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Chapter

Cover International Law

13. The Relationship between International and National Law  

Eileen Denza

This chapter examines the relationship between international and national law. It discusses the approach of international courts and tribunals; the approach of national parliaments and national courts; and some problems that arise in national courts. While prospects for a harmonized approach to the relationship between international and national law are dim, conflict can be avoided through the close involvement of international lawyers in the treaty-making and ratification process; attention at the time of ratification to implementation questions; the teaching of international law as part of the professional training of judges; and expert assistance to national courts when international law questions arise.

Chapter

Cover EU Law

9. The Application of EU Law: Remedies in National Courts  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter examines the application of EU law by national courts and the way in which the CJEU controls national remedies for breach of EU law. Article 19 of the Treaty on European Union contains a new clause added by the Lisbon Treaty, which specifies that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. Article 47 of the Charter of Fundamental Rights provides that ‘[e]veryone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article’. However, beyond these broad new provisions, EU law does not lay down any general scheme of substantive or procedural law governing remedies for its enforcement. The European Court of Justice has responded to the lack of a harmonized system of EU remedies by requiring national courts, in certain cases, to make available a particular type of remedy (e.g., restitution or interim relief), regardless of whether this would be available under national law. The UK version contains a further section analysing issues concerning remedies and EU law in relation to the UK post-Brexit.

Chapter

Cover EU Law

9. The Application of EU Law: Remedies in National Courts  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter examines the application of EU law by national courts and the way in which the CJEU controls national remedies for breach of EU law. Article 19 of the Treaty on European Union contains a new clause added by the Lisbon Treaty, which specifies that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. Article 47 of the Charter of Fundamental Rights provides that ‘[e]veryone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article’. However, beyond these broad new provisions, EU law does not lay down any general scheme of substantive or procedural law governing remedies for its enforcement. The European Court of Justice has responded to the lack of a harmonized system of EU remedies by requiring national courts, in certain cases, to make available a particular type of remedy (e.g., restitution or interim relief), regardless of whether this would be available under national law. The UK version contains a further section analysing issues concerning remedies and EU law in relation to the UK post-Brexit.

Chapter

Cover EU Law

10. The Relationship Between EU Law and National Law: Supremacy  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter discusses the doctrine of supremacy of EU law, which was developed by the European Court of Justice (ECJ) based on its conception of the ‘new legal order’. The ECJ ruled that the aim of creating a uniform common market between different states would be undermined if EU law could be made subordinate to national law of the various states. The validity of EU law can therefore, according to the ECJ, never be assessed by reference to national law. National courts are required to give immediate effect to EU law, of whatever rank, in cases that arise before them, and to ignore or to set aside any national law, of whatever rank, which could impede the application of EU law. Thus, according to the ECJ, any norm of EU law takes precedence over any provision of national law, including the national constitutions. This broad assertion of the supremacy of EU law has not however been accepted without qualification by national courts, and the chapter examines the nature of the qualifications that have been imposed by some national courts. The UK version contains a further section analysing the relevance of the supremacy of EU law in relation to the UK post-Brexit.

Chapter

Cover EU Law

10. The Relationship Between EU Law and National Law: Supremacy  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter discusses the doctrine of supremacy of EU law, which was developed by the European Court of Justice (ECJ) based on its conception of the ‘new legal order’. The ECJ ruled that the aim of creating a uniform common market between different states would be undermined if EU law could be made subordinate to national law of the various states. The validity of EU law can therefore, according to the ECJ, never be assessed by reference to national law. National courts are required to give immediate effect to EU law, of whatever rank, in cases that arise before them, and to ignore or to set aside any national law, of whatever rank, which could impede the application of EU law. Thus, according to the ECJ, any norm of EU law takes precedence over any provision of national law, including the national constitutions. This broad assertion of the supremacy of EU law has not however been accepted without qualification by national courts, and the chapter examines the nature of the qualifications that have been imposed by some national courts. The UK version contains a further section analysing the relevance of the supremacy of EU law in relation to the UK post-Brexit.

