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The Court of Justice has delivered an extensive body of caselaw concerning the obligation of domestic courts to provide effective judicial protection to claimants relying upon Community law rights - including such landmark judgments as Factortame and Francovich. This book offers a critical analysis of the Court's fast-changing approach to national procedural autonomy,and explores the difficult conceptual framework underpinning the caselaw. The author demonstrates how Community intervention in the domestic systems of judicial protection cannot remain unaffected by wider debates about the evolving European integration project, in particular, the tension between uniformity and differentiation as competing values influencing the exercise of Community regulatory competence. Because of its emphasis on an ideal of uniformity which has become increasingly untenable within the contemporary Community legal order, much of the existing academic discourse about national remedies and procedural rules now seems ripe for reconsideration. It is argued that the Court's jurisprudence on the decentralised enforcement of Treaty norms needs to be interpreted afresh, having regard to the recent growth of regulatory differentiation within the Community system. National Remedies Before the Court of Justice provides a challenging account of this crucial field of EU legal studies. It includes detailed discussion of issues such as Member State liability in damages, Community control over national limitation periods, and the principles governing state aid and competition law enforcement. This book is of value to academics and practitioners alike.
This book includes detailed discussion of issues such as Member State liability in damages, Community control over national limitation periods, and the principles governing state aid and competition law enforcement.
The ongoing reform in the organisation of the European Union courts makes an updated edition of this indispensable resource essential. Following the book established easy-to-use structure, the second edition offers a reliable, thorough guide to the renewed rules of procedure of the Court of Justice and the General Court as well as updated provisions and practice directions, including the relevant case law, together with a focus on the extensive treatment of remedies available in these courts and how to secure them. With the expert guidance of one of Europe foremost jurists, the book clearly explains which rules apply and how to proceed in the course of any kind of case and any situation likely to arise. From foundations and principles to specific issues regarding the assignment of cases, preliminary rulings, rules on evidence, annulment, illegality, failure to act, pleas, judgments and orders, appeal and much more, the book covers all essential elements of Court of Justice of the European Union procedure, including the following: division of competences between the Union courts; admissibility; rules regarding anonymity; service of documents; setting and extension of time limits, hearings, witnesses and experts; deposit and recovery of sums; application of competition rules, rules on state aid and rules on trade protection; rules in cases concerning intellectual property rights; rules in actions brought on the basis of an arbitration agreement; rules governing access to documents; languages; legal aid; interim measures; damages; expedited procedures; and scope of the rules on costs. Any lawyer seeking appropriate remedies in any case before the European Union courts will benefit enormously from this book, whether used as a hands-on manual in particular cases or absorbed over time. It is sure to serve as an essential resource for many years to come.
Dinah Shelton provides a comprehensive treatment of remedies for human rights violations reviews the jurisprudence of international tribunals on these violations. The text provides a theoretical framework and a practical guide for lawyers, judges, and academics interested in human rights law.
