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)

Although the Lisbon Treaty maintained the general exclusion of Common Foreign and Security Policy (CFSP) matters from ECJ jurisdiction, it introduced a number of changes into this area, including an explicit statement that the Court is competent to review the legality of the Council decisions imposing restraining measures on persons. The article analyzes the nature and origin of those changes and considers the legal implications for the level of the protection of fundamental rights in the European Union. For (...) this purpose the author firstly considers the context of the exclusion of CFSP matters from the ECJ jurisdiction, including discussions on the issue at the European Convention, and, secondly, takes a closer look at the separate heads of jurisdiction over which the Court is competent to act after the entry into force of the Lisbon Treaty. A conclusion is made that the Lisbon Treaty did not introduce significant changes to ECJ jurisdiction. Similarly to the pattern of previous amendment treaties, the Lisbon Treaty again gave recognition to the practice of the ECJ on relevant questions. Nonetheless, the amendments made by the Lisbon Treaty should be welcome for introducing more clarity into the legal regulation of the matter, thus boosting the legal certainty and protection of fundamental rights in the European Union. (shrink)

The paper analyses and evaluates the linguistic policy of the Court of Justice of the European Union against the background of other multilingual courts and in the light of theories of legal interpretation. Multilingualism has a direct impact upon legal interpretation at the Court, displacing traditional approaches with a hermeneutic paradigm. It also creates challenges to the acceptance of the Court’s case-law in the Member States, which seem to have been adequately tackled by the (...) class='Hi'>Court’s idiosyncratic translation policy. (shrink)

New techniques in genome editing have led to a controversial debate about the opportunities and uncertainties they present for agricultural food production and consumption. In July 2018, the Court of Justice of the European Union defined genome editing as a new process of mutagenesis, which implies that the resulting organisms count as genetically modified and are subject, in principle, to the obligations of EU Directive 2001/18/EG. This paper examines how key protagonists from academia, politics, and the economy (...) strategically framed the debate around genome editing in agriculture in Germany prior to its legal classification by the Court of Justice. It is based on an analysis of 96 official statements, including position papers, press releases, and information brochures. Our study reveals eight strategic frames used in the discourse on genome editing and uncovers the strategies used to disconnect from or connect with the previous discourse on green genetic engineering in the 1970s, 1980s and 1990s. Building on competitive framing theory, the study provides explanations for the use and emergence of counter-framing strategies and their success or failure in the debate around genome editing. (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)

Why has it taken so long for member states to appoint women to the Court of Justice? Despite having won relatively significant policy instruments for equal treatment at work and high levels of legislative representation, women in the European Union have been slow to extend the demand for gender mainstreaming to courts. Prior to 1999, the Court of Justice had had one woman member until Ireland appointed Fidelma Macken in late 1999, and Germany appointed Ninon (...) Colneric and Austria appointed Christine Stix-Hackl Advocate General in 2000.The 1995 U.N. meeting in Beijing was a catalyst for the demand for balanced participation of women and men in decision-making processes within the E.U., and it coincided with Sweden, Finland and Austria joining and championing the cause of gender equality. In 1999, the Commission published a report on women in the judiciary and women lawyers began to organize across Europe. After tracing the appointment process, I review the European Parliament's role in championing women on the Court and consider recent developments. Courts, particularly supranational and federal courts, are representative institutions even if their representative function differs from legislatures. Non-merit factors have always been a factor in judicial appointments and thus the demand for women on the bench is not a terrible deviation from merit. An all male bench is no longer legitimate. (shrink)

The case law of the Court of Justice of the European Union is shaped by the language in which it is drafted—i.e. French. However, because French is rarely the mother tongue of those drafting that case law, the texts produced are often stilted and awkward. In addition, those drafting such case law are constrained in their use of language and style of writing. These factors have led to the development of a ‘Court French’ which necessarily shapes (...) the case law produced and has implications for its development, particularly insofar as it inevitably leads to a type of precedent in that case law. That case law also undergoes many permutations of translation into and out of up to 23 different languages. The resultant texts that make up the case law are hybrid in nature—consisting of a blend of cultural and linguistic patterns, constrained by a rigid formulistic drafting style and put through many permutations of translation. The present paper investigates the production of the Court’s multilingual case law and considers whether the hybrid nature of that case law can actually aid the presentation of a ‘uniform’ EU case law. (shrink)

