141,566 research outputs found

    The Role and Mechanism of the Preliminary Ruling Procedure

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    This Article examines the preliminary ruling procedure, by far the most important procedure for legal practitioners and courts. Because Community law, by reason of its supremacy and direct effect, impacts relationships between individuals, Member State courts are asking the Court to decide Community law questions more frequently. Although the law to be applied in these cases is the same in all Member States, there is a potential danger to the functioning of the EC legal system as a whole if the law is not applied uniformly in the Member States. The founding fathers of the Community averted this situation by conferring upon the Court of Justice a monopoly of interpretation on questions of Community law

    Practical Considerations Regarding the Preliminary Ruling Procedure Under Article 177 of the EEC Treaty

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    Part I of this Article considers the role played by the preliminary ruling procedure in the context of the Community legal system as a whole. Part II discusses the types of questions that may be appropriately referred to the Court for preliminary ruling. Part III examines the various tribunals and courts that may make a reference to the Court of Justice. Part IV analyzes the tension in the relationship between the Court and the national courts of the Member States. Finally, Part V considers the legal effects of preliminary rulings

    Kemungkinan Penerapan Preliminary Ruling Procedure sebagai Media Constitutional Complaint di Mahkamah Konstitusi

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    Preliminary ruling procedure seperti yang diterapkan di Uni Eropa dapat menjadi metode alternatif dalam pelaksanaan constitutional complaint di Indonesia. Undang-Undang Dasar 1945 sebagai hukum tertinggi di Indonesia dikawal oleh lembaga yang bernama Mahkamah Konstitusi Republik Indonesia, dan dalam preliminary ruling procedure untuk pemberlakuan constitutional complaint maka dibutuhkan Peran Pengadilan Negeri dimana melalui preliminary ruling procedure tersebut dapat melakukan constitutional question kepada Mahkamah Konstitusi, dan berlanjut sampai dengan memutuskan perkara constitutional complaint tersebut atas nama Mahkamah Konstitusi, jadi secara tidak langsung Mahkamah Konstitusi memutuskan perkara melalui Pengadilan Negeri. Hal ini untuk menjamin konsistensi antara Mahkamah Konstitusi sebagai lembaga peradilan yang berwenang mengawal konstitusi serta menjamin akan adanya kepastian hukum yang harus diterima oleh warga negara secara efektif. Sehingga konstitusi memiliki direct effect secara individual dalam kehidupan sehari-hari rakyat Indonesia.Preliminary ruling procedure as applied in the European Union can be an alternative method for the implementation of the constitutional complaint in Indonesia. Constitution of Republic of Indonesia of 1945 can be assumed as the highest law in Indonesia which been guarded by the institution called the Constitutional Court of Republic of Indonesia, the preliminary ruling procedure for the implementation of the constitutional complaint required the seminal role of the District Court which can exercise the constitutional question to the Constitutional Court and continues it into the judgement of the constitutional complaint on behalf of the Constitutional Court indirectly. This method is to ensure not only the consistency between the Constitutional Court as the guardian of the constitution but also to guarantee the legal certainty which can be accepted by citizens effectively. So the constitution has a direct effect on an individual basis in the daily life of the people of Indonesia

    The urgent preliminary ruling procedure

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    Trabajo de fin de Grado. Grado en Derecho. Curso acad茅mico 2014-2015[ES] En el presente trabajo se analiza la figura de la cuesti贸n prejudicial de urgencia, un procedimiento concentrado que se encuadra dentro del instituto prejudicial para agilizar los tr谩mites y obtener un pronunciamiento m谩s r谩pido por parte del Tribunal de Justicia de la Uni贸n Europea. Su construcci贸n se produce en 2008 como respuesta l贸gica a la asunci贸n de competencias relativas al Espacio de Libertad, Seguridad y Justicia por parte de la Uni贸n Europea. Como veremos, se ha reducido notablemente el tiempo medio de tramitaci贸n de las cuestiones mediante este mecanismo, y ello tanto si lo comparamos con el procedimiento ordinario como con el acelerado, logr谩ndose as铆 el pretendido objetivo. Sin duda ha sido un paso m谩s para la garant铆a de los derechos y libertades de los ciudadanos de los Estados miembros, pues podr谩 aplicar cuando se acredite la urgencia en las materias contempladas en el T铆tulo V, parte tercera, del Tratado de Funcionamiento de la Uni贸n Europea (Espacio de Libertad, Seguridad y Justicia).[EN] In this work we are going to analyze the figure of the urgent preliminary ruling procedure, a concentrated procedure figure that has its origin in the preliminary institute, and it鈥檚 created to expedite the process and get a faster answer by the Court of Justice of the European Union. Its construction was produced in 2008 as a logical result of the assumption of jurisdiction in the area of freedom, security and justice by the European Union. As we will see, it has been drastically reduced the average processing time of the issues through this mechanism, also when we compared it with the regular procedure and with the accelerated. It has certainly been a step towards guaranteeing the rights and freedoms of citizens of the member states, as it may apply when the urgency is accredited to the matters referred to in Title V, part three, of the Treaty on the Functioning of the European Union (area of freedom, security and justice)

