Judicial Hierarchy in the Preliminary Ruling Procedure: Exploring the Relationship Between the First and Second Instance Courts

2020 ◽  
Author(s):  
Monika Glavina
Keyword(s):  
Preliminary Ruling ◽  
The Relationship ◽  
Judicial Hierarchy

Rule Creation in a Political Hierarchy

2012 ◽  
Vol 106 (3) ◽  
pp. 622-643 ◽  
Author(s):  
CLIFFORD J. CARRUBBA ◽  
TOM S. CLARK
Keyword(s):  
Supreme Court ◽  
Federal Courts ◽  
Principal Agent ◽  
Agent Model ◽  
The Supreme Court ◽  
Political Hierarchy ◽  
Lower Courts ◽  
Principal Agent Model ◽  
The Relationship ◽  
Judicial Hierarchy

Principal-agent relations are replete in politics; politicians are agents of electorates, bureaucrats are agents of executives, lower courts are agents of upper courts, and much more. Commonly, principals are modeled as the rule-making body and agents as the rule-implementing body. However, principals often delegate the authority to make the rules themselves to their agents. The relationship between the lower federal courts and the Supreme Court is one such example; a considerable portion of the law (rules) is made in the lower federal courts with the Supreme Court serving primarily as the overseer of those lower courts’ decisions. In this article, we develop and test a principal-agent model of law (rule) creation in a judicial hierarchy. The model yields new insights about the relationship among various features of the judicial hierarchy that run against many existing perceptions. For example, we find a non-monotonic relationship between the divergence in upper and lower court preferences over rules and the likelihood of review and reversal by the Supreme Court. The empirical evidence supports these derived relationships. Wider implications for the principal-agent literature are also discussed.

Reading the Tea Leaves: The Polish Constitutional Tribunal and the Preliminary Ruling Procedure

2015 ◽  
Vol 16 (6) ◽  
pp. 1543-1568
Author(s):  
Aleksandra Kustra
Keyword(s):  
European Union ◽  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
Tea Leaves ◽  
National Courts ◽  
Legal Provisions ◽  
Constitutional Tribunal ◽  
The Relationship ◽  
The Eu

The main purpose of the preliminary ruling procedure is to prevent divergences in judicial decisions applying European Union (EU) law and to ensure the uniform interpretation of EU legal provisions across Member States. The procedure, introduced in the Founding Treaties, has provided a platform for the Court of Justice of the European Union (hereafter, the ECJ or the CJEU) to deliver seminal judgments that have progressively defined the relationship between national and EU legal systems, among others. The procedure has also helped the ECJ to develop fundamental principles of EU law, including direct effect, indirect effect (i.e., the interpretation of national law in line with directives) and primacy. Being one of the most important aspects of the EU judicial system, the procedure provided by Article 267 of the Treaty on the Functioning of the European Union (hereafter, TFEU) has had an immense impact on the harmonious development of EU law and the way in which national courts and EU courts interact and communicate.

The Relationship between Islamic and Customary Law in the Sudan

1960 ◽  
Vol 4 (1) ◽  
pp. 9-16 ◽  
Author(s):  
Sayyid Muhammad Abu Rannat
Keyword(s):  
Integrated System ◽  
Customary Law ◽  
Civil Justice ◽  
Form Part ◽  
Local Courts ◽  
Set Up ◽  
Civil Courts ◽  
The Relationship ◽  
Judicial Hierarchy

I do not wish to trouble you with the details of the system of courts in the Sudan, which is extremely complicated, but it is necessary to sketch the bare outlines. For some time it has been true to say that the Sudan has an “integrated” system in that the Local Courts form part of the judicial hierarchy and come under the supervision of the judiciary rather than the executive. But it would be misleading to call the system “unified”, as the judiciary is split into two quite separate hierarchies: the Sharia Division of which the Grand Kadi is the head, and the Civil Division over which I have the honour to preside. Within the Civil Division there are three main types of courts: “Civil Courts” as established under the Civil Justice Ordinance, Native Courts set up under the Native Courts Ordinance in the six Northern Provinces, and Chiefs Courts set up by the Chiefs’ Courts Ordinance in the three Southern Provinces.

