This Article uses major and recent CJEU labor law case as a springboard to examine and critique the CJEU’s doctrinal frameworks, conceptual constructs and decision-making practice. It analyzes the institutional, legal, political and other consequences of the CJEU’s Viking judgment as a means of critiquing the Court’s increasingly profligate yet systematic approach to fundamental rights and freedoms. The resulting description claims that the European legal order is increasingly characterized by omnipresent layers of powerful judges who explicitly “balance” (...) fundamental rights and freedoms to resolve hotly contested social issues, even when those issues manifest themselves as private law disputes. The Article explains how the imposition of the CJEU’s “fundamentalist” framework impacts powerfully upon, and increasingly threatens, the domestic labor law regimes of Europe. The Article leverages this example to advance several general critiques of the Court’s increasingly dominant “fundamentalist” approach. The Court’s approach fails to treat fundamental rights as fundamental in any meaningful sense. It tramples unnecessarily on important institutional and jurisdictional distinctions, mistakenly redistributing competences not only between Member States and the European Union, but also within the Member States themselves. Finally, the Court’s approach increasingly subsumes all domestic institutions and individuals under a single, undifferentiated and ultimately simplistic normative schema that preempts many of the institutional structures and solutions that might - and in many cases, recently did - skillfully govern significant portions of the European legal field. (shrink)

This research paper focuses on the comprehensive description and analysis of the structure of judgments from the Court of Justice of the European Union (CJEU). Despite the growing interest in examining the rhetorical and linguistic aspects of legal texts, the genre structure of judgments has remained a little-explored area. While headings and paragraph enumeration provide a systematic reference system for citation and cross-referencing they do not reveal the dynamic relations between individual text chunks in judgments. The current analysis combines (...) Swales and Bhatia's genre theory with Hoey's approach to patterning in discourse and corpus linguistics analyses. The findings show that the complexity of CJEU judgments extends beyond surface-level information with linguistic expressions playing a crucial role in highlighting dynamic relations and discourse patterning. The results reveal how the structure of CJEU judgments has changed over time and point to the intratextual relations between different sections. Additionally, the study provides a detailed description of the textual organisation of CJEU judgments in terms of move structures and conventionalised discourse patterns. (shrink)

The obligation to provide reasons may appear rather a simple and straightforward, but in actual practice—as the mutually antagonistic Weiss rulings of the CJEU and the German Bundesverfassungsgericht amply demonstrate—is fraught with constitutional complication. On the one side, there lies the concern with a deeply intrusive form of judicial review which substitutes judicially determined “good” reasons for those of the reviewee decisionmaker—legislatures, administrative agencies, or, as in Weiss, the European Central Bank. On the other side lies the concern with (...) judicial abdication in the face of technical expertise, uncertainty and complexity, turning the reason-giving requirement into a mere façade thereby placing democratic accountability in the modern administrative state beyond law’s remit. Either way, normatively and conceptually, we seem left with a half-way house only. Drawing on the recent US administrative law discourse—the neo-Fullerian concept of an “internal morality of law” and democratic experimentalism —this paper explores the concept of process review as tertium datur. Process review responds to concerns over the rule of law and administrative discretion through indirect, procedural safeguards, by imposing requirements of reasoned justification, rather than through wholesale invalidation or aggressive substantive review. (shrink)

This chapter first addresses the standard definition of international organizations and the theory of functionalism. Then, it examines why the status of international organization may be deemed attractive. Functionalism appears highly plausible when it suggests why international organizations are set up since, obviously, a single state will be unable to guarantee the accurate delivery of mail abroad or provide for collective security. The chapter also focuses on the European Union, which can be regarded as possessing international legal personality. The European (...) Communities were all individually granted legal personality, and this was construed as including personality under international law. Functionalism finds its normative justification in the contribution of organizations to the common good, and the Court of Justice of the European Union's (CJEU), in similar spirit, has placed considerable weight on the public nature of the tasks of an international organization, both in SAT Fluggesellschaft and in Vardakas. (shrink)

The Court of Justice of the European Union (CJEU) has some basic structural features similar to that of most judicial bodies. According to the treaties, the members of the Court are chosen from individuals whose independence is beyond doubt and who possess the ability required for appointment to higher judicial offices. The involvement of the Court and its president in the most important reforms of the European Union's judicial architecture in recent years is a striking feature which may be (...) called judicial self‐government. International courts have shifted away from being principally committed to dispute settlement towards pursuing other goals, such as advancing international norms and facilitating cooperative international arrangements. The reinforcement of the cooperation of the Court with national courts on the one hand, and with international courts and tribunals on the other, is one of the great current challenges facing the Court. (shrink)