(1996). Centrifugal states and Centripetal Courts: Early state reaction to European Court of Justice (1958–1994) and U.S. Supreme Court (1789–1860) The European Legacy: Vol. 1, Fourth International Conference of the International Society for the study of European Ideas, pp. 703-709.

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)

This article presents findings from an interview study of human rights practitioners who assist relatives of the disappeared from Chechnya with their complaints before the European Court of Human Rights (ECtHR). These practitioners work for nongovernmental organizations (NGOs). The study contributes to the scant literature on NGO litigation before the ECtHR and to the social scientific literature on how human rights are actively practiced. It investigates the NGOs’ intermediary position between the ECtHR and the relatives of the disappeared (...) in Chechnya. Consequently, this article asserts that a significant aspect of this position lies in the practitioner’s capacity to mediate between an ambition to externalize local grievances to the ECtHR and the relatives’ hopes that the ECtHR can bring certainty to the uncertain loss of their disappeared relatives. From this position, several dilemmas emerge as to how international legal mechanisms can provide remedies following disappearances. (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)

The article is dedicated to determine de iure and de facto binding force of the case law of the Court of Justice of the European Union (hereinafter the ECJ) and its place in the system of legal sources in Latvia. The author concludes that the case law of the ECJ consists of legally important statements, which are included in judgements of the ECJ, namely, of an interpretation of legal norms, made by the ECJ, and of judge-made law (...) norms, which the ECJ has found in legal system by use of a further law-making. Therefore, it follows from the above that the case law of the ECJ is regarded as binding independent addition legal source in Latvia. This publication concerns not only Latvia, but also other European Union (hereinafter the EU) member states of the continental Europe or Romano-Germanic legal system. (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 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 aim of the paper is to establish a relation between the cooperative principle formulated by H.P. Grice in pragmatics and the principle of sincere cooperation laid down in the founding Treaties on the European Union and interpretated by the Court of Justice of the European Union, intimately linked to the ethical imperative of cooperation, in a cultural framework shared by the Member States. The key concepts are ratio and value and the case-law analysed is provided (...) by the recent cases of the Romanian magistrates. The principle of cooperation reasserted also as the Cooperation and Verification Mechanism is the main obligation and it implies compliance with agreements and action to obtain certain effects. (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)

The European Convention of Human Rights system was originally created to sound the alarm if democracy was threatened in the member states. Yet, it eventually developed into a very different system with a focus on providing individual justice in an ever growing number of member states. This transformation has raised fundamental questions as to the level of difference and diversity allowed within the common European human rights space. Was the system to rest on minimum standards with room (...) for domestic differences, or was it to create uniform standards? These questions have come up as increasingly contentious issues over the past years and have triggered a number of reforms seeking to introduce more subsidiarity in the system, striking a different balance between the European and national oversight of human rights. The article analyses this turn to subsidiarity by exploring whether the reform process has introduced new forms of difference and diversity within the common space of European human rights. Covering the period from 2000 to the end of 2019 and using a dataset of all judgments of the period, the article provides a structural analysis of developments in reference to the margin of appreciation which is the European Court of Human Rights’ long-standing tool for balancing the common standards, yet leaving space for individual member states to find local solutions to implementing those standards. It concludes that recent developments have contributed to a more federal-style construction of European human rights with more space for differences within the common general standards. (shrink)

