Competing Supremacies and Clashing Institutional Rationalities: the Danish Supreme Court's Decision in the Ajos Case and the National Limits of Judicial Cooperation

On 6 December 2016, the Supreme Court of Denmark (SCDK) ruled on the grounds of Ajos case. The ruling concerned the scope of the principle of non‐discrimination on the grounds of age and whether a national court could weigh the principle of non‐discrimination on grounds of age against the principles of legal controversy, as the protection of legitimate expectations. The ruling has caused a great deal of controversy as the SCDK defied clear guidelines from the Court of Justice of the European Union (CJEU) in the ruling. Moreover, the case has been seen by some as an example of a new ‘sovereigntism’ in Danish law that is at odds with the project of European integration through law. This article explains the case from both an EU law and Danish constitutional law perspective. It concludes by providing a set of explanations of the new course of the SCDK in its relationship with the EU.     

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).     

Protecting Supremacy from External Influences: A Precondition for a European Constitutional Legal Order?

The number of international law obligations that have binding force on the Union and/or its Member States is sharply increasing. This paper argues that in this light the well‐functioning of the European Union ultimately depends on the protection of the principle of supremacy from law originating outside of the EU legal order. The supremacy of EU law is essential to ensuring that Member States cannot use national rules to justify derogation from EU law. As a matter of principle, international treaties concluded by the Member States rank at the level of ordinary national law within the European legal order and below all forms of European law (both primary and secondary). Article 351 TFEU exceptionally allows Member States to derogate from primary EU law in order to comply with obligations under anterior international agreements. It does not however allow a departure from the principle of supremacy that underlies the European legal order. In Kadi I, the Court of Justice of the European Union stated that Article 351 TFEU, while it permits derogation from primary law, may under no circumstances permit circumvention of the “very foundations” of the EU legal order. This introduces an additional condition that all acts within the sphere of EU law need to comply with a form of “super‐supreme law”. It also strengthened the principle of supremacy and gave the Court of Justice the role of the guardian of the Union's “foundations”. The Court of Justice acted on the necessity of defending the Union as a distinct legal order, retaining the autonomous interpretation of its own law, and ultimately ensuring that the Union can act as an independent actor on the international plane.     

Hard Times for Hard Bans: Fixed‐Term Work and So‐Called Non‐Regression Clauses in the Era of Flexicurity

This paper deals with the issue of non‐regression clauses, which, despite a twenty‐year history, has been addressed by domestic and European case law only recently, and only with regard to the field of flexible employment. This essay argues that the Court of Justice case law on non‐regression clauses (the Mangold and Angelidaki rulings) leads to a weakening of these instruments, rendering them ineffective. This ineffectiveness is due to the controversial idea of Fixed‐Term Work in the era of flexicurity, and to the difficult justiciability of the particular clause in itself, as demonstrated by the most recent Court of Justice's ruling, Sorge. In addition, this essay provides an explanation of the difficult enforcement of non‐regression clauses, in light of the new course of European employment policies.     

Post-‘Brexit’ Financial Governance: Which Dispute Settlement Framework Should Be Utilised?

This contribution to the ongoing Brexit discussions addresses topical legal and regulatory issues in the post-Brexit policy debate, especially the questions surrounding the important area of financial governance and dispute resolution. Specifically, a number of future UK/EU legal disputes with respect to financial services may emerge post-Brexit. The article examines the UK's track record at the Court of Justice of the European Union, and discusses some likely future challenges. It then considers which institutional framework should be used for resolving disagreements. The article assesses the strengths and weaknesses of three potential models (the proposed Swiss/EU institutional framework; the EFTA ‘docking’ option; and the WTO system) and provides an original cross-model evaluation. It also discusses the associated design challenges that EU and UK negotiators may encounter in the attempt to devise a post-Brexit dispute settlement system.     

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.     

WTO协定对欧盟法的影响及启示--从欧盟法院的角度

WTO协定在欧共体被视为法律渊源之一,但是在欧共体并不具有直接效力;欧共体法被假定为与WTO协定相一致,但是欧盟法院在具体案件中不以WTO协定作为评价欧共体法合法性的依据。欧盟法院在其判决中对二者之间关系之精心设计,对于刚加入世贸组织的我国来说,不乏借鉴意义。     

The highest Dutch courts and the preliminary ruling procedure: Critically obedient interlocutors of the Court of Justice

Little is known about the motives of national courts to request a preliminary ruling from the Court of Justice of the EU (CJEU) or their satisfaction with and implementation of answers. This article aims to fill this empirical gap on the basis of an analysis of judgments complemented with interviews with judges of the highest courts in the Netherlands. This article shows that judges extensively use the procedure and follow its outcome almost without exception, despite some dissatisfaction. This discontent has surprisingly not affected the courts' willingness to refer in future. The findings also downplay the bureaucratic politics and judicial empowerment theses emphasising strategic motives to refer. Instead, legal‐formalist considerations and the desire to contribute to the development of EU law explain most of the references of the Dutch Supreme Court. The decision (not) to refer of the three highest administrative courts is primarily based on practical and pragmatic considerations.     