This chapter reexamines the case law of the Court of Justice of the European Union (CJEU) through the prism of the modern structure of the foundational treaties of the EU: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). The Lisbon Treaty has reshaped the structure of the positive law of the EU, marking a new stage in the process of creating a closer union. For EU procedural law, this has led (...) to the formal establishment of three focal points which reflect the issues involved. At one extreme, are general principles of EU law, which have constitutional status including the general principle of effective judicial protection. In the middle of the spectrum are two provisions which recognize the balancing of national and EU interests required at the procedural level. Finally, the treaties recognize the possibility for substantive regulation at the EU level. (shrink)

This chapter first considers the more formal basis for the relationship between international law and European Union (EU) law by looking at the international law framework of EU law. It then discusses the approach of the EU legal order to international law and the various ways in which the two legal orders interact within the EU legal order. The chapter also considers reasons for and implications of the CJEU's approach. The Court of Justice of the European Union (CJEU) (...) has held that customary international law (CIL), just like treaty law, is a standard of assessment in the review of the validity of EU secondary legislation, thus ranking CIL more highly within the EU legal order than secondary legislation. Treaties in the area of human rights have enjoyed a relatively strong role within EU law, either by interpretation or by linking them to general principles of law. (shrink)

This chapter considers the effect of European Union (EU) law in the national courts of the member states and its status vis‐a‐vis overlapping rules of national law. The basic doctrines crafted by the Court of Justice of the European Union (CJEU) marked a significant departure from the standard model of international law and made a major contribution to the early development of the common market. The CJEU added, in many national legal systems the essentials of the legal rules (...) governing State liability have been developed by the courts. The principle of state liability has in practice been applied by the CJEU with restraint. The national courts now routinely apply the doctrines of direct effect and what de Witte calls ordinary primacy. However, the idea that Union law takes precedence over national rules having constitutional status has proved problematic with top national courts, particularly in so‐called dualist member states. (shrink)

Human rights have occupied a variety of roles in the course of history of the European Union. They played a negligible role at the outset, overlooked by the original Treaty of Rome and, even today, the Union's formidable associations with free trade, the single market, and regulation might suggest that it cannot be primarily defined as a human rights organization. The Charter of Fundamental Rights of the European Union has at last acquired binding force, provision is made for the European (...) Union to accede to the European Convention on Human Rights (ECHR), and the Court of Justice of the European Union (CJEU) is to have greater powers of judicial review in the field of police and judicial cooperation in criminal law, an area of obvious relevance to human rights. This chapter highlights some significant developments in the Court's fundamental rights jurisprudence. (shrink)

The article aims at resolving the issue whether the Court of Justice of the European Union (CJEU) has an exclusive jurisdiction under Article 344 of the Treaty on Functioning of the European Union (TFEU) to resolve disputes between Member States, stemming from provisions of an international treaty, a party to which is the EU. This problem is especially relevant in cases when a mixed international agreement envisages independent institutions of dispute resolution. The position of the CJEU is expressed (...) in the case of Mox Plant. The European Commission applied to the CJEU against Ireland, because it considered that Ireland, which started an arbitration procedure against United Kingdom under the UN Convention on the Law of the Sea, has infringed the exclusive jurisdiction of the CJEU under Article 344 of the TFEU. The EU is also a Contracting Party to the UN Convention on the Law of the Sea. Therefore according to the consistence case practice of the Court, the provisions of the Convention that fall under the competence of the Union constitute an indivisible part of the EU legal system. Only in such case when a provision of a treaty is attributed to exclusive competence of the Member States, the jurisdiction of the CJEU regarding that provision can be negated. Thus, when deciding on the issue of exclusive jurisdiction of the CJEU in principle, a problem of attribution of the EU and Member States’ competences arises. (shrink)

From the point of the EU law, the CJEU has the exclusive competence to interpret the EU legal norms and decide upon validity of the legal acts adopted by the EU institutions because it is the most effective method to ensure the unilateral interpretation of the EU law and to prevent its fragmentation. Thus, it can be presumed that all disputes between the Member States regarding the EU law must be solved by the CJEU. The paper aims at (...) finding the answer to the question whether international courts under the international law must refuse their jurisdiction in cases where disputes of the Member States relate with the EU law. With the view of this aim, arguments arising from the international law (for instance, prohibition of intervening into affairs of another legal system, prohibition of abuse of laws), on the basis of which an international court should decline its jurisdiction, and applicability of such arguments to the situation discussed is assessed and an independent approach is formulated. (shrink)