Starting from 2009, national courts of the EU Member States for the first time gained a “real” right to request the EU Court of Justice for preliminary rulings in asylum matters. First judgments of this Court demonstrate equivocal tendencies: some are blaming the Court for incompetence in asylum matters, others believe that the adoption of authoritative decisions at the European level will assist in developing consistent practice of applying asylum law in the European Union, (...) something that failed at international level due to absence of a single authoritative body to provide guidance on interpretation and application of the 1951 Refugee Convention. Considering that the judgments of the EU Court are part of the EU law, the Member States should develop their national asylum law with due regard being taken to those judgments. By the beginning of 2012, the Court has issued eight judgments on the interpretation of various problematic issues of EU asylum law. This Article analyses the jurisprudence of the EU Court in asylum cases, related to the granting of refugee status and subsidiary protection. It also provides a critical evaluation of those judgments. The main objective of the Article is to familiarise the relevant Lithuanian institutions and lawyers with the first judgments of the EU Court in asylum cases and encourage discussions concerning the application of rules established by the Court in the Lithuanian context. Due to limited size, this Article presents the analysis of two EU Court judgments adopted on interpretation of the 2004 Qualification Directive: Elgafaji v. The Netherlands (2009) dealing with granting of subsidiary protection, and Abdulla and others v. Bundesrepublik Deutschland (2010), dealing with cessation of refugee status. The value of those judgments first of all lies in the guidance they provided to the Member States on such concepts as: protection in a situation of an armed conflict, agents of protection, effectiveness of protection; as well as determination of a relationship between refugee status and subsidiary protection, relationship of the Qualification Directive with the European Convention on Human Rights and Fundamental Freedoms (ECHR), also cessation of protection. Elgafaji decision, while quite liberal with regard to persons seeking international protection, is not so liberally applied in the Member States’ practice and does not in itself guarantee positive outcome of the application of a concrete individual fleeing from an armed conflict, or a liberal approach to granting subsidiary protection in the Member States. Based on Elgafaji judgment it is clear that: Art. 15(b) of the Qualification Directive correspond to Art. 3 ECHR, while Art. 15(c) provides additional protection and in that it expands the Member States’ obligations beyond the ECHR to provide protection to persons fleeing in situations of armed conflict. While not every person arriving from an armed conflict situation would automatically fall under the granting of subsidiary protection, in certain exceptional situations indiscriminate violence may amount to individual threat without invoking personal circumstances. The EU Court departed from the individualisation requirement applied by the European Court of Human Rights in Art. 3 cases and did not also rely on international humanitarian law, by introducing a “sliding scale” formula for establishing an individual threat in armed conflict situation instead. This formula addressed the alleged internal discrepancy between “individual threat” and “indiscriminate violence”. The Abdulla decision brought in the human rights and law enforcement perspectives to the interpretation of cessation clauses, however it represents a rather superficial approach in the context of the analysed concepts (e.g. towards effectiveness of protection provided by the multinational armed forces) and is likely to be incompatible with the latest legislative trends in the EU asylum instruments (e.g. determination of refugee status and subsidiary protection by means of a single procedure) and the recent jurisprudence under the ECHR (e.g. failure to ensure a minimum standard of living may violate the ECHR). (shrink)

The European Court of Human Rights (ECtHR) boasts one of the strongest oversight systems in international human rights law, but implementing the ECtHR’s rulings is an inherently domestic and political process. This article begins to bridge the gap between the Court in Strasbourg and the domestic process of implementing the Court’s rulings by looking at the domestic institutions and politics that surround the execution of the ECtHR’s judgments. Using case studies from the UK and Russia, this (...) article identifies two factors that are critical for the domestic implementation of the Court’s rulings: strong domestic, democratic institutions dedicated to implementing the ECtHR’s judgments and an overarching sense of responsibility to set a good example at home and abroad for respecting human rights and the rule of law. This article concludes with a discussion of the steps necessary to facilitate better implementation of the ECtHR’s rulings. (shrink)

