Paul P. Craig
- Published in print:
- 2003
- Published Online:
- November 2003
- ISBN:
- 9780199250158
- eISBN:
- 9780191599439
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199250154.003.0002
- Subject:
- Political Science, European Union
An examination is made of the way in which national courts have reacted to European Community law, in particular to the claim to supremacy over national law contained in the jurisprudence of the ...
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An examination is made of the way in which national courts have reacted to European Community law, in particular to the claim to supremacy over national law contained in the jurisprudence of the European Court of Justice. The discussion begins with a brief account of the Community’s supremacy doctrine. This is followed by an analysis of the reaction of national courts to this claim. The focus then shifts from positive law to the normative evaluation of a number of issues central to this topic. The chapter concludes with an overview of the political science literature that has considered the reasons for the reaction of national courts to the claims made by the Community’s judicial institutions.Less
An examination is made of the way in which national courts have reacted to European Community law, in particular to the claim to supremacy over national law contained in the jurisprudence of the European Court of Justice. The discussion begins with a brief account of the Community’s supremacy doctrine. This is followed by an analysis of the reaction of national courts to this claim. The focus then shifts from positive law to the normative evaluation of a number of issues central to this topic. The chapter concludes with an overview of the political science literature that has considered the reasons for the reaction of national courts to the claims made by the Community’s judicial institutions.
Pål Wennerås
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199229017
- eISBN:
- 9780191711268
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199229017.003.0003
- Subject:
- Law, EU Law, Environmental and Energy Law
This chapter analyzes the extent to which the ECJ's case law, the Aarhus Convention, and secondary Community legislation, ensure effective judicial enforcement of EC environmental law in national ...
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This chapter analyzes the extent to which the ECJ's case law, the Aarhus Convention, and secondary Community legislation, ensure effective judicial enforcement of EC environmental law in national courts. The chapter is organized as follows. Section 2 provides a general analysis of the principles arising from the ECJ's case law on procedures and remedies with a view to determining their relevance for the enforcement of EC environmental law. Section 3 introduces the Aarhus Convention and the secondary legislation implementing the Aarhus Convention. This section also analyzes the relations between the judicial protection guarantees that follow from the EC's case law, and the requirements embodied in the legislation implementing the Aarhus Convention. In light of these findings, the subsequent sections examine the requirements Community law places on Member States as regards the distinct elements that make out the anatomy of access to justice in environmental matters.Less
This chapter analyzes the extent to which the ECJ's case law, the Aarhus Convention, and secondary Community legislation, ensure effective judicial enforcement of EC environmental law in national courts. The chapter is organized as follows. Section 2 provides a general analysis of the principles arising from the ECJ's case law on procedures and remedies with a view to determining their relevance for the enforcement of EC environmental law. Section 3 introduces the Aarhus Convention and the secondary legislation implementing the Aarhus Convention. This section also analyzes the relations between the judicial protection guarantees that follow from the EC's case law, and the requirements embodied in the legislation implementing the Aarhus Convention. In light of these findings, the subsequent sections examine the requirements Community law places on Member States as regards the distinct elements that make out the anatomy of access to justice in environmental matters.
Alec Stone Sweet
- Published in print:
- 2004
- Published Online:
- January 2005
- ISBN:
- 9780199275533
- eISBN:
- 9780191602009
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019927553X.003.0004
- Subject:
- Political Science, European Union
The evolution is charted, through adjudication, of the rules governing sex equality in European Community (EC) law. The first section, ‘The Normative Structure’, provides an overview of the Treaty of ...