10. The preliminary ruling procedure

2020 ◽  
pp. 225-250
Author(s):  
Marios Costa ◽  
Steve Peers
Keyword(s):  
European Union ◽  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
National Courts ◽  
Court Of Justice ◽  
The Relationship ◽  
Gain Access

This chapter examines the relationship between the Court of Justice (CJ) and the national courts in the context of the preliminary ruling procedure provided by Article 267 of the Treaty on the Functioning of the European Union (TFEU). The chapter focuses on the text of Article 267 TFEU. It analyses the extent to which national courts are willing and able to gain access to the CJ in order to resolve the questions of European Union (EU) law before them. The chapter also explains the concept of acte clair. The analysis reveals that the CJ has rarely refused its jurisdiction and has interpreted broadly the term ‘court or tribunal’. The CJ has also rarely attempted to interfere with national courts’ discretion in matters of referral and application of EU law, while national courts have generally been ready to refer cases to the CJ.

scholarly journals So Long Solange? The PSPP Judgment of the German Constitutional Court and the Conflict between the German and the European ‘Popular Spirit’

2021 ◽  
pp. 1-34
Author(s):  
Peter HILPOLD
Keyword(s):  
Legal Reasoning ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
Preliminary Ruling ◽  
Mutual Respect ◽  
Court Of Justice ◽  
European Court ◽  
Economic Background ◽  
German Constitutional Court ◽  
The Relationship

Abstract The judgment by the German Constitutional Court (‘BVerfG’) of 5 May 2020 has caused a stir all over Europe. The relationship between the BVerfG and the European Court of Justice (‘ECJ’) has never been an easy one, especially after the Solange judgment of 1974. The Solange jurisprudence has, however, not only been synonymous with conflict and rivalry but also for dialogue and, eventually, mutual respect. With the PSPP judgment, this dialogue seemed to have found an end, while by the order of 29 April 2021 the BVerfG appears to have returned to a more conciliatory tone. Nonetheless, the disruption between Karlsruhe and Luxembourg persists. In this article, the PSPP judgment will be examined in detail, presenting it as the last step of long, contorted jurisprudence. It will be shown that the rupture that occurred in May 2020 was technically unnecessary and rather the result of deep-rooted cultural conflict with a clear economic background. The legal reasoning on both sides—that of the BVerfG and that of the PSPP judgment's most outspoken critics—is problematic at best. While for the time being the BVerfG seems to have learnt the lesson from the conflict provoked by its own judgment, the underlying, substantive conflict is still unresolved. It will be shown that this conflict can only be solved on a political level. Thereby, cultural pre-concepts will have to be overcome. Uncompromising reliance on a national ‘popular spirit’ (Volksgeist) will not offer a way out but neither will, for the time being, exclusive reference to a European Volksgeist ignoring Member State realities. The ‘weighing and balancing’ the BVerfG has missed in the previous Weiss ECJ preliminary ruling (again on the PSPP programme) will have to take place on a far broader scale.

When Can a Reference for a Preliminary Ruling be Made?

2021 ◽  
pp. 141-200
Author(s):  
Morten Broberg ◽  
Niels Fenger
Keyword(s):  
Direct Action ◽  
The Other ◽  
Preliminary Ruling ◽  
Court Of Justice ◽  
Other Hand ◽  
The One ◽  
The Relationship

Chapter 5 discusses the requirement that an answer to the preliminary question must be relevant for the resolution of the main proceedings. It analyses when a preliminary ruling must be assumed to be irrelevant to the decision in the main proceedings, and it discusses the so-called Foglia principle according to which the Court declines jurisdiction to reply to questions of interpretation which are submitted to it within the framework of a contrived case. Chapter 5 also examines when a preliminary reference is precluded because the same issue is, has been, or could be subject to a direct action before the Court of Justice. Here it first examines the relationship between, on the one hand, the preliminary procedure and, on the other hand, Articles 258 and 259 TFEU concerning infringement proceedings. Next, it analyses the relationship between the preliminary procedure and Article 263 TFEU concerning actions for annulment before the Court of Justice (TWD-doctrine).

