Croatian Yearbook of European Law and Policy, 2008
The Article deals with the differences in the legal culture in the pre-2004 and post-2004 EU Memb... more The Article deals with the differences in the legal culture in the pre-2004 and post-2004 EU Member States and candidate states and examines whether such differences prevent successful participation of new Member States' courts in the Community legal order. Comparing three elements of ...
Exploring the social dimension of Europe. Essays in honour of Nada Bodiroga-Vukobrat, Verlag Dr Kovač, 2021
This paper analyses the recent constitutional conflict between the EU Court of Justice (CJEU) and... more This paper analyses the recent constitutional conflict between the EU Court of Justice (CJEU) and the German Federal Constitutional Court (FCC) through the Weiss/PSPP cases. It seeks to join the scholarly debate by discussing the impact of this judicial episode on the theory of constitutional pluralism. The paper was written for a book to be published in memory of Nada Bodiroga Vukobrat, a colleague and a dear friend. It will appear in: Exploring the social dimension of Europe, Essays in honour of Nada Bodiroga-Vukobrat, Verlag Dr Kovač, 2021.
Report from the FIDE 2020 Congress - Topic 1, 2021
Report on the relationship between national courts and the CJEU for the topic 1 one the FIDE 2020... more Report on the relationship between national courts and the CJEU for the topic 1 one the FIDE 2020 Congress.
S. Griller and E. Lentsch (eds.), EMU Integration and National Constitutions, 2020
The aim of this contribution is to explain the Croatian constitutional setup and elaborate on the... more The aim of this contribution is to explain the Croatian constitutional setup and elaborate on the possible Constitution-based obstacles to furthering economic and monetary integration in the EU, with specific emphasis on the role of the Constitutional Court (CC). Croatia is the newest EU Member State, and has still not joined the euro area, but retains the status of a Member State with a derogation. However, becoming part of the euro area is one of its policy priorities.
Procedurally, constitution-based limits to Croatia’s further economic integration in the EU flow from the need for a two-third parliamentary majority to uphold any new transfer of powers to EU institutions. This might be coupled with a referendum, which is not mandated by the Constitution, but exists as an option. Substantively, the Constitution does not impose any express limits to further economic or fiscal integration. However, the Croatian CC has started to develop the concept of “constitutional identity”, which might prove to impose certain limits on the transfer of budgetary powers. However, the CC is procedurally powerless to stop Treaty amendments agreed upon by the Government and approved by Parliament, and also cannot stop Croatia’s ratification of international agreements in the area of economic and financial integration, as it lacks the power of either prior or posterior control of the constitutionality of international treaties. Thus, the concept of “constitutional identity”, even if understood by the CC as preventing the transfer of fiscal and economic powers (or some parts of them), can only influence Treaty amendments or intergovernmental agreements indirectly if political institutions feel prevented by this concept from agreeing to the further economic and fiscal empowerment of the EU. The CC has also announced its unwillingness to accept unconditionally the supremacy of EU law by announcing the supremacy of the Constitution. Even though this doctrine is only at its early stages and is far from being fully elaborated, it might allow for the constitutional review of EU secondary law. Even if it is expected that such a review will be limited, the control of the compatibility of EU measures with “constitutional identity” might be expected. This could open the way for the CC to become involved in the elaboration of EMU choices in the future. It is expected that, in elaborating its doctrine, the Croatian CC will pay attention to the positions adopted by other CCs in the EU Member States.
