{"title":"The Quest for a (Fully-Fletched) Theoretical Framework: Co-implication, Embeddedness and Interdependency between Public International Law and EU Law","authors":"Violeta Moreno-Lax, Paul Gragl","doi":"10.1093/YEL/YEW016","DOIUrl":"https://doi.org/10.1093/YEL/YEW016","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"120 1","pages":"455-470"},"PeriodicalIF":0.4,"publicationDate":"2016-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87867341","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Correction Notice Exercise of EU Competences and Pre-emption of Member States’ Powers in the Internal and the External Sphere: Towards ‘Grand Unification’?","authors":"Amedeo Arena","doi":"10.1093/YEL/YEW029","DOIUrl":"https://doi.org/10.1093/YEL/YEW029","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"31 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2016-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74613307","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper challenges established visions of EU legal enforcement by testing them in the context of criminal law theory and asks to what extent EU law can be enforced against non-compliant Member States via the use of criminal law. A main theme running through this article is the basic question as to what extent the EU legislator needs criminal law provisions for the enforcement of EU law. The paper does this by looking at the effect of administrative sanctions and their link to criminal law sanctions. In addition, the paper assesses the wider theoretical implications for the enforcement of EU law through criminal law and specifically when the values of the EU and those of the Member States are in conflict. Critically, the paper asks if the EU enforcement toolkit is sufficiently nuanced when applied in a criminal law context and sets out to chart the genesis of EU law enforcement through the use of criminal law theory. This seems particularly relevant to the discussion of enforcement in general, given that the operation of EU law essentially and chiefly concerns the values to be enforced in the national arena.
{"title":"The Challenges of EU Enforcement and Elements of Criminal Law Theory: On Sanctions and Value in Contemporary ‘Freedom, Security and Justice’ Law","authors":"E. Herlin-Karnell","doi":"10.1093/YEL/YEW005","DOIUrl":"https://doi.org/10.1093/YEL/YEW005","url":null,"abstract":"This paper challenges established visions of EU legal enforcement by testing them in the context of criminal law theory and asks to what extent EU law can be enforced against non-compliant Member States via the use of criminal law. A main theme running through this article is the basic question as to what extent the EU legislator needs criminal law provisions for the enforcement of EU law. The paper does this by looking at the effect of administrative sanctions and their link to criminal law sanctions. In addition, the paper assesses the wider theoretical implications for the enforcement of EU law through criminal law and specifically when the values of the EU and those of the Member States are in conflict. Critically, the paper asks if the EU enforcement toolkit is sufficiently nuanced when applied in a criminal law context and sets out to chart the genesis of EU law enforcement through the use of criminal law theory. This seems particularly relevant to the discussion of enforcement in general, given that the operation of EU law essentially and chiefly concerns the values to be enforced in the national arena.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"134 1","pages":"291-317"},"PeriodicalIF":0.4,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79470063","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Working Paper presents the first results of a research project on the application of Francovich State liability by national courts. The project is supervised by Prof. Hans-W. Micklitz (EUI) and Prof. Takis Tridimas (KCL). Research has been undertaken in ten Member States to identify all cases in which State liability on the basis of the Francovich criteria was claimed in national courts. For each case researchers were asked to complete a case sheet. Finally, they were asked to write a short report with the results for their Member State. The conclusion analyses some of the trends. It is clear that, while national courts have not opposed the application of the conditions for Francovich State liability, they are still struggling to integrate these conditions in their national laws on State liability. The result can only be described as something of a hybrid, which requires further analysis in the future. It is hoped that this Working Paper will provide a sound basis for further research.
