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International organisations are inherently purposive actors within the international legal system, created and empowered by States to pursue finite common objectives. This teleological dimension has come to play a prominent role in the way in which international law rationalises international organisations, with their purposes given a significant, often determinative, role in delimiting their competences. This article argues that this is the product of a conscious shift in legal reasoning that took place in the aftermath of World War II. Through an analysis of a series of key post-War decisions, it identifies the common features of this ‘teleological turn’ and, disentangling it from other forms of legal reasoning, examines its unique underlying logic and normative claims. It demonstrates that while the teleological turn offers prospects for the systemic development of international governance, an increasingly abstract approach to the concept and identification of an organisation's ‘purpose’ raises a number of unresolved questions which cast a shadow of indeterminacy over the law of international organisations.
Members of Parliament have traditionally enjoyed different kinds of immunities; nowadays, these are openly criticized on several grounds. The Court of Justice of the European Union (CJEU) has recently given a judgment on the inviolability of European Parliament’s members, which might be regarded as a milestone in its scarce case law on the matter: Oriol Junqueras Vies, Judgment of the Grand Chamber of December 19, 2019. This Article intends to summarize and comment on this decision, a preliminary reference requested by the Spanish Supreme Court in a notorious criminal procedure, connected with the suspended referendum on Catalonia’s independence. The CJEU reinforces the inviolability of Members of European Parliament (MEPs), thus strengthening the powers of this institution. However, the judgment perhaps fails to fully capture European Court of Human Rights (ECtHR) case law and was rendered at a time when the controversy on Mr. Junqueras had arguably become outdated.
This chapter examines four flaws in the most essential assumptions underlying the single currency’s original stability set-up that were exposed by the crisis. The first concerns market discipline. The chapter looks at some of the key explanations for the failure of market discipline, in particular, those professed by the ECB. The second flaw concerns the instrument of public discipline. The shortcomings of this instrument were already visible in the early 2000s when France and Germany violated the Stability and Growth Pact. The chapter analyses these violations, the court case to which they gave rise and the reform of the Stability and Growth Pact that followed it in 2005. The third flaw concerns the excessive attention for budgetary discipline. In its preoccupation with ensuring fiscal prudence, the original set-up was blind to risks stemming from other corners of the economy, especially the banking sector. The fourth flaw is the cardinal one. Geared to safeguarding price stability, the single currency’s legal set-up left another stability dangerously exposed: financial stability. The chapter discusses its importance and the need to have it protected by a ‘lender of last resort’.
European constitutional thinking is still alive and is being shaped by the European Court of Justice into a value constitutionalism. Not only the Treaties, but also constitutional principles derived from EU law, are the common standard of review. Autonomy and constitutionality merge. In the light of this situation the Federal Constitutional Court’s PPSP-judgment with its insistence on limitations of competences and on democratic self-determination appears outdated. However, for the time being, Member States agreed to cooperate in a treaty based political union and do not have a consensus on a “good order” in organized Europe. The Court should abstain from the temptation to operate with values because presumably it would not be able to achieve the substantiation and the creation of a value hierarchy with the necessary acceptance.
The European Union (EU) has its origins in the European Coal and Steel Community (ECSC), which was formed by six European countries in 1951. Since then, it has grown to 27 members through the accession of new Member States, and has increased its powers by adding new policy areas to its remit. At the time of writing, the EU is negotiating the first exit of a Member State after a majority of the UK electorate voted to leaving the EU on 23 June 2016 in a process that has come to be known as Brexit. The chapter explains the functions of the most important EU institutions (European Commission, Council of the EU, European Council, the European Parliament, and the European Court of Justice) and legal instruments (including directives and regulations). It proceeds by outlining the process of monetary integration, from the agreement in principle in 1969, to the creation of an internal market, and the adoption of the euro in 1999 by 11 Member States. The final section discusses steps towards financial integration, including the Financial Services Action Plan, Banking Union and Capital Markets Union.
Scholars have long debated the positive and negative consequences of an aware public for the quality of governance in modern liberal democracies. This article extends this debate to the context of constitutional review by exploring how public awareness can limit the effective exercise of review by courts lacking strong public support. Incorporating aspects of both the legitimacy and separation of powers theories on judicial power, the author argues that public awareness weakens the efficacy of such unpopular courts by creating an electoral incentive for governments to defy adverse rulings, even when doing so may lead to punishment from other institutional stakeholders. The article develops a simple formal model that identifies how and under what conditions public awareness can influence an unpopular court's decision making. An analysis of rulings issued by the Court of Justice of the European Union finds support for the model's empirical implications.
