Comparative Reasoning in European Supreme Courts

Comparative Reasoning in European Supreme Courts

domestic application of EU law differ between, on the one hand, the Court of
Justice and, on the other, the constitutional or supreme courts of the Member
States. National supreme/constitutional courts insist on perceiving EU law as one
of the ...

Author: Michal Bobek

Publisher: OUP Oxford

ISBN: 9780191669996

Category: Law

Page: 320

View: 923

The last two decades have witnessed an exponential growth in debates on the use of foreign law by courts. Different labels have been attached to the same phenomenon: judges drawing inspiration from outside of their national legal systems for solving purely domestic disputes. By doing so, the judges are said to engage in cross-border judicial dialogues. They are creating a larger, transnational community of judges. This book puts similar claims to test in relation to highest national jurisdictions (supreme and constitutional courts) in Europe today. How often and why do judges choose to draw inspiration from foreign materials in solving domestic cases? The book addresses these questions from both an empirical and a theoretical angle. Empirically, the genuine use of comparative arguments by national highest courts in five European jurisdictions is examined: England and Wales, France, Germany, the Czech Republic, and Slovakia. On the basis of comparative discussion of the practice and its national theoretical underpinning in these and partially also in other European systems, an overreaching theoretical framework for the current judicial use of comparative arguments is developed. Drawing on the author's own past judicial experience in a national supreme court, this book is a critical account of judicial engagement with foreign authority in Europe today. The sober middle ground inductively conceptualized and presented in this book provides solid jurisprudential foundations for the ongoing use of comparative arguments by courts as well as its further scholarly discussion.
Categories: Law

Regulating Judicial Activity in Europe

Regulating Judicial Activity in Europe

BUDGETARY RESOURCES OF EU SUPREME COURTS Before looking at the
various ways in which the Supreme Courts use their resources (c), we need to be
reminded of where they come from: all the Courts are financed by public funds ...

Author: Network of the Presidents of the Supreme Judicial Courts of the European Union

Publisher: Edward Elgar Publishing

ISBN: 9781783478934

Category: Law

Page: 160

View: 725

The role of the European judiciary has, in recent years, undergone a significant upheaval that has led to a realignment of judicial, legislative and executive powers.
Categories: Law

A People s History of the European Court of Human Rights

A People s History of the European Court of Human Rights

Europe's. Supreme. Court. The. exceptionality of the United States Supreme
Court has long been conventional wisdom. The dean of American Court watchers
, Anthony Lewis of the New York Times, once declared, “The Supreme Court of
the ...

Author: Michael Goldhaber

Publisher: Rutgers University Press

ISBN: 9780813544618

Category: History

Page: 215

View: 792

The exceptionality of America's Supreme Court has long been conventional wisdom. But the United States Supreme Court is no longer the only one changing the landscape of public rights and values. Over the past thirty years, the European Court of Human Rights has developed an ambitious, American-style body of law. Unheralded by the mass press, this obscure tribunal in Strasbourg, France has become, in many ways, the Supreme Court of Europe. Michael Goldhaber introduces American audiences to the judicial arm of the Council of Europe—a group distinct from the European Union, and much larger—whose mission is centered on interpreting the European Convention on Human Rights. The Council routinely confronts nations over their most culturally-sensitive, hot-button issues. It has stared down France on the issue of Muslim immigration; Ireland on abortion; Greece on Greek Orthodoxy; Turkey on Kurdish separatism; Austria on Nazism; and Britain on gay rights and corporal punishment. And what is most extraordinary is that nations commonly comply. In the battle for the world's conscience, Goldhaber shows how the court in Strasbourg may be pulling ahead.
Categories: History

Constitutional Courts and European Integration

Constitutional Courts and European Integration

European Commission for Democracy through Law. FINLAND Preliminary
remarks 1 . Finland has no special Constitutional Court . The highest courts in the
judicial system are the Supreme Court and the Supreme Administrative Court .

Author: European Commission for Democracy through Law

Publisher: Council of Europe

ISBN: 9287157006

Category: Law

Page: 205

View: 830

In a continent where a majority of states are members of the European Union, the supremacy of law can no longer be understood without respect for the supremacy of supranational law. The implementation of this basic principle, deriving from the European Community legal order, from a constitutional point of view poses problems which have not been resolved in a uniform manner. This volume contains seventeen reports which demonstrate how these issues have been dealt with by different legal Systems in Europe.
Categories: Law

European Supreme Courts

European Supreme Courts

This book examines the continuities and sets the contemporary role of the European supreme courts within the context of a rich legacy of legal traditions, culture and history across Europe

Author: Alain A. Wijffels

Publisher: Third Millenium Pub

ISBN: 1906507406

Category: History

Page: 288

View: 389

This book examines the continuities and sets the contemporary role of the European supreme courts within the context of a rich legacy of legal traditions, culture and history across Europe
Categories: History

The European Court of Human Rights and its Discontents

The European Court of Human Rights and its Discontents

Following the analysis of 3723 judgments from 1 August 2004 to 20 December
2007, a number of features can be identified that characterise the Supreme
Court's approach to applying the ECHR after promulgation of the 2003
Regulation.

