Variations in Member States’ Preliminary References to the Court of Justice—Are Structural Factors (Part of) the Explanation?

The preliminary reference procedure in Article 267 of the Treaty on the Functioning of the European Union (TFEU), which enables national courts to request the Court of Justice to provide a ruling on the interpretation or validity of an EU legal act, is widely considered to be the jewel in the crown of EU law. When considering the number of references from different Member States, it will become immediately apparent that there are considerable variations. This article examines to what extent these variations may be explained by three structural factors, namely (1) population size, (2) willingness to litigate and (3) Member State compliance with EU law. It is concluded that some—but not all—of the variations in number of references from Member State judiciaries may be attributed to structural factors rather than being merely a reflection of different Member State courts’ willingness to make use of Article 267 TFEU on such references (the so‐called behavioural factors).     

The Islamic Headscarf: An Example of Surmountable Conflict between Sharî'a and the Fundamental Principles of Europe1

Abstract: The demand by certain Muslims living in Europe to wear the Islamic headscarf has led to important cases, before the courts of the Member States of the Union as much as before the European Court of Human Rights, above all with regard to public education. The Court of Human Rights and the Member States have taken different positions concerning the licitness of wearing the headscarf. The solutions adopted are, in fact, strongly influenced by the classical concept of relations between Church and State. In schools in Germany, where a relationship of cooperation exists between Church and State, the wearing of the veil is allowed, but only for the pupils, not for their teachers. In France, which has a model of strict separation between Church and State, neither teachers nor pupils are allowed to wear the veil. The tensions linked to wearing of the headscarf are but one example of conflict between sharî'a and the fundamental principles of Europe. These conflicts are not insurmountable. However, they do require efforts from both sides. The EU and the Member States must break with discriminatory practices against Muslims. The Muslims of Europe must construct a ‘European Islam’, re‐reading sacred texts in light of the characteristics and the values of the European societies in which they live.     

Cross-border public care and adoption proceedings in the European Union

The free movement of persons within the EU has meant that children at risk of harm from family members may be living in a Member State of which they are not a national. The child may be made subject to legal measures under the national law of the host State for the protection of their welfare. This article explores the competence of the EU to protect children in these circumstances, and the scope of the Brussels IIa Regulation in governing jurisdiction over child protection proceedings. It discusses the difference between national child protection systems and the political controversy surrounding English law on adoption following care proceedings issued over a child who is a national of a different Member State. It suggests that further information sharing on national systems and cooperation between courts is necessary for the effectiveness of the law and to encourage understanding of legitimate variation in Member State national family law.     

Jurisdiction for Consumer Contracts: European Union: Modified Rules of Jurisdiction for Electronic Consumer Contracts

The Brussels Convention on Jurisdiction and the Recognition of Judgments in Civil and Commercial Matters (the Brussels Convention) is to be replaced in 2002 by a Community Instrument: The Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Regulation).¹ The Regulation is an important measure approved by the European Union to simplify rules of jurisdiction and recognition of judgments for the benefit of the Internal Market. Amongst other matters, the Regulation updates existing jurisdiction rules for a consumer contracts. The rules for consumer contracts apply where a consumer and a business are domiciled in a Member State or the business has a:“branch, agency or other establishment” in a Member State. Importantly, the Regulation clarifies jurisdiction rules for consumer contracts conducted over the World Wide Web (WWW). These rules are to be welcomed, as they provide guidance on what rules of jurisdiction apply to consumer contracts over the Web, albeit that they are limited to where the parties are domiciled in Europe. This article outlines the rules of jurisdiction for consumer contracts provided by the Regulation, and where appropriate, highlights some aspects of the new rules that will possibly require further discussion and clarification by the European Court of Justice once the new rules are in force.     

The choice of child delivery is a European human right

In a judgment of 14 December 2010, in the case of Madam Ternovszky v. Hungary, the European Court of Human Rights has considered that a State should provide an adequate regulatory scheme concerning the right to choose in matters of child delivery (at home or in a hospital). In the context of homebirth, regarded as a matter of personal choice of the mother, this implies that the mother is entitled to a legal and institutional environment that enables her choice. This contribution stresses in which sense the regulatory schemes in the Member States Belgium, Germany, the Netherlands, France and the UK concerning the choice of child delivery are in accordance with Article 8 ECHR, the right to respect for the private life. Do the Member States provide the legal certainty to a mother that the midwife can legally assist a homebirth? Or are restrictions made in interests of public health?     