The article discusses the possible consequences that can be faced by a Member State of the European Union if its national court does not comply with the obligation to make a reference for a preliminary ruling to the Court of Justice. The TFEU does not specify any sanctions applicable to a state when its national court disregards its obligation under Article 267 TFEU. Therefore, the analysis focuses on the practice of the Court of (...) class='Hi'>Justice and its interpretation by scholars. At the outset, the author analyses whether refraining from making a reference for a preliminary ruling can lead to the duty to pay damages to an individual. Taking into account the criteria of a sufficiently serious breach formulated in the Köbler case, the author comes to the conclusion that the infringement of the obligation to make a reference for a preliminary ruling is one of the most important criteria in assessing whether a Member State has to pay damages for any loss suffered by an individual, but the infringement itself is not sufficient to make a state liable. (shrink)

The article examines methods of distinguishing positive and negative duties within the provisions of the European Convention of Human Rights as applied by the European Court of Human Rights. It highlights problems with tying positive duties to acts and negative duties to omissions, and sets out a supplemental delineation method when those problems lead to systematic classification errors: duties sort as positive if they have the capacity for multiple fulfilment options and negative if they only allow one (...) fulfilment option. These delineation criteria allow for a more consistent reconstruction of case law and point to a causal mechanism for alleged asymmetries in proportionality review and margins of appreciation. Lastly, there are revisionary implications for human rights scholarship. Judgments have been sorted as positive rights cases because they feature a requirement that states commit to legislative amendment, yet performative acts of amendment may be continuous with underlying negative duties. (shrink)

This book develops a rights-based theory of justice that maintains that genuine repentance creates a right to be forgiven. Examining the nature of rights and theological conceptions of forgiveness, the author shows why such a right is nonrepugnant and produces the most just state of affairs for victims and wrongdoers.

‘Justice’ is spoken of in two ways: the lawful and the fair. The law is a human construct that is devoted to the advantage of all, or to the advantage of the best, or to the advantage of those in power or to the advantage of those representing it – let it be the politician, the media, the TV presenter, the filmmaker. Thus, the law serves the production or the preservation of happiness within politics and business. The law commands (...) us to act according to the mean. A well-written law follows the mean well and a poorly written law does not. On the other hand, fairness is a principle sometimes materialised through the law and the given justice system. Fairness is the ultimate value pursued by both the common law and civil law traditions. However, its distribution through the law and the representation of this delivery varies. Does this mean that a different kind of justice is distributed? Through the teachings of Aristotle, this essay aims to deconstruct the notion of justice, by breaking down its two ingredients, the lawful and the fair, and by analysing the effect of their representation in modern European society. The relativity attached to the notion of justice is not a modern phenomenon, but a philosophical matter that can be analysed and indeed explained through the teachings of Aristotle and its contemporary students. The analysis will be developed in the context of convergent Europe, focusing on the role of the media and courts especially in relation to criminal justice. (shrink)

The question of detention of asylum seekers is specific due to the special situation of detainees (persons who have experienced human rights violations and apply for asylum in receiving country) and due to peculiarities of detention itself (persons have not committed crimes, but come or stay illegally because they have been forced to do so by fleeing from human rights violations). Therefore, lately it raises many discussions at the European level. Sooner or later, discussions influence national laws, as after (...) adopting the EU directives their provisions must be properly transposed into national laws. This article describes the recent documents: the study in Lithuania, the UNHCR guidelines, the EU developments, the Lithuania judicial practice. The authors of the article discuss the latest amendments of the Law on the Legal Status of Aliens (entering into force on 1 February 2012) related to detention of asylum seekers after the transposition of the provisions of the Return Directive. The practice of the Supreme Administrative Court of Lithuania when applying the new detention-related provisions is also reviewed in the article. The authors do not agree with the position of the Supreme Administrative Court of Lithuania that the provisions of the Return Directive are applicable to asylum seekers. The authors pay attention to the case-law of the European Court of Justice, the preamble of the Return Directive and its legal relations with the EU asylum directives. At the end, the conclusions are drawn as to the way that the provisions of the Law on the Legal Status of Aliens should be interpreted in the light of the purposes and provisions of the European Union directives. In order to avoid contradictory practice and at the same time ensure the interests of public order in Lithuania, Article 113(7) of the Law on the Legal Status of Aliens could be applied. (shrink)