{"title":"Bottom up or rock bottom harmonization? : Francovich state liability in national courts","authors":"R. Condon, B. V. Leeuwen","doi":"10.1093/YEL/YEW004","DOIUrl":"https://doi.org/10.1093/YEL/YEW004","url":null,"abstract":"The Working Paper presents the first results of a research project on the application of Francovich State liability by national courts. The project is supervised by Prof. Hans-W. Micklitz (EUI) and Prof. Takis Tridimas (KCL). Research has been undertaken in ten Member States to identify all cases in which State liability on the basis of the Francovich criteria was claimed in national courts. For each case researchers were asked to complete a case sheet. Finally, they were asked to write a short report with the results for their Member State. The conclusion analyses some of the trends. It is clear that, while national courts have not opposed the application of the conditions for Francovich State liability, they are still struggling to integrate these conditions in their national laws on State liability. The result can only be described as something of a hybrid, which requires further analysis in the future. It is hoped that this Working Paper will provide a sound basis for further research.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"112 1","pages":"229-290"},"PeriodicalIF":0.4,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79615913","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Second Yellow Card on the EPPO Proposal: An Encouraging Development for Member State Parliaments?","authors":"D. Fromage","doi":"10.1093/YEL/YEV024","DOIUrl":"https://doi.org/10.1093/YEL/YEV024","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"462 1","pages":"5-27"},"PeriodicalIF":0.4,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76510629","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Age of Dignity, Human Rights and Constitutionalism in Europe by Catherine Dupré","authors":"J. C. Knight","doi":"10.1093/YEL/YEW007","DOIUrl":"https://doi.org/10.1093/YEL/YEW007","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"231 1","pages":"715-719"},"PeriodicalIF":0.4,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74473493","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Legal uncertainty is a universal feature of primary legal materials in all legal systems. The need for judicial interpretation arises from the fact of legal certainty in legal texts. In theory, judicial interpretation is a process which should be governed and constrained by legal methodology. The law must impose methodological constraint, because in the absence of methodological constraint the judicial process would be little more than arbitrary. The judicial process in national or domestic legal systems is governed by broad criteria and traditions specific to each system, although in practice there is considerable convergence as to the various approaches judges may apply. Formally Treaty Interpretation in international law is governed by the rules of the Vienna Convention on the Law of Treaties.1 Unfortunately, however, just as legal uncertainty can never be wholly eliminated in primarily legal materials—whether in statutes or in treaties—there is no legal system where the accepted rules of interpretation and those governing their application are not likewise subject to legal uncertainty. Judicial discretion therefore is a fact of judicial life. The academic literature nonetheless distinguishes between courts whose interpretative approach is primarily text based and those which more liberally draw on other alternative criteria, especially teleological and policy criteria. Courts of the former type seek to minimize judicial discretion, typically ideal for cases where the text itself is ambiguous, whilst courts of the latter type expand judicial discretion beyond the sphere of textual uncertainty and seek to interpret legal instruments with reference both to the text and its underlying objects and purposes, which may be construed narrowly or more widely, and not
{"title":"The Macro Level: The Structural Impact of General International Law on EU Law: The Court of Justice of the EU and the Vienna Convention on the Law of Treaties","authors":"G. Beck","doi":"10.1093/yel/yew018","DOIUrl":"https://doi.org/10.1093/yel/yew018","url":null,"abstract":"Legal uncertainty is a universal feature of primary legal materials in all legal systems. The need for judicial interpretation arises from the fact of legal certainty in legal texts. In theory, judicial interpretation is a process which should be governed and constrained by legal methodology. The law must impose methodological constraint, because in the absence of methodological constraint the judicial process would be little more than arbitrary. The judicial process in national or domestic legal systems is governed by broad criteria and traditions specific to each system, although in practice there is considerable convergence as to the various approaches judges may apply. Formally Treaty Interpretation in international law is governed by the rules of the Vienna Convention on the Law of Treaties.1 Unfortunately, however, just as legal uncertainty can never be wholly eliminated in primarily legal materials—whether in statutes or in treaties—there is no legal system where the accepted rules of interpretation and those governing their application are not likewise subject to legal uncertainty. Judicial discretion therefore is a fact of judicial life. The academic literature nonetheless distinguishes between courts whose interpretative approach is primarily text based and those which more liberally draw on other alternative criteria, especially teleological and policy criteria. Courts of the former type seek to minimize judicial discretion, typically ideal for cases where the text itself is ambiguous, whilst courts of the latter type expand judicial discretion beyond the sphere of textual uncertainty and seek to interpret legal instruments with reference both to the text and its underlying objects and purposes, which may be construed narrowly or more widely, and