The Constitutionalisation of the Treaties by the European Court of Justice
Introduction
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On it's formation in 1957 the European Economic Community Treaty[1]
was seemingly another international treaty to which the six original
Member States[2] had signed. In the realm of international law such
treaties are binding merely on the governments of Member States which
have signed them. In it's essential provisions, the Treaty made
reference only to the Member States who themselves had no reason to
believe this Treaty would be any different.
However, it was latent from the start that this Treaty had the
potential to extend beyond the reach of previous international
treaties[3]. It provided for a unique institutional structure[4] from
which flowed unprecedented law-making and judicial powers. The focus
of this essay will be on one of these institutions, the European Court
of Justice (hereinafter referred to as the Court).
According to the Treaty the purpose of the Court is to 'ensure that in
the interpretation and application of this Treaty the law is observed'[5].
It was under the guise of 'interpretation' and in particular the use
of Article 234[6] that the court was able to attribute qualities to
the Treaty that were not prima facie evident. This essay will trace
how the court in conjunction with national courts used this Article to
develop the doctrines of direct effect and supremacy, and how it
expanded the use of such doctrines to law created under the Treaty
which neither explicitly or impliedly warranted their ascription.
The doctrines thus mentioned attributed to the Treaty, characteristics
more in line...
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...ommunity Law' (1983) 8 ELRev. 155
[20] Case 36/74, [1976] ECR 455
[21] Case 6/64, [1964] ECR 585
[22] This is also the opinion of Mancini, 'The Making of a
Constitution for Europe', Common Market Law Review, vol. 26, 1989,
p600
[23] Craig and de Burca, 1998, EU Law, Text, Cases and Materials p.
259
[24] loc. Cit. N.15
[25] Case 11/70, [1970] ECR 1125
[26] Case 106/77, [1978] ECR 629
[27] Case C213/89, [1990] ECR I-2433
[28] Case 41/74, [1974] ECR 1337
[29] Mazzalai, Case 111/75, [1976] ECR 657, at 665
[30] Hartley , op.cit. p.202
[31] Case 148/78, [1979] ECR 1629
[32] Marshall, Case 152/84, [1986] ECR 723 ; Faccini Dori v Recreb,
Case C-91/92, [1994] ECR I-3325
[33] 'From CILFIT to ERT : the Constitutional Challenge Facing the
European Court' (1991) 11 YBEL 1, 2-3
The Strengths of the U.K. Constitution Britain’s need for a codified constitution, as a unitary state, is different. The United Kingdom of Great Britain and Northern Ireland is also a political union, but based on the sovereignty of the national Parliament. The UK now has a Scottish Parliament and Northern Ireland Assembly able to pass their own domestic legislation and a National Assembly for Wales which can make secondary legislation. But all these were created by and are subordinate to the Westminster Parliament, as are all 468 county, borough, district and unitary councils. Parliamentary sovereignty also entails the right to make or unmake any law whatever.
This paper discusses the contrast of two landmark United States (U.S.) Supreme Court cases that helped to clearly define how the Fourth and Fifth Amendments of the U.S. Constitution is interpreted, and analyzes the difference between the “Constitution” and “Constitutional Law.” Two cases that are referenced in this analysis are (1) Katz v. United States, 386 U.S. 954 (U.S. March 13, 1967), and (2) Olmstead v. United States, 277 U.S. 438 (U.S. June 4, 1928), which differed in ruling; one eventually overturning the other. Finally, a conclusion is drawn as to the importance of these case decisions in the lives of Americans.
The case of Francovich had a significant impact on the European Union (EU) law. If a conflict arises between the EU law and the national law, the EU law highly prevails. The European Union law is a framework of treaties and legislation, which have a direct or indirect effect on the laws of the member states which are bound to the European Union. Primary and Secondary laws are the two sources of the EU law. This essay will firstly analyse the main institutions of the European Union and define various legal terms. It will then move on, to discuss the case of Francovich and the importance it had for state liability. Furthermore, it will refer to subsequent cases which are linked with state liability and had an impact on the EU Law. Lastly, my own views about State Liability will be presented.
Witte, Mark Dawson and Floris de. "Constitutional Balance in the EU after the Euro-Crisis." The Modern Law Review (2013): 817-844. Academic Search Complete.