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The evolution is charted, through adjudication, of the rules governing sex equality in European Community (EC) law. The first section, ‘The Normative Structure’, provides an overview of the Treaty of Rome rules and secondary legislation that constitute the domain of sex equality, while the second examines how Art. 141 (which provides that male and female workers shall receive equal pay for equal work) evolved once it had been constitutionalized by the European Court of Justice. Section III, ‘Judicialization: The Court and the Legislator’, focuses on the relationship between the Court, its case law on sex equality, and the production of directives by the EC legislator; the impact is also briefly discussed of the Court's rulemaking on national judicial and legislative processes; topics included are indirect discrimination, occupational pensions, pregnancy and maternity rights. In the fourth section, ‘Adjudicating Sex Equality Law’, an analysis is made of the aggregate data on litigation and adjudication in the field, focusing on how precedent‐based lawmaking has organized the development of this area. The conclusion addresses a range of theoretical issues.Less
The evolution is charted, through adjudication, of the rules governing sex equality in European Community (EC) law. The first section, ‘The Normative Structure’, provides an overview of the Treaty of Rome rules and secondary legislation that constitute the domain of sex equality, while the second examines how Art. 141 (which provides that male and female workers shall receive equal pay for equal work) evolved once it had been constitutionalized by the European Court of Justice. Section III, ‘Judicialization: The Court and the Legislator’, focuses on the relationship between the Court, its case law on sex equality, and the production of directives by the EC legislator; the impact is also briefly discussed of the Court's rulemaking on national judicial and legislative processes; topics included are indirect discrimination, occupational pensions, pregnancy and maternity rights. In the fourth section, ‘Adjudicating Sex Equality Law’, an analysis is made of the aggregate data on litigation and adjudication in the field, focusing on how precedent‐based lawmaking has organized the development of this area. The conclusion addresses a range of theoretical issues.
Martin Shapiro
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199256488
- eISBN:
- 9780191600234
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256489.003.0007
- Subject:
- Political Science, Comparative Politics
To sustain a viable social science of law and courts, testable propositions, appropriate research designs for testing those hypotheses, and comparative materials are needed; Ch. 4, and the two papers ...
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To sustain a viable social science of law and courts, testable propositions, appropriate research designs for testing those hypotheses, and comparative materials are needed; Ch. 4, and the two papers within it, discuss and use three strategies for building theory through testing and comparing. This first paper, which was originally published in the University of Chicago Law Forum in 1992, discusses a mode of testing that involves constructing causal hypotheses to explain a major change that has occurred in one particular part of one particular legal system, and testing these comparatively either by predicting future developments in the same legal system, or (as here) by predicting that another legal system now displaying the same hypothesized conditions will experience in the future those results that occurred in the first system. Shapiro examines the ‘giving reasons requirement’ in European Community (EC) law by deriving predictions about European law from the evolution of American judicial review of administrative acts. The first part of the paper examines the giving reasons requirement in relation to administrative discretion and judicial review of administrative action in the United States. The second part goes on to compare US and EC law, looking at whether the EC giving reasons requirement is substantive as well as procedural, and examining the experience of the European Court of Justice with substantive review.Less
To sustain a viable social science of law and courts, testable propositions, appropriate research designs for testing those hypotheses, and comparative materials are needed; Ch. 4, and the two papers within it, discuss and use three strategies for building theory through testing and comparing. This first paper, which was originally published in the University of Chicago Law Forum in 1992, discusses a mode of testing that involves constructing causal hypotheses to explain a major change that has occurred in one particular part of one particular legal system, and testing these comparatively either by predicting future developments in the same legal system, or (as here) by predicting that another legal system now displaying the same hypothesized conditions will experience in the future those results that occurred in the first system. Shapiro examines the ‘giving reasons requirement’ in European Community (EC) law by deriving predictions about European law from the evolution of American judicial review of administrative acts. The first part of the paper examines the giving reasons requirement in relation to administrative discretion and judicial review of administrative action in the United States. The second part goes on to compare US and EC law, looking at whether the EC giving reasons requirement is substantive as well as procedural, and examining the experience of the European Court of Justice with substantive review.
Pål Wennerås
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199229017
- eISBN:
- 9780191711268
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199229017.001.0001
- Subject:
- Law, EU Law, Environmental and Energy Law
It is widely accepted that the future development of environmental law depends not on further legislation, but on more effective enforcement. Within the EC legal system, the conventional view is that ...
