Slowakische Republik (Slovak Republic) v. Achmea BV (C.J.E.U.)

2019 ◽  
Vol 58 (5) ◽  
pp. 1101-1113
Author(s):  
Jawad Ahmad
Keyword(s):  
Adverse Effect ◽  
European Union ◽  
The Netherlands ◽  
Slovak Republic ◽  
Bilateral Investment Treaties ◽  
Eu Law ◽  
The European Union ◽  
Important Decision ◽  
Court Of Justice ◽  
Energy Charter Treaty

On March 6, 2018, the Court of Justice of the European Union (CJEU) found in Slowakische Republik (Slovak Republic) v. Achmea B.V. that the arbitration agreement contained in the 1991 Agreement on Encouragement and Reciprocal Protection of Investments between the Kingdom of the Netherlands and the Czech and Slovak Federative Republic (BIT) had an adverse effect on the autonomy of EU law and, thus, was incompatible with EU law. This important decision has ignited a debate on the compatibility of other arbitration agreements in both intra-EU bilateral investment treaties (intra-EU BITs) and in the Energy Charter Treaty (ECT) with EU law.

Intra-European Union investor–State arbitration post-Achmea: RIP? An assessment in the aftermath of the Court of Justice of the European Union, Case C-284/16, Achmea, Judgment of 6 March 2018, EU:C:2018:158

2019 ◽  
Vol 26 (2) ◽  
pp. 316-340 ◽  
Author(s):  
Maria Fanou
Keyword(s):  
Adverse Effect ◽  
European Union ◽  
Dispute Settlement ◽  
Bilateral Investment Treaties ◽  
The European Union ◽  
European Union Law ◽  
Investment Arbitration ◽  
Court Of Justice ◽  
The Future ◽  
Principle Of Discrimination

In its judgment in Case C-284/16 Achmea, the Court of Justice of the European Union declared the investor–State dispute settlement provisions included in intra-European Union Bilateral Investment Treaties incompatible with European Union law. The court based its finding on the adverse effect on the autonomy of European Union law, while avoiding a discussion of other grounds of potential incompatibilities (such as compatibility with the principle of discrimination or substantive incompatibilities). This article presents the judgment of the court and provides an account of its implications for the future of intra-European Union investment arbitration.

scholarly journals The Relevance of EU Law for Arbitral Tribunals: (Not) Managing the Lingering Tension

2016 ◽  
Vol 17 (6) ◽  
pp. 873-894 ◽  
Author(s):  
Panos Koutrakos
Keyword(s):  
European Union ◽  
Bilateral Investment Treaties ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
Investment Treaties

The tensions between European Union (EU) law and intra-EU bilateral investment treaties (BITs) have become increasingly visible: they involve national and transnational courts, arbitral tribunals and courts in third states, and arise in a variety of procedural settings and with increasing intensity. Written at a time when questions about the very foundations of the interactions between EU and intra-EU BITs have been raised before the Court of Justice of the European Union, this article highlights the legal and policy factors that may explain the intensity of the current dilemmas. It reflects on the maximalist and polemical approach that a number of actors have adopted over the years, and points out the pitfalls of ignoring the usefulness of pragmatism and comity.

Fighting for Authority: Strategic Actions of National High Courts in the European Union

2019 ◽  
Vol 12 (2-2019) ◽  
pp. 419-433
Author(s):  
Stefanie Vedder
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
Eu Law ◽  
The European Union ◽  
Principal Agent Theory ◽  
Strategic Actions ◽  
High Courts ◽  
Court Of Justice ◽  
European Court ◽  
Lower Courts

National high courts in the European Union (EU) are constantly challenged: the European Court of Justice (ECJ) claims the authority to declare national standing interpretations invalid should it find them incompatible with its views on EU law. This principle noticeably impairs the formerly undisputed sovereignty of national high courts. In addition, preliminary references empower lower courts to question interpretations established by their national ‘superiors’. Assuming that courts want to protect their own interests, the article presumes that national high courts develop strategies to elude the breach of their standing interpretations. Building on principal-agent theory, the article proposes that national high courts can use the level of (im-) precision in the wording of the ECJ’s judgements to continue applying their own interpretations. The article develops theoretical strategies for national high courts in their struggle for authority.