The Splendors and Miseries of Constitutional Reasoning in Times of Global Crisis: A Critical Look from the Realist Perspectives of Semiotics

The European Stability Mechanism (ESM) is the rescue fund that may grant loans to struggling euro zone governments by issuing bonds, collectively by the euro zone members. The implementation of the ESM spawned a lot of legal challenges brought to higher judicial authority in Ireland, Austria, Estonia, Germany and Poland. In the fall of 2012 the ESM was subject to legal analysis in the Estonian National Court, the German Constitutional Court, and in the European Court of Justice. Delivering much anticipated rulings in legal challenges to the legal provisions establishing the ESM, courts avoided upsetting the complex arrangements in question by producing legal decision of direct political import and letting EU bailout measures go forward. In looking over different critical responses, we have seen an argument raised by media and legal scholars, according to which courts’ capitulation before the power of financial markets in the EMS rulings represents “a sign of judicial crisis” that marks the weakness of modern European jurisprudence. In light of their importance, we undertake a preliminary semiotic analysis of the ESM rulings of the Estonian National Court, the German Constitutional Court, and in the European Court of Justice. Our analysis aims at discerning the crucial aspects of those rulings is performed on the basis of different semiotic methodologies combined with the refined ideas of the Scandinavian analytical school of the doctrinal study of law. In traditional legal studies there seems to be a taken for granted assumption that there is one analytical way to dissect judicial reasoning of the supreme courts. This paper argues that the manner of analyzing the constitutional reasoning needs to be congruent with the particular research methodology.     

欧盟商标法律制度的协调机制及其对我国的启示

在欧盟,既有各成员国国内的商标法律制度,又有欧盟的跨国商标法律制度即共同体商标条例,并设有将这两种商标法律制度协调运行的机制。该机制的核心主要有三个方面：一是优先注册权制度,即在一成员国有效的商标,或者同时又是共同体商标,权利人可以享有将同一商标在相同商品或服务上优先注册共同体商标的权利,或者优先注册其他成员国国内商标的权利;二是转换申请制度,即共同体商标的申请人或所有人在其申请失败或其商标失效时请求将该申请或商标转换成国内商标申请的情况;三是共同体商标特有的诉讼管辖和法律适用制度。欧盟所建立的这种复式商标法律制度及其协调机制,对于“一国两制”下的中国大陆、香港、澳门和台湾四法域商标法律制度的协调具有重要的借鉴作用。     

欧洲共同体指令的直接效力

在欧洲共同体的所有二级立法渊源中,指令的法律效力是一个颇具争议的问题,尤其是指令在各成员国中是否具有直接效力,更是引起了诸多纷争,而《欧洲共同体条约》和《欧洲原子能共同体条约》均未对此做出规定.以欧洲法院的相关案例法为主线,对其提出的指令的纵向直接效力、协调一致解释及附带横向直接效力原则逐一进行了评析,最后得出结论:为切实有效实现欧洲共同体指令所追求的目标,欧洲法院应当重新定义其提出的指令的直接效力原则;其中,最具有关键性意义的是,应当赋予指令在自然人和法人等私人之间的横向直接效力的职能.     

Constitutionalising an Overlapping Consensus: The ECJ and the Emergence of a Coordinate Constitutional Order

The European Court of Justice's (ECJ's) jurisprudence of fundamental rights in cases such as Schmidberger and Omega extends the court's jurisdiction in ways that compete with that of Member States in matters of visceral concern. And just as the Member States require a guarantee that the ECJ respect fundamental rights rooted in national tradition, so the ECJ insists that international organisations respect rights constitutive of the EU. The demand of such guarantees reproduces between the ECJ and the international order the kinds of conflicting jurisdictional claims that have shadowed the relation between the ECJ and the courts of the Member States. This article argues that the clash of jurisdiction is being resolved by the formation of a novel order of coordinate constitutionalism in which Member States, the ECJ, the European Court of Human Rights and other international tribunals or organisations agree to defer to one another's decisions, provided those decisions respect mutually agreed essentials. This coordinate order extends constitutionalism beyond its home territory in the nation state through a jurisprudence of mutual monitoring and peer review that carefully builds on national constitutional traditions, but does not create a new, encompassing sovereign entity. The doctrinal instruments by which the plural constitutional orders are, in this way, profoundly linked without being integrated are variants of the familiar Solange principles of the German Constitutional Court, by which each legal order accepts the decisions of the others, even if another decision would have been more consistent with the national constitution tradition, ‘so long as’ those decisions do not systematically violate its own understanding of constitutional essentials. The article presents the coordinate constitutional order being created by this broad application of the Solange doctrine as an instance, and practical development, of what Rawls called an overlapping consensus: agreement on fundamental commitments of principle—those essentials which each order requires the others to respect—does not rest on mutual agreement on any single, comprehensive moral doctrine embracing ideas of human dignity, individuality or the like. It is precisely because the actors of each order acknowledge these persistent differences, and their continuing influence on the interpretation of shared commitments in particular conflicts, that they reserve the right to interpret essential principles, within broad and shared limits, and accord this right to others. The embrace of variants of the Solange principles by many coordinate courts, in obligating each to monitor the others' respect for essentials, creates an institutional mechanism for articulating and adjusting the practical meaning of the overlapping consensus.     