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It is widely accepted that the future development of environmental law depends not on further legislation, but on more effective enforcement. Within the EC legal system, the conventional view is that the enforcement deficit is due to the fact that the environment is distinct from other fields of Community law. EC environmental law does not normally confer rights on individuals and may therefore not be judicially enforced in the same manner as rules concerning the internal market, competition and gender discrimination. This book explores and challenges this assumption. Drawing from constitutional aspects of EC law, the book examines to what extent the general case law on procedures and remedies may be transposed to the field of environment, whilst at the same time taking stock of the existing environmental case law and the distinctive features of environmental legislation. In a critical exposition and assessment of 50 years of jurisprudence by the European Court of Justice as well as recent legislative developments, the book explores the potential of enforcement of environmental law through lawsuits by individuals as well as the European Commission. By demonstrating that the environment is not so different from other fields of law in terms of rights and remedies, the book provides not only new insights to the enforcement of EC environmental law but also to the central characteristics of Community constitutional law.Less
It is widely accepted that the future development of environmental law depends not on further legislation, but on more effective enforcement. Within the EC legal system, the conventional view is that the enforcement deficit is due to the fact that the environment is distinct from other fields of Community law. EC environmental law does not normally confer rights on individuals and may therefore not be judicially enforced in the same manner as rules concerning the internal market, competition and gender discrimination. This book explores and challenges this assumption. Drawing from constitutional aspects of EC law, the book examines to what extent the general case law on procedures and remedies may be transposed to the field of environment, whilst at the same time taking stock of the existing environmental case law and the distinctive features of environmental legislation. In a critical exposition and assessment of 50 years of jurisprudence by the European Court of Justice as well as recent legislative developments, the book explores the potential of enforcement of environmental law through lawsuits by individuals as well as the European Commission. By demonstrating that the environment is not so different from other fields of law in terms of rights and remedies, the book provides not only new insights to the enforcement of EC environmental law but also to the central characteristics of Community constitutional law.
Alec Stone Sweet
- Published in print:
- 2004
- Published Online:
- January 2005
- ISBN:
- 9780199275533
- eISBN:
- 9780191602009
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019927553X.003.0003
- Subject:
- Political Science, European Union
The previous chapter showed how transnational activity, the adjudication of the European Community (EC) law, and EC lawmaking had developed symbiotically to determine much of what is important about ...
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The previous chapter showed how transnational activity, the adjudication of the European Community (EC) law, and EC lawmaking had developed symbiotically to determine much of what is important about European integration. This chapter provides a more detailed sectoral account of how the adjudication of one class of trading disputes gradually, but authoritatively, undermined the intergovernmental aspects of the EC, while enhancing the polity's supranational, or federal, character. Assesses the impact of adjudicating the freer movement of goods provisions of the Treaty of Rome on integration and supranational governance, focusing on the problem of non‐tariff barriers, as governed by Arts. 28–30 (EC). Proceeds as follows: first, the treaty rules on intra‐EC trade are examined, hypotheses derived about how the domain could be expected to evolve, and the argument advanced is contrasted with alternatives; second, in a section ‘Judicial Governance and Market‐Building’, the emergence is tracked of the basic doctrinal framework (the Dassonville framework) governing the domain, an analysis made of the aggregate data on adjudication in the sector, and the impact traced of the European Court of Justice's case law on the decision‐making of other actors, including the European Commission and Member State governments; third, the mutation of the framework that occurred in the 1990s is discussed – an event that was heavily conditioned by the endogenous development of the law itself; the chapter concludes with an assessment of the findings in light of the pertinent scholarly debates about the impact of the European legal system on the greater course of market‐building and political integration.Less
The previous chapter showed how transnational activity, the adjudication of the European Community (EC) law, and EC lawmaking had developed symbiotically to determine much of what is important about European integration. This chapter provides a more detailed sectoral account of how the adjudication of one class of trading disputes gradually, but authoritatively, undermined the intergovernmental aspects of the EC, while enhancing the polity's supranational, or federal, character. Assesses the impact of adjudicating the freer movement of goods provisions of the Treaty of Rome on integration and supranational governance, focusing on the problem of non‐tariff barriers, as governed by Arts. 28–30 (EC). Proceeds as follows: first, the treaty rules on intra‐EC trade are examined, hypotheses derived about how the domain could be expected to evolve, and the argument advanced is contrasted with alternatives; second, in a section ‘Judicial Governance and Market‐Building’, the emergence is tracked of the basic doctrinal framework (the Dassonville framework) governing the domain, an analysis made of the aggregate data on adjudication in the sector, and the impact traced of the European Court of Justice's case law on the decision‐making of other actors, including the European Commission and Member State governments; third, the mutation of the framework that occurred in the 1990s is discussed – an event that was heavily conditioned by the endogenous development of the law itself; the chapter concludes with an assessment of the findings in light of the pertinent scholarly debates about the impact of the European legal system on the greater course of market‐building and political integration.
