For this tutorial, you will write essays (YES, finally!)
Some general stuff concerning essays:
I need your essays until 20:00 of the day before the tutorial. Our discussion will be based on your essays, so the more attention you will give to their writing, the better for you (and your preparation for the exam). After the tutorial I will mark the essays and will send them back to you with my comments.
The essays should be no less than 1.000 words and no more than 1.500 words long.
Essays for Tutorial 2:
You can pick up one of the Qs put on pp. 12-13 of the ARL, or you can consider one of the following:
5. “[The general principles of Community law] enabled the Court – often drawing inspiration from legal traditions common to the Member States, and international treaties – to guarantee and add content to legal principles in such important areas as the protection of fundamental rights and administrative law. However, it lies in the nature of general principles of law, which are to be sought rather in the Platonic heaven of law than in the law books, that both their existence and their substantive content are marked by uncertainty”. (AG Mazák in Case C-411/05 Palacios de la Villa, case pending, [86])
Discuss. Where the general principles of Community law come from? To qualify as such, does a principle need to be recognized by all Member States? Which institution is empowered by existence of general principles? …
6. Consider these findings of the Polish Constitutional Tribunal (“Accession Treaty Decision”, summary - pdf - here):
“The Member States maintain the right to assess whether or not, in issuing particular legal provisions, the Community (Union) legislative organs acted within the delegated competences and in accordance with the principles of subsidiarity and proportionality. Should the adoption of provisions infringe these frameworks, the principle of the precedence of Community law fails to apply with respect to such provisions. [...] Every international organization remains a secondary subject, whose establishment, functions and institutional arrangements depend on the will of Member States and sovereign nations in these States, expressed in a certain way. The ECJ has not been delegated the competence to interpret national law”.
Compare it to the principles formulated by the German Federal Constitutional Court (apart from the readings suggested by the ARL, you may find useful this paper: Franz Mayer, “The European Constitution and the Courts - Adjudicating European constitutional law in a multilevel system”, at pp. 18-29). Does the PCT only “copy & paste” the FCC, or, can you see some differences? If so, what can be the reasons?
7. “My suggestion is not that any violation of fundamental rights within the meaning of Article 6(2) EU constitutes, of itself, an infringement of the rules on free movement. Only serious and persistent violations which highlight a problem of systemic nature in the protection of fundamental rights in the Member State at issue, would, in my view, qualify as violations of the rules on free movement, by virtue of the direct threat they would pose to the transnational dimension of European citizenship and to the integrity of the EU legal order. However, so long as the protection of fundamental rights in a Member State is not gravely inadequate in that sense, I believe the Court should review national measures for their conformity with fundamental rights only when these measures come within the scope of application of the Court’s jurisdiction as defined in its case-law to date.” (AG Poiares Maduro in Case C-380/05 Centro Europa 7, case pending, [22])
To what extent can the ECJ adjudicate on violations of fundamental rights by the Member States? Would you agree with Poiares Maduro, that the scope of its protection should be widened? If not, why?
Some tips for your readings:
Weiler’s “The Autonomy of the Community Legal Order: through the looking Glass” was originally published in Harvard Journal of International Law, accessible at Oxford from Hein On-line or JSTOR. Maduro’s ‘Europe and the Constitution: What if this is As Good As It Gets?’ can be downloaded here (pdf).
Back to main page.
Some general stuff concerning essays:
I need your essays until 20:00 of the day before the tutorial. Our discussion will be based on your essays, so the more attention you will give to their writing, the better for you (and your preparation for the exam). After the tutorial I will mark the essays and will send them back to you with my comments.
The essays should be no less than 1.000 words and no more than 1.500 words long.
Essays for Tutorial 2:
You can pick up one of the Qs put on pp. 12-13 of the ARL, or you can consider one of the following:
5. “[The general principles of Community law] enabled the Court – often drawing inspiration from legal traditions common to the Member States, and international treaties – to guarantee and add content to legal principles in such important areas as the protection of fundamental rights and administrative law. However, it lies in the nature of general principles of law, which are to be sought rather in the Platonic heaven of law than in the law books, that both their existence and their substantive content are marked by uncertainty”. (AG Mazák in Case C-411/05 Palacios de la Villa, case pending, [86])
Discuss. Where the general principles of Community law come from? To qualify as such, does a principle need to be recognized by all Member States? Which institution is empowered by existence of general principles? …
6. Consider these findings of the Polish Constitutional Tribunal (“Accession Treaty Decision”, summary - pdf - here):
“The Member States maintain the right to assess whether or not, in issuing particular legal provisions, the Community (Union) legislative organs acted within the delegated competences and in accordance with the principles of subsidiarity and proportionality. Should the adoption of provisions infringe these frameworks, the principle of the precedence of Community law fails to apply with respect to such provisions. [...] Every international organization remains a secondary subject, whose establishment, functions and institutional arrangements depend on the will of Member States and sovereign nations in these States, expressed in a certain way. The ECJ has not been delegated the competence to interpret national law”.
Compare it to the principles formulated by the German Federal Constitutional Court (apart from the readings suggested by the ARL, you may find useful this paper: Franz Mayer, “The European Constitution and the Courts - Adjudicating European constitutional law in a multilevel system”, at pp. 18-29). Does the PCT only “copy & paste” the FCC, or, can you see some differences? If so, what can be the reasons?
7. “My suggestion is not that any violation of fundamental rights within the meaning of Article 6(2) EU constitutes, of itself, an infringement of the rules on free movement. Only serious and persistent violations which highlight a problem of systemic nature in the protection of fundamental rights in the Member State at issue, would, in my view, qualify as violations of the rules on free movement, by virtue of the direct threat they would pose to the transnational dimension of European citizenship and to the integrity of the EU legal order. However, so long as the protection of fundamental rights in a Member State is not gravely inadequate in that sense, I believe the Court should review national measures for their conformity with fundamental rights only when these measures come within the scope of application of the Court’s jurisdiction as defined in its case-law to date.” (AG Poiares Maduro in Case C-380/05 Centro Europa 7, case pending, [22])
To what extent can the ECJ adjudicate on violations of fundamental rights by the Member States? Would you agree with Poiares Maduro, that the scope of its protection should be widened? If not, why?
Some tips for your readings:
Weiler’s “The Autonomy of the Community Legal Order: through the looking Glass” was originally published in Harvard Journal of International Law, accessible at Oxford from Hein On-line or JSTOR. Maduro’s ‘Europe and the Constitution: What if this is As Good As It Gets?’ can be downloaded here (pdf).
Back to main page.
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