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The extent and manner of judicial activism of the European Court of Justice in the area of Justice and Home Affairs

The extent and manner of judicial activism of the European Court of Justice in the area of Justice and Home Affairs

Literature on this topic can be traced back to the 1960s. Stein (1981) would later produce one of the more well-known articles on this topic concerning the question if the ECJ was following the Commission’s integrational goals with its activism. However most literature on this topic was written during the 1990s and has significantly expanded in the following years (Mancini & Keeling, 1994). A great portion of this literature has argued that the European Court of Justice is an activist court (see Alter, 1998; Mancini & Keeling, 1994; Davies, 2012; Weiler, 1991). These scholars have pointed out that through its case law over the years it has increased its powers significantly in four cases: Van Gend en Loos, 1 Costa v ENEL 2 , Cassis de Dijon 3 and Dassonville. 4 Van Gend en Loos increased the possible applicants to the ECJ through the introduction of direct effect. In Costa v ENEL, the ECJ asserted itself as the supreme court regarding EC matters. Cassis de Dijon and Dassonville broadened the scope of the Common Market provisions and consequently expanded the court’s competences. Despite these views being the prevailing opinion on this subject, there have also been opposing views on this matter (Grimmel 2012). Although the overall consensus on this topic in literature has been that the ECJ is an activist court, in recent
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Transforming the European legal order: The European Court of Justice at 60+

Transforming the European legal order: The European Court of Justice at 60+

The European Court of Justice has played a pivotal role in the transformation of international law obligations between Member States into an integrated legal order with direct applicability and effect in those Member States. This article explores whether or not the ECJ continues to be relevant to EU governance and integration and whether it continues to transform the legal orders of the Member States. It briefly outlines the early case law which transformed the legal order, and the preliminary reference procedure as an important element of that transformation, and then considers the extent to which the ECJ continues to act in ways which are transformational even though the legal order itself has remained relatively static. The EU citizenship jurisprudence serves as a useful example of how integration is driven forward by the Court. This article argues that the Court’s decisions do continue to have significant impact on areas of law and policy and EU governance generally. It illustrates this argument using gender equality law and Human Rights as pertinent examples and concludes that the ECJ remains relevant in governance terms as it continues to drive forward EU integration in many areas and influence the development of law and policy across the Member States.
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The European Court of Justice Case of Breyer

The European Court of Justice Case of Breyer

In the era of e-communications after the revelations of Edward Snowden 22 concerning the alleged mass surveillance of millions of people by the US National Security Agency (NSA), netizens 23 are rightly concerned about the power of national intelligence agencies to intercept, read and listen to their online communications. Indeed the blanket, indiscriminate and routine retention of traffic and location data in the EU, such as IP address data, as authorised by the Data Retention Directive was declared illegal by the European Court of Justice in its seminal case of Digital Rights Ireland, in 2014. 24 Further, the European Court of Justice, more recently in December 2016, in the joined cases of Tele2 25 and Watson 26 , declared that Swedish and UK domestic law authorising the general retention of communications data, including IP addresses, was incompatible with the EU E-privacy Directive, Directive 2002/58. The European Court of Justice considered that IP addresses should only be retained for the purposes of detecting, prosecuting and investigating serious crimes. Additionally, such retention must be done in a targeted and specific way. This privacy-enhancing judgment of the European Court was only made possible by its earlier reasoning in Breyer.
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The Past, Present and Future of the Relation between the European Court of Justice and the European Court of Human Rights

The Past, Present and Future of the Relation between the European Court of Justice and the European Court of Human Rights

Abstract: Opinion 2/13, by which the CJEU declared incompatible with the EU treaties the long-negotiated draft agreement on EU accession to the ECHR, came as a shock to many observers. Yet, the relation between the ECJ and the ECtHR has a glorious past, and can continue to have a bright future. While the dust kicked up by Opinion 2/13 settles, the article takes a step back and puts the ruling of the CJEU in a wider context. It recalls the long-standing historical relations between the CJEU and the ECtHR, and discusses the possible scenarios that may open up in the future. In particular, it claims that, even in the aftermath of Opinion 2/13, a virtuous competition between the CJEU and the ECtHR can have beneficial effect for the protection of fundamental rights, as evidenced by the case of judicial review of targeted UN sanctions. At a time of increasing frustration and preoccupation on the relation between the CJEU and the ECtHR, the article strikes a note of opti- mism, suggesting that the interaction between the two European supranational courts can still play a positive role for fundamental rights in Europe.
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The Principle of Proportionality in the Jurisprudence of the Court of Justice of the European Union

The Principle of Proportionality in the Jurisprudence of the Court of Justice of the European Union

The Commission objected before the Court a law of the Italian state which required prior authorization and payment of administrative expenses in connection with the manufacture and importation of food products for sportsmen. The European Court of Justice in accordance with the established jurisprudence stated that Italian law constituted a measure having equivalent effect to quantitative restrictions and therefore it falled in the field of regulation of Article 28 of the ECT. The Italian government was defended by arguing that the measure was justified in order to protect public health as defined in Article 30 of the ECT.
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The Court of Justice of the European Communities.