Women's Rights, the European Court, and Supranational Constitutionalism

This analysis examines supranational constitutionalism in the European Union (EU). In particular, the study focuses on the role of the European Court of Justice in the creation of women's rights. I examine the interaction between the Court and member state governments in legal integration, and also the integral role that women's advocates—both individual activists and groups—have played in the development of EU social provisions. The findings suggest that this litigation dynamic can have the effect of fueling the integration process by creating new rights that may empower social actors and EU organizations, with the ultimate effect of diminishing member state government control over the scope and direction of EU law. This study focuses specifically on gender equality law yet provides a general framework for examining the case law in subsequent legal domains, with the purpose of providing a more nuanced understanding of supranational governance and constitutionalism.     

WTO规则在欧盟法律体系中效力的新发展——统一解释原则的确定与适用

WTO规则在其成员国国内具有何种法律效力这一问题同保护私人从WTO规则中所获得的确定性和可预见性有着紧密的联系。在WTO成员普遍反对直接适用WTO规则的情况下,欧盟法院于最近案例中确立的统一解释原则为WTO规则的国内效力问题的发展带来了曙光。尽管欧盟法院在适用统一解释原则时存在法律解释技术上的问题,这一实践对于其他WTO成员实践的影响仍值得期待。     

Data retention and the future of large-scale surveillance: The evolution and contestation of judicial benchmarks

Recent and upcoming judgments of the Court of Justice of the European Union (CJEU) have resurfaced a much-debated topic on the legal limitations of law enforcement authorities and intelligence services under EU law in implementing surveillance operations. In its decisions, the CJEU has reinstated and at times remoulded its case-law on data retention, unearthing a variety of legal issues. This article aims to critically analyse the legal limitations of (indiscriminate) surveillance measures, the role of the private sector in the scheme, and the line between the competence of the Member States and that of the EU on national security matters. It also aims to remark on the latest developments on the reception of the decisions by the Member States and the EU legislator, as well as on the ongoing dialogue between the CJEU and the European Court of Human Rights (ECHR).     

Principle of Proportionality as Principle of Economic Efficiency

The principle of proportionality is at the cornerstone of EU law, and precisely of the case‐law of the European Court of Justice (ECJ). In the law and economics literature, the general principles of law are commonly opposed to legal rules in terms of efficiency. On the one hand, the legal formalistic approach consists of apprehending the law as principled, whereby principles of law do not and should not encompass an efficiency rationale and should be self‐sufficient. On the other hand, the legal nihilism denying the existence or relevance of the general principles of law favours legal rules that are said to incorporate an efficiency rationale. I intend to analyse the efficiency rationale of probably the most important general principles of EU law—the proportionality principle. In this paper, I shall assert that not only does the EU proportionality principle encapsulate an efficiency rationale, but most importantly, it has been interpreted by the ECJ as such—hence, I propose the representation of the principle of proportionality as a principle of economic efficiency. After having introduced the principle of proportionality (1), I shall decipher the proportionality principle both from a law and economics perspective, and from a comparative perspective (2). Then, I shall delve into the jurisprudence of the ECJ so that the judicial reasoning of the Court as this reasoning proves the relevance of the proposed representation (3). Finally, I conclude in light of the findings of this paper (4).     

The Limitations of a Multilingual Legal System

The Court of Justice of the European Union (CJEU) and the way in which it works can be seen as a microcosm of how a multilingual, multicultural supranationalisation process and legal order can be constructed—the Court is a microcosm of the EU as a whole and in particular of EU law. The multilingual jurisprudence produced by the CJEU is necessarily shaped by the dynamics within that institution and by the ‘cultural compromises’ at play in the production process. The resultant texts, which make up that jurisprudence, are hybrid in nature and inherently approximate. On the one hand, that approximation can lead to discrepancies between language versions of the Court’s case law and thus jeopardise the uniform application of EU law. On the other hand, that approximation and hybridity define EU law as a distinct, supranational legal order. This paper analyses the operation of the CJEU and considers whether a linguistic cultural compromise exists within that institution which exercises a formative influence on the character of its ‘output’—i.e. its jurisprudence—and what that may mean for our understanding of the development of EU law.     

