Download e-book The Passivity of Law: Competence and Constitution in the European Court of Justice

Free download. Book file PDF easily for everyone and every device. You can download and read online The Passivity of Law: Competence and Constitution in the European Court of Justice file PDF Book only if you are registered here. And also you can download or read online all Book PDF file that related with The Passivity of Law: Competence and Constitution in the European Court of Justice book. Happy reading The Passivity of Law: Competence and Constitution in the European Court of Justice Bookeveryone. Download file Free Book PDF The Passivity of Law: Competence and Constitution in the European Court of Justice at Complete PDF Library. This Book have some digital formats such us :paperbook, ebook, kindle, epub, fb2 and another formats. Here is The CompletePDF Book Library. It's free to register here to get Book file PDF The Passivity of Law: Competence and Constitution in the European Court of Justice Pocket Guide.

  • The Wisdom of Juries? · Netherlands Journal of Legal Philosophy · BJu Tijdschriften?
  • Lunch in a Flash.
  • Unstoppable Court: The European Court of Justice and EU Sovereignty!

One Polish judge described this attitude as being "rather passive" in this respect. A common observation which often followed was that neither the parties, nor the lawyers ever relied on Community law to any meaningful extent. As a result, one Polish judge observed that accession to the European Union had not resulted in any tangible change in his daily work.

A French appeal court judge commented that many judges still did not realise that Community law applied beyond cross-border cases. A French judge commented that he perceived Community law "with fear" because it was an unknown body of law which was difficult to access and that lawyers had even more trouble accessing it than judges.

A further recurring worry was the sheer extent of Community secondary legislation, and the impression that it is continually evolving and increasing in quantity and complexity. Several judges, including some who showed considerable enthusiasm and interest in Community law, considered that keeping up to date in specific areas was particularly challenging. Respondents regularly expressed concern at the fact that their workload made any in-depth examination of Community law issue very difficult indeed, if not impossible.

This point was reinforced by the perception that one needed to invest significantly more time to gain a satisfactory understanding of a point of Community law than the time needed for a similar examination of domestic law. Several judges were hostile to the influence of Community law over national law. One German judge from a financial court was of the opinion that the influence of Community law increased the risk of "bad" judgments and undermined legal certainty.

One German judge criticised the fact that first instance judges rarely had the technical means to get to grips with Community law, and the initiative rests most often with highly qualified lawyers. Several judges who were never taught EU law during their studies due to their age, including one French judge sitting in an appeal court and one German judge in his mid sixties found the Community legal order particularly challenging. A number of judges from "new" Member States looked very much to the future.

Publications

Several judges felt insecure when applying Community law. The legal tradition was not as familiar and the methods of interpretation were different than those normally used. One administrative judge felt that Community law had a dimension which she could not grasp in her daily work. On the other hand, a sizeable minority of judges clearly felt more comfortable having direct contact with Community law, considering it to be an "obvious reality".

One Italian judge claimed to be well aware of the implications of being a first judge of Community law, but only hoped that colleagues in other Member States felt the same way. A further respondent considered that, although this reality was becoming increasingly obvious to judges, parties and lawyers were not necessarily following suit.

An Austrian judge who admitted being initially hostile to Community law commented that, the more he applied it, the more "self-evident" it became. A German administrative judge went further to consider that the role was "thrilling but difficult" because Community law was still relatively new and not supported by adequate training and library facilities.

Two administrative courts in Germany made the point that it was a good thing that most questions of Community law could be immediately clarified at first instance without multiple appeals. It was counter-productive to only consider these points in higher national courts because this dragged cases on unnecessarily. A French commercial judge stated that first instance judges were often on the "front line" of Community law, and often in face of opposition from higher national courts.

Another German judge was constantly "accompanied" by Community law.

How the Court works – the basics

Whilst, it did not take center stage im Vordergrund , it was however always there at the back of his mind im Hinterkopf. Several respondents specifically referred to their use of instruments in the field of judicial cooperation in civil matters Article 61 c EC , in particular the Brussels I Regulation, the Legal Aid Directive and the Regulation on Service of Documents One judge considered that Community law was particularly vital in the area of consumer protection, but that most national colleagues failed to perceive this.

According to two judges from different supreme courts, it was sometimes difficult to determine whether the acte clair doctrine applied to a given case. The most apparent reason for this was that it was hard to ascertain whether any national court in another Member State had considered a similar issue and what its decision had been. A chart reflecting these results is to be found on p.

Firstly, a few judges were of the opinion that Community law should become a core or mandatory course in university law degrees, as is already the case in some Member States. A French judge considered that Community law was sometimes not sufficiently integrated into national curricula in areas where Community competence had been widely exercised. Respondents insisted even more on the importance of Community law training, particularly on the preliminary ruling procedure, when it came to national schools for future magistrates and judges.

There were several recurrent suggestions on the subject of professional training for practising judges.

First of all, training had to be free of charge for judges. One judge considered that such training was in the public interest, and part of the service offered to the public. A German labour court judge found that there was great demand for such courses, but that places were limited and that a financial contribution was often requested from participants. Secondly, training had to be regular, or even constant, with some judges considering it would only be effective if it was made mandatory. There was also substantial demand for more specialised courses and here an opposite trend was noticeable, with judges sometimes requesting that such specialised courses be organised at a European level for example in the form of a conference with participants from other Member States.