    European 鈥淛udicial Monologue鈥 of the Czech Constitutional Court 鈥 a Critical Review of its approach to the Preliminary Ruling Procedure

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    The paper analyses the use of the preliminary ruling procedure by the Czech Constitutional Court and the attitude of this court towards the EU law. The approach of the Constitutional Court to the judicial dialog is also compared with some other European constitutional courts mainly with those who have a similar role in national judiciary or with those who were able to effectively take an advantage of the preliminary ruling procedure. The paper demonstrates that the Czech Constitutional Court took the position that seems to be unsustainable from a long time perspective as the reality of the current development favours the spirit of cooperation among European highest courts

    CERTAIN CONSIDERATIONS ON THE 鈥淒ESTINY鈥 OF THE PRELIMINARY CHAMBER INSTITUTION IN THE CURRENT LEGAL FRAMEWORK

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    The preliminary chamber is a stage preceding the ruling on the merits of the case. By regulating this institution, the purpose of the Romanian legislator was to eliminate the possibility to raise certain causes of unlawfulness of the criminal prosecution acts carried out during the trial phase. The aim of this scientific research is to highlight certain aspects concerning the purpose of the preliminary chamber procedure, while also militating for its maintenance in the Romanian Criminal Procedure Code

    Scurt膬 analiz膬 a dou膬 cereri respinse de trimitere preliminar膬 la Curtea de Justi牛ie a Uniunii Europene

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    The preliminary ruling procedure is a useful tool that, over time, allowed the national courts to participate to the application of European Union law and contributed to this law system evolution. Our study reveals that the procedure is useful for both the national court and the litigant parties, as it clarifies both categories of participants on how should be applied the law of the European Union. However, the preliminary ruling procedure is subject to specific rules, very well systematized in the Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings, a document issued by the Court of Justice of the European Union itself. Ignoring these recommendations led to the rejection, as inadmissible, of certain requests for a preliminary ruling, and this is a situation that should be avoided in the future

    FEW ASPECTS ON THE PROCEDURE OF NOTIFICATION FOR A PRELIMINARY RULING IN CRIMINAL MATTERS IN COMPARISON WITH THE ONES FOR CIVIL MATTERS

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    The article aims to continue the scientific research of a legislative instrument for the prevention of a divergent judicial practice, namely the procedure for notifying the High Court of Cassation and Justice to issue a preliminary ruling for solving certain law matters, this time performing a comparative analysis between the texts of the criminal and civil procedure code

    To Refer or Not to Refer, That Is the (Preliminary) Question: Exploring Factors Which Influence the Participation of National Judges in the Preliminary Ruling Procedure

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    This paper explores factors that either motivate or constrain national judges鈥 participation in the preliminary ruling procedure. By incorporating insights and evidence from American judicial politics literature and drawing from three models of judicial decision making: the attitudinal model, the team model, and the resource management model, it places the study of judicial behaviour with respect to the preliminary ruling procedure on more rigorous theoretical grounds. The paper is based on survey results conducted among 415 national judges from two new EU Member States: Slovenia and Croatia. In line with the theoretical predictions, the results show that the decision to make a referral to the CJEU is determined by several individual- and court-level factors. These are the position that a court occupies in a national judicial hierarchy, the judicial workload and availability of resources, and judges鈥 knowledge and experiences with respect to EU law and Article 267 TFEU proceedings

    The Preliminary Ruling Procedure, Today: Revisiting Article 267 TFEU鈥檚 Constitutional Backbone

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    As the title of the Special Issue suggests, its main purpose is to shed new light on the content, scope, extent, and limits of Article 267 TFEU in today鈥檚 Union and, in turn, on the nature of this procedure and the European Court of Justice (ECJ)鈥檚 role as a sui generis supranational court. Such role has been played first and foremost through the rulings rendered in the context of the preliminary ruling procedure, which has been defined as the 鈥榢eystone鈥 of the EU judicial system,2 the 鈥榤ost important aspect of the work of the Court鈥,3 the 鈥榡ewel in the Crown鈥 of the Court鈥檚 jurisdiction,4 and the 鈥榞enius鈥 without which core principles, such as direct effect and primacy, could have not been conceived.5 Indeed, the procedure enshrined in Article 267 TFEU has shaped and continues to shape profoundly the EU legal order and the relationship between the EU and the Member States.Moreover, this procedure shall not be seen simply as a tool used by the Court of Luxembourg to strengthen the evolution of EU law. In fact, the way Article 267 TFEU has been constantly interpreted, redesigned, and materially reformed over the decades is also a symptom of the dynamics underpinning such evolution. This transformative and mimetic nature of Article 267 TFEU explains the evergreen interest in the procedure despite the absence of any amendment to the Treaties since the 1950s, confirmed by the large number of studies published on the subject over the last few years
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