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(Series Information) European Papers - A Journal on Law and Integration, 2020 5(3), 1341-1356 | Article | (Table of Contents) I. A principle of European law. - II. Building coherence across European legal systems. - II.1. The challenging construction of compatible European standards. - II.2. The problem of the idem: what is criminal? - III. The attempted compromise. - IV. The revived schism. - V. Conclusion. | (Abstract) This Article analyses the recent divergence between the two European Courts on the application of ne bis in idem to double-track procedures from the perspective of judicial dialogue and constitutional pluralism. Although major efforts have been made towards convergence over the past decades, recent case law shows that the potential for conflict - and, possibly, incompatibility - remains wherever the incentive to follow the lead of one authority is insufficient. Pushed to find solutions by the resistance of certain national courts to their converging standards, the European Court of Human Rights and the Court of Justice have chosen very different paths to reach a similar, but not identical, compromise solution. The Article examines the causes of this divergence and its consequences for the protection of this fundamental right in EU Member States.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(2), 887-910 | Article | (Table of Contents) I. Introduction. - II. Conceptual framework and terminology. - III. Data and research design. - III.1. The dataset. - III.2. Research process. - IV. The Court's behaviour. - V. The Court's strategies. - VI. Conclusions. | (Abstract) Recent cases of national court rebellion against the rulings of the EU Court of Justice have raised questions about the meaning of judicial cooperation within the preliminary reference procedure. Although tensions are inevitable, the trust of Member State judiciaries is crucial for the dissemination and enforcement of the Court's rulings. This Article uses legal empirical method to study how the Court cultivates its relationship with national courts. Specifically, it examines the reasoning and drafting style of the Court of Justice when it delivers a judgment that conflicts with the referring court's view, as expressed in the order for reference, on how the questions ought to be resolved. The findings indicate that disagreement with the referring court affects the Court's drafting and justification choices. In particular, the Article identifies two strategies that the Court resorts to when rejecting the view taken by a referring court: conflict avoidance and appeal to (illegitimate) authority. It is argued that these strategies are not conducive to furthering the judicial cooperation that the Court claims to be engaged in, nor to the legitimacy of its judgments within the Member States.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(2), 745-754 | Article | (Table of Contents) I. Introduction. - II. Evolving legal questions surrounding Art. 267 TFEU. - III. Stocktaking: the procedure under pressure? - IV. Contributing to the academic debate. - V. Overview of the Special Section. - V.1. Factors and motives to refer. - V.2. Quality of Court of Justice answers and dialogue. - V.3. Implementation of Court of Justice judgments. | (Abstract) The most important procedure of EU law is the preliminary ruling procedure. Academic scrutiny by way of a Special Section is pertinent for three reasons. Firstly, there are still many out-standing legal and practical questions with respect to Art. 267 TFEU as illustrated by the continuous flow of new judgments of the Court of Justice and European Court of Human Rights. Secondly, there are growing allegations that (some) national court judges are dissatisfied with the procedure, their interaction with the Court of Justice and the resulting answers. Thirdly, there has been little (empirical) research into the effective functioning of the procedure and its application by national courts. The Articles of this Special Section examine - often in an empirical way on the basis of interviews or questionnaires - why national courts refer (or not), what they think of their interaction with the Court of Justice and whether and how they implement the answers of the Court of Justice.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(2), 851-869 | Article | (Table of Contents) I. Introduction. - II. Theoretical framework: why national judges participate in judicial dialogue with the CJEU. - III. Judiciary reforms in Poland 2017-2018: a brief overview. - IV. Preliminary questions as reaction of Polish courts to the judiciary reforms. - V. Defending the rule of law or reality based self-defense? - VI. Conclusions. | (Abstract) In the course of the last two years, the Polish courts frequently resorted to the procedure of preliminary ruling requesting the Court of Justice to qualify the Polish judiciary reforms introduced by the PIS-regime in the light of the principle of judicial independence, the rule of law and effective judicial protection. Against this backdrop, one could suggest that the issue regarding the use of the preliminary ruling mechanism by national courts and the reasons that incentivise the judges to engage in dialogue with the Court of Justice have gained a novel dimension. It is the aim of this Article to discuss the relevant preliminary questions referred by the Polish courts and place them in the context of various theoretical streams that aim at explaining the reasons and motivation behind national courts' participation in judicial dialogue with the Luxembourg Court.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(2), 871-886 | Article | (Table of Contents) I. Introduction. - II. National court opinion in the preliminary reference procedure. - III. Methods and material. - IV. Results. - IV.1. Active courts: motivations for expression opinions. - IV.2. Passive courts: motivations for not expressing opinions. - V. Passive high court judges? - VI. Concluding discussion. | (Abstract) What motivates national judges to be either active in the preliminary reference procedure by expressing opinions in the requests they send to the Court of Justice or passive by not voicing their views? This Article sheds light on how national judges perceive the possibility of framing the cases they refer to the Court, for instance, by expressing an opinion in defence of the challenged national law. Based on interviews with Swedish judges, this Article shows that the respondents express opinions to provide the Court with information and to influence the development of EU law. The Article also uncovers what motivates national judges not to express opinions. These three previously untheorised motivations are: 1) protecting one's reputation, 2) respecting the division of competences between the Court and national courts and 3) upholding the impartiality of the courts. Furthermore, the findings indicate that high court judges in particular are opposed to the inclusion of opinions in a request. In contrast, most of the interviewed lower court judges view the inclusion of opinions in the requests as practically mandatory. This Article proposes that this difference in attitudes towards opinions between high and low court judges originate from variations in professional norms regarding what constitutes appropriate behaviour.