Fourthly, general training had to reach the largest possible number of national judges from all court levels. Finally training was referred to by several judges as important for motivational reasons. Community law was a daunting body of law, and courses could help overcome certain doubts in this respect. A large number of mainly Polish, but also Hungarian, Slovenian, Bulgarian, Romanian and German judges demanded that national training be more practical and less focused on theory.

This should include case studies or workshops with experts. Numerous respondents from a very balanced array of Member States noted the importance of exchange programmes for judges within the EU. The most important aspect was the opportunity to discuss matters of common concern with judges from other Member States and see how they deal with similar problems in a different judicial context. According to a German judge, exchanges were key to judges "thinking outside of their national box", and thus broadening their horizons. A certain amount of frustration was also expressed in relation to the perceived shortage of places for participants on exchange programmes.

For example, one judge considered that only judges working in the justice ministry could participate, whereas another judge considered exchange programmes to be reserved for a privileged elite but did not state any particular reason why. This section also incorporates responses which called for more contact between national judges, in the form of specialised networks for example, but falling short of an actual exchange. A German judge highlighted the importance of having a personal, as opposed to an anonymous, connection with judges in other Member States.

A judge from a supreme court commented that exchanges of view between judges from all over the EU was even essential in order to apply the acte clair doctrine, which required the national judge to check what other results domestic courts had reached and whether the diversity of interpretive outcomes reached was liable to prejudice the uniform application of Community law.

One first instance judge from Italy recommended EU subsidisation of online forums to discuss issues of common concern, and also stressed that the foreign language skills of individual judges was a determining factor and sometimes a barrier to entry in such interaction on a transnational level. However, such exchanges required personal engagement and even inspiration. One judge had participated in an exchange and was particularly enthusiastic about discovering aspects of another legal system and was available for further initiatives.

I. Introduction

The other two respondents were content with what EJTN offered, but considered that the opportunities available was both insufficient and not well enough known by national judges. A substantial number of judges wanted to see more fostering of a common legal culture in Europe of which Community law formed an integral part.

For example, a French first instance commercial judge commented that Community law must not be seen as an area reserved for an elite of specialists, but rather be part of the everyday life of lawyers and judges. Similarly a German administrative judge stated that Community law had to become natural in the consciousness of judges and the public. A German respondent from a financial court made the point that in fact the judge had a huge responsibility with regard to Community law. In cases where citizens' rights were affected, they could rely of various Community instruments; but in the case of a breach of the Habitats Directive 17 , for example, the environment could not similarly "speak up" and therefore the judge had to be particularly vigilant.

Another judge found that national views on the role of the judiciary should be to some extent be brought closer together, as regional difference were currently very considerable. It was argued that such interpenetration had taken place long ago for lawyers. A French judge argued that greater osmosis between national and Community courts could be conducive to creating a common judicial culture in Europe.

The issue of e-learning featured occasionally in the answers received. One Slovenian judge made the point that some older judges were unfamiliar with new technologies and preferred the printed medium. Several judges nevertheless saw the internet as a potentially useful tool for self-training. It was also emphasised that this should be complementary to, and not a substitute for, face to face contact between judges.

Several judges commented specifically on the seminars offered by ERA. The feedback was that such courses were either good or essential, but that the question of financing the participation in such courses had to be addressed, which is the same point as that made above in relation to training generally. Three judges mooted the idea of a European agency or body whose task it would be to offer training courses in Community law at European level without replacing the primary role of national authorities.

One Portuguese respondent called for such European courses to be mandatory, and for national training bodies to then take example on the European courses offered.

In This Article

One judge from a supreme administrative court considered that the creation of such a body was essential to make Community law into "living law", that is, law which was applied at national level. The respondent noted that unfortunately national experts on Community law in administrations and courts were often not the ones brought to apply Community law on the ground. A French judge recommended that the techniques used for drafting judgments in each Member State should be studied and, to some extent, harmonised. Many judges called for more information on Community law. The general fear was that of not being properly updated in a specific area, given that Community law was a very fast-moving body of law.

The danger of saturating judges was also highlighted by a few respondents for whom a balance had to be struck between a chronic lack of information on the one hand, and a flood of documents on the other.

freesemenin.tk

Substance and form in criminal law

For instance, an Austrian judge found that information on Community law available on the internet was presented in a disorderly fashion, making it unclear whether a particular document was the latest available version or already obsolete. Information was requested in the judge's mother tongue. Specific information about the preliminary reference procedure was often mentioned, as were information on latest developments in Community law, and on the division of competences between Member States and Community.

Many judges, particularly from "new" Member States by decreasing order of frequency: Poland, Slovenia, Lithuania, Hungary , touched on several aspects relating to the academic world and research.


  • Shop by category.
  • 1. Introduction?
  • You are here.
  • Offshore Structures: Volume I: Conceptual Design and Hydromechanics?

A supreme court judge noted the difficulty in accessing academic works published in other Member States. A financial judge in Germany concurred and commented on the lack of cross-border linkage of research in the field of Community law. Furthermore, books on Community law were both expensive and not widely available to the public.

A Polish judge added that currently, her court could not afford to purchase such books given their price. Respondents were strongly of the opinion that any essential academic commentaries or books should be accessible in the language of the judge, however widely spoken that language was. One judge called for Community-funded translation of a selection of well-established publications. Finally, both a magistrate acting as an adviser to a court of cassation and a first instance judge encouraged the further development of academic literature in the field of Community law.

It was insufficiently represented in national legal journals for instance, and often published too late. A considerable number of respondents called for a regular newsletter on Community law matters, but also on judgments in other Member States relevant to their subject area.