Tim Hayward
- Published in print:
- 2004
- Published Online:
- July 2005
- ISBN:
- 9780199278688
- eISBN:
- 9780191602757
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199278687.003.0006
- Subject:
- Political Science, Political Theory
Addresses the doubt about whether, even if legitimately enforceable, a constitutional right to an adequate environment is necessary. The European Union (EU) is taken as a context in which that doubt ...
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Addresses the doubt about whether, even if legitimately enforceable, a constitutional right to an adequate environment is necessary. The European Union (EU) is taken as a context in which that doubt would seem particularly strongly motivated. For the range of existing environmental and human rights provisions which are binding on member states of the EU might already provide the protections that a formally declared right to an adequate environment would aim for. Shows that while those provisions offer significant protections, these nonetheless fall short of what a substantive environmental right with constitutional force would aim to achieve, and so the latter would not be nugatory.Less
Addresses the doubt about whether, even if legitimately enforceable, a constitutional right to an adequate environment is necessary. The European Union (EU) is taken as a context in which that doubt would seem particularly strongly motivated. For the range of existing environmental and human rights provisions which are binding on member states of the EU might already provide the protections that a formally declared right to an adequate environment would aim for. Shows that while those provisions offer significant protections, these nonetheless fall short of what a substantive environmental right with constitutional force would aim to achieve, and so the latter would not be nugatory.
Pål Wennerås
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199229017
- eISBN:
- 9780191711268
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199229017.003.0002
- Subject:
- Law, EU Law, Environmental and Energy Law
This chapter discusses the concept of direct effect, and addresses the question of the extent to which individuals can invoke EC environmental directives in national courts. Three fundamental ...
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This chapter discusses the concept of direct effect, and addresses the question of the extent to which individuals can invoke EC environmental directives in national courts. Three fundamental questions are: who can invoke directives, under what conditions, and against whom? The chapter examines the extent to which the principle of consistent interpretation offers added value for the purposes of enforcement of environmental directives. It then shifts the focus to the extent to which national courts and authorities are under a Community obligation to ensure effective implementation and application of environmental law.Less
This chapter discusses the concept of direct effect, and addresses the question of the extent to which individuals can invoke EC environmental directives in national courts. Three fundamental questions are: who can invoke directives, under what conditions, and against whom? The chapter examines the extent to which the principle of consistent interpretation offers added value for the purposes of enforcement of environmental directives. It then shifts the focus to the extent to which national courts and authorities are under a Community obligation to ensure effective implementation and application of environmental law.
Pål Wennerås
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199229017
- eISBN:
- 9780191711268
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199229017.003.0004
- Subject:
- Law, EU Law, Environmental and Energy Law
This chapter examines the system of preliminary references with a view to determining its effectiveness for the purposes of environmental lawsuits. Preliminary references on the interpretation of ...
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This chapter examines the system of preliminary references with a view to determining its effectiveness for the purposes of environmental lawsuits. Preliminary references on the interpretation of Community acts, in particular environmental law, are often brought in the context of actions against national authorities for lacking or incorrect implementation. Article 234 EC complements the infringement procedure of Article 226 EC in some respects. Preliminary references on the validity of Community acts, on the other hand, complement the Article 230 EC procedure. In the first situation, procedural and remedial rules are mostly governed by national law, whilst in the second case, when EC acts are challenged, Community law regulates the rules on procedures and remedies to a larger extent. Following a brief introduction of the features which the two procedures have in common, the chapter addresses issues of interpretation, validity and sanctions.Less
This chapter examines the system of preliminary references with a view to determining its effectiveness for the purposes of environmental lawsuits. Preliminary references on the interpretation of Community acts, in particular environmental law, are often brought in the context of actions against national authorities for lacking or incorrect implementation. Article 234 EC complements the infringement procedure of Article 226 EC in some respects. Preliminary references on the validity of Community acts, on the other hand, complement the Article 230 EC procedure. In the first situation, procedural and remedial rules are mostly governed by national law, whilst in the second case, when EC acts are challenged, Community law regulates the rules on procedures and remedies to a larger extent. Following a brief introduction of the features which the two procedures have in common, the chapter addresses issues of interpretation, validity and sanctions.