Simmonds C., ‘Paramountcy and the ECHR: a conflict resolved? [2012] Cambridge Law Journal Vol. 71 Issue 3, 498-201
Prof. Jeffrey A. Brauch, The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights: Threat to the rule of law, Vol.11, Columbia Journal of European Law (2004-2005)
The Treaty of Versailles had a lot of opposition from various groups, but Wilson’s stubbornness was most liable for the failure of it in the United States. There were many problems with the treaty according to the senate. The opinions on the treaty we
Tiilikainen, T. 2011. The empowered European Parliament: Accommodation to the new functions provided by the Lisbon Treaty. The Finnish Institute of International Affairs.
According to Article 38 of the 1946 Statute of the International Court of Justice, the Court shall apply “international custom, as evidence of a general practice accepted as law” in its decisions (Kritsiotis 123). In other words, the International Court of Justice cites customs as a formal source of law. According to Roberto Unger, author of Law in a Modern Society, customary international law is best defined as “any recurring mode of interaction among individuals and groups, together with the more or less explicit acknowledgement of these groups and individuals that such patterns of interaction produce reciprocal expectations of conduct that out to be satisfied (Shaw 72-73). In other words, customary international laws are primarily concerned with how and why sates behave in a particular manner. Customs derive from the behavior of states (state practice) and the subconscious belief that a behavior is inherently legal (opinio juris). Evidence of state behavior is documented in the decisions of domestic courts, international courts, and international organizations. Unlike treaty law, customary laws are binding on all states. Additionally, if a treaty derives from a custom it is also binding on all states. Some of the international court cases that have been instrumental in the development of customary international law include the Nicaragua v. United States case, the Anglo-Norwegian Fisheries case, the Scotia case, the Asylum case, the Paquete Habana case, and the Lotus case.
The doctrine of Supremacy of the EU Law has been adopted from the European Court of Justice, in which the doctrine covers all aspects of law in member states. The supremacy is evidently implied in the Treaty on European Union Article 4(3) and Treaty of the functioning of the European Union Article 18 , which emphasises the prohibitions against discrimination. This is then supported by Article 288 TFEU whereby the regulations are binding upon each member state. Furthermore, Article 344 TFEU ensures resolution between member states. This assignment will discuss to what extent the acceptance of the supremacy of the EU law has been problematic in regards to parliamentary sovereignty.
About the power of the subjects of international law, it is the basic properties, the special legal ability of the subjects that inherited the rights and shoulder the obligations, legal responsibility in international legal relations. Subjects' power includes two aspects, and only when ones get all these two aspec...
Thody, P. M. W. 1997.An historical introduction to the European Union. [e-book] London: Routledge. p. 1. Available through: Ebrary http://site.ebrary.com/lib/aberdeenuniv/docDetail.action?docID=10057275 [Accessed: 26 Mar 2014].
To the subject and passive onlooker, those meticulous organizers of the Paris Peace Treaties allowed for an unfortunate amount of flaws to enter their task of creating a treaty that could satisfy all of the nations of not only Europe but of the world as well equally. Yet one must attempt to put that passiveness behind and admit that those of the time of post World War I had truly no idea what was to come of their decisions. Thus, the decisions of these toilers of the Paris Peace Treaties undoubtedly made a medley of wrong judgments that were virtually unforeseen at the time. The first of these mistakes was that they looked over the problems that the innumerable ethnic groups of Europe would cause. Second to be overlooked was France, still highly intimidated and insecure of a Germany that it wanted to see completely annihilated and rendered powerless.
Public International law International law contains of rules and principles, which preside over the relations and communication of nations with each other. International Law that is in most other countries referred to as Public International Law concerns itself only with questions of rights among more than a few nations or nations and the citizens or subjects of other nations. In dissimilarity, Private International Law deals with controversies among confidential persons, natural or juridical, arising out of situations having important association to further than one nation. In current years the line up connecting public and private international law have became more and more doubtful. Issues of private international law may also associate issues of public international law and numerous matters of private international law nave considerable meaning for the international group of people of nations. International Law consists of the basic, classic concepts of law in nationwide legal systems, status, property, responsibility, and tort. It also includes substantive law, procedure, process and remedies. International Law is rooted in receipt by the nation states, which comprise the system. Customary law and conventional law are primary sources of international law. Customary international law results when states trail convinced practices usually and time after time out of an intelligence of legal responsibility. Lately the customary law was codified in the Vienna Convention on the Law of Treaties. Conventional international law derives from international agreements and may obtain any appearance that the constricting parties have the same opinion upon. Agreements may be complete in admiration to any substance except for to the leve...
Von Galhn and Taulbee. 2013. Law Among Nations. An Introduction to Public International Law. Pearson Education.