Стратегическое поведение в Суде Европейского союза: Лонгитюдное исследование юриспруденции суда по статье 36 Римского договора
The article develops a model of rational judicial decision making for the European Court of Justice (ECJ). The model suggests that judges may strategically incentivise litigants to bring particular cases to the court in order to promote their preferred issues to the agenda, and to control the docket. This so called strategic approach was developed primarily in research on the US Supreme Court and does not travel too well to other cases. Author finds a way to test its findings on an organizationally completely different entity of the European Court of Justice. To do so he narrows the research to ECJ case law on restrictions to free movement of goods within the EU, gathers some data on the number of cases decided by the ECJ annually, and checks it against the development of the case law and the substance of court rulings. Author finds that the ECJ succeeds at manipulating the case supply by changing the litigants' perception of their chances to win, and suggests that further research is conducted into the other areas of EU case law to corroborate this finding.
The article reflects the discussion on the resonant Laval and Viking cases of the European Court of Justice from the Russian labour law perspective.
Should technical standards decided and published by official Standards Development Organizations (SDOs) and referred to in Regulations, Directives or, generally, in EU law be regarded as “law” that must be accessible to the public, or could these standards still be private goods, licensed for royalties and, indeed, only accessible by a few? Access to technical standards may be the next hot topic for the European Standard Setting Organisations (SSOs) and the EU Commission. Some SSOs, as a way to finance their activities to develop technical standards, may charge firms or third persons to access and make use of the technical standards produced.
This book explores the exportation and application of European Union legislation beyond EU borders. It clarifies the means and instruments of the voluntary application of the EU’s norms by third countries and analyses in detail the process of legislative approximation between the EU and its East European neighbours. It also assesses the extent to which the EU is successful in promoting its legal standards abroad.
The first part of the book addresses the EU’s mechanisms and instruments promoting the export of its own laws and practices to other countries. Key issues include the post-Lisbon constitutional basis for the EU’s engagement with its Eastern neighbours (Art. 8 TEU); the different methods of acquis export and the impact of a new generation of Association Agreements providing for the establishment of Deep and Comprehensive Free Trade Areas (DCFTAs) and, ultimately, a Neighbourhood Economic Community (NEC) between the EU and its Eastern partners.
The second part of the book includes substantive country reports that analyse the process of legislative approximation and application of EU law in the Eastern Partnership countries and Russia, authored by leading academics from the countries concerned. While currently these countries are not working towards full EU membership, the EU encourages them to approximate and converge their legislation with the EU acquis. The book also offers a unique picture of current practice of the application of EU law by judiciaries in the countries of the Eastern Partnership and Russia.
The book concludes with reflections on the multi-faceted character of legislative approximation and the challenges surrounding the application of EU law in the EU’s Eastern neighbourhood. The conclusions reached are highly informative as to the effectiveness of present and future EU external regional policies aimed at the promotion of EU common values and EU legislation into the legal orders of third countries.
The events in Crimea and Eastern Ukraine prompted the European Union (EU) to adopt several ‘packages’ of restrictive measures against Russia. A number of attempts have been made by natural and legal persons to challenge the validity of those measures before the General Court and the Court of Justice of the EU. Despite the fact that the applicants in all of these cases were unsuccessful and the judgments largely confirmed the existing case law of the Court of Justice of the EU (CJEU), these cases deserve special attention for a number of reasons.
Firstly, they provide an important clarification of the application of the listing criteria developed in the context of the Ukrainian crisis. In the Rotenberg and Kiselev cases, the General Court gave a restrictive reading of the notion of ‘active support’ used in the sanction criteria as covering only those forms of support which, by their quantitative or qualitative significance, contribute to Russia’s actions and policies destabilising Ukraine. This rather restrictive reading fits well with the fifth principle guiding the EU’s policy towards Russia, implying that only a small group of persons will be liable to fall under this criterion and that it will not threaten people-to-people contacts at large.
Secondly, the Court had the opportunity to rule on the validity of different types of measures. While the Almaz-Antey Air and Space Defence, Kiselev, and Rotenberg cases dealt with the freezing of assets, in other cases the Court examined general economic measures, such as the restriction of access to capital markets and export restrictions. Rosneft and NK Rosneft and Others present a particular interest in this regard as the Court addressed the issue of the legality of those measures with regard to the provisions of the EU-Russia Partnership and Cooperation Agreement of 1994 (PCA) and WTO law. Those expecting an elaborate analysis were however quickly disappointed as the Court basically confirmed the Council’s broad discretion for the adoption of political decisions. In its appraisal of the necessity of restrictive measures for the protection of EU essential security interests, it relied entirely on the Council’s assessment contained in the preambles of the contested acts transforming an already limited judicial control in a pure formality. In a situation where restrictive measures are imposed by the EU on the ground of international law violations, this reluctance by the CJEU to exercise an effective control as to the respect of international law – or at least conduct its own assessment of the situation – can be seen as questioning the Court’s stance as an independent non-political institution.