Jack Hayward and Anand Menon (eds)
- Published in print:
- 2003
- Published Online:
- November 2003
- ISBN:
- 9780199250158
- eISBN:
- 9780191599439
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199250154.001.0001
- Subject:
- Political Science, European Union
This book is intended to be the leading advanced survey of politics in Western Europe. It examines in detail all aspects of political life in Western Europe, from public protest to core executives, ...
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This book is intended to be the leading advanced survey of politics in Western Europe. It examines in detail all aspects of political life in Western Europe, from public protest to core executives, and from social policy to Europe’s place in the world. It brings together a team of leading scholars from the United Kingdom, continental Europe and North America. The contributions provide not only a sophisticated introduction to the various issues covered, but also a detailed discussion of the major theoretical and empirical debates and developments in the field. The book thus combines the functions of providing a comprehensive overview and a series of original contributions to scholarly debate. It has 23 chapters, two of which are introductory, and look at institutions and the evolution of European democracy, and national courts and European Community Law. The focus of the remainder is on European core executives (4 chapters), public administration (4 chapters), parties and organized interests (3 chapters), democracy and popular participation (3 chapters), public policy (4 chapters) and the changing European state (3 chapters). The book is intended as a tribute to the late Vincent Wright of Nuffield College, Oxford University, to whom the Foreword and Preface are devoted.Less
This book is intended to be the leading advanced survey of politics in Western Europe. It examines in detail all aspects of political life in Western Europe, from public protest to core executives, and from social policy to Europe’s place in the world. It brings together a team of leading scholars from the United Kingdom, continental Europe and North America. The contributions provide not only a sophisticated introduction to the various issues covered, but also a detailed discussion of the major theoretical and empirical debates and developments in the field. The book thus combines the functions of providing a comprehensive overview and a series of original contributions to scholarly debate. It has 23 chapters, two of which are introductory, and look at institutions and the evolution of European democracy, and national courts and European Community Law. The focus of the remainder is on European core executives (4 chapters), public administration (4 chapters), parties and organized interests (3 chapters), democracy and popular participation (3 chapters), public policy (4 chapters) and the changing European state (3 chapters). The book is intended as a tribute to the late Vincent Wright of Nuffield College, Oxford University, to whom the Foreword and Preface are devoted.
Francis Jacobs
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199566181
- eISBN:
- 9780191705458
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199566181.003.0027
- Subject:
- Law, Legal History
This chapter assesses Lord Bingham's openness to new ideas from other quarters and other sources, in the context of two new dimensions of English law which have in recent years substantially ...
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This chapter assesses Lord Bingham's openness to new ideas from other quarters and other sources, in the context of two new dimensions of English law which have in recent years substantially modified, if not wholly transformed, the legal landscape: on the one hand, the European Convention on Human Rights; on the other hand, European Community law. The chapter begins with a brief account of the relationship between the English courts and the Convention, and then looks at the relationship with EC law.Less
This chapter assesses Lord Bingham's openness to new ideas from other quarters and other sources, in the context of two new dimensions of English law which have in recent years substantially modified, if not wholly transformed, the legal landscape: on the one hand, the European Convention on Human Rights; on the other hand, European Community law. The chapter begins with a brief account of the relationship between the English courts and the Convention, and then looks at the relationship with EC law.
Pål Wennerås
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199229017
- eISBN:
- 9780191711268
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199229017.003.0005
- Subject:
- Law, EU Law, Environmental and Energy Law
This chapter examines possibilities for individuals and NGOs to challenge the legality of environmental acts and omissions by Community institutions and bodies in direct actions before Community ...