Pravo i politika - Stara pitanja i novi odgovori, edicija HAZU, 2020
Political and judicial processes, which do not differ in their substance as they both consist of ... more Political and judicial processes, which do not differ in their substance as they both consist of choice-making activities, find themselves in an interesting interaction in the European Union context. In the past, but also these days, in the situations in which political process becomes ineffective, the judicial process led by the European Court of Justice becomes the place of important choices. In this contribution, this interaction between political and judicial processes is demonstrated in the context of the rule of law crisis, caused by the emergence of autocratic regimes in some EU member states. The main explanation for the Court’s empowerment for deciding about the systemic failures in the independence of judiciary in member states is precisely the inability of the political process to address the rule of law crisis adequately. In such circumstances, the European Court is called upon to define the outer limits of what is and what not the acceptable democracy in Europe is. However, without the active support of the political process, the Court cannot influence the tendencies in member states. On the other hand, the Court can, as earlier in the EU history, give new impetus to the creation of an EU rule of law policy, boosting the legitimacy of the European Commission in further development of such policy.
Member States’ Constitutions and EU Integration, Griller, M. Claes, L. Papadopoulou & R. Puff (Eds.), Oxford, Hart Publishing, 2020
This paper describes the possible limits Croatian Constitution may impose on the further European... more This paper describes the possible limits Croatian Constitution may impose on the further European integration. It also deals with question how has the Croatian constitutional order accommodated the EU legal order.
Martin Belov, (ed.) The Role of Courts in Contemporary Legal Orders, Eleven, 2019
This paper offers some arguments derived from the case law of the Court of Justice of the EU (CJE... more This paper offers some arguments derived from the case law of the Court of Justice of the EU (CJEU) that contribute to the realist’s description of adjudication process. It is a small part of wider research aimed ultimately at answering whether and how artificial intelligence (AI) can be used in adjudication at the CJEU. The first step in such research is to answer what really happens in the process of adjudication, or, more simply, to understand how judges decide. In order to open discussion about legal formalism and legal realism seen as descriptive theories of adjudication, I am making a parallel with science, more precisely with the world of quantum mechanics. The ways legal scholars describe judicial decision-making are, therefore, compared with the ways physicists explain the results of experiments on the behaviour of small particles.
The paper was presented at the International Conference “III ‘Erasmus’ Legal Science Week”, held at the University of Sofia on 29-30 March 2019 and will be published in: Martin Belov, (ed.) The Role of Courts in Contemporary Legal Orders, Eleven, 2019 (forthcoming). I am grateful for any comments on the paper, which may be sent to: tamara.capeta@gmail.com. I especially welcome comments from physicists and lawyers.
Towards a new Government of the Economy in the European Union, Carrera Hernández, F.J. (Dir.),ed. ARANZADI, ISBN: 978-84-9177-284-2, 2018
This paper asks the question whether the courts have a role in shaping economic policy decisions ... more This paper asks the question whether the courts have a role in shaping economic policy decisions at the EU level. It analyses which types of “economic” cases reached the courts during the financial crisis in the EU, and to what extent and with which arguments Member States' courts and the CJEU agreed to participate in shaping economic policy decisions. The paper discusses the effects and desirability of the courts’ participation in economic governance, and concludes that, whether or not one approves this, the Courts are today inevitable part of economic governance. Shift from international instruments as a means of addressing the euro crisis to the EU-based instruments will not eliminate judicialisation of economic governance. If, for instance, fiscal policy becomes more communitarianised, this will not change judicial involvement, it would just change the level of the courts involved: from national courts to the CJEU. This can, arguably, also change the outcome of judicial decisions, but not the involvement of courts in economic decisions.
Nakon dugotrajnih porođajnih muka, 1. prosinca 2009. stupio je na snagu Lisabonski ugovor. Njime ... more Nakon dugotrajnih porođajnih muka, 1. prosinca 2009. stupio je na snagu Lisabonski ugovor. Njime je donekle izmijenjen pravni i institucionalni okvir u kojem djeluje Eu-ropska unija. U tom smislu Ugovor je od ustavne važnosti za EU. Njime su izmijenjeni dosadašnji Osnivački ugovori na kojima se Unija temeljila, a kojima je posljednja pred-lisabonska inačica bila ona dogovorena Ugovorom iz Nice (2002.). Novi Ugovor odražava nastojanje Unije da se prilagodi novoj situaciji u kojoj se našla prvenstveno zbog velikog širenja članstva s 15 država u 1995. na gotovo dvos-truko – 27 u 2007. U kratkim se crtama tumače najvažnije promjene koje Ugovor unosi u ujedinjenu Europu.