Holding to Account a Possible European Public Prosecutor Supranational Governance and Accountability Across Diverse Legal Traditions

The Lisbon Treaty provides a legal basis for the Member States of the European Union (EU) to establish a European Public Prosecutor (EPP) with competence to prosecute, in the courts of the Member States, crimes against the financial interests of the Union. Article 86 of the Treaty on the Functioning of the European Union, provides that the Member States may unanimously, or through flexible cooperation where nine Member States agree, establish such a European-level prosecution body, with the possibility for its powers to be extended by unanimity to include serious crime having a cross border dimension or affecting more than one Member State. Within the legal traditions of the Member States, means of holding prosecution authorities to account vary considerably. Probably the strongest form of accountability exists in the civil law tradition of Member States that permit appeals to judicial bodies for decisions not to prosecute, which contrasts with the traditional common law reluctance to even give reasons for not prosecuting. Similarly, the ways in which prosecution authorities interact or overlap with police functions, and thus with general mechanisms of police and/or bureaucratic accountability, differ. Some of the particular features of EU cooperation suggest additional accountability issues, notably, questions concerning competence spill-over and problems of remoteness. This paper seeks to address how to conceptualise governance and accountability of a possible EPP outside of the context of a trial (the latter entailing a type of open legal accountability that can be studied in its own right) and including the question of the definition of competences.     

Rules for Rights: European Law,Health Care and Social Citizenship

Social citizenship is about equality. The obvious problem for European social citizenship in a very diverse Union is that Member States will not be able or willing to bear the cost of establishing equal rights to health care and similar aspects of social citizenship. Health care is a particularly good case of this tension between EU citizenship and Member State diversity. The European Court of Justice (ECJ) strengthened the right to health care in other Member States, but this cannot create an equal right to health care when Member States are so different. In its efforts to balance a European right, the Court has formulated ‘rules for rights’—not so much European social citizenship rights, as a set of legal principles by which it judges the decisions of the Member States.     

The Trade Union Movement and the European Union: Judgment Day

Abstract: The trade union movement faces a challenge to the legality of transnational collective action as violating economic freedoms in the EC Treaty. How are disparities in wages and working conditions among the Member States to be accommodated? Are national social models protected? Does the internal market allow for trade union collective action? How does EU law affect the balance of economic power in a transnational economy? What is the role of courts in resolving economic conflicts? This article analyses the responses to these questions as referred to the European Court of Justice by the English Court of Appeal and offers some conclusions. The purpose is to highlight the different positions adopted by the old Member States and the new accession Member States as regards the underlying substantive issues, and the options available to the Court of Justice in answering the questions posed.     

The Value of ‘Integration’ in European Law—The Implications of the Förster Case on Legal Assessment of Integration Conditions for Third‐Country Nationals

The European Court of Justice's Förster judgment can lead to a reduction of legal uncertainty caused by integration requirements for third‐country nationals. The judgment has created a strong ‘assumption of integration’ after five years of legal residence because it equalised integration requirements for European students to access the welfare system of host Member States with a requirement of five years legal residence. Almost all pieces of European legal migration law also contain five‐year residence requirements after which the status of third‐country nationals improves. However, these improvements are mostly subjected to the fulfilment of additional integration requirements. To keep coherence with European law, courts will not be able to disregard the Förster‘assumption of integration’ when assessing the legality of integration conditions for third‐country nationals put in place in addition to residence requirements.     