A Referral Process to the Commission on the Limits of the Continental Shelf in the Delimitation of the Continental Shelf beyond 200 M Process: An Appraisal

2020 ◽  
Vol 35 (4) ◽  
pp. 682-703
Author(s):  
Sandrine W De Herdt
Keyword(s):  
Continental Shelf ◽  
The State ◽  
Law Of The Sea ◽  
Referral Process ◽  
Preliminary Ruling ◽  
International Tribunal ◽  
International Courts ◽  
Reference Procedure ◽  
Legal Challenges ◽  
The Relationship

Abstract Proposals have been flagged by judges at the International Tribunal for the Law of the Sea and legal scholars to develop the relationship between the Commission on the Limits of the Continental Shelf (CLCS) and international courts and tribunals regarding the proof of existence of continental shelf entitlement. It has been suggested international courts and tribunals request ‘expert assistance’, make a ‘reference procedure’, or seek a ‘preliminary ruling’ from the CLCS in order to verify the State party’s entitlement to a continental shelf beyond 200 nautical miles when the delimitation process occurs in the absence of recommendations issued by the CLCS. This article assesses the potential for a referral process bridging the relationship between the CLCS and courts and tribunals. It considers more specifically the necessity of such a mechanism and the legal challenges that are likely to arise in its establishment.

Court of Justice of the European Union: Decision of 2 March 2010, Case C-315/08, Janko Rottman v. Freistaat BayernCase Note 1 Decoupling Nationality and Union Citizenship? Case Note 2 The Consequences of the Rottmann Judgment on Member State Autonomy – The European Court of Justice's Avant-Gardism in Nationality Matters

2011 ◽  
Vol 7 (1) ◽  
pp. 138-160 ◽  
Author(s):  
H.U. Jessurun d'Oliveira ◽  
Gerard René de Groot ◽  
Anja Seling
Keyword(s):  
European Union ◽  
Member State ◽  
Preliminary Ruling ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
The Status ◽  
First Time ◽  
The Relationship

This reference for a preliminary ruling raises for the first time the question of the extent of the discretion available to the Member States to determine who their nationals are. In so far as citizenship of the European Union, which depends, admittedly, on enjoyment of the status of national of a Member State, is established by the Treaty, can the powers of the Member States to lay down the conditions for the acquisition and loss of nationality still be exercised without any right of supervision for Community law? That is, in essence, the point at issue in this case. This case therefore calls for clarification of the relationship between the concepts of nationality of a Member State and of citizenship of the Union, a question which, it need hardly be emphasised, to a large extent determines the nature of the European Union.

Interstellar gas in the central region of the Galaxy

1967 ◽  
Vol 31 ◽  
pp. 239-251 ◽  
Author(s):  
F. J. Kerr
Keyword(s):  
Central Region ◽  
Galactic Plane ◽  
Neutral Hydrogen ◽  
Continuum Emission ◽  
Galactic Centre ◽  
Interstellar Gas ◽  
Hydrogen Recombination ◽  
The Galaxy ◽  
Centre Region ◽  
The Relationship

A review is given of information on the galactic-centre region obtained from recent observations of the 21-cm line from neutral hydrogen, the 18-cm group of OH lines, a hydrogen recombination line at 6 cm wavelength, and the continuum emission from ionized hydrogen.Both inward and outward motions are important in this region, in addition to rotation. Several types of observation indicate the presence of material in features inclined to the galactic plane. The relationship between the H and OH concentrations is not yet clear, but a rough picture of the central region can be proposed.

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