scholarly journals The European Court of Justice: taking rights seriously?

Legal Studies ◽  
1992 ◽  
Vol 12 (2) ◽  
pp. 227-245 ◽  
Author(s):  
Jason Coppel ◽  
Aidan O'Neill
Keyword(s):  
European Community ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
Community Law ◽  
Rights Protection ◽  
Court Of Justice ◽  
European Court ◽  
Close Analysis

It is easily assumed that the use of the language of fundamental rights protection by the European Court of Justice translates directly into an extension of the actual protection of those rights within the European Community. It is the purpose of this paper to question that assumption.Whilst it would appear to be widely accepted that the initial motivation for the adoption of the terminology of fundamental rights by the European Court of Justice was a desire to defend the supremacy of Community law over national law, a close analysis of certain recent cases in the European Court shows that the court has begun to use rights talk in a different way.

European Community Law in National Courts: a Continuing Contradiction

1992 ◽  
Vol 5 (2) ◽  
pp. 171-185
Author(s):  
Christine Boch ◽  
Robert Lane
Keyword(s):  
European Community ◽  
Case Law ◽  
European Court Of Justice ◽  
Community Law ◽  
Community Rights ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Fundamental Challenge ◽  
European Community Law

Unless the law is enforced, it cannot command respect. Securing proper observance and protection of Community rights has long been recognized to be a fundamental challenge for the Community. The burden falls principally to the national courts, guided by the European Court of Justice. However, the guidance offered appears at times at variance with itself. It seems in particular that, in some instances, the obligation of result laid down in directives simply cannot be achieved. This article looks at the case law on remedies developed by the European Court, seeks to identify inconsistencies therein and suggests how they might be cured.

Case-note on Joined Cases C-402/05 P & C-415/05 P Yassin Abdullah Kadi & Al Barakaat International Foundation v. Council of the European Union & Commission of the European Communities

2009 ◽  
Vol 10 (2) ◽  
pp. 123-154 ◽  
Author(s):  
Maria Tzanou
Keyword(s):  
European Union ◽  
Case Note ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
The European Union ◽  
Community Law ◽  
Court Of Justice ◽  
European Court ◽  
European Union Commission ◽  
Court Of First Instance

“Any society that would give up a little liberty to gain a little security will deserve neither and lose both.”On 3 September 2008, the European Court of Justice (ECJ) handed down its long-awaited decision on the Kadi and Al Barakaat International Foundation where, setting aside the relevant judgments of the European Court of First Instance (CFI), the Court held that the Community judicature must ensure the full review of the lawfulness of all Community acts. This included those deriving from UN Security Council's resolutions, in the light of the fundamental rights as protected by Community law.

scholarly journals ¿Quién es el juez de los derechos fundamentales frente a la ley en el ámbito interno de aplicación del derecho comunitario?: (reflexiones sobre el control iusfundamental del derecho interno a la luz de la recepción nacional de los derechos fundamentales d

2007 ◽  
pp. 401 ◽  
Author(s):  
Juan Ignacio Ugartemendia Eceizabarrena
Keyword(s):  
Judicial Review ◽  
Point Of View ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
Legal Rules ◽  
Community Law ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
National Constitution

The aim of this article is firstly to describe the phenomenum of «national or state incorporation« of European Union Fundamental Rights.That is a process that was launched by the European Court of Justice with its judgment Wachauf in 1989, when it established that Member states were obliged to respect European Community Fundamental Rights in the implementation of Community law rules. It implies that those afore mentioned rights become parameters of conformity with Community Law and are to be used by national courts and judges when they are asked to control national authorities’ acts (including national legislure’s) taking into account those parameters. From this point of view, this work tries likewise to analyse how that incorporation affects the activity of judicial review of national acts in the light of fundamental rights as recognized by the National constitution. And specially when judicial review deals with Acts and other legal rules with same rank.

scholarly journals The European Court of Justice: What are the Limits of its Exclusive Jurisdiction?