Experimental Governance: The Open Method of Coordination

Abstract:  The open method of coordination (OMC) has increased the competence of the European Union to regulate areas where the traditional Community legislative processes are weak, or where new areas require coordination of Member State policy, either as part of the spillover of the integration project as a result of economic and monetary union, or as a result of the case law of the European Court of Justice. The OMC is viewed as an aspect of new, experimental governance, which is part of the response by the EU to regulatory shortcomings. This article explores the normative aspects of the OMC using case studies. The article examines the conditions in which the OMC emerges, the conditions upon which it thrives, and the claims that are made for its effectiveness as a new form of governance.     

Political Self‐control and European Constitution: The Assumption of National Political Loyalty to European Obligations as the Solution to the Lex Posterior Problem of EC Law in the National Legal Orders

Current understandings of the constitutional effectiveness of EC law emphasise the European Court of Justice's (ECJ's) claims of supremacy and direct effect, and the acceptance of those claims by the national courts. However, the lex posterior problem of EC law in the national legal order—the problem whereby the application of European obligations in the national legal order could be legislated away by subsequent contrary national legislation—has been addressed not by national courts' acceptance of Costa but by national courts' assumption that national legislatures do not intend to legislate contrary to prior European obligations, often developed from separately established national doctrines which assume legislative fidelity to treaty obligations. As such, the solution to the lex posterior problem of EC law in the national legal orders rests on these national legal doctrines combined with pervasive national legislative self‐restraint. Political self‐control in the Member States supports the European legal order.     

The joined cases of Dwyer,SpaceNet and VD and SR before the European Court of Justice: The judgments of the Grand Chamber about data retention continue falling on deaf ears in Member States

On 5 April and 20 September 2022, the Grand Chamber of the European Court of Justice rendered three judgments in the cases of Dwyer, SpaceNet and VD and SR. It mainly reiterated its own applicable case law on the retention of and access to traffic and location data. In the VD and SR judgment, the Grand Chamber however expanded its scope to the area of market abuse.Legislation adopted by Member States and decisions rendered by most domestic courts, tribunals and judges do not fully comply with the case law of the Grand Chamber on the retention of and access to traffic and location data. In this particular context, the EU legislature should urgently adopt EU secondary legislation on the retention of personal data to provide legal clarity to all players involved.     

Pammer and Hotel Alpenhof - ECJ decision creates further uncertainty about when e-businesses “direct activities” to a consumer’s state under the Brussels I Regulation

The European Court of Justice’s recent judgement in the joined cases C-585/08 and C-144/09 will have substantial long-term implications for European e-businesses and e-consumers trading across borders.The key question considered was whether the fact that a website can be consulted on the Internet in the Member State of the consumer’s domicile is sufficient to justify a finding that commercial or professional activities are being directed to that Member State within the meaning of Article 15(1)(c) of the Brussels I Regulation.     

The Transmission of Legal Precedent Across the Australian State Supreme Courts Over the Twentieth Century

This article considers several possible determinants of the transmission of legal precedent across Australian state supreme courts over the course of the twentieth century. The study finds that that the transmission of legal precedent is higher between State supreme courts that are more physically proximate and between state supreme courts in which a majority of judges in both courts are appointed by conservative governments. The study further finds that having an intermediate trial court and providing appointments to the High Court of Australia are correlated with whether a state is a source of interstate citations or a cue sender.     

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.     

The Legacy of the Maastricht-Urteil and the Pluralist Movement

Abstract:  The Maastricht-Urteil of the German Constitutional Court of October 1993 has left a deep mark on EU law. Although some may consider it as part of legal history, the decision has never been overruled, and the ideas behind it are very much alive. This article tries to examine the legacy of that decision. From a practical point of view, the article focuses on the following issues: the current situation in Germany; the influence on other constitutional or supreme courts and on constitutional reforms in some Member States; the influence on the European Court of Justice and on the Treaty establishing a Constitution for Europe. Regarding theory, three sections of the article discuss a number of widespread ' idées reçues ' contained in the Maastricht-Urteil on notions such as the state, constituent power ( pouvoir constituant ), and democracy. The next section presents the movement of legal pluralism as an attempt to come to terms with the Maastricht-Urteil and its legacy. It criticises the radical versions of legal pluralism in view of the damage they may cause to essential dimensions of the rule of law. The final section reflects on the real motives behind the Maastricht-Urteil and its legacy, and on possible future developments.