Judicial Coherence in the European Union

Judicial Coherence and the Preliminary Reference Procedure – Morten Broberg
1 Judicial Coherence and the Erga Omnes Effect of Preliminary Rulings
2 Private Parties’ Use of the Preliminary Reference Procedure to attain Judicial Coherence
2.1 Introduction
2.2 ‘Construing’ a Case to form the Basis for a Preliminary Reference
2.3 National Law precludes the Preliminary Reference
2.4 Inducing a Domestic Court to refer
3 Influencing the Formulation of the Preliminary Questions
4 Influencing the Reference during the Procedure before the Court of Justice
5 Problems regarding Private Parties’ Use of the Preliminary Reference Procedure
6 A Modest Proposal for improving the Procedure

How Boundaries Have Shifted – Ramona Grimbergen
1 Introduction
2 Limits in Answering Preliminary Questions: Jurisdiction
2.1 Jurisdiction of the CJEU
2.1.1 The Actor Making the Reference
2.1.2 Subject Matter 44
2.2 Jurisdiction: Union Law and the Purely Internal Situation
2.2.1 The Early Years: Jurisdiction
2.2.2 No Jurisdiction
2.2.3 Jurisdiction as per Question
2.2.4 Towards a More Unified Approach
2.3 Jurisdiction: Union Law and the Purely Internal Situation – the Exceptions
2.3.1 The CJEU Encroaching Fields of National Jurisdiction
2.3.2 Assessing the Boundaries of Jurisdiction
3 Limits in Answering PreliminaryQuestions: Admissibility
3.1 Introduction
3.2 Necessity
3.2.1 Necessity in the Early Years
3.2.2 A Closer Look at Necessity
3.2.3 Today: Established Case Law on Necessity
3.3 Requirements on the Content of the Referral
3.3.1 The Early Years
3.3.2 Development of Requirements on the Content of the Referral
3.3.3 Today: Article 94 of the Rules of Procedure of the Court
3.4 Conclusion: Towards a More Unified Approach on Necessity
4 Summary, Conclusions and Recommendations

The Preliminary Reference Procedure in the Field of Direct Taxation under the Constructive Cooperation: Challenging l’Horizontalité – Ricardo García Antón
1 Introduction
2 The Constructive Cooperation in Action
2.1 Admissibility of the Questions: the Notion of an Independent Court
2.2 Framing the Question Posed by the National Court
2.3 Solving the Question: the Upraising of Normative Criteria
3 The Rationale of the Constructive Cooperation
4 The Perils of the Constructive Cooperation
5 Conclusion

The ECrtHR’s Interference in the Dialogue between National Courts and the Court of Justice of the EU: Implications for the Preliminary Reference Procedure – Clelia Lacchi
1 Introduction
2 The Refusal to Refer for a Preliminary Ruling as a Violation of Article 6(1) ECHR
2.1 The ECrtHR’s Approach in the Early Decisions The ECrtHR’s Deeper Involvement in the Dialogue
2.2 Between EU Courts: Instructing National Judges as Regards the Guarantees Imposed by Article 6(1) ECHR to the Refusal to Refer to the CJEU
3 Implications for the Preliminary References to the CJEU
3.1 Preliminary References and the Right to a Fair Trial: The Conditions Imposed by the ECrtHR
3.1.1 Assessment by the ECrtHR of a Breach of Article 6(1) ECHR: Implications for the National Judge’s Duty to Refer to the CJEU
3.1.2 Taking the Requests of the Parties to the Proceedings into Account
3.1.3 The Scope of Article 6(1) ECHR as Regards Preliminary References by Ordinary Courts and Preliminary References on Validity
3.2 Which are the Potential Implications for the EU System of Judicial Protection?
3.2.1 Refusal to Submit a Preliminary Reference and State Liability for Breaches of EU Law and for Breaches of Article 6(1) ECHR
3.2.2 To What Extent May the Interpretation by the ECrtHR of Article 6(1) ECHR Influence That by the CJEU of Article 47 of the Charter?
3.2.3 A Broader Control by the ECrtHR on the EU Judicial System and Preliminary References?
4 Conclusion

Active Guidance of Fundamental Rights Protection by the Court of Justice of the European Union: Exploring the Possibilities of a Positive Obligations Doctrine – Malu Beijer
1 Introduction
2 The Development of Positive Obligations by the ECrtHR
3 Active Guidance of Fundamental Rights Protection by the CJEU: Developing Positive Obligations?
4 Limits to Positive Obligations Flowing from EU Law
4.1 Judicial Remedies and Powers
4.2 Administrative Obligations
4.3 Legislative Obligations
4.4 Summing up the Main Challenges for the Effective Protection of Fundamental Rights by the CJEU
5 Principles for Determining and Limiting the Scope of Positive Obligations
6 Conclusion