Ovlasti i obveze institucija u Hrvatskoj, uključujući i njezine sudove, promijenile su se s ulask... more Ovlasti i obveze institucija u Hrvatskoj, uključujući i njezine sudove, promijenile su se s ulaskom Hrvatske u članstvo EU-a. Ovaj članak analizira i objašnjava situacije u kojima nastaje ovlast, odnosno pone-kad obveza za hrvatske kaznene sudove da surađuju sa Sudom EU-a kroz prethodni postupak. Neposredni motiv za pisanje članka bile su izjave u odlukama hrvatskih sudova koji su sudili u predmetu Perković, povezanim s provedbom Europskog uhidbenog naloga, kako pokreta-nje prethodnog postupka nije potrebno ili čak ni moguće kad je europ-ski propis proveden u hrvatsko pravo. Prilog objašnjava zašto je takvo stajalište pogrešno. Pitanje koje se može postaviti pred nacionalnim sudom, a zbog kojeg se on može ili mora obratiti Sudu EU-a, doista se uvijek mora odnositi na pravo EU-a, a ne na nacionalno pravo. To međutim ne znači da u situaciji kad je pravo EU-a (primjerice neka okvirna odluka ili direktiva) pre-neseno u nacionalno pravo potreba za tumačenjem europskog pravnog instrumenta nestaje. Upravo suprotno, stoga što su nacionalni sudovi obvezni tumačiti nacionalno pravo u skladu s europskim pravom, tu-mačenje europskog propisa nužno im je za ispravno tumačenje doma-ćeg prava. U prilogu se prikazuju situacije u kojima će sudovi koji sude u ka-znenim stvarima u Hrvatskoj moći, a ponekad i morati, ući u izravni dijalog sa Sudom EU-a kroz prethodni postupak, uključujući i radi po-stavljanja pitanja valjanosti primjenjivog europskog prava.
This book chapter questions whether the EU judicial architecture should be redesigned. The main r... more This book chapter questions whether the EU judicial architecture should be redesigned. The main reason for raising the question is the perception that the Court's authority has started to erode. A principal cause for this seems to be the inadequate reasoning of the Court's decisions.
The Article deals with the differences in the legal culture in the pre-2004 and post-2004 EU Memb... more The Article deals with the differences in the legal culture in the pre-2004 and post-2004 EU Member States and candidate states and examines whether such differences prevent successful participation of new Member States' courts in the Community legal order. Comparing three elements of legal culture, namely valid legal sources, interpretation of the law and argumentation by the courts, the author concludes that important differences do exist. It is further examined whether the last or future enlargements could endanger the functioning of the Community legal order due to the still existing differences in legal culture. The conclusion is that the membership is possible despite the differences, as with proper basic education in Community law, the judges will not endanger its application. On the other hand, in order to participate fully in the Community legal order, i.e. in order to acquire the ability to participate in the constitutional discourse in the EU, East European judges will need more time. However, EU membership may indeed only speed up the necessary process of changes in the legal culture.
This paper reflects upon the consequences of Brexit for the EU constitutional order. It joins man... more This paper reflects upon the consequences of Brexit for the EU constitutional order. It joins many analyses that followed the referendum by which the UK citizens decided that their country should leave the EU. However, whereas the majority of analyses concentrate on the impact of Brexit on the UK legal order, this paper looks into the possible repercussions for the EU legal order. It divides the consequences into three periods: first, the one that immediately followed the referendum; second, the period that will open with the UK notification of its decision to withdraw; and the third, looking into the long-term effects of Brexit for the EU. Within such a framework, the paper offers the author's view on the possible and desirable interpretations of article 50 TFEU.