Protecting wild land from wind farms in a post-EU Scotland

Scotland is one of the places in Europe to have experienced significant wind farm development over recent years. Concern about impacts on wild land has resulted in legal challenges based on European Union (EU) law. This article analyses whether wild land can be protected from wind farms and the differences that the United Kingdom departure from the EU will make. It considers the concept of ‘wild land’ compared with ‘wilderness’, analyses the legal basis (if any) for wild land protection and examines potential impacts from wind farms. It highlights the significance of EU environmental law, particularly nature conservation and environmental assessment law, and analyses recent Scottish jurisprudence that has applied this. The role of the European Commission and Court of Justice of the EU (CJEU) is emphasised as a key part of EU environmental law. The article asks whether relevant global and regional environmental agreements can effectively replace the content of the substantive law and context of the Commission and CJEU. Four environmental agreements and two related compliance procedures are briefly evaluated. The conclusion is that while EU law does not directly provide protection for wild land, it is considerably stronger than the international environmental agreements that may replace it.     

Constitutional Review in the Mega‐Leviathan: A Democratic Foundation for the European Court of Justice

The European Court of Justice (ECJ) serves, among other things, as a constitutional court for the EU. This means that it possesses the legal right to strike down both EU and national laws it deems irreconcilable with treaty provisions. In the present article, we shall draw on Hans Kelsen's theory of democracy to argue that the ECJ's competence to review and invalidate legislation is, in fact, indispensable for the democratic legitimacy of the EU's legal system as a whole.     

The European Union and the establishment of marine protected areas in Antarctica

This paper examines how the EU can best use its powers to establish marine protected areas (MPAs) in Antarctica. It first discusses the EU’s role in Antarctic governance and legal basis for the EU’s actions, with particular focus on the pending Joined Cases C-625/15 and C-659/16 at the Court of Justice of the European Union. Secondly, the paper analyses the negotiation process of the EU’s MPA proposals in the Southern Ocean within the Commission for the Conservation of Antarctic Marine Living Resources. Thirdly, it provides suggestions regarding the EU’s potential actions that might help achieve proposed Antarctic MPAs.     

Of Austerity,Human Rights and International Institutions

Austerity measures have led to the denial of social rights and widespread socio‐economic malaise across Europe. In the case of countries subjected to conditionality imposed by international institutions, the resultant harms have highlighted a range of responsibility gaps. Two legal developments come together to expose these gaps: Greece's argument in a series of cases under the European Social Charter that it was not responsible for the impact on rights brought about by austerity measures as it was only giving effect to its other international obligations as agreed with the Troika; and the concern to emerge from the Pringle case before the European Court of Justice that European Union (EU) institutions could do outside of the EU what they could not do within the EU ‐‐disregard the Charter of Fundamental Rights. That the Commission and the European Central Bank were in time answerable to international organisations set up to provide financial support adds an additional layer of responsibility to consider. Taking Greece as a case study, this article addresses the imperative of having international institutions respect human rights.     

Looking for Coherence within the European Community*

Abstract: This paper discusses the relationship between the idea of coherence and the legal order set up by the European Community. It focuses on a specific dimension of this relationship and shows how the appeals to coherence made by the European Court of Justice have shaped a particular branch of the European legal order, namely, the judicial review of Community acts. The analysis of the Court of Justice's case law in this field shows that in its extensive use of coherence the Court of Justice explored and brought into play different types of coherence and, while it failed to distinguish between them, it made use of sorts of coherence that thus far legal theorists have disregarded. The article concludes that a closer collaboration between legal theory and legal practice would be profitable for both legal theorists and Community law specialists.     

Independence of the Court of Justice of the European Union: Unchecked Member States power after the Sharpston Affair

The Court of Justice of the European Union (CJEU) is the apex of the EU legal order, and is the supreme arbiter of EU law. For decades, it has delivered judgments, collectively shaping European integration and ‘integration through law’. It has undoubtedly been an authoritative leader in entrenching a European judicial culture, and has benefited from the cardinal principle of judicial independence enshrined in the EU Treaties, which in turn, it has insisted on being upheld as regards national courts. Questions have rarely arisen, however, about judicial independence of the CJEU. The Sharpston Affair of 2020–2021 opened the door to questioning such judicial independence. Is the CJEU at the mercy of the Member States? If so, what are the consequences for the EU legal order? This article reflects on the judicial independence of the CJEU, and offers reflections on how it can be preserved in the future.