Author: Spyridon Flogaitis

Publisher: Edward Elgar Publishing

ISBN: 9781782546122

Category: Political Science

Page: 240

View: 753

The European Court of Human Rights has long been part of the most advanced human rights regime in the world. However, the Court has increasingly drawn criticism, with questions raised about its legitimacy and backlog of cases. This book for the first time brings together the critics of the Court and its proponents to debate these issues. The result is a collection which reflects balanced perspectives on the Court's successes and challenges. Judges, academics and policymakers engage constructively with the Court's criticism, developing novel pathways and strategies for the Court to adopt to increase its legitimacy, to amend procedures to reduce the backlog of applications, to improve dialogue with national authorities and courts, and to ensure compliance by member States. The solutions presented seek to ensure the Court's relevance and impact into the future and to promote the effective protection of human rights across Europe. Containing a dynamic mix of high-profile contributors from across Council of Europe member States, this book will appeal to human rights professionals, European policymakers and politicians, law and politics academics and students as well as human rights NGOs.
Categories: Political Science

Judicial Review in European Union Law Essays in Honour of Lord Slynn

Judicial Review in European Union Law Essays in Honour of Lord Slynn

I propose to present three observations in what now follows to explain what I
think the Supreme Court had on its mind. The first observation addresses the EU
Court's use of the methods of interpretation available to it. In this respect, the ...

Author: Gordon Slynn Baron Slynn of Hadley

Publisher: Kluwer Law International B.V.

ISBN: 9789041113726

Category: Law

Page: 674

View: 197

Paradigm in Judicial Review
Categories: Law

The Court of Justice of the European Union and The Politics of Law

The Court of Justice of the European Union and The Politics of Law

'Compliance with rules of negative integration: European state aid control in the
new member states', Journal of European Public Policy, vol. 16, no. ...
Comparative reasoning in European supreme courts, Oxford: Oxford University
Press.

Author: Sabine Saurugger

Publisher: Macmillan International Higher Education

ISBN: 9781137320285

Category: Law

Page: 272

View: 471

Using state-of-the-art analysis, this introductory text provides a comprehensive account of the Court of Justice of the European Union, its judicial function and its influence on EU policy making. Combining legal perspective with political analysis, it offers a unique approach to the empirical study of the Court's role in the EU political system.
Categories: Law

Constitutionalising the EU Judicial System

Constitutionalising the EU Judicial System

courts (currently: the Vice President of the French Conseil d'Etat who presides
over the committee, a member of the UK Supreme Court, the President of the
Czech Constitutional Court and the President of the Danish Supreme Court who
was, ...

Author: Pascal Cardonnel

Publisher: Bloomsbury Publishing

ISBN: 9781847319937

Category: Law

Page: 536

View: 274

These essays, written in honour of retired ECJ judge Pernilla Lindh, reflect on the development of courts and judging in the EU since the founding of the Union. In particular they focus on recent reforms and proposals aimed at further increasing public confidence and democratic accountability throughout the EU judicial system.
Categories: Law

The Limits of Legal Reasoning and the European Court of Justice

The Limits of Legal Reasoning and the European Court of Justice

Comparatively, the ECJ could be viewed as one of the most influential and
powerful courts in the world.130 Rosenfeld has recently argued that the ECJ has
played a 'bolder' role than the US Supreme Court, given its role in originating the
 ...

Author: Gerard Conway

Publisher: Cambridge University Press

ISBN: 9781139504614

Category: Law

Page:

View: 725

The European Court of Justice is widely acknowledged to have played a fundamental role in developing the constitutional law of the EU, having been the first to establish such key doctrines as direct effect, supremacy and parallelism in external relations. Traditionally, EU scholarship has praised the role of the ECJ, with more critical perspectives being given little voice in mainstream EU studies. From the standpoint of legal reasoning, Gerard Conway offers the first sustained critical assessment of how the ECJ engages in its function and offers a new argument as to how it should engage in legal reasoning. He also explains how different approaches to legal reasoning can fundamentally change the outcome of case law and how the constitutional values of the EU justify a different approach to the dominant method of the ECJ.
Categories: Law

Selecting Europe s Judges

Selecting Europe s Judges

A Critical Review of the Appointment Procedures to the European Courts Michal
Bobek ... M, Comparative Reasoning in European Supreme Courts (Oxford
University Press 2013) Bobek, M, 'Of Feasibility and Silent Elephants: The
Legitimacy ...