In this essay, I continue Nicholas Wolterstorff’s work of developing a rights-based theory of ethics called eirenéism, which maintains the good life only occurs when justice—as a moral state of affairs where agents enjoy the goods to which they have a right—is achieved. As a result, justice is eirenē (the Greek word for peace). In the process of developing eirenéism I explain how eirenē differs from other conceptions of peace, and I offer several interpretive arguments for how best (...) to understand eirenéism in relation to better-known competing ethical theories, like utilitarianism, virtue ethics, duty ethics, and care ethics. (shrink)

The paper discusses the context, substance and likely implications of the European Court of Human Rights’ very recent but, in our view, historic decision in the case of Lautsi v. Italy. The article offers an outline of the case and of the decision’s motivation, a presentation of the responses, and a brief discussion of its relevance to the similar Romanian case. We examine in some detail the objections leveled against the ruling, track the progress of the Court’s (...) relevant jurisprudence on the issue, and suggest some possible consequences. (shrink)

Sara Trovato’s Mainstreaming Pacifism: Conflict, Success, and Ethics provides a thorough and engaging argument for why pacifism is an effectual means for creating social-political justice and peace. Standing up to claims that pacifists are politically passive and accepting of injustice, Trovato shows that the peace of pacifism is compatible with the fight for justice. By showing that pacifists can consistently retain their ideals while fighting for justice, Trovato offers an alternative to effective means of violence. In her (...) words, “violence can effectively be replaced with other effectual forms, or combinations of effectual forms.”. (shrink)

The main subject of the present research is the enforcement of the European Union law in the domestic legal order. This topic was chosen considering the Treaty of Lisbon amending the Treaty on the European Union and the Treaty establishing the European Community and especially its declaration No. 17 on primacy of EU law. This article will explain the meaning of primacy of the European Union law and the resulting problems in some EU Member States, as (...) well as possible solutions to tackle the problems. The primacy of the European Union law over the national law was recognised as one of the constitutive principles of the European Union. The article includes relevant provisions of the Lisbon Treaty that deal with the rules concerning the legal requirements of the primacy of the European Union law in the EU primary law. The European Court of Justice has developed the meaning of the principle of primacy, which means that the European Union law should take precedence over national law (even over constitutional provisions) and should there be any conflicts between EU law and national law, every national court is obliged to apply the law of the European Union. The main issue of this article is analysing the principle of primacy of the European Union law over the Lithuanian law. (shrink)

Since 9/11 the European Court of Human Rights (the European Court) has raised anew the question of the relationship between religion and public education. In its reasoning, the European Court has had to consider competing normative accounts of the secular, either to accept or deny claims to religious liberty within Europe's public education system. This article argues that the trajectory on which the term 'secularism' had been used by the European Court pointed (...) increasingly towards secular fundamentalism. This study is located at the cutting edge of religion, education and the law and builds on previous work in the field (Arthur, 1998, 2008). It examines, through extensive research of legal cases, the most important developments of the usage of secular and secular education in modern discourse and explores the background to these concepts. Unless otherwise stated, religion in this article shall refer to the Christian tradition because Christianity has been the historical context for the development of the concept of 'secular' in Europe. The paper outlines three models of secular education before moving on to scrutinise how the European Court has understood and evaluated various legal cases before it on the interaction between secular States, public education and notions of religious symbolism and influence. The paper will discuss the significance of the European Court's reasoning and decisions for public education within a secular State context and offer some conclusions on the implications of these decisions. It examines the legal principles that underpin the European Court's supervision of the State's role in the provision of education. It focuses on the chimeric goal of neutrality and highlights the risks attached to the use of an ideological conception of secularism that could lead potentially to the complete removal of the religious as a vital cultural and intellectual dimension of public education. (shrink)

"Case notes." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (199), pp. 34–35.

