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Between interpretation and application: case-specific CJEU judgments in the preliminary ruling procedure 在解释与适用之间:高等法院初审程序中的个案判决
Pub Date : 2023-10-31 DOI: 10.36969/njel.v6i3.25180
Jasper Krommendijk
The division of roles between the CJEU and national courts in the preliminary ruling procedure is clearly defined, at least on paper. The CJEU interprets EU law and the referring national court applies this interpretation to the case pending before it. In the literature, there are often complaints that this is different in practice and that the CJEU all too often steps into the domain of the national judge by not limiting itself to only interpreting EU law but also applying the interpretation to the national legal or factual context. Too much case specificity may put the referring court in a difficult position, especially in cassation appeals when the facts have already been established. Little is known as to whether the CJEU adheres to the clear ‘separation of functions’. This contribution analyses to what extent and why the CJEU abides by this division. It examines 55 judgments delivered during the period between 1 January 2020 and 22 March 2021 in response to questions from courts in five EU Member States (the Netherlands, Ireland, the Czech Republic, Sweden and Greece). This structured case law analysis aids the identification of factors that contribute to outcome-oriented judgments. The article also critically examines the approach of the CJEU from a normative perspective weighing the pros and cons.
欧洲法院和各国法院在初步裁决程序中的角色分工至少在纸面上有明确规定。欧洲法院解释欧盟法律,而提交的国家法院将这一解释适用于它面前的未决案件。在文献中,经常有人抱怨这在实践中是不同的,欧洲法院经常进入国家法官的领域,不仅限于解释欧盟法律,而且还将解释应用于国家法律或事实背景。过多的案件专门性可能会使移交法院陷入困境,特别是在事实已经确定的撤销上诉中。很少有人知道欧洲法院是否坚持明确的“职能分离”。这篇文章分析了欧洲法院在多大程度上以及为什么遵守这一划分。它审查了2020年1月1日至2021年3月22日期间作出的55项判决,以回应五个欧盟成员国(荷兰、爱尔兰、捷克共和国、瑞典和希腊)法院提出的问题。这种结构化的判例法分析有助于识别有助于以结果为导向的判决的因素。本文还从规范的角度审视了欧洲法院的做法,权衡了利弊。
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引用次数: 0
Solidarity and the Bond of Nationality in Union Citizenship Law 联盟国籍法中的团结与国籍纽带
Pub Date : 2023-09-09 DOI: 10.36969/njel.v6i2.25412
Katarina Hyltén-Cavallius
While solidarity as an ideal in the legal relationship between a host Member State and the non-national Union citizen has all but vanished from the discourse of EU free movement law, it has resurged in another line of case law concerning Union citizenship. The relationship between the Member States and their own nationals is at the centre of the case law on loss of Union citizenship rights under Article 20 TFEU. The bond of nationality between the individual and the state is there designated as one of ‘solidarity’ and ‘good faith’. This article argues that solidarity, as an ideal, is also relevant for understanding the case law dealing with returning, or naturalising Union citizens who have made use of freedom of movement under Article 21 TFEU. The article provides a discussion on the various expressions of solidarity as a component of the ideal bond of nationality between a Union citizen and their home Member State. Conclusively, it is argued that the meaning of the bond of nationality will continue to develop together with the legal evolution of Union citizenship.
虽然团结作为东道国与非本国联盟公民之间法律关系中的一种理想,几乎已经从欧盟自由流动法的话语中消失了,但它在另一种关于联盟公民身份的判例法中重新出现。成员国与其本国国民之间的关系是《欧盟条约》第20条规定的丧失欧盟公民权利的判例法的核心。个人与国家之间的民族纽带在这里被称为“团结”和“诚信”的纽带。本文认为,团结作为一种理想,也与理解处理根据《欧盟自由条约》第21条使用行动自由的欧盟公民返回或归化的判例法有关。这篇文章讨论了团结的各种表现形式,作为联盟公民与其母国之间理想的民族纽带的组成部分。最后,本文认为国籍纽带的意义将随着欧盟公民身份的法律演进而继续发展。
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引用次数: 0
The Constitutional Concept of Solidarity in Eu Law: Some Reflections on The Interrelationship Between Solidarity, Constituent Power, and Non-Domination 欧盟法中的团结宪制概念:关于团结、制宪权与非支配关系的思考
Pub Date : 2023-09-09 DOI: 10.36969/njel.v6i2.25416
Ester Herlin-Karnell
The notion of solidarity is a key constitutional concept in EU law, but its exact meaning remains somewhat vague. What, if anything, is ‘constitutional’ about solidarity we may readily ask? It could be argued that solidarity is connected to the structure of EU law and linked to the very idea of trust, loyalty, and interdependence between the Member States. Moreover, solidarity appears to have many traits that are similar to the notions of fairness and justice, and values in the EU. In this article, I will trace and discuss the similarities between solidarity on the one hand and other constitutional concepts such as the idea of a ‘constituent power’ and non-domination on the other in order to further clarify their meaning and interdependence.