Recently the CJEU decision in the case of ‘Ewa Glawischnig-Piesczek v. Facebook Ireland Limited’ has raised the issue of the transcultural/trans-territorial signification of hate speech and hate crimes. Taking a cue from this decision and the related semiotic/legal implications, the paper proposes an analysis of the semio/pragmatic conditions for the production of performativity inherent in hate speech across different cultural universes of discourse. Given that web-based digital communication is global—at least, potentially—regardless of any spatial/political compartmentalization, it crosses different semio-cultural (...) circuits. This trans-spatiality implies transcultural crossings that can multiply and even transfigure the semantic implications of the original signifier and the related prognoses of ‘semantic effectiveness.’ Cultural boundaries therefore may function as a kind of ‘horizon of events’ for hate speech and, more inclusively, all linguistic acts and their legal signification/classification. The question then arises regarding whether and to what extent the performativity of hate speech is able to withstand the variation of cultural boundary conditions. Insofar as cultures are universes of experience, the issue to be investigated broadens, and ends up invoking the question of whether or not the production of performativity implicitly presupposes and tacitly epitomizes the semio-pragmatic implications/consequences (or, in Peircean terms, ‘bearings’) coextensive with cultural universes of experience. Were this the case, it would seem to call into question the very possibility of ‘making things only with words,’ or more explicitly, the alleged meaning of ‘linguistic acts.’. (shrink)

The Court of Justice of the European Union 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. (shrink)

This article relates to the CJEU’s understanding of the concept of the spouse in Case C-673/16 and its effect on the process of law application by Polish administrative courts. The authors considerations are based on the assumption that the CJEU’s interpretation of EU law in Coman and Others is of a dynamic-deliberative nature, based on functional rules, and that at the same it time takes into account a specific legal and socio-cultural context in which one of the fundamental (...) freedoms guaranteed by EU law is implemented. This judgment, as authors underline, confirms that a proper understanding of the current legal context of the concept of a spouse requires that the social and cultural context and the plurality of values arising from different lifestyles be taken into account in the application and interpretation of the law, all with a view to empowering the individual in his or her relationship with the State and raising the level of protection of human rights. Authors observe in the practice od Polish administrative courts that this CJEU’s judgment is important in the argumentative layer, but not decisive for the resolution of the case in specific situations where there is a need to address the effect of same-sex marriage in a case related to the implementation of the EU right to free movement. In this context authors consider whether the justification for rulings of administrative courts may be sought in John Gray’s concept of modus vivendi liberalism. (shrink)

Proportionality is a German, and thus continental European, concept in public law that is applied by both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). The principle specifies that measures adopted by executive authorities should not exceed the limits of what is appropriate and necessary in order to achieve legitimate objectives in the interest of the public. Using a functional comparative approach, this book evaluates the extent to which proportionality has (...) been integrated into the English and Hong Kong judicial systems by comparing case law in these courts with that of the CJEU and the ECtHR. The text also reviews the development of proportionality and presents a topical understanding of why its adoption and application have encountered difficulties, particularly regarding socio-economic rights, in some jurisdictions, such as the United Kingdom and Hong Kong. Written by a scholar with experience from both within the Hong Kong judicial system and from international research, this book is the first all-encompassing reference for legal practitioners worldwide." -- Provided by publisher. (shrink)

