Suchergebnisse

On October 6, 2021, the European Court of Justice (ECJ) handed down Opinion 1/19 on the conclusion of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention). Based on a request by the European Parliament, the Opinion was rendered under Article 218(11) of the Treaty on the Functioning of the European Union (TFEU), which enables the Court to rule on the compatibility with EU law of international agreements envisaged, but not yet concluded, by the Union. The Opinion is about, on the one hand, the legal basis under the EU Treaties and, on the other hand, the procedure pursuant to which the EU and its member states may conclude the Convention.

This article argues that, in the context of international investment law, the principle of autonomy need not be construed as broadly as the recent judgment in Achmea suggested. The Court's approach in this case is formalist, inward looking and hostile to the harmonious co-existence between eu and international law. The article argues, however, that this conception of autonomy should be confined to the specific legal and policy context of investment agreements between Member States of the Union. A careful reading of Achmea supports this view. There are also sound conceptual, legal, and policy reasons that militate for a more open approach to autonomy when it comes to the Union's trade agreements with third countries.

AbstractA stream of recent judgments by the Grand Chamber of the European Court of Justice has shed light on the procedures that govern treaty-making by the European Union. This article explores how this case law approaches the principle of institutional balance and the duty of cooperation between the institutions. It argues that the former is construed in a balanced manner on the basis of a literal interpretation of primary law that promotes strict compliance with procedural rules and does not favour a particular institution. As for the duty of cooperation, whilst its procedural dimension is strengthened, its scope remains somewhat elusive. The analysis identifies a pragmatic streak in the Court's balanced approach, and argues that there is an inherent limit to the impact of constitutional law on inter-institutional disputes. Ultimately, the less time and energy the institutions waste on turf wars about their procedural powers, the greater their contribution to inceasing the efficiency of the Union's treaty-making practice.

AbstractThe EU's Common Foreign and Security Policy (CFSP) was conceived of as an area ill-suited for full judicial review by the Court of Justice of the European Union. The Lisbon Treaty confers on the Court limited jurisdiction which the recent case law has interpreted in broad terms. This article will place this case law in the broader constitutional setting of the EU legal order and will provide a critical analysis of its implications for both the EU's and domestic courts. The analysis is structured on the basis of three main themes. The first is about the position of CFSP in the EU's constitutional architecture: the article will analyse the constitutional ambivalence that characterizes this position and how it is conveyed by the provisions of the Treaty on the European Union and the Treaty on the Functioning of the European Union governing the Court's jurisdiction. The second theme is about the recent case law, and the integrationist approach that the Court of Justice has adopted to the scope of its jurisdiction. The third theme is about national courts: the article will argue that recent case law has been too quick to dismiss them, and that primary law renders them an essential part of the judicial review system governing CFSP.