Pub Date : 2023-10-31DOI: 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.
{"title":"Between interpretation and application: case-specific CJEU judgments in the preliminary ruling procedure","authors":"Jasper Krommendijk","doi":"10.36969/njel.v6i3.25180","DOIUrl":"https://doi.org/10.36969/njel.v6i3.25180","url":null,"abstract":"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.","PeriodicalId":489206,"journal":{"name":"Nordic journal of european law","volume":"115 ","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135872349","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}
Pub Date : 2023-09-09DOI: 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.
{"title":"Solidarity and the Bond of Nationality in Union Citizenship Law","authors":"Katarina Hyltén-Cavallius","doi":"10.36969/njel.v6i2.25412","DOIUrl":"https://doi.org/10.36969/njel.v6i2.25412","url":null,"abstract":"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.","PeriodicalId":489206,"journal":{"name":"Nordic journal of european law","volume":"2016 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136191897","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}
Pub Date : 2023-09-09DOI: 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.
{"title":"The Constitutional Concept of Solidarity in Eu Law: Some Reflections on The Interrelationship Between Solidarity, Constituent Power, and Non-Domination","authors":"Ester Herlin-Karnell","doi":"10.36969/njel.v6i2.25416","DOIUrl":"https://doi.org/10.36969/njel.v6i2.25416","url":null,"abstract":"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.","PeriodicalId":489206,"journal":{"name":"Nordic journal of european law","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136192488","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}
Pub Date : 2023-09-09DOI: 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.
{"title":"EU Rulemaking in Response to Crisis: the Emergence of the Principle of Energy Solidarity and its Use","authors":"Carl-Fredrik Bergström","doi":"10.36969/njel.v6i2.25414","DOIUrl":"https://doi.org/10.36969/njel.v6i2.25414","url":null,"abstract":"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.","PeriodicalId":489206,"journal":{"name":"Nordic journal of european law","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136192694","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}
Pub Date : 2023-09-09DOI: 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.
{"title":"Building Social Solidarity Through Mutual Trust","authors":"Maribel González Pascual","doi":"10.36969/njel.v6i2.25411","DOIUrl":"https://doi.org/10.36969/njel.v6i2.25411","url":null,"abstract":"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.","PeriodicalId":489206,"journal":{"name":"Nordic journal of european law","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136193068","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}
Pub Date : 2023-09-09DOI: 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.
{"title":"Solidarity and the Crisis of Values in the European Union","authors":"Xavier Groussot, Eleni Karaeorgiou","doi":"10.36969/njel.v6i2.25410","DOIUrl":"https://doi.org/10.36969/njel.v6i2.25410","url":null,"abstract":"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.","PeriodicalId":489206,"journal":{"name":"Nordic journal of european law","volume":"183 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136192761","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}
Pub Date : 2023-09-09DOI: 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.
{"title":"The Odd Couple: a Legal Reflection on the Interaction Between Loyalty and Solidarity in the EU Legal System","authors":"Federico Casolari","doi":"10.36969/njel.v6i2.25413","DOIUrl":"https://doi.org/10.36969/njel.v6i2.25413","url":null,"abstract":"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.","PeriodicalId":489206,"journal":{"name":"Nordic journal of european law","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136192487","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}
Pub Date : 2023-09-09DOI: 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.
{"title":"Solidarity Through the Lens of Functional Constitutionalism","authors":"Eduardo Gill-Pedro","doi":"10.36969/njel.v6i2.25417","DOIUrl":"https://doi.org/10.36969/njel.v6i2.25417","url":null,"abstract":"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.","PeriodicalId":489206,"journal":{"name":"Nordic journal of european law","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136192335","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}
Pub Date : 2023-09-09DOI: 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.
{"title":"Solidarity in the EU: What Is In A Name?","authors":"Esin Küçük","doi":"10.36969/njel.v6i2.25409","DOIUrl":"https://doi.org/10.36969/njel.v6i2.25409","url":null,"abstract":"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.","PeriodicalId":489206,"journal":{"name":"Nordic journal of european law","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136192700","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}