Even though the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) does not explicitly address the rights of asylum seekers and refugees, the case law of the European Human Rights Court (ECtHR) confirms that their rights can be successfully defended under this mechanism. In parallel, in its evolving jurisprudence on asylum the Court of Justice of the European Union (CJEU) refers to the Strasbourg case law, where there is a certain interrelationship between these two jurisdictions, in (...) particular given the recent ECtHR pronouncement on “EU Dublin transfers”. The article aims at evaluating protection available for asylum seekers and refugees under the ECHR, while comparing it with protection of asylum relevant fundamental rights under the EU legal order and the most recent jurisprudence of the CJEU in asylum cases. The authors also analyze which of the two systems is more favourable and what are their limitations. Thus, the article offers to students and practitioners a detailed analysis of ECtHR and CJEU jurisprudence in asylum cases through a comparative perspective, as well as the key problematic aspects arising in both jurisdictions and their junction. The jurisprudence of the ECtHR reveals that despite the most developed protection from expulsion under Article 3 of the ECHR, it does not sufficiently secure status for the concerned persons. Effective remedy requirements under the ECHR allow for filling the gaps of national asylum procedures, while recognition of vulnerability and special status of asylum seekers by the ECtHR assist in addressing still commonly prevailing detention problems of asylum seekers in Europe. In the context of family protection, the recognition of positive obligations by states to reunite the refugee families is still rudimentary, thus, clearly Article 3 protection in expulsion cases takes over Article 8. At the same time, the jurisprudence of the CJEU in asylum cases is still inconsistent, as the court sometimes takes decisions without including human rights into its’ analysis (Kadzoev, Arslan, K.), while in other cases refers to the Charter (MA and others), verifies if its’ own decision is in line with the ECtHR jurisprudence (Elgafaji) or shapes secondary legislation in line with Strasbourg arguments and findings (N.S.). Quite likely, the ECtHR practice will have an important influence on the developments of subsidiary protection in the EU, at least in the context of Articles 2 and 3 of the ECHR, and serve as an important reference for interpretation of various concepts under the EU Qualification and Procedures Directives. The comparative analysis of pros and cons of the two mechanisms demonstrates that the main advantage of the ECtHR is individual justice possibility, which is not yet accessible under CJEU preliminary judgement procedure and its input in developing asylum law concepts, such as non-state agents of persecution, internal protection or even subsidiary protection regime under EU asylum law. Thanks to the ECtHR, the realistic possibility to question the application of certain EU norms has emerged (Dublin Regulation). While the ECtHR does not have such a specific competence over asylum issues as the CJEU and is clearly a slow and seriously overburdened mechanism, the pilot judgement procedure seems to be increasingly capable of providing guidelines to the states concerning systematic problems in their asylum procedures. Thus, both jurisdictions in their own ways contribute to strengthening asylum seekers’ protection while forming a common oasis for these individuals in Europe. (shrink)

The decision of the Court of Justice of the European Union (CJEU) in Google Spain v AEPD and Mario Costeja González enshrined the “right to forget” in the jurisprudence of the European Union. The judgment caused concern to transparency and open information advocates in terms of pitting a right to forget against the general right of the public to know. This, as this paper will argue, is a false distinction. The Internet is, and has always been, a regulated space. (...) Nor is the right to free expression, even in its American form, absolute. While there are genuine concerns about how the balance is struck, evolving practice is likely to identify what cases deserve deletion, to those that do not. The biggest challenge lies in how, and who, tests that balance as to what is removed from the search engines of the Internet. Finding material is important but forgetting may be just as vital to liberties as well. (shrink)

This paper presents an analysis of the issue that as yet not been extensively researched in the doctrine of Lithuanian and foreign law: the issue of legal distinguishing between medicinal products and food supplements. In order to analyze the problems of theory and practice, the structure of the paper is divided into two parts. The first part concentrates on the main features of medicinal products and food supplements in accordance with the case law of the Court of Justice of the (...) European Union (CJEU). It is established that medicinal products must comply with one of these descriptions: be made and aimed towards healing and preventing sicknesses; cause serious threats to health or have health-hazardous secondary effects; and have very intense effects on physiological features of human organisms. Food supplements in theory should not have these features. However, sometimes in practice preparations identified as food supplements have large doses of certain medicinal substances or other ingredients (e.g. alcohol, plant extracts, vitamins, amino acids, and etc.) that present threats to human health. The practice of the CJEU shows that counterbalancing free movement and public health protection interests is problematic in this area. (shrink)

This chapter examines the progressive nature of liberalization of the free movement of capital supported by reference to the relevant treaty provisions, secondary legislation, and case law of the Court of Justice of the European Union (CJEU). The free movement of capital is closely associated with the single currency of the European Union, the euro; consequently, the chapter will also briefly examine the current reform measures introduced for its effective management. The rules on the free movement of capital were (...) set out in Articles 67 to 73 European Economic Community (EEC) with the aim of facilitating the liberalization of the capital movements between the member states. The change of the legal foundation of the free movement of capital after the Maastricht Treaty has created some degree of uncertainty over the legal status of Capital Directive 88/361/EEC as it owes its existence to the repealed Article 67 EEC. (shrink)