Author: Michal Bobek

Publisher: Oxford University Press, USA

ISBN: 9780198727781

Category: EU-länderna

Page: 323

View: 294

The past decade has witnessed change in the ways judges for the Court of Justice of the European Union and the European Court of Human Rights are selected. The leitmotif has been securing greater professional quality of the judicial candidates, and, for this purpose, both European systems have put in place various advisory panels or selection committees that are called to evaluate the aptitude of the candidates put forward by the national governments. Are these institutional reforms successful in guaranteeing greater quality of the judicial candidates? Do they increase the legitimacy of the European courts? Has the creation of these advisory panels in any way altered the institutional balance, either horizontally within the international organizations, or vertically, between the respective organization and its Member States? Above all, has the spree of 'judicial comitology' as currently practiced a good way for selecting Europe's judges? These and a number of other questions are addressed in this topical volume in a comparative and interdisciplinary prospective. The book is structured into two elements: first, how the operation of the new selection mechanisms is captured and analyzed from different vantage points, and secondly, having mapped the ground, the book critically and comparatively engages with selected common themes, examining the new mechanisms with respect to values and principles such as democracy, judicial independence, transparency, representativeness, and legitimacy.
Categories: EU-länderna

The Judiciary in Central and Eastern Europe

The Judiciary in Central and Eastern Europe

Atypical example is a 1999 decision of the Slovak Supreme Court; there, the
Court was requested by the parties to consider the fact that the interpretation of
the law employed by the lower courts was contrary to the EU directive which the
law ...

Author: Zdenek Kühn

Publisher: Martinus Nijhoff Publishers

ISBN: 9789004175563

Category: Law

Page: 311

View: 190

The book analyses the judicial culture in East Central Europe from the era of Stalinism up to the post-Communist period of the 1990s and 2000s. The book targets the judicial ideology and the conception of law, phenomena most resistant to change.
Categories: Law

Human Rights and the United Kingdom Supreme Court

Human Rights and the United Kingdom Supreme Court

Lord Kerr has argued that there is 'a role for the Human Rights Act to play in the
development of a body of UK human rights law, which is not necessarily
umbilically tied to the European Court of Human Rights view of Convention ...

Author: Brice Dickson

Publisher: OUP Oxford

ISBN: 9780191655869

Category: Law

Page: 472

View: 962

How does the UK Supreme Court approach human rights law? This book presents the first comprehensive overview of the human rights jurisprudence of the Court, analysing the opinions expressed by the current Justices and their predecessors, both judicially and extra-judicially. It criticizes the judges for not developing the common law in a way which supplements the Human Rights Act, for not making imaginative enough use of that Act, and for adopting an attitude to Convention rights which is often out of step with the jurisprudence of the European Court of Human Rights in Strasbourg. After setting the scene by explaining the constraints which are placed on the Supreme Court Justices, the book considers how human rights are conceptualized by the Court in general and how in particular the procedural questions thrown up by the Human Rights Act have been dealt with so far. It then examines on a right-by-right basis the Justices' position on all the Convention rights and those additional international human rights standards which have been incorporated into UK law. Focusing on the views expressed by individual judges, the book details the many differences of opinion which have come to light and characterizes the prevailing positions, before attempting to predict what stance may be adopted in future on new issues. The book offers an invaluable resource for any practitioners bringing human rights cases before the Court, and its critical arguments on the state of UK human rights law will be essential reading for all academics working in European human rights law.
Categories: Law

The Competences of Supreme Courts

The Competences of Supreme Courts

Second Meeting of Presidents of Supreme Courts of Central and Eastern
European Countries Council of Europe, Estonia. Riigikohus. only two divisions -
civil and criminal – and the Senate of Judges ( Supreme Court en banc ,
Assembly of ...

Author: Council of Europe

Publisher: Council of Europe

ISBN: 9287137978

Category: Political Science

Page: 206

View: 423

Categories: Political Science

The Rising Complexity of European Law

The Rising Complexity of European Law

inconsistent).93 This is in conformity with the hints made in earlier cases such as
Finanger (No 1) and Edquist.94 The judgment in STX may rightly be portrayed as
the Supreme Court demonstrating its independence from the EFTA Court, but ...