Judicial Coherence in the Area of Freedom, Security and Justice – Squaring Mutual Trust with Effective Judicial Protection – Dominik Düsterhaus
1 Introduction
2 Are Mutual Trust and Effective Judicial Protection in Conflict with Each Other?
2.1 Setting the Scene
2.1.1 Mutual Trust
2.1.2 Mutual Recognition
2.1.3 Effective Judicial Protection
2.2 Judicial Cooperation in Civil Matters
2.2.1 Automatic Recognition
2.2.2Guided Autonomy: Limited Review of Decisions in Civil Matters
2.2.3 Residual Review and the Plurality of Recognition and Enforcement Regimes
2.3 Mutual Trust in the Field of Criminal Law
2.3.1 The European Arrest Warrant (EAW)
2.3.2 Promotion of Mutual Trust through (Minimum) Procedural Harmonisation
2.4 Allocation of Responsibility Based on the Premise of Mutual Trust: The Common Asylum System and the Dublin Regulation
2.4.1 Minimum Procedural Standards
2.4.2 The Dublin Regulation
3 Effective Judicial Protection through the Urgent Preliminary Ruling Procedure?

The Dublin Regulation and Mutual Trust: Judicial Coherence in EU Asylum Law? – Hemme Battjes and Evelien Brouwer
1 Introduction
2 Dublin and the Story of Mutual Trust
2.1 2011: End of Blind Trust. M.S.S. v. Belgium and Greece (ECrtHR) and NS v. SSHD (CJEU)
2.2 Follow up to NS v. SSHD: Amendments in the Dublin III Regulation
2.3 A New Criterion of the ECrtHR? Tarakhel v. Switzerland and Individual Guarantees
2.4 The CJEU Strikes Back? Opinion 2/13 and the Supremacy of Mutual Trust
3 Case Law of Selected Member States
3.1 The Netherlands
3.2 Germany
3.3 United Kingdom
3.4 France
3.5 Austria
4 Conclusions

Coherence in the Application of the Duty of Consistent Interpretation in EU Law – Sim Haket
1 Introduction
2 An Introduction to the Duty of Consistent Interpretation and the Identification of a Potential Pitfall
2.1 The Duty of Consistent Interpretation and Limitations
2.2 The Strength of the Duty of Consistent Interpretation: A Pitfall in Terms of Coherence?
3 Theories of Coherence and the Duty of Consistent Interpretation
4 Application of the Duty of Consistent Interpretation in the United Kingdom and the Netherlands: A First Sketch
4.1 Basic Principles of the Duty of Consistent Interpretation
4.2 Discretionary Elements of the Duty of Consistent Interpretation
4.2.1 The Presumption of the Intention to Legislate in Compliance with EU Law: A Shared Argument
4.2.2 Permissible Degree of Corrections on the Words Enacted by the Legislature
4.2.3 Arguments of Parliamentary Intention Contradicting the Presumption of the Intention to Legislate in Compliance with EU Law
4.2.4 Coherence in the Application of Discretionary Elements of the Duty of Consistent Interpretation
5 Concluding Remarks

The Different Roads to Judicial Coherence in Public Environmental Law – Franziska Grashof
1 Introduction
2 Rules on Locus Standi for Environmental Organisations
2.1 The Legal Situation before the Adoption of the Aarhus Convention
2.2 The Aarhus Convention Inducing National Reforms
2.3 National Reforms Inducing Procedural Judicial Coherence
3 Rules on Time Limits
3.1 The Legal Situation before the Adoption of the Aarhus Convention
3.2 No Reforms under the Aarhus Convention
3.3 National Reforms Inducing Procedural Judicial Coherence
4 Rules on Costs
4.1 The Legal Situation before the Adoption of the Aarhus Convention
4.2 The Aarhus Convention Inducing National Reforms
4.3 Independent National Reforms Inducing Procedural Judicial Coherence?
5 Conclusion

The Borelli Doctrine Revisited: Three Issues of Coherence in a Landmark Ruling for EU Administrative Justice – Filipe Brito Bastos
1 Introduction: Three Issues of Coherence
2 Borelli: the Facts and the Doctrine. The Jurisdictional and the Substantive Borelli Principles
3 The Versatility and the Scope of the Borelli Doctrine
4 Defending the Coherence of Borelli with the Broader Scenario of EU Constitutional Law
5 The Coherence of the Borelli Doctrine with the Court’s Case Law on the Reviewability of Intermediate Measures
6 Conclusion: Coherence Between Administrative Reality and the Dualistic System of Judicial Protection?