The system of the European Convention on Human Rights created in 1950 is still regarded as the most important and effective regional system for the protection of human rights in the whole world. However, the experience of the European Court of Human Rights (ECHR) has clearly showed that the steady growth in the number of cases brought before the ECHR makes it increasingly difficult to keep the length of proceedings within the acceptable limits and to maintain the (...) effectiveness of the ECHR. This aspect is becoming extremely important due to the fact that the European Union (EU) will join the Convention system in the near future. The legal basis for the EU accession to the Convention system has been made possible after the entering into force of the EU Lisbon Treaty on 1 December 2009, and, from the Convention’s perspective, the new Protocol No. 14 to the Convention, which entered into force on 1 June 2010, and which, in Article 17 (amending Article 59 of the Convention), stipulates that the EU may accede to this Convention. (shrink)

Normal 0 false false false MicrosoftInternetExplorer4 st1:*{behavior:url(#ieooui) } /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Times New Roman"; mso-ansi-language:#0400; mso-fareast-language:#0400; mso-bidi-language:#0400;} In order to see whether there is a common European model that gives a place to religion in the public sphere two issues have to be taken into account: first, if there is a theory of secularization that accurately describes the current situation of European societies (...) and second if, there is a European model on Church – State relationship. The first part is dedicated to the different accounts on secularization that may be applied to European countries: the classical Weber theory that view secularization as an “iron law” of any society, the institutional secularization, secularization as the decline and adequacy of religious practice, the continuation of the classical theory in the 60’s and beyond, the criticism of this theory and the particular argument of the increase of fundamentalist religious movements. The attempts to formulate new theories on secularization based on other assumptions than the classical one are also presented. The increased presence of religion in private life does not mean a decrease of religion in the public space but rather a new definition of it. Despite the different intensity of belief in national terms, some trends like “believing without belonging” are common, meaning that secularization could have a single meaning in Europe, apart from other continents. The second part starts with presenting the three types of Church - State relationship at the national level. All these have in common the fact that the state is neutral towards religious subjects, a religious subsection is singled out within the public sphere and the state has the right to intervene in this area only as an arbiter. There is already a European law on religion and this statement is supported by examples from the Lisbon Treaty, The Charter of Fundamental Rights, different Directives and decisions of the European Court of Justice. Common rules on religion agreed at the European level helps better to understand why there is a common European model on religions, different from the national models. After taking into account the two aspects described above, a common European model on religion in the public sphere emerges as a necessary conclusion. (shrink)

This essay deals with conditions, challenges and perspectives concerning the legal system of the European Union after the Lisbon treaty has entered into force. It starts out by recalling constitutional principles such as primacy, direct effect and consistent interpretation of the European legal order on the one hand and the relationship of cooperation between the Court of Justice and national courts – notably pointing out the importance of the preliminary procedure (Article 267 TFEU) – on the (...) other hand. In addition, characteristics of the legal system of the European Union such as the integration of national legal systems are highlighted. It is accentuated that the legal community of the European Union depends on the acceptance by all 27 Member States. Furthermore, the normative quality of European law-making is discussed as well as the necessity for a sufficient democratic legitimation of European Law. As impressively illustrated by the financial crisis, the European Union is much better equipped with possibilities to effectively fulfil regulatory tasks than any Member State. The author shows developments with regard to European Union citizenship, non-discrimination, the Charter of Fundamental Rights - that is now equipped with binding character – and the vertical distribution of competences between the European Union and the Member States, including explanations relating to subsidiarity requirements and their judicial review. Moreover, challenges to the institutions of the European Union are discussed. (shrink)

This chapter considers the establishment freedom, concentrating on three aspects where recent European Court of Justice decisions have appeared to enlarge its scope but have also left unsolved questions on particular aspects. First, it looks at the nature of the establishment freedom, distinguishing it from the other freedoms, in particular the right to provide services and free movement of capital. Second, the chapter examines who are the beneficiaries of the right of establishment and, in particular, the position (...) of legal persons, companies, where harmonization of member states' company laws has achieved results but has not solved all problems. Finally, it addresses the question of which parties are obliged by the treaty to respect the right of establishment and considers a 2007 judgment, Viking, which, with the Laval decision concerning services, caused much criticism. (shrink)