Author: Peter-Christian Müller-Graff

Publisher: BWV Verlag

ISBN: 9783830533344

Category: Europe

Page: 222

View: 775

The volume presents seven contributions which analyse two different progressive complex developments of European law: the legal challenges of adherence to the internal market without membership in the European Union in a comparative view of Norway (EEA) and Switzerland ("Bilateral Agreements"), and the legal answers to the financial and/or budgetary crisis and challenges in Europe. The common denominator of both subjects is the raising complexity of European law.--
Categories: Europe

The European Court and National Courts

The European Court and National Courts

Taking an internationalist, voluntarist, positivist approach, we recall that the High
Contracting Parties to the European Treaties set up a court, the ECJ, to settle
disputes arising under the Treaties. In their wisdom, they granted that Court wide
 ...

Author: Anne Marie Slaughter

Publisher: Bloomsbury Publishing

ISBN: 9781847316776

Category: Law

Page: 448

View: 282

The essays comprising this volume are the outcome of a major and unique project which looks in detail at the application of EC law by national courts and the interaction of the demands of EC law with the constraints imposed by national legal orders and,especially, national constitutional orders. The volume comprises seven country studies which are shaped around a common research protocol. These are supplemented by three cross-cutting studies which draw on the country studies as well as on broader contextual research work aimed at trying to understand the role of the European Court of Justice in the round. The results of this multi-national research are certain to provoke widespread interest among scholars of European law, international law and European politics, for they offer the first systematic and rigorous attempt to assess the impact of the ECJ among the leading member states of the European Union.
Categories: Law

Demystifying the European Union

Demystifying the European Union

AVENUES OF LEGAL REDRESS The ECJ has wider jurisdiction than the U.S.
Supreme Court. ... national and EC courts, makes EC law and ECJ interpretations
more acceptable domestically, and advances European integration overall.

Author: Roy H. Ginsberg

Publisher: Rowman & Littlefield

ISBN: 0742536556

Category: History

Page: 423

View: 599

The European Union_the world's greatest experiment in interstate reconciliation through regional integration_is now fifty years old. However, it remains a mystery to many people in and outside Europe. This clear and comprehensive book is dedicated to 'demystifying' the EU for both introductory and seasoned students of European integration. Roy H. Ginsberg begins with the foundation blocks of history, law, economics, and politics to provide the context for understanding integration. He then deconstructs the EU into its individual elements to examine them in relation to one another and to the whole before reconstructing the EU as a single polity. In doing so, he evaluates the EU's scope for agency and its effects on Europeans and non-Europeans alike. Emphasizing this wider perspective, Ginsberg convincingly demonstrates that the EU is a wellspring of support for conflict prevention and resolution throughout the world.
Categories: History

The National Courts Mandate in the European Constitution

The National Courts  Mandate in the European Constitution

The unanimity among the Member States as required by Article 48 EU embodies
the principle of sovereign equality and ... as interpreted by the European Court,
viewed together with the national constitutions as interpreted by their supreme ...

Author: Monica Claes

Publisher: Bloomsbury Publishing

ISBN: 9781847312181

Category: Law

Page: 818

View: 754

The reform of the European Constitution continues to dominate news headlines and has provoked a massive debate, unprecedented in the history of EU law. Against this backdrop Monica Claes' book offers a "bottom up" view of how the Constitution might work, taking the viewpoint of the national courts as her starting point, and at the same time returning to fundamental principles in order to interrogate the myths of Community law. Adopting a broad, comparative approach, she analyses the basic doctrines of Community law from both national constitutional perspectives as well as the more usual European perspective. It is only by combining the perspectives of the EU and national constitutions, she argues, that a complete picture can be obtained, and a solid theoretical base (constitutional pluralism) developed. Her comparative analysis encompasses the law in France, Belgium, Denmark, the Netherlands, Germany, Ireland, Italy and the United Kingdom and in the course of her inquiry discusses a wide variety of prominent problems. The book is structured around three main themes, coinciding with three periods in the development of the judicial dialogue between the ECJ and the national courts. The first focuses on the ordinary non-constitutional national courts and how they have successfully adapted to the mandates developed by the ECJ in Simmenthal and Francovich. The second examines the constitutional and other review courts and discusses the gradual transformation of the ECJ into a constitutional court, and its relationship to the national constitutional courts. The contrast is marked; these courts are not specifically empowered by the case law of the ECJ and have reacted quite differently to the message from Luxembourg, leaving them apparently on collision course with the ECJ in the areas of judicial Kompetenz Kompetenz and fundamental rights. The third theme reprises the first two and places them in the context of the current debate on the Constitution for Europe and the Convention, taking the perspective of the national courts as the starting point for a wide-ranging examination of EU's constitutional fundamentals. In so doing it argues that the new Constitution must accommodate the national perspective if it is to prove effective.
Categories: Law

The European Court of Justice and External Relations Law

The European Court of Justice and External Relations Law

National courts ask questions and enforce the CJEU's replies in the national
legal order. A recent example of a broad judicial discourse, where a number of
the highest national courts and the CJEU are considering the same factual
situations ...