Thirdly, what is even more important, some of the cases brought a significant contribution to the development of the Court’s jurisprudence in the area of CFSP as the Court was prompted to deal with several new legal issues. The Rotenberg case, for instance, answers the question of whether persons in charge of certain businesses may be included in the sanctions list because they benefited from the decision-makers at any point in time or whether the EU institutions need to demonstrate the existence of such a connection at the time when the third state’s illegal actions took place. In the Kiselev case, the General Court had to ascertain the legality of restrictive measures taken against a journalist in the light of the freedom of expression. In its turn in Rosneft, the Court of Justice ruled on the possibility to challenge the legality of autonomous restrictive measures via the preliminary reference procedure. Finally, the number and nature of the cases may also contribute to the debate on the effectiveness of the sanctions. The present chapter does not seek to describe the cases one by one, but rather analyses their contribution to the development of the CJEU case-law on restrictive measures by focusing on the key issues discussed in these cases.
The rapid development of technology leads to the deepening of globalization processes, in particular the extensive growth of e-commerce, which is becoming increasingly international in nature. The Internet provides the opportunity to remotely purchase items, not represented in the local market, which leads to the development of cross-border retail trade. From a legal point of view, one of the main problems of this phenomenon is to protect consumers’ rights in cross-border aspect. Private international law provides consumers with protection of three types: procedural, conflict of laws and substantive. Of paramount importance is the question of the international jurisdiction: the court of which country is competent to settle disputes arising from cross-border consumer contract? The special status of the consumer as an economically weaker party does not allow being limited to the general rules of jurisdiction. EU law, as the legislations of many countries in other regions of the world, contains specific procedural conflict rules that are based on certain principles establish the jurisdiction of the court of a State to hear disputes from consumer contracts. In Russia, such a regulation is missing. Thus, the Russian system of consumer protection in cross-border aspect is deprived of an essential element. For the purpose of making recommendations on improving Russian private international law, the paper discusses the content of particular articles of the Regulations of Brussels I — a fundamental act of the EU in the field of the regulation of international jurisdiction, as well as doctrinal positions of foreign scientists. The article concludes on the need to limit the autonomy of the parties in determining the jurisdiction of disputes involving contracts with consumers. The basis of the solution of procedural conflict question may be, as well as in European law, the criterion for targeted activities that solves a number of issues. At the same time, this criterion gives rise to new theoretical and practical problems that have not yet had any solution in the doctrine and legislation — the definition of directed activity per se, as well as the scope of business or professional activities that we need to know to determine the status of the consumer.
Introduction: the article deals with judicial rulemaking of international judicial institutions. Materials and Methods: the authors made a theoretical and empirical analysis of the main sources of international and European law, the court practice of international judicial institutions, the works of domestic and foreign scholars, analytical documents of international organizations. Results: the article proves that judicial rule- making is well-established international practice which in some cases is especially needed. Judicial rule-making is perceived by the doc- trine as a natural, necessary and legitimate legal phenomenon. In practice two forms of judicial rule-making have developed - judicial rule- making may involve interpretation of both the content of a rule of law and procedural aspects. However, international judicial institutions should strive to refrain from judicial activism and judicial rule-making. It must be borne in mind that the activities of international courts must rely on the support of national courts and the expert community. Discussion and Conclusions: according to the currently prevailing views, which made a decisive impact on the evolution of theory of state and law, judicial rule-making is inseparable from the daily implementation of judicial functions. Both the society and the legislator are in urgent need for it regardless of whether they admit it or not or even act against it. It is necessary in all cases where the legislator does not keep up with the progress of the changes caused by the rapid evolution of society and new opportunities of scientific and technological progress. It is often beneficial for the legislator that the courts should have tested various approaches and have developed a well-established practice, and the application of this practice should have suggested the most rational decisions. Judicial rulemaking developed especially widely in the judiciary of international/regional integration associations and within the framework of international mechanisms with elements of supranational coercion, first of all, in the practice of the Court of Justice of the European Union and the European court of human rights. The whole system of EU law has gained the most features and basic characteristics associated with it thanks to the Luxembourg Court. These features and characteristics include positioning EU law as a system of law that differs from international and domestic law, the supremacy and direct effect, the effective jurisdictional protection, strict compliance with the requirements of subsidiarity and proportionality, etc. In turn the Strasbourg Court has done a lot in order to turn positive and procedural rules of the European Convention on human rights into “a living and developing organism.” However, periods of judicial activism have always been nothing more than a reaction to a request by the states or the need for solving tasks. The last word always belongs to major players who has always been society and legislators. When it is necessary they easily impose certain limitations on judicial rulemaking. It has already been made in respect of the Court of the Eurasian Economic Union in the legal order. However, the Minsk Court faces difficult tasks concerning the application of the EAEU law and on its formation. There- fore, it is important that the Minsk Court should determine as quickly as possible the precedential nature of its decisions, the possibility of using other sources of law, along with the EAEU Treaty and its secondary law, and how to tie up the national legal system of the member states in a common legal space.
The Yearbook previously known as the Uppsala Yearbook of East European Law. is now published in a second volume with a broadened perspective. As the title, The Uppsala Yearbook of Eurasian Studies indicates the Yearbook now also covers other disciplines than law, in particular political science and economics. Given recent developments in the Eurasian region this enlarged focus is increasingly relevant and important.