This Article explores the relationship between the legitimacy of international courts and expansive judicial lawmaking. We compare lawmaking by three regional integration courts - the Court of Justice of the European Union, the Andean Tribunal of Justice, and the ECOWAS Community Court of Justice. These courts have similar jurisdictional grants and access rules, yet each has behaved in a strikingly different way when faced with opportunities to engage in expansive judicial lawmaking. The CJEU is the most activist, but its (...) audacious legal doctrines have been assimilated as part of the court’s legitimate authority. The ATJ and ECOWAS have been more cautious, but there is little to suggest that this caution has enhanced the legitimacy of either court. The ATJ has avoided serious challenges from governments, but its rulings have had little political impact. Conversely, the ECCJ’s circumspection has not shielded it from political opposition to its adjudication of clearly-established human rights. This pattern is at odds with the oft-voiced conventional wisdom that expansive judicial lawmaking undermines judicial legitimacy. Our modest goal in this Article is to problematize that claim and to posit an alternative hypothesis - that ICs spark legitimacy challenges due to the domestic political effects of their decisions, regardless of whether those decisions are expansionist. (shrink)

This article critically evaluates the possible impact of the Charter on the relationship between the Court of Justice of the European Union and national constitutional courts. While it is premature to provide a definitive assessment of the kind of collaboration that these courts will develop, it is crucial to identify a number of features of the new landscape that will influence the direction in which the relationship between the CJEU and constitutional courts will evolve. This article discusses several reasons (...) that may result in better or a higher number of judicial interactions, as well as factors that may create tension or cause problems in the relationship between the CJEU and national constitutional courts. As such, it offers a framework that may help us to understand future post-Charter judgments by these courts setting out how they conceive their engagement with their counterpart on fundamental rights issues. (shrink)

The present study aims to extend research on the role of values for the perceived legitimacy of legal authorities by focusing on (1) supranational legal authorities and (2) a broad range of values. We examine how (alignment between) people’s personal values and their perception of the values of the European Union (EU) are related to perceived legitimacy of the Court of Justice of the EU (CJEU) and the EU more broadly. Inspired by moral foundations theory, we distinguish between individualizing (...) (i.e., “democracy”, “liberty”, and “fairness”) and binding values (i.e., “rule of law”, “respect for national authority”, and “respect for tradition”). An online survey was conducted in six EU member states (N = 1,136). A factor analysis confirmed a two-factor model (individualizing vs. binding values) for both personal values and perceived EU values. Four regression models were run for each of the value factors, including personal values, perceived EU values, and their interaction, on each of the outcomes (i.e., perceived CJEU and EU legitimacy). Perceived endorsement by the EU of both individualizing and binding values predicted higher legitimacy perceptions of the CJEU and EU. Furthermore, personal binding values had a negative effect on perceived EU legitimacy when participants perceived the EU to weakly support binding values, but a positive effect when the EU was perceived to strongly support binding values. The results suggest that value alignment plays an important role in perceived legitimacy of the CJEU and EU, and that better representing binding values might be a strategy to improve perceived EU legitimacy. (shrink)

The Court of Justice of the European Union (CJEU) has had the opportunity to address the sensitive matter of the wearing of the Islamic headscarf in the workplace in two preliminary rulings. The result of these decisions implies that the wearing of this veil at work is, in general, neither proscribed nor always justified as a legitimate expression of religious beliefs. However, the law studied and applied deals exclusively with discrimination in the workplace on religious grounds. Nonetheless, the Islamic (...) headscarf is only worn by (some) Muslim women (never by men). This article reviews the EU legislation and policy on equality, intersectionality and multiple discrimination to verify that gender mainstreaming does not reach the work of the Court. Only the inclusion of a feminist perspective to the application of justice, with a clear methodology, can guarantee that gender does not disappear in cases of complex discrimination. (shrink)

The non-discrimination principle is one of the essential principles in the area of European public and private law too. The importance of this principle also takes a great place in field of company law, especially in the area of “freedom of establishment of the companies” in the European Single Market. Freedom of establishment of companies is closely related to the general concept of “free movement of people, capital, goods and services,” in ESM. In fact, freedom of establishment is a substantive (...) part of the process of creation the internal market in EU. The freedom of establishment is based on the Treaty of the functioning of EU. According to article 49 from TFEU, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. This prohibition also applies to restrictions on setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. In-depth exploration of this issue is conditioned by the interpretation of the Court of justice of European Union, which embodies the real legal regime of freedom of establishment. Freedom of establishment of companies is closely related to the principles of healthy and fair competition and equal access of the companies too. This article seeks to elaborate fundamental theoretical aspects of this issue, considering certain case - study analyze of CJEU judgements. The main focus is on the non-discrimination principle, legal effects of the CJEU judgments, free market and competitiveness, and finally, determination of the concept of primary and secondary establishment of companies in EU. (shrink)