Article 52(1) of the EU Charter of Fundamental Rights lays down respect for the essence of right as one of the requirements that limitations on rights must respect. This provision is not innovative, as it formalizes into EU law the distinction between “core” and “periphery” of rights present in many national constitutions and in the ECJ and ECtHR case law. Nonetheless, the express reference to essence has given unprecedented resonance to that concept. Essence as the “limit of limits” has a Janus-like character. On the one hand, it pronounces that every fundamental right bears a minimum content which is ringfenced from interference by public and private actors. On the other hand, it stresses the malleability of rights and their social function. The core/periphery dichotomy reflects a balancing act moored in European legal tradition whose symbolism outperforms its utility as a judicial tool. This Article examines the essence clause of the Charter in light of the ECJ case law and the constitutional traditions of the Member States and assesses its role in the framework of fundamental rights protection in EU law. The Article first attempts a classification of rights limitations clauses in national constitutions, following which it discusses the interpretation of essence by the Spanish and the Italian Constitutional Courts. The Article then engages with a theoretical discussion of the concept of essence and examines the case law of the ECJ. Lastly, it looks at the limitations of the concept as a rights protection instrument in EU law.
Great Judgments of the European Court of Justice presents a new approach to understanding the landmark decisions of the European Court of Justice in the 1960s and 1970s. By comparing the Court's doctrines to the enforcement and escape mechanisms employed by more common forms of trade treaty, it demonstrates how the individual rights created by the doctrine of direct effect were connected to the practical challenges of trade politics among the European states and, in particular, to the suppression of unilateral safeguard mechanisms and inter-state retaliation. Drawing on the writings and speeches of French Judge and President of the Court, Robert Lecourt, it demonstrates that one of the Court's most influential judges shared this understanding of the logic of direct effect. This book offers a distinctive interpretation of the Court of Justice's early years, as well as of the purpose of the fundamental principles of European law.
This chapter discusses the Court’s 1978 judgment, Simmenthal, where the Court declared that all national courts – including ‘lower’ national courts – were under an obligation to apply European law in place of contrary national legal obligations, even if national constitutional rules restricted such powers to the national constitutional court. This judgment is often understood as an important one in the ‘politics of judges’ within the European legal order, reflecting the Court of Justice’s efforts to develop more active cooperation with ‘lower’ national courts than with national constitutional courts. This chapter demonstrates that the logic of Simmenthal is also derived from the use of national courts to enforce treaty obligations as a substitute for inter-state retaliation, as demonstrated by similar aspects of the enforcement provisions of the Side Agreements of the North American Free Trade Agreement (NAFTA).
The introduction sets out the book’s approach to the great judgments of the European Court of Justice (ECJ) between 1961 and 1979. Each of the Court’s landmark cases will be analyzed in comparative context, in particular by contrast to the enforcement and escape mechanisms commonly employed in international trade treaties including the postwar General Agreement on Tariffs and Trade (GATT) and today’s World Trade Organization (WTO). The book will also discuss the explanations for these judgments put forward by some of the most influential lawyers then working at the Court, above all French ECJ judge and later President of the Court Robert Lecourt. The introduction sets out the argument that the greatest innovations of the European legal order, including the new role for private individuals and national courts provided for by the doctrines of direct effect and supremacy, were directly linked to addressing the practical problem of how to effectively enforce trade treaty obligations while prohibiting unilateral safeguards and inter-state retaliation.
This chapter discusses the Court’s 1970 judgment, Internationale Handelsgesellschaft, where the Court declared that the Court of Justice itself would take on the role of reviewing whether European legal obligations were in conflict with the fundamental rights of individuals. This judgment is often understood as derived from the sensitive relationship between the Court of Justice and national constitutional courts that wished to protect the fundamental rights set out in their national constitutions. This chapter demonstrates, however, that in Germany and Italy the national constitutional courts had already developed an accommodating approach to potential conflicts between treaty obligations and national constitutional law fundamental rights, and therefore that the possibility of clashes between European law and national constitutional law fundamental rights in the early years of European legal integration was less of a practical challenge than is often understood.
This chapter discusses the Court’s 1964 judgment, Costa v. ENEL, where the Court declared the supremacy of European law, thus requiring national courts to resolve conflicts between European law and national law in favour of the domestic application of European law. The supremacy of European law is often understood as the partner of the direct-effect doctrine and the result of the Court’s ‘functionalist’ approach to the development of the European legal order. This chapter demonstrates that the supremacy doctrine of European law was also motivated by the Treaty of Rome’s prohibition on the unilateral adoption of safeguard measures by the member states, as shown both by the text of the Court’s judgment and by the writings of judge Lecourt.