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This chapter examines possibilities for individuals and NGOs to challenge the legality of environmental acts and omissions by Community institutions and bodies in direct actions before Community courts. The chapter proceeds as follows. Section 2 examines the ECJ's interpretation of the standing rules in Articles 230 and 232 EC, which is the framework in which the Aarhus Convention and Regulation 1367/2006 must work. Sections 3 and 4 analyze the right to internal review under Regulation 1367/2006, and the possibility of judicial review of the outcome of the internal review procedure, respectively. Section 5 examines possible flanking remedies in the context of the regulation, i.e., interim relief; section 6 considers community liability. Conclusions are drawn in section 7.Less
This chapter examines possibilities for individuals and NGOs to challenge the legality of environmental acts and omissions by Community institutions and bodies in direct actions before Community courts. The chapter proceeds as follows. Section 2 examines the ECJ's interpretation of the standing rules in Articles 230 and 232 EC, which is the framework in which the Aarhus Convention and Regulation 1367/2006 must work. Sections 3 and 4 analyze the right to internal review under Regulation 1367/2006, and the possibility of judicial review of the outcome of the internal review procedure, respectively. Section 5 examines possible flanking remedies in the context of the regulation, i.e., interim relief; section 6 considers community liability. Conclusions are drawn in section 7.
Giuseppe Tesauro
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199219032
- eISBN:
- 9780191711862
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199219032.003.0025
- Subject:
- Law, EU Law
This chapter examines the impact of EU law on the Italian legal system. Topics discussed include the relationship between Community law and domestic law, and substantive and procedural law. It is ...
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This chapter examines the impact of EU law on the Italian legal system. Topics discussed include the relationship between Community law and domestic law, and substantive and procedural law. It is argued that dialogue with the ordinary judge, who usually interprets and applies Community law, is enriched by the preliminary ruling mechanism, which builds on the synergy between the Community judge and the national judge to create the very richness of the Community legal system and the fundamental reason for its success.Less
This chapter examines the impact of EU law on the Italian legal system. Topics discussed include the relationship between Community law and domestic law, and substantive and procedural law. It is argued that dialogue with the ordinary judge, who usually interprets and applies Community law, is enriched by the preliminary ruling mechanism, which builds on the synergy between the Community judge and the national judge to create the very richness of the Community legal system and the fundamental reason for its success.
Pål Wennerås
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199229017
- eISBN:
- 9780191711268
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199229017.003.0006
- Subject:
- Law, EU Law, Environmental and Energy Law
The Commission plays a significant role in enforcing EC environmental law, yet the number of cases it brings does not necessarily prove that this enforcement is correspondingly effective. On the ...
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The Commission plays a significant role in enforcing EC environmental law, yet the number of cases it brings does not necessarily prove that this enforcement is correspondingly effective. On the contrary, the repetitive nature of infringement proceedings implies that it is not effective, and that it lacks deterrent effect. This hypothesis is examined, starting with the Commission's monitoring powers and the anatomy of infringement proceedings. The chapter then analyzes the effectiveness of Article 226 EC proceedings in light of new developments in the case law, and the recent invigoration of Article 228 EC. It also covers the administrative and political factors that influence its operation in practice. The rights of private parties in infringement proceedings are assessed, because many of the Commission's actions are instigated after individual complaints. It then compares the Commission's vigilance to ensure compliance with environmental law by Community institutions and its policy vis-à-vis Member States. Finally, it looks at the complementary role of private enforcement.Less
The Commission plays a significant role in enforcing EC environmental law, yet the number of cases it brings does not necessarily prove that this enforcement is correspondingly effective. On the contrary, the repetitive nature of infringement proceedings implies that it is not effective, and that it lacks deterrent effect. This hypothesis is examined, starting with the Commission's monitoring powers and the anatomy of infringement proceedings. The chapter then analyzes the effectiveness of Article 226 EC proceedings in light of new developments in the case law, and the recent invigoration of Article 228 EC. It also covers the administrative and political factors that influence its operation in practice. The rights of private parties in infringement proceedings are assessed, because many of the Commission's actions are instigated after individual complaints. It then compares the Commission's vigilance to ensure compliance with environmental law by Community institutions and its policy vis-à-vis Member States. Finally, it looks at the complementary role of private enforcement.
Nóra Chronowski, Tímea Drinóczi, and Ildikó Ernszt
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199694907
- eISBN:
- 9780191731914
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199694907.003.0011
- Subject:
- Law, Public International Law
The Hungarian Constitution attempts to regulate, although not very successfully, the relationship between international law, Community law, and national law in Articles 2/A and 7. However, the ...