Chapter

Cover Jacobs, White, and Ovey: The European Convention on Human Rights

12. The Right to a Fair Trial in Civil and Criminal Cases  

This chapter examines the provisions of the European Convention on Human Rights (ECHR) on the right to a fair trial in criminal and civil cases, explaining that Article 6 of ECHR holds that the Strasbourg Court has no jurisdiction to reopen national legal proceedings or to substitute its own findings of fact for the conclusions of national courts. The chapter examines the interpretation by the Strasbourg Court of the protections provided by Article 6 in the extensive jurisprudence on this Article and discusses issues concerning the overall requirements of a fair hearing, right of access to court, and the extraterritorial effect of Article 6.

Chapter

Cover Brownlie's Principles of Public International Law

6. Recognition of states and governments  

This chapter begins with a discussion of the ‘declaratory’ and ‘constitutive’ views of recognition. According to the declaratory view, the legal effects of recognition are limited: recognition is a declaration or acknowledgement of an existing state of law and fact, legal personality having been conferred previously by operation of law. The declaratory theory of recognition is opposed to the constitutive view, according to which the political act of recognition is a precondition of the existence of legal rights: in its extreme form this implies that the very personality of a state depends on the political decision of other states. Discussion then turns to the distinction between recognition of states and recognition of governments, collective non-recognition and sanctions, and issues of recognition before national courts.

Chapter

Cover Cases & Materials on International Law

8. Jurisdictional Sovereignty  

A State’s administrative, judicial, executive and legislative activity is part of the exercise of its sovereignty, sometimes known as its jurisdictional sovereignty. This chapter examines the objects of a State’s jurisdictional sovereignty (both natural and legal persons) and the circumstances in which it may be exercised. It considers the general principles of jurisdiction; grounds for the assertion of jurisdiction by national courts; and state jurisdiction and persons apprehended in violation of international law.

Chapter

Cover EU Law

14. Preliminary Rulings  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter focuses on Article 267 of the Treaty on the Functioning of the European Union, which contains the preliminary ruling procedure. Article 267 has been of seminal importance for the development of EU law. It is through preliminary rulings that the European Court of Justice (ECJ) has developed concepts such as direct effect and supremacy. Individuals assert in national courts that the Member State has broken a Union provision, which gives them rights that they can enforce in their national courts. The national court seeks a ruling from the ECJ whether the particular EU provision has direct effect, and the ECJ is thereby able to develop the concept. Article 267 has been the mechanism through which national courts and the ECJ have engaged in a discourse on the appropriate reach of EU law when it has come into conflict with national legal norms. The UK version contains a further section analysing the extent to which the preliminary reference system is relevant in relation to the UK post-Brexit.

Chapter

Cover EU Law

14. Preliminary Rulings  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter focuses on Article 267 of the Treaty on the Functioning of the European Union, which contains the preliminary ruling procedure. Article 267 has been of seminal importance for the development of EU law. It is through preliminary rulings that the European Court of Justice (ECJ) has developed concepts such as direct effect and supremacy. Individuals assert in national courts that the Member State has broken a Union provision, which gives them rights that they can enforce in their national courts. The national court seeks a ruling from the ECJ whether the particular EU provision has direct effect, and the ECJ is thereby able to develop the concept. Article 267 has been the mechanism through which national courts and the ECJ have engaged in a discourse on the appropriate reach of EU law when it has come into conflict with national legal norms. The UK version contains a further section analysing the extent to which the preliminary reference system is relevant in relation to the UK post-Brexit.

Chapter

Cover Steiner and Woods EU Law

10. The Preliminary Ruling Procedure  

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

Chapter

Cover Steiner and Woods EU Law

7. Framework for Enforcement  

This chapter outlines the framework for enforcement of European Union (EU) law, and describes the various actions that may be brought before the Court of Justice (CJ). In interpreting the relevant provisions of the Treaty on the Functioning of the European Union (TFEU), the CJ has played a key role in the enforcement of EU law, especially with its insistence on the effective protection of individuals’ Union rights. The chapter also explains the significance of judicial review in the EU legal order by focusing on the jurisdiction of the CJ in the appeal cases originating from the General Court (GC). Finally, the chapter outlines how questions of infringement of EU law can also be raised in the national legal system.

