Comments for Adjudicating Europe http://adjudicatingeurope.eu Wed, 08 Sep 2010 10:11:02 +0000 http://wordpress.org/?v=2.6.2 Comment on Guest Blogger: Felix Schulyok on Mangold is not ultra-vires by Felix Schulyok http://adjudicatingeurope.eu/?p=487#comment-14114 Felix Schulyok Thu, 02 Sep 2010 12:48:50 +0000 http://adjudicatingeurope.eu/?p=487#comment-14114 It, unfortunately, seems like this is exactly what the FCC meant. The new aspects of Honeywell are, however, that the FCC restrained itself considerably. It, as a first step, has to ask for a preliminary ruling on the matter (this is also an element of de-escalation in the spirit of cooperation between the courts). As a second step the FCC can still declare that the act in question was ultra-vires, but only if the strict conditions set out in Honeywell are fulfilled, namely if the breach of competences was sufficiently serious. However, it seems to me that a situation in which the FCC will declare an act by the EU institutions invalid will never arise under this model developed in Honeywell. As only sufficiently serious and obvious breaches of the powers conferred upon the EU are ultra-vires and the Court of Justice can rule upon the question before the FCC can do so, it seems most likely that the Court of Justice will decide that the act by an institution that breached its competences in such a serious manner is invalid. Cases, on the other hand, that are not as straightforward and clear-cut don't fall under the ultra-vires definition and will, thus, not be declared invalid by the FCC. In that way a judicial conflict between the Court of Justice and the FCC can be avoided. It, unfortunately, seems like this is exactly what the FCC meant. The new aspects of Honeywell are, however, that the FCC restrained itself considerably. It, as a first step, has to ask for a preliminary ruling on the matter (this is also an element of de-escalation in the spirit of cooperation between the courts). As a second step the FCC can still declare that the act in question was ultra-vires, but only if the strict conditions set out in Honeywell are fulfilled, namely if the breach of competences was sufficiently serious.
However, it seems to me that a situation in which the FCC will declare an act by the EU institutions invalid will never arise under this model developed in Honeywell. As only sufficiently serious and obvious breaches of the powers conferred upon the EU are ultra-vires and the Court of Justice can rule upon the question before the FCC can do so, it seems most likely that the Court of Justice will decide that the act by an institution that breached its competences in such a serious manner is invalid. Cases, on the other hand, that are not as straightforward and clear-cut don’t fall under the ultra-vires definition and will, thus, not be declared invalid by the FCC. In that way a judicial conflict between the Court of Justice and the FCC can be avoided.

]]> Comment on Guest Blogger: Felix Schulyok on Mangold is not ultra-vires by T.N. http://adjudicatingeurope.eu/?p=487#comment-13993 T.N. Wed, 01 Sep 2010 15:12:09 +0000 http://adjudicatingeurope.eu/?p=487#comment-13993 Very interesting. I, however, do not really understand the paragraph on Article 267 TFEU. On the one hand, the FCC namely confirms that it has the final say when it comes to ruling upon the question whether EU-institutions went beyond their powers. On the other hand, the FCC will only do so after is has asked for a preliminairy ruling at the Court of Justice. It is, however, not indicated whether the outcome of the Court actually matters. In other words: is the FCC still allowed to rule that the EU-institutions went beyond their powers if the Court has reached an opposite outcome? Very interesting. I, however, do not really understand the paragraph on Article 267 TFEU.
On the one hand, the FCC namely confirms that it has the final say when it comes to ruling upon the question whether EU-institutions went beyond their powers.
On the other hand, the FCC will only do so after is has asked for a preliminairy ruling at the Court of Justice. It is, however, not indicated whether the outcome of the Court actually matters. In other words: is the FCC still allowed to rule that the EU-institutions went beyond their powers if the Court has reached an opposite outcome?

]]> Comment on Is the Court of Justice Worried about Accession to the ECHR? by Plons http://adjudicatingeurope.eu/?p=482#comment-13795 Plons Mon, 30 Aug 2010 13:18:14 +0000 http://adjudicatingeurope.eu/?p=482#comment-13795 This also offers an interesting perspective on the judgment in Joined Cases C?188/10 and C?189/10 Melki. If the ECJ is to become a doomestic jurisdiction from the perspective of the ECHR it sure must at least be certain it will have its say first, and thus all MS procedures that may result in fundamental rights issues being dealt with, especially in last instance, without ECJ involvement will be treated as suspect. This also offers an interesting perspective on the judgment in Joined Cases C?188/10 and C?189/10 Melki. If the ECJ is to become a doomestic jurisdiction from the perspective of the ECHR it sure must at least be certain it will have its say first, and thus all MS procedures that may result in fundamental rights issues being dealt with, especially in last instance, without ECJ involvement will be treated as suspect.

