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This chapter examines the position of international agreements under the main heads of the jurisdiction of the EU's courts: in the first place the Court of Justice and the General Court, but also, in particular as regards questions of interpretation or validity of EU law, and courts at the level of the Member States. The following types of jurisdiction are considered. First, before an agreement is concluded it may form the subject of a request for an Opinion by the Court of Justice as to its compatibility with the Treaties (Article 218(11) TFEU). Secondly, once an agreement is concluded and has entered into force, the interpretation of its provisions may form the subject of a question for a preliminary ruling by the Court of Justice (Article 267 TFEU). Thirdly, an agreement may be relied upon to challenge the legality (or validity) of an act of an institution, in a direct action for annulment (Article 263 TFEU), or again in a question for a preliminary ruling. Fourthly, a party may invoke breach of the provisions of an international agreement in the context of a claim concerning the EU's non-contractual liability (Articles 268 and 340 TFEU). Fifthly, the Commission (or a Member State) may rely upon an agreement concluded by the EU in an enforcement action against a Member State (Article 258 TFEU). The chapter then goes on to consider some issues of interpretative approach as regards provisions of international agreements.

This chapter focuses on EU courts. The way in which the principles of review have developed has been affected by the jurisdictional divide between the European Court of Justice (ECJ) and General Court (GC), and between these courts and national courts. It is argued that a necessary condition for an effective regime of judicial control is the existence of a rational judicial architecture, embracing the ECJ, GC, and national courts. The chapter is organized as follows. It begins with an analysis of the central structural and jurisdictional features of the present system, followed by consideration of the case-load problems of the EU courts, and the techniques available to limit the cases that are heard. The focus then shifts to the aims that should underlie reform of the Union's judicial architecture. The bulk of the chapter is concerned with the relationship between the ECJ and the GC, and that between the EU courts and the national courts. The discussion draws on two important papers concerning the EU's judicial architecture. One was produced by the then current members of the ECJ and CFI; the other was written by a Working Party composed largely of former judges of the ECJ at the behest of the Commission. The papers generated significant discussion and comment, which are referred to in the course of the ensuing analysis.

This chapter focuses on some central precepts of substantive review. The discussion begins with the meaning accorded to the concepts of law, fact, and discretion in EU law. This is followed by examination of the test for review for questions of law. The focus then shifts to review of fact and discretion. The test for review and the meaning accorded to it in the early case law is explicated. This is followed by an examination of the more recent jurisprudence, and it is shown that the EU courts have used the tests for review more intensively than hitherto, although there may be some modification of this in some recent case law. The final two sections of the chapter contain broader reflections on the standard of review emerging from the case law in relation to fact and discretion, respectively.

This chapter discusses the justifications for restrictions to the free provision of services. Chapter 3 observed that the overwhelming majority of restrictive measures brought to the attention of the Court are prima facie found to violate the Treaty rules on services. This, however, does not lead the Court to strike systematically down all national measures. That is because many of the measures with protective effects pursue legitimate interests at the same time. Nevertheless, the existence of a legitimate interest does not automatically lead to the absolution of the national measure in question, but is subject to the principle of proportionality. The Court follows a two-prong test, first inquiring into the interest pursued, and then examining whether the restrictive measure is justified.

This chapter deals with legal accountability arrangements in the context of EU peacebuilding activities carried out under the CSDP with a special focus on legality, access to justice, and monetary relief. It starts by illustrating why and how judicial actors were kept at a safe distance from EU foreign policy and security matters. The analysis then moves on to sketch out the limited function of national judicial actors in adjudicating matters pertaining to civilian CSDP. Subsequently, the chapter discusses the important role of the CJEU with regard to foreign policy issues (ie the implied and contingent jurisdictional competences of the Court), while concentrating on recent case law pertaining to civilian CSDP. Moreover, it measures the wider jurisdictional field, that is, the division of labour between the CJEU on the one hand, and national courts and the ECtHR on the other. Finally, the chapter draws some conclusions on the evolution and current state of legal accountability in civilian CSDP.

This chapter seeks to unpack access to EU courts in the area of EMU, the emphasis being on the challenges facing austerity-hit litigants wishing to put their substantive case before the Court of Justice of the European Union (CJEU). The discussion will proceed as follows. First, it will be shown that aggrieved individuals might not always be able to locate a formally binding EU law measure which could form the basis of a direct or indirect challenge before the EU courts. Second, it will be seen that the judicial doors to an Article 263 TFEU challenge (action for annulment) are, nevertheless, firmly shut as most private persons will not be able to overcome the admissibility hurdles of direct and individual concern. Third, almost all Article 267 TFEU challenges (preliminary reference) have so far been declared inadmissible, which begs the question as to the legal quality of the bailout terms and its ripple effect on the scope of application of the EU Charter of Fundamental Rights. Fourth, though aggrieved individuals could in principle bring an Article 340 TFEU action for damages before the EU courts, litigants are likely to face an uphill struggle in trying to convince the CJEU that the relevant requirements for liability of the EU institutions for damages for breach of EU law were met. The final section of this chapter will focus on the scope of application of the EU Charter, which has formed the basis of many (unsuccessful, thus far) challenges to austerity measures.