团结的概念是欧盟法律中一个关键的宪法概念,但其确切含义仍然有些模糊。我们可以很容易地问,“宪法”中关于团结的含义是什么?可以说,团结与欧盟法律的结构有关,与成员国之间的信任、忠诚和相互依存的概念有关。此外,团结似乎有许多特征与欧盟的公平和正义概念和价值观相似。在本文中,我将追溯并讨论团结与其他宪法概念之间的相似之处,例如“制宪权力”和非统治的概念,以进一步澄清它们的含义和相互依存关系。
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引用次数: 0
EU Rulemaking in Response to Crisis: the Emergence of the Principle of Energy Solidarity and its Use 欧盟应对危机的规则制定:能源团结原则的出现及其应用
Pub Date : 2023-09-09 DOI: 10.36969/njel.v6i2.25414
Carl-Fredrik Bergström
This article presents an overview of the legal development in the energy market, within the general EU internal market, and focuses on the emergence of the principle of energy solidarity. The process has been premised on the inclusion of Article 194 TFEU in 2009 and the resulting shift of legal basis, from Article 114 TFEU. But the significant stages are more recent. The analysis takes its starting point in the ruling by the EU Court of Justice (Grand Chamber) in Case C-848/19 P, where the Court declared the existence of a principle of energy solidarity that both EU institutions and Member States must take into account in the normal operation of the internal market. Then, the article proceeds with an empirical assessment how that ruling has been exploited by the EU Commission and Legislature. The overall conclusion is that the principle defined by the Court in the context of Article 194 TFEU has enabled the EU Legislature to push the confines of its competences and, in that way, to respond to the energy crisis.
本文概述了欧盟内部市场中能源市场的法律发展,并着重介绍了能源团结原则的出现。这一进程的前提是2009年纳入了第194条TFEU,并由此改变了第114条TFEU的法律依据。但重要的阶段发生在最近。分析的起点是欧盟法院(大分庭)在C-848/19 P案中的裁决,法院宣布存在能源团结原则,欧盟机构和成员国在内部市场的正常运作中都必须考虑到这一原则。然后,文章继续对欧盟委员会和立法机构如何利用这一裁决进行实证评估。总的结论是,法院在第194条TFEU的背景下定义的原则使欧盟立法机构能够推动其权限的限制,并以这种方式应对能源危机。
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引用次数: 0
Building Social Solidarity Through Mutual Trust 通过相互信任构建社会团结
Pub Date : 2023-09-09 DOI: 10.36969/njel.v6i2.25411
Maribel González Pascual
Cases C-156/21 and C-152/21 established that the implementation of solidarity is based on mutual trust. This reference is of significant relevance given that trust is essential when risky decisions are made in troubled times. In this context, this article analyses whether mutual trust could be decisive to tackle unexpected challenges, such as the pandemic (or the war in Ukraine). With this goal in mind, the article dwells on the role of mutual trust in the EU. The article then examines the link between mutual trust and social solidarity in the program Next Generation EU. Finally, it inquires which kind of social solidarity might derive from mutual trust. The goal is to assess if mutual trust is a transformative principle that may trigger an impulse towards social solidarity within the EU.