The article analyses the problem of using European constitutional heritage in the practice of the Constitutional Court of the Republic of Latvia when interpreting the Constitution of the Republic of Latvia. The author analyses several judgments of the Constitutional Court of Latvia, wherein the Court refers to European legal heritage, when interpreting separate norms of the Constitution of the Republic of Latvia. Such practice is particularly evident in two categories of cases. The influence of (...) class='Hi'>European legal heritage is most clearly expressed in cases where the Court ascertains the essence of the continuity doctrine and when interpreting human rights enshrined in the Constitution (the Satversme). The author notes that constitutional courts reveal two tendencies. On the one hand, a constitutional court cannot ignore the international context. European courts are influenced by European Union law and the jurisprudence of the European Court of Justice. On the other hand, constitutional court judges in every country have sworn to be loyal to the national constitution and thus have a duty to exercise constitutional control. These tendencies are not necessarily objectionable. On the contrary–knowledge of the international legal context helps the Constitutional Court exercise its mission. (shrink)

The treaty of Lisbon makes European Union (EU) accession to the European Convention on Human Rights (ECHR) an obligation of result. The issue has been intensely discussed for more than thirty years, arguing that such accession is necessary in view of the need to ensure the ECHR standard of fundamental rights protection in Europe. This question again gains prominence as the EU member states and the institutions seek to agree on the negotiation directives of EU accession to the (...) ECHR. The process brings up the difficulties involved in creating a mechanism which would both facilitate the autonomy of the EU legal order and enable individuals to bring claims against the EU to the European Court of Human Rights (ECtHR). This involves the questions how it would be possible to ensure quick access to justice, and whether the ECtHR would continue to apply the doctrine of equivalent protection in relation to EU even after the latter becomes bound by the ECHR. The article argues that EU accession to the Convention is a prominent political step ensuring coherence of human rights protection mechanism in Europe. (shrink)

The purpose of this article is to continue the discussion on Europe’s converging criminal justice systems. In particular, I test a hypothesis that has recently appeared in the literature, which sees the jurisprudence of the European Court of Human Rights as one of the most significant factors that encourage a harmonization process between the adversarial and inquisitorial criminal justice systems of Europe. This claim is supported by examining the Court’s jurisprudence to identify decisions that led (...) to legislative and policy amendments in the domestic legal orders of the 46 member states of the Council of Europe. This account shows how an interplay currently taking place between judicial, policy, and statutory powers is marking the end of the adversarial-inquisitorial era. Finally, the conclusion identifies the three most important impediments that are likely to hamper this harmonization process. (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)

I examine Heidegger's reflections on the Anaximander fragment, concentrating on the question of justice. In his commentary, Heidegger draws on Nietzsche's thoughts about justice, the will to power, and nihilism to formulate an interpretation of the fragment that connects it to the epochal history and destiny of being. This "ontological" interpretation, constructed in a compelling reading of the history of philosophy, requires that Heidegger first address the historicism and "ontological forgetfulness" prevailing in historical consciousness and historiography, in order (...) to begin thinking towards the possibility of another epoch of being, releasing us from the injustice that is inherent in the ontology that rules in the present historical dispensation. Although Heidegger avoids moral prescription, he cannot avoid critical entanglement in the moral-juridical sense of justice, despite his claims and protestations, since, as his own account of the fragment implies, justice and ontology must be inseparable. Reading Heidegger's commentary in relation to Benjamin's philosophy of history, I argue that Heidegger's reflections on justice suggest a narrative of tragic hope that resembles Benjamin's configuration of justice in his reading of the Baroque mourning-play, where the hopelessly fragmented and imperiled image of justice is revealed as emerging from a Leidensgeschichte fatefully bound up in the continuum of a Schuldgeschichte. (shrink)