development as well as the challenges which invariably arise in this connection are the subject of this article.     

Balancing Between Human Rights Assumptions and Actual Fundamental Human Rights Safeguards in Building an Area of Freedom,Security and Justice: a Cosmopolitan Perspective

Rhetoric often claims that the European Union (EU), in issues related to Justice and Home Affairs, has to be united in its diversity. As such, the asylum and judicial systems of the Member States are initially perceived as equally good. By applying the cosmopolitan theory on two fields of interstate cooperation, asylum and judicial cooperation in criminal matters, the article explores how cosmopolitan the EU is in these fields, with a specific focus on material detention conditions. For cosmopolitanism to work, it has to be grounded in commonly shared norms, which enable the EU to regulate its dealings with the otherness of the Member States. The crucial role of the European Court of Human Rights and the Court of Justice of the European Union in placing boundaries on the equal goodness of the Member States’ asylum and judicial systems is analysed. This judicial reality in which cosmopolitan norms are established and protected is discussed, together with the political realities dominating policy debates in order to build an Area of Freedom, Security and Justice.     

Scope of jurisdiction online and the importance of messaging – lessons from Australia and the EU

Where a court makes an order, for example, requiring an Internet platform to block or remove content, it has several options. The order can be limited to content displayed locally, it can apply to that content globally, or something in-between. This – the matter of ‘scope of jurisdiction’ – is gaining increasing attention and was the central issue in two recent decisions by the Court of Justice of the European Union (CJEU).In this article, I examine those two decisions. I then compare that to how Australian courts have dealt with scope of jurisdiction and I map out what we can learn from these cases. In doing so, I place emphasis on the importance of messaging and the need for judicial activism.     

Direct Concern in Regional Policy: The European Court of Justice and the Southern Question

For a few years, the European Court of Justice (ECJ) has declared inadmissible, for lack of direct concern, a number of annulment actions initiated by sub‐state actors in the context of regional policy. This article compares the ECJ's holdings with the General Court's more generous application of the ‘direct concern’ standard in some of the same disputes, and argues in favour of the General Court's approach. The cases hereby analysed pertain to the implementation of structural funds in Southern Italy. Relating regional policy to the historical unfolding of the ‘Southern Question’, this article examines the unexpected opportunity for civic and administrative renewal brought by regional policy to Italy's South in the late 1990s, and links standing for sub‐state actors to the long‐term realisation of that opportunity. It further argues that a more direct judicial involvement with territorial policies would prompt taxonomic renewal in EU law as a discipline.     

Judicial Exceptions to the Free Provision of Services

Abstract: Recent case-law of the Court of Justice on general interest exceptions to the free provision of services has indicated a flexible approach to general interest exceptions involving moral or ethical issues. In contrast, where the general interest exception is relied on in a case which demonstrates predominantly economic issues, it is subject to strict scrutiny, in particular, with reference to the principle of proportionality. The article analyses the Court's case-law and tries to deduce the criteria which now govern the Court's position. It also highlights difficulties which this two-tier approach may excite. The position of the Court of Justice reflects the lack of homogeneous European ethical and moral standards, but it also underlines the predominantly economic character of European integration to date. It is submitted, nevertheless, that divorcing the economic criteria for integration from general ethical considerations will prove an extremely difficult, if not fruitless, task.     

A Political Economy Perspective of Judicial Review in the European Union: Judicial Appointments Rule, Accessibility and Jurisdiction of the European Court of Justice

The paper examines the benefits the sovereign member states of the EU expect to derive by granting the European Court of Justice the power to review the collective policy making decisions of the EU legislative bodies. Using the methodology of constitutional political economy it investigates the one-country one-judge rule of judicial appointments in the ECJ, the restrictions imposed on litigants to access the ECJ and the limits on the jurisdiction of the ECJ to review EU legislation. It also analyses how the presence of judicial review affects the size of the policy measures taken by the policy makers.     