not","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"365 1","pages":"484-512"},"PeriodicalIF":0.4,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80331331","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The EU’s relationship with international law as interpreted by the Court of Justice of the EU (CJEU) has taken a sharp constitutional turn in Opinion 2/13 which emphasized the autonomy of the EU legal order. Against the background of an analysis that the CJEU adopted an increasingly restrictive and closed approach to international law, which culminated in elevating autonomy to something akin to a constitutional principle, this article explores an alternative to the EU’s approach to international law, which could be an ‘old new’ paradigm for the interaction of EU law and international law. It examines how and how far the mechanisms of interpretation can be used as a tool to facilitate a more open and harmonious relationship between the EU and the international legal order. The article argues that a procedural requirement to engage openly can avoid conflicts between legal orders, such as the EU and the international legal order. The principle of ‘systemic integration’ provides the legal basis for this interpretative method. Against the backdrop of a fundamentally open approach, not all divergence or conflict is negative; on the contrary, it can be the source of mutual influence, enrichment and cross-fertilization, and re-affirmation of international law as a coherent legal system. It could help develop the EU legal order and derive legitimacy for such developments through openness and interaction. Systemic integration is thus the antipode of invoking the ‘autonomy’ of a legal order. The article reviews the relationship between international and EU law in relation to forms (mechanisms) and paradigms of interaction which reflect a more open or closed approach of EU law towards international law (II). It then briefly reflects on the benefits and disadvantages of the more open or closed paradigms (III) to proceed to explore in detail the paradigm and mechanisms of systemic harmonization as a basic model for the interaction of EU and international law which avoids conflicts but allows room for constitutionalization and affirmation of the international legal order and its law-making processes (IV). The concluding section reflects on risks and opportunities of systemic harmonization (V).
{"title":"Beyond Pluralism and Autonomy: Systemic Harmonization As a Paradigm for the Interaction of EU Law and International Law","authors":"Katja S. Ziegler","doi":"10.1093/YEL/YEW024","DOIUrl":"https://doi.org/10.1093/YEL/YEW024","url":null,"abstract":"The EU’s relationship with international law as interpreted by the Court of Justice of the EU (CJEU) has taken a sharp constitutional turn in Opinion 2/13 which emphasized the autonomy of the EU legal order. Against the background of an analysis that the CJEU adopted an increasingly restrictive and closed approach to international law, which culminated in elevating autonomy to something akin to a constitutional principle, this article explores an alternative to the EU’s approach to international law, which could be an ‘old new’ paradigm for the interaction of EU law and international law. It examines how and how far the mechanisms of interpretation can be used as a tool to facilitate a more open and harmonious relationship between the EU and the international legal order. The article argues that a procedural requirement to engage openly can avoid conflicts between legal orders, such as the EU and the international legal order. The principle of ‘systemic integration’ provides the legal basis for this interpretative method. Against the backdrop of a fundamentally open approach, not all divergence or conflict is negative; on the contrary, it can be the source of mutual influence, enrichment and cross-fertilization, and re-affirmation of international law as a coherent legal system. It could help develop the EU legal order and derive legitimacy for such developments through openness and interaction. Systemic integration is thus the antipode of invoking the ‘autonomy’ of a legal order. The article reviews the relationship between international and EU law in relation to forms (mechanisms) and paradigms of interaction which reflect a more open or closed approach of EU law towards international law (II). It then briefly reflects on the benefits and disadvantages of the more open or closed paradigms (III) to proceed to explore in detail the paradigm and mechanisms of systemic harmonization as a basic model for the interaction of EU and international law which avoids conflicts but allows room for constitutionalization and affirmation of the international legal order and its law-making processes (IV). The concluding section reflects on risks and opportunities of systemic harmonization (V).","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"86 1","pages":"667-711"},"PeriodicalIF":0.4,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76213799","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Meso Level: Means of Interaction between EU and International Law: 'Good Fences Make Good Neighbors' and Beyond... Two Faces of the Good Neighborliness Principle","authors":"Elena Basheska, D. Kochenov","doi":"10.1093/yel/yew017","DOIUrl":"https://doi.org/10.1093/yel/yew017","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"6 1","pages":"562-588"},"PeriodicalIF":0.4,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81934538","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Macro Level: The Structural Impact of General International Law on EU LawInternational Legal Personality of the European Communities and the European Union: Inspirations from Public International Law","authors":"N. Blokker","doi":"10.1093/YEL/YEW021","DOIUrl":"https://doi.org/10.1093/YEL/YEW021","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"48 1","pages":"471-483"},"PeriodicalIF":0.4,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85436733","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：