No Journey is a Straight Path
By: Rebecca Mignot-Mahdavi
Multilingual EU Law: A New Way of Thinking
By: Lucie Pacho Aljanati
This study addresses an essential characteristic of the EU legal order: its legislation is multilingual and equally authentic in all language versions. In this paper, I use corpus analysis to examine the issue of divergences between language versions that come to light in EU case-law. This paper pursues three specific objectives: 1) to study the use of comparison between language versions by the Court of Justice of the European Union (CJEU), 2) to consider the methods of interpretation that the CJEU applies when considering multilingualism, and 3) to delve into the types of divergences and try to elucidate whether they can be attributed to translation problems. This applied study helps to shed light on the implications multilingualism has for the creation and interpretation of EU law. In order to understand how legal translation and interpretation actually work in the EU, I adopt a reasoned approach to face the challenges posed by the multilingual architecture of EU law, a new way of thinking that considers linguistic issues as important as legal issues.
Who Has the Final Say? The Relationship Between International, EU and National Law
By: Lando Kirchmair
A key focus of much scholarly attention is on the (theoretical) relationship between legal orders. The practical question I intend to answer in this article is the following: how can we know who has the final say – international, European Union (EU) or national law? I proceed in three steps. First, I critically sketch major current theories – monism and dualism, as well as global legal pluralism and global constitutionalism. However, because none of them offers a satisfactory answer to the question posed, I move to the reconceptualization stage of the theoretical relationship between legal orders. In the second step, I offer my account of how to think about the relationship between legal orders by introducing the theory of the law creators’ circle (TLCC). The TLCC provides a theoretical foundation for deciding on the source of the decisive norm. It does not, however, provide a general solution which fits any norm conflict stemming from overlapping legal orders. Thus, the purpose of this article is to develop a legal theory which facilitates the understanding of the interaction between international law, EU and national law. Third, I use a doctrinal analysis to show the results of the TLCC application. For instance, in the famous Kadi saga, according to the TLCC, the EU should have either claimed that the UN Security Council was acting ultra vires or considered the UN Security Council Resolution faulty because UN human rights (instead of EU human rights) had been violated.
The Preliminary Reference Dance between the CJEU and Dutch Courts in the Field of Migration
By: Jasper Krommendijk
This article examines the relationship between national courts and the Court of Justice of the European Union (CJEU) based on a legal-empirical research consisting of interviews and a legal analysis of judgments. It empirically tests which factors shape (i) Dutch national courts’ motivations to refer a case to the CJEU, (ii) how the CJEU’s preliminary rulings are received and implemented by national courts, and (iii) the extent to which the reception of the CJEU’s preliminary ruling influences the national courts’ future decision to refer. This argument is presented through a case study in the field of migration law in the Netherlands (2013-2016). This article shows that earlier theories about judicial empowerment and bureaucratic politics, emphasising politico-strategic reasons for (non)referral, have a limited explanatory value in the context of migration. It is so despite the expectation that strategic reasons are particularly applicable in a highly Europeanised, judicialised and politicised field such as migration law. Judges primarily operate pragmatically when deciding to refer (or not) and when applying the requested CJEU judgments. Even though several national judges expressed criticism about the CJEU and some of its judgments, this has not affected them to such an extent that they felt discouraged from referring future cases or were reluctant to follow-up on CJEU judgments.
The Application of National Law by the European Central Bank within the EU Banking Union’s Single Supervisory Mechanism: A New Mode of European Integration?
By: Lena Boucon and Daniela Jaros
The Single Supervisory Mechanism (SSM) contains a new and unprecedented feature in EU law: its founding regulation enables a European institution (the ECB) to directly apply national law. This paper examines the theoretical and practical implications of this feature of the SSM through the lens of European integration. It highlights the ways in which the ECB may harmonize national laws, why harmonized administrative procedural rules are necessary in this field and what remedies would be available should a decision of a European institution taken on the basis of national law be challenged before the CJEU. The paper concludes that the SSM may be described as a hybrid mode of European integration since it departs from the traditional models of the execution of EU law, and challenges some of the founding principles of EU law, such as the autonomy of the EU legal order and the principle of non-discrimination.