Leaving Coherence Instruments Unapplied – Alke Metselaar
1 National Courts in State Aid Proceedings and Coherence Instruments
2 The Relation Between the European Commission and the National Courts in State Aid Cases
3 Commission Support in National State Aid Proceedings: Theory
4 Commission Opinions in Dutch State Aid Case Law
4.1 Circumstances under which Opinions are sought
4.2 The Commission Opinion and its Application to the National Case
4.3 Procedural Safeguards following a Commission Opinion
5 Requests for Information in Dutch State Aid Case Law
6 Cases where no Advice is sought
7 Outlook

Lufthansa and the Coherent Application of State Aid Law: What is the Role of National Judges in Concurrent Proceedings? – Carlo Maria Colombo
1 Introduction
2 Lufthansa and its Predecessors: Towards a Coherent List of Remedies in Case of Simultaneous Proceedings on the Same Aid Measures
3 The Complementary Role of National Courts in Case of Commission Peliminary Decisions: did the CJEU Misinterpret the Principles of EU Law in Lufthansa?
3.1 Facts and Ruling
3.2 Some Prima Facie Criticisms (…)
3.3 (…) that are unjustified. The ‘effective’ Competences of Domestic Courts in the Light of the Principles Framing EU Law
4 Does the Application of Lufthansa Lead to a Coherent Enforcement of State Aid Rules by National Judges?
4.1 Order to Suspend Payment, Recovery and Interim Measures: Timing and Evidence Issues in Domestic Litigations
4.2 The Limited Support Offered by the Commission and by the Preliminary Reference to the CJEU
5 To Conclude

Application of the Principle of Protection of Legitimate Expectations in Recovery of Unduly Paid Subsidies in the Context of Judicial Coherence in the European Union – Marcin Weisbrot
1 Introduction. Legitimate Expectations and Judicial Coherence
2 Legitimate Expectations in Recovery Procedures
2.1 General Remarks on the Union Principle of Legitimate Expectations
2.2 Legitimate Expectations and Legality
2.3 Legitimate Expectations, Effet Utile and Uniform Application of EU law
3 Legitimate Expectations in Recovery of Unduly Paid Subsidies in CAP and Structural Funds
3.1 Concept of Recovery and Irregularity
3.2 National or Union Principle of Legitimate Expectations?
3.2.1 Application of the National Principle of Legitimate Expectations
3.2.2 Application of the Union Principle of Legitimate Expectations
3.3 Conditions and Limits of Legitimate Expectations
3.3.1 Good Faith
3.3.2 Fault of a Third Party
3.3.3 ‘Wrong’ Interpretation of Complex Legal Provisions
3.3.4 Mistakes of National Authorities
3.3.5 Prudent and Diligent Trader Test
4 Legitimate Expectations in State Aid Recovery
4.1 Purpose and Object of Recovery
4.2 Legitimate Expectations in State Aid Recovery
5 Comparison of Recovery and Legitimate Expectations in State Aid with CAP and Structural Funds
Conclusions

Exploring Different Concepts of Judicial Coherence in the Patent Context: The Future Role of the (New) Unified Patent Court and its Interaction with other (Old) Actors of the European Patent
System – Federica Baldan and Esther van Zimmeren
1 Introduction
2 Conceptual Framework
2.1 The Notion of Judicial Coherence
2.1.1 Horizontal Coherence
2.1.2 Vertical Coherence
2.1.3 Global Coherence
2.1.4 Local Coherence
2.2 Judicial Coherence and other Legal Principles
2.3 The Importance of a Coherent European Patent System
2.4 Judicial Dialogue in the European Patent System
3 The Main Actors of the European Patent System
3.1 Quasi-judicial BoAs
3.2 National Judges
3.3 CJEU
4 The Future European Patent System: New Actors and New Roles Introduced by the Unitary Patent Package
4.1 The Unitary Patent Package
4.2 New Actors and New Roles in the European Patent System
4.2.1 New Actors: The UPC with its Different Levels and Divisions
4.2.2 A New Role for the BoAs?
4.2.3 A New Role for National Judges?
4.2.4 A New Role for the CJEU?
5 A More Coherent European Patent System?
5.1 Horizontal Judicial Coherence
5.1.1 Intra-pillar Horizontal Judicial Coherence
5.1.2 Inter-pillar Horizontal Judicial Coherence
5.2 Vertical Judicial Coherence
5.3 Global Judicial Coherence
5.4 Local Judicial Coherence
6 Concluding Remarks