This article deals with the new provisions devoted to EU legal instruments proposed by the Consti... more This article deals with the new provisions devoted to EU legal instruments proposed by the Constitutional Treaty and the Reform Treaty. In the first part, the changes proposed by the Constitutional Treaty and the Reform Treaty are explained in relation to the present organisation of legal instruments. Besides describing the proposed changes, an attempt is made to identify the motives behind them. In the second part, the proposed changes are assessed as to whether they represent simplifications that would make it easier for European citizens to understand the EU system. The article looks at whether different aspects of the proposed changes, such as decreasing the number of legal instruments, changing their names, or introducing a distinction between legislative and non-legislative acts, represent simplifications. The overall conclusion which follows is that the Reform Treaty does not simplify EU legal acts for EU citizens, even if there are certain changes which might be called simplifications.
The purpose of this article is to assess how multilingualism
affects judicial interpretation of E... more The purpose of this article is to assess how multilingualism affects judicial interpretation of EU law. In the EU, the European Court of Justice is in the position of having the fi nal say on what EU norms mean. Therefore, the article looks into the case law of that Court. It is well known that all offi cial EU languages (23 of them at present) are authentic languages. Less known is what the related consequences are for interpretation in judicial proceedings. The first aim of the article is to fi nd out what consequences the ECJ has drawn from this fact. Secondly, even though in some cases (eg CILFIT) the ECJ has postulated language comparison as a necessary step in construing the meaning of EU law, it is clear that such comparisons are not performed on a regular basis. Therefore, the article looks into when, on whose initiative, and for what purpose the Court performs a comparison of the same EU norm(s) expressed in different languages. The article then looks into what the Court does if discrepancies in different language versions are found, and concludes that such a problem is overcome by looking for the purpose of a legal norm. Finally, it is found that multilingualism does not signifi cantly affect the manner and outcome of interpretation by the ECJ.
The question at the centre of focus in this chapter is whether the Advocate Generals’ (AGs’) Opin... more The question at the centre of focus in this chapter is whether the Advocate Generals’ (AGs’) Opinions contribute to the clarity of the Court’s decisions and thus increase its legitimacy. Methodologically, it analyses the cases of Mangold and Kücükdeveci and the pertaining AGs’ Opinions. It also looks at the Opinions of other AGs in other cases that commented upon either of these two judgments. It concludes that due to the lack of response by the Court to the arguments offered by its AGs, their Opinions have a very weak capacity to clarify unreasoned parts of the judgment to the general public beyond the Court. Thus the only real beneficiary of the Opinions is the academic community.
Croatian Yearbook of European Law and Policy, 2008
The Article deals with the differences in the legal culture in the pre-2004 and post-2004 EU Memb... more The Article deals with the differences in the legal culture in the pre-2004 and post-2004 EU Member States and candidate states and examines whether such differences prevent successful participation of new Member States' courts in the Community legal order. Comparing three elements of ...
Exploring the social dimension of Europe. Essays in honour of Nada Bodiroga-Vukobrat, Verlag Dr Kovač, 2021
This paper analyses the recent constitutional conflict between the EU Court of Justice (CJEU) and... more This paper analyses the recent constitutional conflict between the EU Court of Justice (CJEU) and the German Federal Constitutional Court (FCC) through the Weiss/PSPP cases. It seeks to join the scholarly debate by discussing the impact of this judicial episode on the theory of constitutional pluralism. The paper was written for a book to be published in memory of Nada Bodiroga Vukobrat, a colleague and a dear friend. It will appear in: Exploring the social dimension of Europe, Essays in honour of Nada Bodiroga-Vukobrat, Verlag Dr Kovač, 2021.
Report from the FIDE 2020 Congress - Topic 1, 2021
Report on the relationship between national courts and the CJEU for the topic 1 one the FIDE 2020... more Report on the relationship between national courts and the CJEU for the topic 1 one the FIDE 2020 Congress.