This chapter discusses the Court’s 1961 judgment, Pork Products, where the Court insisted that the member states had no right to unilaterally adopt safeguard measures within the European Economic Community. Unlike many other trade treaties, the Treaty of Rome required that its member states request prior authorization from the European Commission before any safeguard or escape measures could be adopted. The Pork Products judgment, however, also revealed the inadequacy of the mechanisms explicitly provided for by the Treaty to ensure the effectiveness of this system. Making the Treaty of Rome’s prohibition on unilateral safeguard mechanisms effective would therefore require the direct effect of European law before national courts within the member states.
This chapter discusses the Court’s 1964 judgment, Dairy Products, where the Court declared that self-help mechanisms of reciprocity and retaliation, so important in many trade treaty systems, were comprehensively prohibited within the European legal order. This judgment is often rightly understood as marking an essential difference between European law and general international law. This chapter demonstrates that the principle announced in Dairy Products was also directly connected to the direct effect and supremacy doctrines of European law, again as shown by national court enforcement of treaty obligations in other treaty systems, and by the writings of judge Lecourt.
This chapter builds on the detailed discussions of particular ECJ judgments earlier in the book to put forward a new way of understanding the founding of the European legal order. It includes both the doctrines establishing rights for individual litigants before national courts and the doctrines specifying new and demanding relationships between the European states, and demonstrates how each is related to the other. It concludes with a discussion of judge Robert Lecourt’s role in the early decades of the European Court of Justice.
This chapter discusses the Court’s 1972 judgment, International Fruit, where the Court denied that provisions of the General Agreement on Tariffs and Trade (GATT) should be granted direct effect within the European legal order. This judgment is often understood as the first of many instances in which the Court denied the direct effect of GATT, and later World Trade Organization (WTO), obligations. This chapter uses the Court’s rejection of direct effect in International Fruit to offer an improved understanding of the Court’s declaration of direct effect in Van Gend en Loos, highlighting its connections to the prohibition of inter-state retaliation and unilateral safeguard mechanisms within the European legal order.
This chapter discusses the Court’s 1979 judgment, Sheep Meat, where the Court insisted on its longstanding prohibitions of both unilateral safeguards and inter-state retaliation during a difficult agricultural dispute between France and the United Kingdom. This chapter uses the Sheep Meat dispute to elaborate on the strengths and limitations of the system of direct effect as a solution to international collective action problems within the European legal order.
This chapter discusses the Court’s 1974 judgment, Van Duyn, where the Court declared that provisions of Directives could enjoy direct effect in the national legal order. This judgment is often recognized as the landmark judgment on the ‘direct effect of Directives’, and remains a controversial decision. This chapter demonstrates that the direct effect of Directives was a logical consequence of the Court’s use of direct effect as a substitute for inter-state retaliation, and shows that this understanding of the direct effect of Directives can be found in the early writings of judge Lecourt.
This chapter discusses the Court’s 1963 judgment, Van Gend en Loos, where the Court declared that European law could be relied upon by private individuals before their national courts. The direct effect of European law is often understood as empowering private individuals and national courts, as supplementing the European Commission-initiated compliance procedure set out in Article 169 of the Treaty of Rome, and increasing the binding nature of European law. This chapter demonstrates that the direct effect of European law was also directly connected to the Court’s rejection of the possibility of inter-state retaliation within the European Economic Community. This is demonstrated both by advocacy of direct effect for other trade-related treaty systems, where reformers often wish to suppress retaliatory enforcement mechanisms, and by the writings of judge Lecourt, which demonstrate that this important aspect of direct effect was well recognized by one of the Court’s then most influential judges.
On March 6, 2018, the Grand Chamber of the Court of Justice of the European Union (CJEU or Court) rendered its judgment in Slowakische Republic (Slovak Republic) v. Achmea B.V. (Achmea decision) in response to the German Federal Court of Justice's (Bundesgerichtshof) request for a preliminary ruling. Deciding for the first time on the compatibility of the arbitration provision in bilateral investment treaties (BITs) with European Union (EU) law, the Court concluded that the investor-state arbitration clause in the Dutch-Slovak BIT was incompatible with EU law because it violated the principle of autonomy. The Court will soon respond to Belgium's request for an Opinion on the Canada-EU free trade agreement (FTA), where it will rule on the compatibility of extra-EU investment agreements with EU law.