]]> Comment on The Committee Shows its Teeth by Liis http://adjudicatingeurope.eu/?p=478#comment-13419 Liis Wed, 25 Aug 2010 18:52:40 +0000 http://adjudicatingeurope.eu/?p=478#comment-13419 "Lawyers, judges, academics or civil servants need to know on what grounds the judges that will sit in the highest EU courts are being chosen" - I believe details of the decision of the committee are not made public because these very details might insult national pride of the member states and humiliate the candidates these member states have considered to be the most suitable ones. On the other hand the candidates for commissioners of the EU Commission are placed under public pressure ... The judiciary shall however refrain from scandals and let`s hope the rules of procedures of the committe will provide us with good solution! “Lawyers, judges, academics or civil servants need to know on what grounds the judges that will sit in the highest EU courts are being chosen” - I believe details of the decision of the committee are not made public because these very details might insult national pride of the member states and humiliate the candidates these member states have considered to be the most suitable ones. On the other hand the candidates for commissioners of the EU Commission are placed under public pressure … The judiciary shall however refrain from scandals and let`s hope the rules of procedures of the committe will provide us with good solution!

]]> Comment on Is the Court of Justice Worried about Accession to the ECHR? by Joe http://adjudicatingeurope.eu/?p=482#comment-10393 Joe Thu, 22 Jul 2010 19:04:22 +0000 http://adjudicatingeurope.eu/?p=482#comment-10393 Shouldn't they come up with a definable list of human rights that the court can then try to preserve? Shouldn’t they come up with a definable list of human rights that the court can then try to preserve?

]]> Comment on Is the Court of Justice Worried about Accession to the ECHR? by EU Law Student http://adjudicatingeurope.eu/?p=482#comment-10300 EU Law Student Wed, 21 Jul 2010 11:09:26 +0000 http://adjudicatingeurope.eu/?p=482#comment-10300 Not exactly in Europe but in the European Union. Not exactly in Europe but in the European Union.

]]> Comment on Is the Court of Justice Worried about Accession to the ECHR? by Jens http://adjudicatingeurope.eu/?p=482#comment-10287 Jens Wed, 21 Jul 2010 07:47:52 +0000 http://adjudicatingeurope.eu/?p=482#comment-10287 "The Courts seems to be particularly worried of preserving its interpretative autonomy under Article 19 TEU" So the Courts wants to determine what human rights in Europe are and when they are breached. Nice ... “The Courts seems to be particularly worried of preserving its interpretative autonomy under Article 19 TEU”

So the Courts wants to determine what human rights in Europe are and when they are breached. Nice …

]]> Comment on The Committee Shows its Teeth by Pescatorius http://adjudicatingeurope.eu/?p=478#comment-10030 Pescatorius Sat, 17 Jul 2010 10:04:12 +0000 http://adjudicatingeurope.eu/?p=478#comment-10030 I believe there are two: one former judge of the ECJ and one former judge of the General Court. The composition of the Committee was made public several months ago by Council. I believe there are two: one former judge of the ECJ and one former judge of the General Court. The composition of the Committee was made public several months ago by Council.

]]> Comment on The Committee Shows its Teeth by Joe http://adjudicatingeurope.eu/?p=478#comment-10008 Joe Sat, 17 Jul 2010 01:23:49 +0000 http://adjudicatingeurope.eu/?p=478#comment-10008 Glad to hear that they're taking their job seriously. Glad to hear that they’re taking their job seriously.

]]> Comment on The Committee Shows its Teeth by EU Law Student http://adjudicatingeurope.eu/?p=478#comment-9972 EU Law Student Fri, 16 Jul 2010 08:54:02 +0000 http://adjudicatingeurope.eu/?p=478#comment-9972 Congratulations for this excellent blog. I would like to ask a question , is there at the Commitee any former judge of the ECJ? Are they all national judges? Congratulations for this excellent blog. I would like to ask a question , is there at the Commitee any former judge of the ECJ? Are they all national judges?

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