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The Hungarian Constitution attempts to regulate, although not very successfully, the relationship between international law, Community law, and national law in Articles 2/A and 7. However, the Constitution neither determines the status of Community law in the Hungarian legal system, nor explicitly regulates the status of international law. On the one hand, primary Community law (i.e., only treaty law) is to be handled according to the aforementioned articles, while on the other hand, the Hungarian legal system adopts a dualist approach towards international law. Thus, the Hungarian legal system is not particularly friendly to international agreements.Less
The Hungarian Constitution attempts to regulate, although not very successfully, the relationship between international law, Community law, and national law in Articles 2/A and 7. However, the Constitution neither determines the status of Community law in the Hungarian legal system, nor explicitly regulates the status of international law. On the one hand, primary Community law (i.e., only treaty law) is to be handled according to the aforementioned articles, while on the other hand, the Hungarian legal system adopts a dualist approach towards international law. Thus, the Hungarian legal system is not particularly friendly to international agreements.
Eva Lomnicka
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199219032
- eISBN:
- 9780191711862
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199219032.003.0015
- Subject:
- Law, EU Law
This chapter examines the interaction between traditional domestic law approaches and Community law in a single market, focusing on the financial services sector. It argues that facilitating the ...
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This chapter examines the interaction between traditional domestic law approaches and Community law in a single market, focusing on the financial services sector. It argues that facilitating the single market means rethinking traditional methods of determining both which Member State's laws apply to cross-border activity and which Member State's institutions have competence to enforce those laws. It is not enough to continue to permit Member States to invoke those traditional principles of private international law and territoriality, and to fall back on the Treaty freedoms or to attempt harmonization, without more, to overcome the impediments to cross-border activity that those traditional methods give rise to. Those traditional methods were developed in the context of independent states, jealously asserting and guarding their autonomy to devise and enforce their own laws. Membership of the EU — and the commitment to a single market — challenges this attitude, as does harmonization which challenges the wisdom of insisting on the cumulative application of Member States' laws that are (in theory) the same.Less
This chapter examines the interaction between traditional domestic law approaches and Community law in a single market, focusing on the financial services sector. It argues that facilitating the single market means rethinking traditional methods of determining both which Member State's laws apply to cross-border activity and which Member State's institutions have competence to enforce those laws. It is not enough to continue to permit Member States to invoke those traditional principles of private international law and territoriality, and to fall back on the Treaty freedoms or to attempt harmonization, without more, to overcome the impediments to cross-border activity that those traditional methods give rise to. Those traditional methods were developed in the context of independent states, jealously asserting and guarding their autonomy to devise and enforce their own laws. Membership of the EU — and the commitment to a single market — challenges this attitude, as does harmonization which challenges the wisdom of insisting on the cumulative application of Member States' laws that are (in theory) the same.
Vanessa Edwards and Paul Farmer
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199219032
- eISBN:
- 9780191711862
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199219032.003.0012
- Subject:
- Law, EU Law
Abuse of rights is a doctrine known to many legal systems. Its status varies. In Community law, it appears to serve as a principle of construction. Provisions of Community primary or secondary law ...
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Abuse of rights is a doctrine known to many legal systems. Its status varies. In Community law, it appears to serve as a principle of construction. Provisions of Community primary or secondary law are to be interpreted as permitting or requiring the denial of a right where, although the formal conditions laid down are met, the exercise of the right would be abusive. The Community rights in question may derive from the Treaty or from a regulation or directive. They may be denied by national authorities under domestic trading, professional or other regulations, domestic abuse of law provisions or Community regulations. This chapter considers aspects of the doctrine in the context of companies' right of establishment under Articles 43 and 48 EC.Less
Abuse of rights is a doctrine known to many legal systems. Its status varies. In Community law, it appears to serve as a principle of construction. Provisions of Community primary or secondary law are to be interpreted as permitting or requiring the denial of a right where, although the formal conditions laid down are met, the exercise of the right would be abusive. The Community rights in question may derive from the Treaty or from a regulation or directive. They may be denied by national authorities under domestic trading, professional or other regulations, domestic abuse of law provisions or Community regulations. This chapter considers aspects of the doctrine in the context of companies' right of establishment under Articles 43 and 48 EC.