S. Griller and E. Lentsch (eds.), EMU Integration and National Constitutions, 2020
The aim of this contribution is to explain the Croatian constitutional setup and elaborate on the... more The aim of this contribution is to explain the Croatian constitutional setup and elaborate on the possible Constitution-based obstacles to furthering economic and monetary integration in the EU, with specific emphasis on the role of the Constitutional Court (CC). Croatia is the newest EU Member State, and has still not joined the euro area, but retains the status of a Member State with a derogation. However, becoming part of the euro area is one of its policy priorities.
Procedurally, constitution-based limits to Croatia’s further economic integration in the EU flow from the need for a two-third parliamentary majority to uphold any new transfer of powers to EU institutions. This might be coupled with a referendum, which is not mandated by the Constitution, but exists as an option. Substantively, the Constitution does not impose any express limits to further economic or fiscal integration. However, the Croatian CC has started to develop the concept of “constitutional identity”, which might prove to impose certain limits on the transfer of budgetary powers. However, the CC is procedurally powerless to stop Treaty amendments agreed upon by the Government and approved by Parliament, and also cannot stop Croatia’s ratification of international agreements in the area of economic and financial integration, as it lacks the power of either prior or posterior control of the constitutionality of international treaties. Thus, the concept of “constitutional identity”, even if understood by the CC as preventing the transfer of fiscal and economic powers (or some parts of them), can only influence Treaty amendments or intergovernmental agreements indirectly if political institutions feel prevented by this concept from agreeing to the further economic and fiscal empowerment of the EU. The CC has also announced its unwillingness to accept unconditionally the supremacy of EU law by announcing the supremacy of the Constitution. Even though this doctrine is only at its early stages and is far from being fully elaborated, it might allow for the constitutional review of EU secondary law. Even if it is expected that such a review will be limited, the control of the compatibility of EU measures with “constitutional identity” might be expected. This could open the way for the CC to become involved in the elaboration of EMU choices in the future. It is expected that, in elaborating its doctrine, the Croatian CC will pay attention to the positions adopted by other CCs in the EU Member States.
Pravo i politika - Stara pitanja i novi odgovori, edicija HAZU, 2020
Political and judicial processes, which do not differ in their substance as they both consist of ... more Political and judicial processes, which do not differ in their substance as they both consist of choice-making activities, find themselves in an interesting interaction in the European Union context. In the past, but also these days, in the situations in which political process becomes ineffective, the judicial process led by the European Court of Justice becomes the place of important choices. In this contribution, this interaction between political and judicial processes is demonstrated in the context of the rule of law crisis, caused by the emergence of autocratic regimes in some EU member states. The main explanation for the Court’s empowerment for deciding about the systemic failures in the independence of judiciary in member states is precisely the inability of the political process to address the rule of law crisis adequately. In such circumstances, the European Court is called upon to define the outer limits of what is and what not the acceptable democracy in Europe is. However, without the active support of the political process, the Court cannot influence the tendencies in member states. On the other hand, the Court can, as earlier in the EU history, give new impetus to the creation of an EU rule of law policy, boosting the legitimacy of the European Commission in further development of such policy.
Member States’ Constitutions and EU Integration, Griller, M. Claes, L. Papadopoulou & R. Puff (Eds.), Oxford, Hart Publishing, 2020
This paper describes the possible limits Croatian Constitution may impose on the further European... more This paper describes the possible limits Croatian Constitution may impose on the further European integration. It also deals with question how has the Croatian constitutional order accommodated the EU legal order.