2009 ◽  
Vol 16 (3) ◽  
pp. 291-314 ◽  
Author(s):  
Tobias Lock
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Member States ◽  
International Courts ◽  
Community Law ◽  
Exclusive Jurisdiction ◽  
Court Of Justice ◽  
European Court ◽  
Academic Discussion

The article explores the limits of the ECJ's exclusive jurisdiction by addressing two main issues: firstly, whether there are exceptions to that exclusivity, such as the application of the CILFIT case law or the exclusion of Community law from the dispute. Secondly, it asks whether other international courts must respect the ECJ's jurisdiction over a case. The article commences by briefly discussing the ECJ's exclusive jurisdiction as it was established in Opinion 1/91 and the Mox Plant-Case and draws conclusions from this case law. It then addresses the above-mentioned points and comes to the conclusion that there are generally no exceptions to the ECJ's exclusive jurisdiction and that the only option open to Member States is to exclude Community law from a dispute (and even that option is subject to limitations). Furthermore, after exploring several routes advanced in the academic discussion, the article comes to the conclusion that other courts must respect the ECJ's jurisdiction and as a consequence declare the case inadmissible.

Indirect taxes and national remedies

1999 ◽  
Vol 58 (1) ◽  
pp. 1-48
Author(s):  
Angela Ward
Keyword(s):  
Attorney General ◽  
Case Law ◽  
European Court Of Justice ◽  
Special Edition ◽  
Community Law ◽  
Court Of Justice ◽  
Council Directive ◽  
European Court ◽  
National Rule ◽  
Indirect Taxes

IN Case C-188/95 Fantask A/S and Others v. Industriministeriet (Erhvervsministeriet) [1997] E.C.R. I-6783 the European Court of Justice provided further guidance on the interpretation of Council Directive 69/335 EEC of 17 July 1969 concerning indirect taxes on the raising of capital (O.J. English Special Edition 1969 (II), p. 412), as most recently amended by Council Directive 85/303/EEC of 10 June 1985 (O.J. 1985 L 156, p. 23), and elaborated its case law concerning Member State remedies and procedural rules. More particularly, it was held that a national rule which would have allowed Danish authorities to escape the duty to refund charges levied in breach of the Directive on the ground of “excusable error” rendered Community law impossible in practice or excessively difficult to enforce (Case 199/82 Amministrazione delle Finanze dello Stato v. San Giorgio [1983] E.C.R. 3595), while a five-year time limit for bringing proceedings under Danish law was upheld as a reasonable limitation period (cf. Case C-208/90 Emmott v. Minister for Social Welfare and the Attorney General [1991] EC.R. I-4269).

Would chocolate by any other name taste as sweet?

2003 ◽  
Vol 4 (6) ◽  
pp. 571-587 ◽  
Author(s):  
Donald Slater
Keyword(s):  
Member State ◽  
Free Trade ◽  
European Community ◽  
Consumer Protection ◽  
Case Law ◽  
Generic Product ◽  
European Court Of Justice ◽  
Court Of Justice ◽  
Food Law ◽  
European Court

Food law in the European Community is a touchy subject. One of the big ongoing debates in this area centres on the question of what names we call our foodstuffs by. In an internal market where local supermarket shelves are stocked with products coming from all around the EC and beyond, how can we be sure that the contents of the packets conform to our connotations of the name on the label? For example, if it says “chocolate” on the label, how can we be sure that it really is “chocolate” within our understanding of the word? The question of what names can or should go on labels is, sadly, very complicated. This article therefore intends to look at only one aspect of this problem: when a Member State is allowed to insist that the name of an imported “generic” product be changed. We will begin by briefly looking at the case law and one of the major pieces of legislation in this area – the Labelling Directive – before going on to discuss application of the law to the recent Chocolate Cases, handed down by the European Court of Justice (hereafter the “Court”) at the beginning of this year. This discussion will give some (hopefully) interesting insights into the way in which primary law, as interpreted by the Court, and secondary legislation interact and into the balancing of consumer protection and free trade performed by the Court.

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