The Council of Europe (CoE) and the European Union (EU) possess significant legal instruments to affect and reverse anti-democratic changes in Poland, and some of these instruments have already been used, with varying degrees of success. The chapter opens with the CoE’s, and in particular the Venice Commission and the European Court of Human Rights’ contributions to policing Polish assaults on the rule of law. It then turns to the EU, and reflects upon the question as to whether the EU—with its assortment of different measures of ‘naming and shaming’ (Art. 7.1 Treaty on European Union (TEU)), sanctions (Arts 7.2 and 7.3 TEU), and legal infringement actions, as well as its newly crafted ‘rule of law framework’ (also known as the pre-Article 7 procedure)—has been so far, and can be in the near future, effective in cabining and reversing anti-democratic trends in one of its largest member states. The conclusion is affirmative: the EU has an important, even if limited, role to play in assisting Polish defenders of the rule of law and democracy.

Taking the moment of imminent UK exit from the European Union as an opportunity to reflect on the mutual influence of the Court of Justice of the European Union (CJEU) and the English courts, this chapter examines the 113 preliminary references made by the higher English courts over a 10-year period to investigate two related questions. These are: first, the extent to which the CJEU’s rulings have been implemented by the British courts, and second, the extent to which the interpretations proposed by the UK courts may have influenced the CJEU. On the first question, the chapter’s findings indicate that it is very difficult to assess the extent to which the preliminary rulings of the CJEU were implemented by the referring UK courts, given the remarkable lack of information available about what happens following a preliminary ruling of the Luxembourg Court. On the second question, the chapter’s findings suggest that in the substantial number of cases in which the British courts advanced a proposed interpretation of EU law, the CJEU adopted that interpretation in a majority of those cases. Hence, even though the CJEU has rarely acknowledged the influence of national referring courts on its rulings, the cases referred from the higher UK courts over the past decade suggest that instead of a one-way relationship in which British courts were subject to the overriding authority of the CJEU, there was a process of mutual influence in which the Luxembourg court more often than not adopted the interpretation of EU law proposed by the British court.

This chapter starts from the premise that the Boards of Appeal as a remedy mechanism has become a standard institutional device for all EU agencies endowed with decision-making powers and explores the question how they should be assessed from the perspective of the right to an effective remedy under Article 47 of the Charter of Fundamental Rights. The chapter argues that Boards of Appeal are administrative bodies which offer an administrative remedy. For that reason, they do not come under Article 47 of the Charter and they cannot be used to replace the judicial remedy offered by the EU judicature. Overall however, they may still compensate for the weaknesses in relation to the right to an effective remedy of the judicial review and, thereby, strengthen the judicial protection afforded by EU Courts.

Three arguments point toward source-oriented EU Translation as the preferred alternative to current EU Translation practices. First, an original quantitative study of case law of the Court of Justice of the EU suggests that neologisms for EU legal concepts and syntactic correspondence between language versions is more likely to prevent discrepancies than pursue clarity and intelligibility. Second, the same case law demonstrates that legislative measures seeking far-reaching legal integration, such as in consumer contract law, call for a particular large degree of textual homogeny of its language version. Third, the work of language philosopher Donald Davidson helps illuminate the fact that the philosophical justification of a source-oriented approach avoids the pitfall of linguistic relativism that is afflicting theories proposing receiver-oriented translation. In all, these arguments signal that EU translators and lawyer–linguists of the EU legislative bodies had better prioritize syntactic correspondence and using neologisms over clarity and fluency.

This chapter identifies and reviews the elements of the external dimension that are relevant for a better understanding of the EU fundamental freedoms. Since the fundamental freedoms were developed mainly through court-made law, the extra-legal elements that will be used consist mainly of findings in the areas of jurisprudence, economics, sociology and political science concerning the nature of legal adjudication and judicial law-making in general, and the Court of Justice of the European Union in particular.

This chapter discusses two cases, L’Oréal SA and Others v. eBay International AG and Others and Google Spain SL Google Inc v. AEPD and Mario Costeja González—both major cases in which the EU Court of Justice was called on to enforce EU legislation regulating horizontal legal relations between private subjects, even though part of the conduct in question took place outside the EU. Determination of the territorial scope of application of substantive provisions of EU private law is a particularly complex challenge, due to the absence of explicit primary law provisions from which the EU Court of Justice might draw in developing rules on applying EU law to facts and action taking place outside the EU.

Chapter 11 examines the applicable standard of judicial review in risk regulation cases before the CJEU. The author analyses how the European Courts have moved from a deferential approach to a more restrictive one. As a result, they are more directly engaged in scientific questions through extensive proceduralization and review of the plausibility of evidence. The chapter observes that while such a new standard offers more possibilities for the EU Courts to construct the functioning of the internal market, influence national competences, institutional and normative structures, as well as play a role in the convergence of international standards through a strong reliance on scientific expertise, this is done at the cost of the disparity between a declared and a de facto intensity of review and the accompanying uncertainty in predicting possible outcomes in individual cases.

This chapter explores the place of Article 47 of the EU Charter of Fundamental Rights (right to an effective remedy) in European private law and assesses whether this provision could form the basis of a judge-made European law on remedies. In order to make this assessment, first, the development of the right to effective judicial protection in EU law is sketched and the relationship of EU fundamental rights to European private law is explained. Subsequently, instances of the application of Article 47 of the EU Charter of Fundamental Rights in the case law of the Court of Justice of the EU are examined (including Alassini, Kadi, Otis, and Fuß/Stadt Halle). In light of the contemplation of the influence of the right to effective judicial protection in European private law, finally, the thesis is elaborated that, within certain boundaries, Article 47 can indeed support the further judicial development of effective remedies in European private law.