Although initially the CJEU left no space for the inclusion of national issues in order to establish the founding qualities of EU legal order, such as supremacy and direct effect, more recently the Court has developed a trend towards taking into account the protection of national fundamental rights and constitutional provisions by using EU primary legislation. The new approach adopted by the Luxembourg Court is fostering the judicial dialogue with the national constitutional courts. The aim of the paper is to demonstrate that the "Taricco Saga" represents the last step of this pathway by fitting the qualities of EU legal order in the peculiarity of national legal systems not as national exception but as an issue of European law through concepts like "common constitutional principles". Commenting the features of Taricco II, in particular, it will be demonstrated that this ruling does not contradict Taricco I but, rather, it represents a specification of the interpretation of article 325 TFEU that encompasses also the acknowledgment of an issue linked to the principle of legality, as intended by the constitutional traditions of EU.

(Series Information) European Papers - A Journal on Law and Integration, 2019 4(3), 809-821 | European Forum Insight of 17 November 2019 | (Table of Contents) I. Introduction. - II. The principle of transparency in public procurement. - II.1. Transparency before the award of contracts. - II.2. Ex post requirements stemming from transparency. - III. Framework agreements. - IV. The case in the national stage. - IV.1. The contract concluded by Garda and its extension to Valcamonica. - IV.2. The first-instance Judgment. - IV.3. The appeal before Consiglio di Stato and the referral to the Court of Justice. - V. First slip of the Court of Justice: the (inexistent) defective transposition of the Directive. - VI. Admissibility of the preliminary questions: Is it really a framework, despite it lasts nine years? Equivocal conceptions and an unnecessary reprimand from the Court. - VII. The Directive applicable ratione temporis. - VIII. Can a contracting authority sign a framework on behalf of itself and other authorities? - IX. Should the quantity that may be required by the potential users of the agreement be determined? - IX.1. Seven arguments for quantification. - IX.2. Two arguments for express quantification. - X. Conclusions. | (Abstract) Antritrust and Coopservice (judgment of 19 December 2018, case C-216/17) is a peculiar product of the Court of Justice. It is one of a kind in aggregate procurement, a subfield of public procurement that has remained virtually untouched by the Court. A number of very helpful and reasonable directions can be drawn from this judgment with respect to the duration and quantification of framework agreements as well as the identification of the authorities entitled to use them in the case of framework agreements concluded jointly by several authorities. At the same time, it is not a model of adjudication, incurring in some inaccuracies, obvious mistakes, and even unkindness to the referring national court. This surely makes it more enjoyable to read and comment. The present Insight shows the slips of the Court, while highlighting the main directions that can be extracted vis-à-vis the operation of framework agreements and joint contracts.