Martin Belov, (ed.) The Role of Courts in Contemporary Legal Orders, Eleven, 2019
This paper offers some arguments derived from the case law of the Court of Justice of the EU (CJE... more This paper offers some arguments derived from the case law of the Court of Justice of the EU (CJEU) that contribute to the realist’s description of adjudication process. It is a small part of wider research aimed ultimately at answering whether and how artificial intelligence (AI) can be used in adjudication at the CJEU. The first step in such research is to answer what really happens in the process of adjudication, or, more simply, to understand how judges decide. In order to open discussion about legal formalism and legal realism seen as descriptive theories of adjudication, I am making a parallel with science, more precisely with the world of quantum mechanics. The ways legal scholars describe judicial decision-making are, therefore, compared with the ways physicists explain the results of experiments on the behaviour of small particles.
The paper was presented at the International Conference “III ‘Erasmus’ Legal Science Week”, held at the University of Sofia on 29-30 March 2019 and will be published in: Martin Belov, (ed.) The Role of Courts in Contemporary Legal Orders, Eleven, 2019 (forthcoming). I am grateful for any comments on the paper, which may be sent to: tamara.capeta@gmail.com. I especially welcome comments from physicists and lawyers.
Towards a new Government of the Economy in the European Union, Carrera Hernández, F.J. (Dir.),ed. ARANZADI, ISBN: 978-84-9177-284-2, 2018
This paper asks the question whether the courts have a role in shaping economic policy decisions ... more This paper asks the question whether the courts have a role in shaping economic policy decisions at the EU level. It analyses which types of “economic” cases reached the courts during the financial crisis in the EU, and to what extent and with which arguments Member States' courts and the CJEU agreed to participate in shaping economic policy decisions. The paper discusses the effects and desirability of the courts’ participation in economic governance, and concludes that, whether or not one approves this, the Courts are today inevitable part of economic governance. Shift from international instruments as a means of addressing the euro crisis to the EU-based instruments will not eliminate judicialisation of economic governance. If, for instance, fiscal policy becomes more communitarianised, this will not change judicial involvement, it would just change the level of the courts involved: from national courts to the CJEU. This can, arguably, also change the outcome of judicial decisions, but not the involvement of courts in economic decisions.
Nakon dugotrajnih porođajnih muka, 1. prosinca 2009. stupio je na snagu Lisabonski ugovor. Njime ... more Nakon dugotrajnih porođajnih muka, 1. prosinca 2009. stupio je na snagu Lisabonski ugovor. Njime je donekle izmijenjen pravni i institucionalni okvir u kojem djeluje Eu-ropska unija. U tom smislu Ugovor je od ustavne važnosti za EU. Njime su izmijenjeni dosadašnji Osnivački ugovori na kojima se Unija temeljila, a kojima je posljednja pred-lisabonska inačica bila ona dogovorena Ugovorom iz Nice (2002.). Novi Ugovor odražava nastojanje Unije da se prilagodi novoj situaciji u kojoj se našla prvenstveno zbog velikog širenja članstva s 15 država u 1995. na gotovo dvos-truko – 27 u 2007. U kratkim se crtama tumače najvažnije promjene koje Ugovor unosi u ujedinjenu Europu.
Ovlasti i obveze institucija u Hrvatskoj, uključujući i njezine sudove, promijenile su se s ulask... more Ovlasti i obveze institucija u Hrvatskoj, uključujući i njezine sudove, promijenile su se s ulaskom Hrvatske u članstvo EU-a. Ovaj članak analizira i objašnjava situacije u kojima nastaje ovlast, odnosno pone-kad obveza za hrvatske kaznene sudove da surađuju sa Sudom EU-a kroz prethodni postupak. Neposredni motiv za pisanje članka bile su izjave u odlukama hrvatskih sudova koji su sudili u predmetu Perković, povezanim s provedbom Europskog uhidbenog naloga, kako pokreta-nje prethodnog postupka nije potrebno ili čak ni moguće kad je europ-ski propis proveden u hrvatsko pravo. Prilog objašnjava zašto je takvo stajalište pogrešno. Pitanje koje se može postaviti pred nacionalnim sudom, a zbog kojeg se on može ili mora obratiti Sudu EU-a, doista se uvijek mora odnositi na pravo EU-a, a ne na nacionalno pravo. To međutim ne znači da u situaciji kad je pravo EU-a (primjerice neka okvirna odluka ili direktiva) pre-neseno u nacionalno pravo potreba za tumačenjem europskog pravnog instrumenta nestaje. Upravo suprotno, stoga što su nacionalni sudovi obvezni tumačiti nacionalno pravo u skladu s europskim pravom, tu-mačenje europskog propisa nužno im je za ispravno tumačenje doma-ćeg prava. U prilogu se prikazuju situacije u kojima će sudovi koji sude u ka-znenim stvarima u Hrvatskoj moći, a ponekad i morati, ući u izravni dijalog sa Sudom EU-a kroz prethodni postupak, uključujući i radi po-stavljanja pitanja valjanosti primjenjivog europskog prava.