The Court of Justice of the European Communities.

each comprising 3 or 5 Judges J 15 Judgos and 1110 9 Advocates General for 6 years • Actions for failure to fulfil Treaty obligations Commission against a Member State, or Member State a[r]

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Synopsis of the work of the Court of Justice of the European Communities in 1972

Synopsis of the work of the Court of Justice of the European Communities in 1972

Dealing with preliminary questions referred to it by the courts of the Member States, the Court of Justice has, in 1972, given 30 judgments interpreting provisions of Community law conce[r]

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Synopsis of the work of the Court of Justice of the European Communities in 1973

Synopsis of the work of the Court of Justice of the European Communities in 1973

During 1973 the Court of Justice of the European Communities has delivered 80 judgments: 27 in direct actions and 53 in cases referred to the Court for preliminary rulings by the nationa[r]

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Synopsis of the work of the Court of Justice of the European Communities in 1977

Synopsis of the work of the Court of Justice of the European Communities in 1977

Community case-law A - Statistical i11jormation Judgments delivered During 1977 the Court of Justice of the European Communities delivered 101 judgments :1 12 in direct actions excluding[r]

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Information on the Court of Justice of the European Communities. No. IV, 1978

Information on the Court of Justice of the European Communities. No. IV, 1978

2759/75 of the Council on the common organization of the market in pigmeat and a number of provisions of the Treaty relating to the abolition of quantitative restrictions Article 30 et s[r]

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Information on the Court of Justice of the European Communities. No. II, 1978

Information on the Court of Justice of the European Communities. No. II, 1978

816/70, in so far as it authorizes producer Member States to introduce and levy in intra-Community trade in the products coming under the common organization of the market established by[r]

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Information on the Court of Justice of the European Communities. No. I, 1978

Information on the Court of Justice of the European Communities. No. I, 1978

In reply to the question which was referred to the Court, the Court held that Article 30 of the EEC Treaty must be interpreted as meaning that the fixing by a national authority of a min[r]

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Synopsis of the work of the Court of Justice of the European Communities in 1978

Synopsis of the work of the Court of Justice of the European Communities in 1978

rurthermore, in accordance with the principle of the precedence of Community law, it follows from the provisions of the Treaty and of directly applicable measures of the institutions tha[r]

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Information on the Court of Justice of the European Communities. No. IV, 1979

Information on the Court of Justice of the European Communities. No. IV, 1979

v Council and Commission of the European Communities Opinions delivered by Mr Advocate General Reischl on 20 June 1978 and 23 October 1979 Non-contractual liability - Legislative measure[r]

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Information on the Court of Justice of the European Communities. No. III, 1979

Information on the Court of Justice of the European Communities. No. III, 1979

That is why the national court submitted the following question to the Court of Justice: "Is the application of British weights and measures legislation to milk produced and packaged in [r]

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Information on the Court of Justice of the European Communities. No. III, 1978

Information on the Court of Justice of the European Communities. No. III, 1978

The first question amounts in substance to asking whether the prohibition on measures having an effect equivalent to a quantitative restriction Article 30 of the Treaty and the general p[r]

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Information on the Court of Justice of the European Communities. No. I, 1979

Information on the Court of Justice of the European Communities. No. I, 1979

same regulation, according to which refunds granted and intervention undertaken "in accordance with the Community rules" within the framework of the common organization of agricultural m[r]

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Mutual Trust Before the Court of Justice of the European Union

Mutual Trust Before the Court of Justice of the European Union

Obviously, in everyday practice the acceptance as equivalent of action taken by an- other Member State authority may pose problems. A case in point is the application of Art. 54 of the CISA which requires, inter alia , that a person’s trial has been “finally dis- posed of” in one of the Member States. How should one assess whether or not this is the case while respecting at the same time the principle of mutual trust? The authorities of one Member State should in principle accept at face value a final decision communi- cated to them by another Member State. However, in Kossowski , for instance, the Court acknowledged that “when it is clear from the statement of reasons for that decision that the procedure was closed without a detailed investigation having been carried out”, that decision cannot be characterized as a final in the sense of Art. 54 of the CISA and “the fact that neither the victim nor a potential witness was interviewed is an indication that no such investigation took place”. 44 Yet, this certainly does not mean the authorities of
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The Concept of Intent in Rulings of the Court of Justice of the European Union

The Concept of Intent in Rulings of the Court of Justice of the European Union

The Court has opted for an autonomous and uniform interpretation of intent.The question remains why the Court did not choose for a general description of the concept of intent and then give a derivative explanation per regulation or directive. The Court’s acceptance of dolus eventualis, the lowest form of intent generally recognized in doctrine, will, I suspect, lead to various cases before the Court, Not only because accepting the lowest form of intent will probably give rise to difficulties for national courts who do not recognize dolus eventualis, simply because it is not part of their daily legal vocabulary, but also because it is not clear why the Court has chosen for this form of intent and not for a broader concept description of negligence. Not accepting strict liability, and ruling that a beneficiary of aid must have acted intentionally or negligently, is not new, but the manner in which the Court described how a beneficiary of aid may be held responsible for an act committed by a third party, is. 41 What is interesting, is that a beneficiary of aid is responsible for non-compliance, because he is held responsible as if he committed the act of non-compliance himself. As a consequence, it must to be established that the beneficiary of aid acted intentionally or negligently. This is because intent or negligence are necessary to establish liability.To establish whether the beneficiary of aid acted intentionally or negligently, national authorities must take into account the choice for, the instructions to, or the monitoring of the third party. Whether these criteria are enumerated alternatively or cumulatively is at present unclear. It is not unthinkable that the criteria of instructions and monitoring are of the most value, in particular because they are more closely linked to the actual non-compliance of the third party. The question is whether it is desirable to use the criterion of the choice of the third party to establish liability of the beneficiary of aid.
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The Court of Justice of the European Community. 4th Edition. European Documentation 5/1986

The Court of Justice of the European Community. 4th Edition. European Documentation 5/1986

Furthermore, in accordance with the principle of the precedence of Community law, the relationships between provisions of the Treaty and directly applicable measures of the institutions [r]

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