第C-156/21号和第C-152/21号案例规定,团结的执行是基于相互信任。考虑到在困难时期作出危险决定时,信任是必不可少的,这一说法具有重要意义。在此背景下,本文分析了相互信任是否可以在应对意外挑战(如大流行(或乌克兰战争))方面发挥决定性作用。带着这一目标,本文详述了相互信任在欧盟中的作用。文章随后探讨了“下一代欧盟”项目中相互信任和社会团结之间的联系。最后,它探讨了哪种社会团结可能源于相互信任。目的是评估相互信任是否是一种可能引发欧盟内部社会团结冲动的变革性原则。
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引用次数: 0
Solidarity and the Crisis of Values in the European Union 欧盟的团结与价值观危机
Pub Date : 2023-09-09 DOI: 10.36969/njel.v6i2.25410
Xavier Groussot, Eleni Karaeorgiou
Looking at Article 2 TEU, this contribution considers that there is an external and an internal crisis of values: the former referring to challenges to EU values coming from individual Member States which prioritize their own agendas and the latter referring to the tension between a liberal and more solidarity-driven understanding of the EU’s foundations as it stems from the very wording of Article 2 TEU. In an attempt to unpack solidarity and offer a better understanding of its nature, scope and legal implications for the EU and its Member States, this contribution proceeds as follows: first, it studies solidarity within a specific methodological and theoretical framework based on a ‘structured network of EU principles’ established by the CJEU in the post-Lisbon era. Second, it operates under the assumption that a holistic understanding of EU solidarity requires us to go beyond the dominant form of solidarity based on the relationship between Member States (‘interstate solidarity’) and to explore the relationships between individuals (‘interpersonal solidarity’). Our key argument is that a larger institutional recognition of ‘interpersonal solidarity’ has the potential to put the social question more squarely on the table and, as such, to enable the EU to better address the polycrisis it is facing. A ‘Scellian approach’ to EU solidarity - which places the person at the heart of the theoretical framework and as the real subject of solidarity is useful to adopt as a source of inspiration in such an endeavour.
看看第2条TEU,这篇文章认为存在外部和内部价值观危机:前者指的是对欧盟价值观的挑战,这些价值观来自于优先考虑自己议程的个别成员国,后者指的是自由主义和更团结驱动的对欧盟基础的理解之间的紧张关系,因为它源于第2条TEU的措辞。在试图解开团结,并提供一个更好的理解其性质,范围和对欧盟及其成员国的法律影响,这一贡献如下:首先,它研究团结在一个特定的方法和理论框架内,基于一个“结构化的欧盟原则网络”由欧洲法院建立后里斯本时代。其次,它是在一个假设下运作的,即对欧盟团结的整体理解要求我们超越基于成员国之间关系(“国家间团结”)的主要团结形式,并探索个人之间的关系(“人际团结”)。我们的主要论点是,更大的机构对“人际团结”的认可有可能将社会问题更直接地摆在桌面上,因此,使欧盟能够更好地解决它所面临的多重危机。欧盟团结的“Scellian方法”——将人置于理论框架的核心,并作为团结的真正主体——在这种努力中作为灵感的来源是有用的。
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引用次数: 0
The Odd Couple: a Legal Reflection on the Interaction Between Loyalty and Solidarity in the EU Legal System 奇数对:欧盟法律体系中忠诚与团结互动的法律反思
Pub Date : 2023-09-09 DOI: 10.36969/njel.v6i2.25413
Federico Casolari
This contribution seeks to explore the legal interaction between loyalty and solidarity at EU level, also when it comes to crisis situations. Section 1 identifies the major features of the principle of loyalty – also known today as principle of sincere cooperation – and briefly illustrates the role that the principle plays in the EU legal order. After having stressed the multifaceted nature of the concept of solidarity in the EU legal order, Section 2 discusses the possible interactions this concept may have with loyalty in securing the constitutional framework of the Union. Section 3 traces the ways in which loyalty and solidarity may interact in crisis scenarios. The major findings of the analysis are summarized in Section 5.