Review by Constitutional Courts of the Obligation of National Courts of Last Instance to Refer a Preliminary Question to the Court of Justice of the EU

2015 ◽  
Vol 16 (6) ◽  
pp. 1663-1700 ◽  
Author(s):  
Clelia Lacchi
Keyword(s):  
European Union ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
Constitutional Review ◽  
National Courts ◽  
Court Of Justice ◽  
Judicial Remedy ◽  
The Eu

The Constitutional Courts of a number of Member States exert a constitutional review on the obligation of national courts of last instance to make a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU).Pursuant to Article 267(3) TFEU, national courts of last instance, namely courts or tribunals against whose decisions there is no judicial remedy under national law, are required to refer to the CJEU for a preliminary question related to the interpretation of the Treaties or the validity and interpretation of acts of European Union (EU) institutions. The CJEU specified the exceptions to this obligation inCILFIT. Indeed, national courts of last instance have a crucial role according to the devolution to national judges of the task of ensuring, in collaboration with the CJEU, the full application of EU law in all Member States and the judicial protection of individuals’ rights under EU law. With preliminary references as the keystone of the EU judicial system, the cooperation of national judges with the CJEU forms part of the EU constitutional structure in accordance with Article 19(1) TEU.

scholarly journals Characteristics of Precedent: The Case Law of the European Court of Justice in Three Dimensions

2015 ◽  
Vol 16 (5) ◽  
pp. 1073-1098 ◽  
Author(s):  
Mattias Derlén ◽  
Johan Lindholm
Keyword(s):  
European Union ◽  
Case Law ◽  
Three Dimensions ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Court ◽  
Number Of Factors ◽  
The One

AbstractThe case law of the Court of Justice of the European Union (CJEU) is one of the most important sources of European Union law. However, case law's role in EU law is not uniform. By empirically studying how the Court uses its own case law as a source of law, we explore the correlation between, on the one hand, the characteristics of a CJEU case—type of action, actors involved, and area of law—and, on the other hand, the judgment's “embeddedness” in previous case law and value as a precedent in subsequent cases. Using this approach, we test, confirm, and debunk existing scholarship concerning the role of CJEU case law as a source of EU law. We offer the following conclusions: that CJEU case law cannot be treated as a single entity; that only a limited number of factors reliably affect a judgment's persuasive or precedential power; that the Court's use of its own case law as a source of law is particularly limited in successful infringement proceedings; that case law is particularly important in preliminary references—especially those concerning fundamental freedoms and competition law; and that initiating Member State and the number of observations affects the behavior of the Court.

Public Sector Purchase Programme (PSPP) Case

2021 ◽  
Vol 192 ◽  
pp. 451-511
Keyword(s):  
European Union ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
European Central ◽  
Court Of Justice ◽  
Basic Law ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

451Economics, trade and finance — European Monetary Union — Fiscal sovereignty — Public debt — Monetary policy — Economic policy — European Union — Asset purchase programme — Quantitative easing — Central banks — European Central Bank — European System of Central Banks — BundesbankTreaties — Treaty-making powers — Constitutional limitations on treaty-making powers — Transfers of powers by States to intergovernmental and other transnational authorities — Whether compatible with constitutional prerogatives of national parliament — Overall budgetary responsibility — Basic Law of GermanyInternational organizations — European Union — Powers — Member States as masters of the treaties — Principle of conferral — Whether Union having competence to determine or extend its own powers — Principle of subsidiarity — Court of Justice of the European UnionRelationship of international law and municipal law — European Union law — Interpretation — Application — Judgment of Court of Justice of the European Union — Weiss — Principle of proportionality — Whether application of EU law having absolute primacy — Whether German Federal Constitutional Court having absolute duty to follow judgment of Court of Justice of the European Union — Compatibility with Basic Law of Federal Republic of Germany — Openness of German Basic Law to European integration — Whether purchase programme ultra vires — Whether ultra vires acts applicable in Germany — Whether having binding effect in relation to German constitutional organsJurisdiction — European Union institutions — Whether jurisdiction of German Federal Constitutional Court extending to Court of Justice of the European Union and European Central Bank — Whether acts of EU institutions subject to national constitutional review — Ultra vires review — Review of core identity of national constitution — Whether application of EU law having absolute primacy — Whether absolute duty to follow judgment of Court of Justice of the European Union — The law of Germany

Legal conflict between the EU and the republic of Poland regarding polish judicial reform

2021 ◽  
Author(s):  
Ivan Yakovyuk ◽  
Suzanna Asiryan ◽  
Anastasiya Lazurenko
Keyword(s):  
European Union ◽  
Judicial Reform ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
Legal Nature ◽  
Constitutional Tribunal ◽  
The Republic ◽  
The Eu