Between discretion and control: Reflections on the institutional position of the Commission within the European citizens' initiative process

This article considers the institutional position of the Commission within the European citizens' initiative (ECI) process, with particular emphasis on its decision regarding the admissibility/registration of a proposed ECI, and its final decision on the outcome of an ECI which has met the necessary levels of support. The purpose of this contribution is to juxtapose the case‐law of the Court on the Commission's discretion and the relevant provisions of the Treaties with the evolution of European integration and, more specifically, the evolution of the Commission's role therein. Viewed under this prism, the Commission's powers at the registration stage (which in any event clearly fall under the scope of judicial review) are compatible with the constitutionalisation of the Union, whereas the Commission's width of discretion at the follow‐up stage, while compatible with the Commission's prerogatives, cannot easily be reconciled, nonetheless, with the Commission's limited legitimacy when compared to that of the co‐legislators, the fact that it may not always represent the Union interest, and the latter's pragmatic losses within the EU institutional balance.     

Is there an EU Copyright Jurisprudence? An Empirical Analysis of the Workings of the European Court of Justice

The Court of Justice of the European Union has seen a dramatic and controversial increase in copyright cases during the last decade. This study investigates empirically two claims: (i) that the Court has failed to develop a coherent copyright jurisprudence (lacking domain expertise, copyright specific reasoning, and predictability); (ii) that the Court has pursued an activist, harmonising agenda (resorting to teleological interpretation of European law). We analyse the allocation of copyright and database right cases by Chambers of the Court, Advocate General (AG) and Reporting Judge, and investigate the biographical background of the Judges and AGs sitting. We trace patterns of reasoning in the Court's approach through quantitative content analysis. Legal topoi that are employed in the opinions and decisions are linked to the outcomes of each case.     

Watering Down the Court of Justice? The Dynamics between Network Implementation and Article 258 TFEU Litigation

With the establishment of an administrative network to manage implementation of the Water Framework Directive (WFD), a more consensual approach to judicial enforcement seemed like a natural next step. This anticipation was partially derived from the experimentalist nature of the WFD, requiring concerted action in the specification and application of its open‐ended and broad provisions. This article assesses how important changes in WFD implementation practices shape the role played by the Court of Justice with respect to Article 258 Treaty on the Functioning of the European Union. The examination of the WFD litigation reveals interesting tensions. Network‐based implementation practices keep Member States accountable for the progress of implementation and make a subsequent legal action swifter. At the same time, implementation practices remove from courts those issues that may be better solved by network participants. The results show how the function and exercise of judicial enforcement is influenced by the ways in which legislation is implemented.     

The Evolving Judicial Politics of European Integration: The European Court of Justice and national courts revisited

This article analyzes how the judicial politics sparked by the European Union's (EU) legal development have evolved over time. Existing studies have traced how lower national courts began cooperating with the European Court of Justice (ECJ) to apply EU law because this empowered them to challenge government policies and the decisions of their domestic judicial superiors. We argue that the institutional dynamics identified by this ‘judicial empowerment thesis’ proved self‐eroding over time, incentivizing domestic high courts to reassert control over national judicial hierarchies and to influence the development EU law in ways that were also encouraged by the ECJ. We support our argument by combining an analysis of a dataset of cases referred to the ECJ with comparative case study and interview evidence. We conclude that while these evolving judicial politics signal the institutional maturation of the EU legal order, they also risk weakening the decentralized enforcement of European law.     

THE SUPREME COURT OF JUSTICE OF THE REPUBLIC OF AUSTRIA

The aim of this article is to give an overview of the tasks and the function of the Supreme Court of Justice in interaction with the other two “Highest Courts” of the Republic of Austria on the one hand, and the European Court of Human Rights as well as the Court of Justice of the European Union on the other hand. For this purpose introductory remarks will examine the Austrian understanding of the judiciary as a state power and judicial independence. The closing part of the article will particularly look into the role of the Supreme Court as highest instance in criminal matters.