The authors discuss legal nature of the Protocol No. 16 to the European Convention on Human Rights (ECHR) which entered into force on 1 August 2018. With the aim of improving the judicial dialogue between European Court of Human Rights (ECtHR) and highest national courts, the Protocol No. 16 introduced the advisory opinion procedure at the ECtHR level. A detailed analysis of the impact of advisory opinion procedure on the judicial dialogue is included and is further supported by the reviews of cases at the ECtHR against Slovenia, Belgium and Italy, which illustrate how a possibility to request an advisory opinion could have prevented finding of a human right’s violation on the Strasbourg level and raised the effectiveness of human rights standards. The authors believe the Protocol No. 16 has brought a lot of potential for improvement of the judicial dialogue, which could lead to better understanding of ECHR standards, as interpreted by the ECtHR, and therefore prevent human rights violations already on a national level.

(Series Information) European Papers - A Journal on Law and Integration, 2018 3(1), 157-182 | Article | (Table of Contents) I. Introduction and structure. - II. Brief account on Ajos. - II.1. The reference to the Court of Justice. - II.2. The reasoning of the Supreme Court. - III. Ajosin light of DSC's practise about accession to EU. - III.1. Background on the Danish constitutional context as regards review of constitutionality of legislation. - III.2. Analysis of case law: Maastrichtjudgment, Lisbonjudgment and Ajosjudgment. - III.3. Possible reasons for and scope of the development. - IV. Comparative analysis of the Ajoscase. - IV.1. Upholding legal certainty at a national level. - IV.2. Different approaches to the ongoing dialogue between national courts and the CJEU. - V. Concluding remarks. | (Abstract) In the Danish Ajos case the Danish Supreme Court rejected to follow the guidance from the Court of Justice. This Articlewill provide an analysis of the case and reflect on the implications on the European integration and the ongoing dialogue between the European Courts. We will also provide a background and an introduction to the Danish Constitutional Reservations to Union law and the scope and development of the case law regarding the accessions to the European Union treaties. It is considered; whether the Ajoscase was the "missing case" from the Lisbonjudgment. Furthermore, the case will be analysed from a comparative legal perspective relating it to developments seen by other constitutional courts, for instance the Italian Taricco IIcase and the German Honeywellcase both of which can be interpreted as more open toward Union law and European integration.

(Series Information) European Papers - A Journal on Law and Integration, 2017 2(1), 329-338 | European Forum Insight of 9 April 2017 | (Table of Contents) I. Introducción. - II. Antecedentes y hechos del caso. - II.1. La normativa danesa y la jurisprudencia previa del Tribunal de Justicia. - II.2. Los hechos del caso y la cuestión prejudicial. - III. Dinamarca contraataca. - III.1. La sentencia del Tribunal Supremo danés. - III.2. Análisis jurídico: ¿el diálogo judicial en riesgo?. - IV. A modo de conclusión. | (Abstract) On 6 December 2016, the Supreme Court of Denmark delivered its judgment in the Ajos case (no. 15/2014, DI acting for Ajos A/S v. The estate left by A.). The Danish Court surprisingly disregarded the guidelines provided by the Court of Justice in its preliminary ruling of April 19, 2016. With its decision, the Supreme Court rejected the principle of the primacy of non-written general principles of EU law over national law. Using a rather dubious legal reasoning, it has taken its own way in deciding how the EU law is to be applied in Denmark. But the Court of Justice may be held partially responsible for this situation, since it has not shown due respect for the role of the supreme courts in the Member States.

(Series Information) European Papers - A Journal on Law and Integration, 2017 2(1), 233-242 | European Forum Insight of 4 April 2017 | (Table of Contents) I. Introducción. - II. Antecedentes de hecho. - III. Fundamentos de derecho. - IV. Iter y ratio decidendi. - V. Comentario. - V.1. Los efectos de la ECA 1972. - V.2. El derecho posterior a la ECA 1972. - V.3. El art. 50, párr. 2, TUE. - VI. Conclusiones. | (Abstract) This Insight analyses the decisions in Miller et al. v. Secretary of State for exiting the European Union (UK High Court, judgment of 3 November 2016, [2016] EWHC 2768 (Admin); UK Supreme Court, judgment of 24 January 2017, [2017] UKSC 5) focusing on the constitutional implications of the Brexit for the United Kingdom and the EU. This Insight tries to explain the main facts of the case in its context from a constitutional view, regarding the multilayered situation in which the EU and the UK constitutional bodies are established.

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Copyright of Il Diritto Dell'unione Europea is the property of Giappichelli Editore srl and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)