这篇文章旨在探讨欧盟层面的忠诚和团结之间的法律互动,也涉及到危机情况。第1节确定了忠诚原则的主要特征——今天也被称为真诚合作原则——并简要说明了该原则在欧盟法律秩序中所起的作用。在强调了欧盟法律秩序中团结概念的多面性之后,第2节讨论了这一概念在确保欧盟宪法框架的忠诚方面可能产生的相互作用。第3节追溯了忠诚和团结在危机情景中可能相互作用的方式。第5节总结了分析的主要发现。
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引用次数: 0
Solidarity Through the Lens of Functional Constitutionalism 功能宪政视角下的团结
Pub Date : 2023-09-09 DOI: 10.36969/njel.v6i2.25417
Eduardo Gill-Pedro
This article investigates solidarity as a concept and/or a norm of EU law from the perspective of functional constitutionalism. It asks how solidarity fits within the normative framework of the EU legal order if we understand this framework as being founded on a functional constitution. Under functional constitutionalism, the EU is understood as a purposive polity and the authority of the legal order is justified, not by reference to popular sovereignty and individual rights, but from the functional requirements ordained by the purposes, or objectives, of that polity. From this perspective, the normative value of solidarity in EU law is contingent on effectiveness. Where the effective achievement of EU objectives requires Member States to act in solidarity to each other, or to exercise transnational solidarity towards citizens of other Member States, then EU law will impose a duty on them to do so. Conversely, if the exercise of national solidarity within the Member State undermines the effective achievement of EU objectives, then EU law will impose a duty on those Member States not to allow such exercise. The article concludes that, through the lens of functional constitutionalism, solidarity has a purely instrumental value within the EU normative order.
本文从功能宪政的角度考察团结作为欧盟法律的概念和/或规范。它提出的问题是,如果我们将欧盟法律秩序的规范框架理解为建立在一部功能性宪法之上,那么团结如何符合这个框架。在功能宪政主义下,欧盟被理解为一个有目的的政体,法律秩序的权威是合理的,不是通过参考人民主权和个人权利,而是根据该政体的目的或目标所规定的功能要求。从这个角度来看,欧盟法律中团结的规范价值取决于有效性。如果欧盟目标的有效实现需要成员国彼此团结一致,或对其他成员国的公民实行跨国团结,那么欧盟法律将规定他们有义务这样做。相反,如果在成员国内部行使民族团结破坏了欧盟目标的有效实现,那么欧盟法律将对这些成员国施加不允许这种行使的义务。本文的结论是,通过功能性宪政的视角,团结在欧盟规范秩序中具有纯粹的工具价值。
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引用次数: 0
Solidarity in the EU: What Is In A Name? 欧盟的团结:一个名字意味着什么?
Pub Date : 2023-09-09 DOI: 10.36969/njel.v6i2.25409
Esin Küçük
The jurisprudence on EU solidarity is rapidly expanding. Notably, the Court of Justice of the EU has progressively recognized the principle of solidarity in its rulings, elevating it to constitutional status. However, as the legal scope of solidarity widens, its scope of application and meaning become increasingly complex. This article seeks to refine our understanding of solidarity as a constitutional principle of EU law. Focused on the Court’s case law, the article maps the evolution of solidarity as a constitutional principle and unpacks the ways in which solidarity has given rise to novel interpretations and extended its sphere of influence. The article concludes that while the meaning and arguably the scope of the principle have expanded, such evolution comes with its set of challenges. The intrinsic dependency of solidarity on specific relational and situational contexts raises a significant obstacle for its conceptualization as a fundamental principle underpinning the EU legal order, particularly if it has legal implications. Consequently, the article argues that elevating solidarity to a fundamental principle of EU law - one that permeates the entire legal structure of the EU and has legal consequences - would be premature until the practical manifestation of solidarity matures beyond the confines of inter-Member-State relations. The article suggests that solidarity might be more accurately conceptualized as a fundamental value rather than an all-encompassing constitutional principle of EU law.
有关欧盟团结的判例正在迅速扩大。值得注意的是,欧盟法院在其裁决中逐渐承认团结原则,并将其提升为宪法地位。但是,随着团结的法律范围的扩大,其适用范围和意义也日趋复杂。本文旨在完善我们对团结作为欧盟法律的宪法原则的理解。这篇文章以法院的判例法为重点,描绘了团结作为一项宪法原则的演变,并揭示了团结是如何产生新的解释和扩大其影响范围的。文章的结论是,虽然该原则的意义和范围已经扩大,但这种演变也带来了一系列挑战。团结的内在依赖于特定的关系和情境背景,这对将其概念化为支撑欧盟法律秩序的基本原则提出了重大障碍,特别是如果它具有法律含义。因此,本文认为,将团结提升为欧盟法律的一项基本原则——一项渗透到欧盟整个法律结构并具有法律后果的原则——在团结的实际表现超越成员国间关系的范围成熟之前是不成熟的。这篇文章认为,团结可能更准确地被定义为一种基本价值,而不是欧盟法律中无所不包的宪法原则。
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引用次数: 0
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Nordic journal of european law
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