This book chapter questions whether the EU judicial architecture should be redesigned. The main r... more This book chapter questions whether the EU judicial architecture should be redesigned. The main reason for raising the question is the perception that the Court's authority has started to erode. A principal cause for this seems to be the inadequate reasoning of the Court's decisions.
The Article deals with the differences in the legal culture in the pre-2004 and post-2004 EU Memb... more The Article deals with the differences in the legal culture in the pre-2004 and post-2004 EU Member States and candidate states and examines whether such differences prevent successful participation of new Member States' courts in the Community legal order. Comparing three elements of legal culture, namely valid legal sources, interpretation of the law and argumentation by the courts, the author concludes that important differences do exist. It is further examined whether the last or future enlargements could endanger the functioning of the Community legal order due to the still existing differences in legal culture. The conclusion is that the membership is possible despite the differences, as with proper basic education in Community law, the judges will not endanger its application. On the other hand, in order to participate fully in the Community legal order, i.e. in order to acquire the ability to participate in the constitutional discourse in the EU, East European judges will need more time. However, EU membership may indeed only speed up the necessary process of changes in the legal culture.
This paper reflects upon the consequences of Brexit for the EU constitutional order. It joins man... more This paper reflects upon the consequences of Brexit for the EU constitutional order. It joins many analyses that followed the referendum by which the UK citizens decided that their country should leave the EU. However, whereas the majority of analyses concentrate on the impact of Brexit on the UK legal order, this paper looks into the possible repercussions for the EU legal order. It divides the consequences into three periods: first, the one that immediately followed the referendum; second, the period that will open with the UK notification of its decision to withdraw; and the third, looking into the long-term effects of Brexit for the EU. Within such a framework, the paper offers the author's view on the possible and desirable interpretations of article 50 TFEU.
This article deals with the new provisions devoted to EU legal instruments proposed by the Consti... more This article deals with the new provisions devoted to EU legal instruments proposed by the Constitutional Treaty and the Reform Treaty. In the first part, the changes proposed by the Constitutional Treaty and the Reform Treaty are explained in relation to the present organisation of legal instruments. Besides describing the proposed changes, an attempt is made to identify the motives behind them. In the second part, the proposed changes are assessed as to whether they represent simplifications that would make it easier for European citizens to understand the EU system. The article looks at whether different aspects of the proposed changes, such as decreasing the number of legal instruments, changing their names, or introducing a distinction between legislative and non-legislative acts, represent simplifications. The overall conclusion which follows is that the Reform Treaty does not simplify EU legal acts for EU citizens, even if there are certain changes which might be called simplifications.