"This book describes and explains the failure of the federal courts of the United States to act and to provide remedies to individuals whose constitutional rights have been violated by illegal state coercion and violence. This remedial vacuum must be understood in light of the original design and historical development of the federal courts. At its conception, the federal judiciary was assumed to be independent thanks to an apolitical appointment process, a limited supply of adequately trained lawyers (which would prevent cherry-picking), and the constraining effect of laws and constitutional provision. Each of these checks quickly failed. As a result, the early federal judicial system was highly dependent on Congress. Not until the last quarter of the nineteenth century did a robust federal judiciary start to emerge, and not until the first quarter of the twentieth century did it take anything like its present form. The book then charts how the pressure from Congress and the White House has continued to shape courts behaviour-first eliciting a mid-twentieth-century explosion in individual remedies, and then driving a five-decade long collapse. Judges themselves have not avidly resisted this decline, in part because of ideological reasons and in part out of institutional worries about a ballooning docket. Today, as a result of these trends, the courts are stingy with individual remedies, but aggressively enforce the so-called "structural" constitution of the separation of powers and federalism. This cocktail has highly regressive effects, and is in urgent need of reform"--
Appearing at a time when the ancient problem of the individual versus the state once again occupies the minds of thinking Europeans, this important new book thoroughly evaluates the judicial system of the European Union, fully describing the nature of the judicial protection available to individuals, undertakings, and member States. With attention to the rapid and continuing development of the Community legal order, Schermers and Waelbroeck provide a much-needed perspective on the reasoning of the European Court of Justice in significant decisions, especially recent cases, and shed revealing light on how the rule of law may develop in future. An introductory chapter offers a masterful description of how Treaty provisions, Community acts, international law, and national legal orders interact in the procedures and decisions of the Court of Justice. Further chapters provide analysis and insight into such matters as the following: the crucial role of national courts as guarantors of the rights of individuals in Community law the validity of acts taken by Community institutions and member States, and protection against them the delivery of non-judicial opinion and other tasks of the Court of Justice the composition, function, and rules of procedure of the Court the organisation of the Court of First Instance and the appeal procedure against its decisions. Judicial Protection in the European Union is organised to facilitate its prodigious reference value. All important cases are examined, and abundant footnotes clearly indicate relevant precedents in each case. This is a fundamental source for students of European law, as well as a basic reference for practitioners and a valuable analysis of the strengths and weaknesses of the European system of judicial protection.
This eagerly awaited new edition has been significantly revised after extensive user feedback to meet current teaching requirements. The first major textbook to be published since the rejuvenation of the Lisbon Treaty, it retains the best elements of the first edition – the engaging, easily understandable writing style, extracts from a variety of sources showing the creation, interpretation and application of the law and comprehensive coverage. In addition it has separate chapters on EU law in national courts, governance and external relations reflecting the new directions in which the field is moving. The examination of the free movement of goods and competition law has been restructured. Chapter introductions clearly set out what will be covered in each section allowing students to approach complex material with confidence and detailed further reading sections encourage further study. Put simply, it is required reading for all serious students of EU law.
The preliminary reference procedure under Article 267 TFEU is the keystone of the EU judicial system and its legal order. Based on a dialogue between the Court of Justice and national courts, it is strictly linked to the protection of the rights that individuals derive from EU law. This book focuses on this procedure from the perspective of the right to effective judicial protection, in light of Article 19(1), second subparagraph, TEU and Article 47 of the Charter of Fundamental Rights of the EU. It explores the level of protection that is ensured to individuals in order to access to the Court of Justice through preliminary references on the validity of EU acts and on the interpretation of EU law. The book offers a threefold perspective on preliminary references, through an analysis of the case law of the Court of Justice itself, of the European Court of Human Rights in relation to Article 6(1) ECHR, and of the constitutional courts of Austria, Croatia, Czech Republic, Germany, Slovakia, Slovenia, and Spain, where the national courts’ refusals to refer can lead to the violation of national constitutional rights. It further investigates the obligations for Member States and national courts in the framework of the preliminary reference procedure and how the right to effective judicial protection affects them. The examination outlines the implications that could flow from the recognition of a right for individuals to have a question referred to the ECJ, as part of the right to effective judicial protection under EU law, in particular its nature and its enforcement. Building upon the existing system of sanctions for the violations of the obligation to submit a preliminary question, the book advances some proposals to rethink the current system of remedies.
In this 2004 book, Professor Amerasinghe examines the local remedies rule in terms of both historical and modern international law. He considers both the customary international law as well as the application of the rule to, among others, human rights protection and international organizations. Material includes bilateral investment treaties and state contracts. The law is dealt with in the light of state practice and the jurisprudence of international courts and tribunals. The book also ventures into important areas such as the incidence of the rule, limitations, the burden of proof and the application of the rule to procedural remedies, in which the law is less clear. It adheres to the requirements of juristic exposition and analysis where the law has been determined, but at the same time Amerasinghe offers criticisms and suggestions for improving the law in the light of modern policy considerations.