Pål Wennerås
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199229017
- eISBN:
- 9780191711268
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199229017.003.0007
- Subject:
- Law, EU Law, Environmental and Energy Law
This chapter takes stock of the book's main findings and provides recommendations for the future enforcement of EC environmental law. Topics discussed include private enforcement against national ...
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This chapter takes stock of the book's main findings and provides recommendations for the future enforcement of EC environmental law. Topics discussed include private enforcement against national authorities and private parties, private enforcement against Community institutions and bodies, and the Aarhus Convention.Less
This chapter takes stock of the book's main findings and provides recommendations for the future enforcement of EC environmental law. Topics discussed include private enforcement against national authorities and private parties, private enforcement against Community institutions and bodies, and the Aarhus Convention.
Nial Fennelly
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199219032
- eISBN:
- 9780191711862
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199219032.003.0026
- Subject:
- Law, EU Law
This chapter examines the impact of EC law on Irish courts. It is shown that Irish courts have generously embraced and applied Community law, its subject matter and its principles. Direct conflict ...
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This chapter examines the impact of EC law on Irish courts. It is shown that Irish courts have generously embraced and applied Community law, its subject matter and its principles. Direct conflict has been avoided. The decisions of the Supreme Court in Meagher and in Maher demonstrate a willingness to abstain from constitutional scrutiny of measures necessitated by the obligations of membership, by application of a flexible test.Less
This chapter examines the impact of EC law on Irish courts. It is shown that Irish courts have generously embraced and applied Community law, its subject matter and its principles. Direct conflict has been avoided. The decisions of the Supreme Court in Meagher and in Maher demonstrate a willingness to abstain from constitutional scrutiny of measures necessitated by the obligations of membership, by application of a flexible test.
Danny Nicol
- Published in print:
- 2001
- Published Online:
- March 2012
- ISBN:
- 9780199247790
- eISBN:
- 9780191697685
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199247790.001.0001
- Subject:
- Law, EU Law
The Law Lords in ‘Factortame’ based their acceptance of the supremacy of European Community law on an ‘entirely voluntary’ surrender of sovereignty by Parliament. This book tells the story, from the ...
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The Law Lords in ‘Factortame’ based their acceptance of the supremacy of European Community law on an ‘entirely voluntary’ surrender of sovereignty by Parliament. This book tells the story, from the parliamentary perspective, of how Parliament's sovereignty came to be lost. It charts the evolution of MPs' constitutional understandings by analyzing the parliamentary debates on UK attempts to join the Community, the passage of the 1972 Act, and the approval of subsequent Treaty revisions. The book's pervasive theme is the transformation from a UK constitution based on politics to one based increasingly on law. It assesses the extent to which MPs understood that EC membership entailed a shift in power from legislature to courts. This is a study with profound implications for the legitimacy of Parliament as a law-making body. The book also offers two comparisons. First the understandings of British MPs are contrasted with those of Irish parliamentarians, to establish whether Ireland's more law-based constitutional culture had an effect on politicians' understandings of EC implications. Secondly, the book analyses the history of the Bill of Rights debate culminating in the passage of the Human Rights Act 1998, to investigate whether (and why) themes of parliamentary sovereignty and judicial empowerment were clearer in this context than in the EC context.Less
The Law Lords in ‘Factortame’ based their acceptance of the supremacy of European Community law on an ‘entirely voluntary’ surrender of sovereignty by Parliament. This book tells the story, from the parliamentary perspective, of how Parliament's sovereignty came to be lost. It charts the evolution of MPs' constitutional understandings by analyzing the parliamentary debates on UK attempts to join the Community, the passage of the 1972 Act, and the approval of subsequent Treaty revisions. The book's pervasive theme is the transformation from a UK constitution based on politics to one based increasingly on law. It assesses the extent to which MPs understood that EC membership entailed a shift in power from legislature to courts. This is a study with profound implications for the legitimacy of Parliament as a law-making body. The book also offers two comparisons. First the understandings of British MPs are contrasted with those of Irish parliamentarians, to establish whether Ireland's more law-based constitutional culture had an effect on politicians' understandings of EC implications. Secondly, the book analyses the history of the Bill of Rights debate culminating in the passage of the Human Rights Act 1998, to investigate whether (and why) themes of parliamentary sovereignty and judicial empowerment were clearer in this context than in the EC context.