Problem setting. On October 7, 2021, the Constitutional Tribunal of the Republic of Poland ruled in favor of Polish law over European Union law, which in the long run may violate the principles according to which the Union operates and the rights enjoyed by citizens of the state. Such a precedent can further serve as a basis for identical decisions of the bodies of constitutional jurisdiction of those states that have problems in fulfilling their obligations in the European community. Analysis of recent researches and publications. The problems of the functioning of the bodies of the European Union, the implementation of their decisions and the general status in EU law are widely studied in national science. In particular, many scholars have studied the legal nature of the EU, including: TM Anakina, VI Muravyov, NM Ushakov, A. Ya. Kapustina, NA Korolyova, Yu. Yumashev, BN Topornin, OYa Tragniuk, SS Seliverstov, IV Yakovyuk and others. Target of research is to establish the foundations of EU law in the functioning of Union bodies, especially the Court, as well as to determine the hierarchy of national law and EU law. Article’s main body. Over the years, the Court has, within its jurisdiction, issued a large number of judgments which have become the source of the Union’s Constituent Treaties and of EU law in general. Over the last two decades, the powers of the Court of Justice have changed significantly. In particular, this is due to the adoption of the Lisbon Treaty, which amended the EU’s founding treaties on the powers of the Court, then the reform of the European Court took place in 2015-2016, which concerned a change in the organizational structure of the Court. Despite the generally well-established case law of the Court of Justice of the European Union on the unification of the observance by the Member States of the basic principles of the European Union, the Constitutional Tribunal of the Republic of Poland adopted a decision on 7 October. Conclusions and prospects for the development. Following the decision of the Constitutional Court, the Polish authorities found themselves in a situation that significantly complicated its internal and external situation. The way out of which requires answers to fundamental questions about the legal nature of the EU. Undoubtedly, this is an issue not only between Poland and the EU, but also between other member states.

scholarly journals The Rise and Expressions of Consistency in EU Law: Legal and Strategic Implications for European Integration

2013 ◽  
Vol 15 ◽  
pp. 139-167
Author(s):  
Ester Herlin-Karnell ◽  
Theodore Konstadinides
Keyword(s):  
European Union ◽  
European Integration ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
Treaty Of Lisbon ◽  
Legal Principles ◽  
Division Of Powers ◽  
Court Of Justice ◽  
Scope Of Application

Abstract The principle of consistency has a prominent place in EU law. In the Treaty of Lisbon, it constitutes an umbrella under which a number of legal principles of EU law follow as corollaries. Consistency manifests itself within both horizontal and vertical levels of governance. This chapter will unpack this principle and will focus on the broader implications of consistency for the division of powers in EU law. In doing so, the authors aim to discuss the rise of consistency in EU law and decrypt its various constitutional expressions in order to determine its scope of application. Two notions of consistency are presented: a formal one that appears in the Treaty of Lisbon and a strategic one, prominent in the case law of the Court of Justice of the European Union (CJEU). It is argued that consistency is relevant to both traditional (integrationist) and alternative (differentiated) routes to European integration. The chapter concludes by discussing whether the undefined nature of ‘consistency’ puts it at risk of becoming an empty vessel.

scholarly journals Refl ections on the Principle of Equal Treatment in EU Law and the Jurisprudence of the Court of Justice of the European Union and the European Convention on Human Rights

2020 ◽  
Vol 9 (1) ◽  
pp. 5-23
Author(s):  
Marija Daka
Keyword(s):  
European Union ◽  
Human Rights ◽  
Equal Treatment ◽  
European Convention ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Court ◽  
Complex Approach

The paper presents some of the most relevant aspects of European nondiscrimination law established th rough European Union law and the European Convention on Human Rights, looking also at the evolution of the norms and milestones of case-law on equal treatment within the two systems. The paper gives an overview of the non-discrimination concept as interpreted by the Court of Justice of the European Union and by the European Court of Human Rights. We examine the similar elements but also give insight into conceptual differences between the two human rights regimes when dealing with equal treatment. The differences mainly stem from the more complex approach taken by EU law although, based on analysed norms, cases, and provisions, the aspects of equal treatment in EU law are largely consistent with the practice of the ECtHR. Lastly, the paper briefl y places the European non-discrimination law within the multi-layered human rights system, giving some food for thought for the future potential this concept brings.

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