Court of Justice as Player in European Integration EGO402 EU Law and European System of HR Protection Hubert Smekal (hsmekal@fss.muni.cz) 11 October 2016 Courts Conventional prototype of courts •Independent courts •Decide cases on the basis of preexisting rules •adversary procedure, dichotomous ruling (Winner x Loser) • •Appeal • •Triadic resolution of conflicts Shapiro (1986): Courts. Why independent judicial review? •Theories •Ideational •Coordination and Commitment •Electoral Market •Diffusion Ginsburg – Versteeg 2013, JLEO Ginsburg – Versteeg 2013, JLEO Questions about courts •What influences their position in a political system •What influences courts in their decisions? •What influences judges in their decisions? •Strategic approach (Epstein – Knight) •Behavioural approach (Gillman) • •Gibson: „Judge‘s decisions are a function of what they prefer to do, tempered by what they think they ought to do, but constrained by what they perceive is feasible to do.“ • Critique of courts •Bickel: „non-majoritarian difficulty“ •Bork: juristocracy • •Dahl: Decision making in a democracy •Ely: protection of minorities •Checks and balances •Dworkin: rights as trumps CJEU CJ EU •CJ •General Court (CFI 1988) •Civil Service Tribunal (2004) • •Why not Supreme Court, High Court etc? Annual Report 2015 – CJ Annual Report 2015 – General Court Annual Report 2015 – CST CJ (Annual Report 2015) General Court (Annual Report 2015) CST (Annual Report 2015) Eric Stein (1981) AJIL •“Tucked away in the fairyland Duchy of Luxemburg and blessed, until recently, with the benign neglect by the powers that be and the mass media, the Court of Justice of the European Communities has fashioned a constitutional framework for a federal-type structure in Europe.” http://www.ur.umich.edu/0405/Oct25_04/img/041025_acc_eric-stein.jpg http://curia.europa.eu/jcms/upload/docs/image/jpeg/2012-11/1952-1high.jpg http://curia.europa.eu/jcms/upload/docs/image/jpeg/2012-11/1952-2high.jpg •http://curia.europa.eu/jcms/upload/docs/image/jpeg/2012-11/1952-2high.jpg • http://curia.europa.eu/jcms/upload/docs/image/jpeg/2012-11/2008-1high.jpg •http://curia.europa.eu/jcms/upload/docs/image/jpeg/2012-11/2008-1high.jpg Eric Stein (1981) AJIL Carrubba - Murrah(2005) IO Stone Sweet – Brunell (1998). APSR. • Stone Sweet – Brunell (1998) JEPP • Stone Sweet – Brunell (1998) JEPP •Stone Sweet – Brunell (1998). APSR. Court of Justice •Direct effect – Van Gend en Loos •Supremacy – Costa v ENEL •Competences Article 352 (ex Article 308 TEC) 1. If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures. Where the measures in question are adopted by the Council in accordance with a special legislative procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament. 2. Using the procedure for monitoring the subsidiarity principle referred to in Article 5(3) of the Treaty on European Union, the Commission shall draw national Parliaments' attention to proposals based on this Article. 3. Measures based on this Article shall not entail harmonisation of Member States' laws or regulations in cases where the Treaties exclude such harmonisation. 4. This Article cannot serve as a basis for attaining objectives pertaining to the common foreign and security policy and any acts adopted pursuant to this Article shall respect the limits set out in Article 40, second paragraph, of the Treaty on European Union.