Author: Marise Cremona

Publisher: Bloomsbury Publishing

ISBN: 9781849468329

Category: Law

Page: 314

View: 414

This edited collection appraises the role, self-perception, reasoning and impact of the European Court of Justice on the development of European Union (EU) external relations law. Against the background of the recent recasting of the EU Treaties by the Treaty of Lisbon and at a time when questions arise over the character of the Court's judicial reasoning and the effect of international legal obligations in its case law, it discusses the contribution of the Court to the formation of the EU as an international actor and the development of EU external relations law, and the constitutional challenges the Court faces in this context. To what extent does the position of the Court contribute to a specific conception of the EU? How does the EU's constitutional order, as interpreted by the Court, shape its external relations? The Court still has only limited jurisdiction over the EU's Common Foreign and Security Policy: why has this decision been taken, and what are its implications? And what is the Court's own view of the relationship between court(s) and foreign policy, and of its own relationship with other international courts? The contributions to this volume show that the Court's influence over EU external relations derives first from its ability to shape and define the external competence of the EU and resulting constraints on the Member States, and second from its insistence on the autonomy of the EU legal order and its role as 'gatekeeper' to the entry and effect of international law into the EU system. It has not - in the external domain - overtly exerted influence through shaping substantive policy, as it has, for example, in relation to the internal market. Nevertheless the rather 'legalised' nature of EU external relations and the significance of the EU's international legal commitments mean that the role of the Court of Justice is more central than that of a national court with respect to the foreign policy of a nation state. And of course its decisions can nonetheless be highly political.
Categories: Law

Wyatt and Dashwood s European Union Law

Wyatt and Dashwood s European Union Law

The Court of Justice ruled that the possibility of an appeal to the Supreme Court
meant that the Court of Appeal could not ... final courts are in the same position
as other national courts in deciding whether they need to resolve a question of
EU ...

Author: Alan Dashwood

Publisher: Bloomsbury Publishing

ISBN: 9781847317667

Category: Law

Page: 1110

View: 810

First published 30 years ago, Wyatt and Dashwood's European Union Law was a landmark publication, designed and written for students taking degree level courses in EU law. In the intervening years new editions have appeared at regular intervals, firmly establishing the book as a reliable and authoritative text. Besides introducing generations of students to the intricacies of European law it has also been increasingly relied upon by scholars, practitioners and the courts as a valuable source of reference on this complex and ever-expanding body of law. While the book cannot cover every aspect of the subject matter, it nevertheless offers comprehensive coverage of those aspects of EU law most commonly studied at degree level. Part I introduces the history and foundations of the Union's primary law. Part II looks at the Union's institutions, decision-making procedures and competences. It also deals with the Union judiciary, focusing on direct actions before the Union courts and preliminary references from national courts. The constitutional fundamentals of direct effect and supremacy, effective judicial protection before national courts, general principles of Union law and the Charter of Fundamental Rights are dealt with in Part III. Part IV covers the internal market: free movement of goods, Union citizenship, workers, establishment and services, the services directive, mutual recognition of qualifications, corporate establishment and company law harmonisation. Part V deals with competition law: Articles 101 and 102 TFEU, the enforcement of Union competition rules and other related competition law issues. Part VI then includes a brand new chapter concerned with the EU's external relations, together with treatment of the legal effects of international agreements entered into by the EU. As with previous editions the aim is to provide an accurate, critical, pragmatic and original account of the subject, at times also offering unique insiders' insights. The book holds to its reputation as being both broad and profound, the ideal foundation for gaining a deep understanding of EU law. This edition reflects the law post-Lisbon. It has also been re-structured and re-designed, so as to facilitate ease-of-use. Its original authors, Derrick Wyatt and Alan Dashwood, continue to make a significant contribution. Michael Dougan, Eleanor Spaventa and Barry Rodger complete the team of authors working on this invaluable textbook and reference work. The 6th edition has already been cited in the Northern Ireland High Court by The Honourable Mr. Justice Bernard McCloskey [2011] NIQB 61.
Categories: Law