Chapter

Cover Complete EU Law

6. Preliminary references  

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter considers the procedure whereby a national court may make a preliminary reference to the Court of Justice under Article 267 TFEU and receive a preliminary ruling on the questions which it has referred. The chapter examines the questions of law that may be referred to the Court of Justice; the criteria for the ‘court or tribunal’ which may make a reference; from which courts a reference is discretionary and from which it will be mandatory; references concerning the interpretation and validity of EU law; national courts’ decision-making process in preliminary references and the relevant guidelines and exceptions; procedures in the Court of Justice for dealing with preliminary references under Article 267 TFEU; and the effects of a preliminary ruling.

Chapter

Cover European Union Law

10. Judicial protection and EU remedies  

Albertina Albors-Llorens

This chapter provides an overview of the various procedural avenues to the Court of Justice of the European Union. It uses as a template the division between two main sets of proceedings: direct actions and preliminary references. Direct actions are brought directly either before the Court of Justice or the General Court; these are dealt with in their entirety by these courts. By contrast, preliminary references begin before a national court. When this court encounters a question on the interpretation or the validity of EU law, it may (or sometimes must) make a preliminary reference on this particular point to the Court of Justice.

Chapter

Cover European Union Law

10. Judicial protection before the Court of Justice of the European Union  

Albertina Albors-Llorens

This chapter provides an overview of the various procedural avenues to the Court of Justice of the European Union. It uses as a template the division between two main sets of proceedings: direct actions and preliminary references. Direct actions are brought directly either before the Court of Justice or the General Court; these are dealt with in their entirety by these courts. By contrast, preliminary references begin before a national court. When this court encounters a question on the interpretation or the validity of EU law, it may (or sometimes must) make a preliminary reference on this particular point to the Court of Justice.

Chapter

Cover International Law

15. International criminal law  

This chapter looks at the purposes and principles of international criminal law. International criminal law seeks to ensure that perpetrators of certain heinous acts are criminally liable for their acts, either before national or international criminal courts or tribunals. It is a fairly recent addition to international law and it was not until after the end of the Second World War that it became accepted that international law authorizes the criminal prosecution of individual perpetrators of serious offences. The chapter begins by discussing the most important sources of international criminal law. It then examines the prosecution of international crimes before international criminal courts, including the conditions for prosecuting suspected international criminals before the International Criminal Court. It also discusses the national prosecution of international crimes and the obligation found in a number of conventions to criminalize and prosecute certain conduct.

Chapter

Cover Essential Cases: EU Law

Cartesio (Case C-210/06), EU:C:2008:723, [2008] ECR I-9641, 16 December 2008  

Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Cartesio (Case C-210/06), EU:C:2008:723, [2008] ECR I-9641, 16 December 2008. The document also includes supporting commentary from author Noreen O’aMeara.

Chapter

Cover Essential Cases: EU Law

Cartesio (Case C-210/06), EU:C:2008:723, [2008] ECR I-9641, 16 December 2008  

Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Cartesio (Case C-210/06), EU:C:2008:723, [2008] ECR I-9641, 16 December 2008. The document also includes supporting commentary from author Noreen O’Meara.

Chapter

Cover Steiner & Woods EU Law

10. The preliminary ruling procedure  

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

Chapter

Cover Steiner & Woods EU Law

7. Framework for enforcement  

This chapter outlines the framework for enforcement of European Union (EU) law, and describes the various actions that may be brought before the Court of Justice (CJ). In interpreting the relevant provisions of the Treaty on the Functioning of the European Union (TFEU), the CJ has played a key role in the enforcement of EU law especially with its insistence on the effective protection of individuals’ Union rights. The chapter also explains the significance of judicial review in the EU legal order by focusing on the jurisdiction of the CJ in the appeal cases originating from the General Court (GC). Finally, the chapter outlines how questions of infringement of EU law can also be raised in the national legal system.