The purpose of this article is to assess how multilingualism
affects judicial interpretation of E... more The purpose of this article is to assess how multilingualism affects judicial interpretation of EU law. In the EU, the European Court of Justice is in the position of having the fi nal say on what EU norms mean. Therefore, the article looks into the case law of that Court. It is well known that all offi cial EU languages (23 of them at present) are authentic languages. Less known is what the related consequences are for interpretation in judicial proceedings. The first aim of the article is to fi nd out what consequences the ECJ has drawn from this fact. Secondly, even though in some cases (eg CILFIT) the ECJ has postulated language comparison as a necessary step in construing the meaning of EU law, it is clear that such comparisons are not performed on a regular basis. Therefore, the article looks into when, on whose initiative, and for what purpose the Court performs a comparison of the same EU norm(s) expressed in different languages. The article then looks into what the Court does if discrepancies in different language versions are found, and concludes that such a problem is overcome by looking for the purpose of a legal norm. Finally, it is found that multilingualism does not signifi cantly affect the manner and outcome of interpretation by the ECJ.
The question at the centre of focus in this chapter is whether the Advocate Generals’ (AGs’) Opin... more The question at the centre of focus in this chapter is whether the Advocate Generals’ (AGs’) Opinions contribute to the clarity of the Court’s decisions and thus increase its legitimacy. Methodologically, it analyses the cases of Mangold and Kücükdeveci and the pertaining AGs’ Opinions. It also looks at the Opinions of other AGs in other cases that commented upon either of these two judgments. It concludes that due to the lack of response by the Court to the arguments offered by its AGs, their Opinions have a very weak capacity to clarify unreasoned parts of the judgment to the general public beyond the Court. Thus the only real beneficiary of the Opinions is the academic community.
Martin Belov, (ed.) The Role of Courts in Contemporary Legal Orders, Eleven , 2019
This paper offers some arguments derived from the case law of the Court of Justice of the EU (CJE... more This paper offers some arguments derived from the case law of the Court of Justice of the EU (CJEU) that contribute to the realist’s description of adjudication process. It is a small part of wider research aimed ultimately at answering whether and how artificial intelligence (AI) can be used in adjudication at the CJEU. The first step in such research is to answer what really happens in the process of adjudication, or, more simply, to understand how judges decide. In order to open discussion about legal formalism and legal realism seen as descriptive theories of adjudication, I am making a parallel with science, more precisely with the world of quantum mechanics. The ways legal scholars describe judicial decision-making are, therefore, compared with the ways physicists explain the results of experiments on the behaviour of small particles.
The paper was presented at the International Conference “III ‘Erasmus’ Legal Science Week”, held at the University of Sofia on 29-30 March 2019 and will be published in: Martin Belov, (ed.) The Role of Courts in Contemporary Legal Orders, Eleven, 2019 (forthcoming). I am grateful for any comments on the paper, which may be sent to: tamara.capeta@gmail.com. I especially welcome comments from physicists and lawyers.
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The paper was written for a book to be published in memory of Nada Bodiroga Vukobrat, a colleague and a dear friend. It will appear in: Exploring the social dimension of Europe, Essays in honour of Nada Bodiroga-Vukobrat, Verlag Dr Kovač, 2021.
Procedurally, constitution-based limits to Croatia’s further economic integration in the EU flow from the need for a two-third parliamentary majority to uphold any new transfer of powers to EU institutions. This might be coupled with a referendum, which is not mandated by the Constitution, but exists as an option. Substantively, the Constitution does not impose any express limits to further economic or fiscal integration. However, the Croatian CC has started to develop the concept of “constitutional identity”, which might prove to impose certain limits on the transfer of budgetary powers. However, the CC is procedurally powerless to stop Treaty amendments agreed upon by the Government and approved by Parliament, and also cannot stop Croatia’s ratification of international agreements in the area of economic and financial integration, as it lacks the power of either prior or posterior control of the constitutionality of international treaties. Thus, the concept of “constitutional identity”, even if understood by the CC as preventing the transfer of fiscal and economic powers (or some parts of them), can only influence Treaty amendments or intergovernmental agreements indirectly if political institutions feel prevented by this concept from agreeing to the further economic and fiscal empowerment of the EU. The CC has also announced its unwillingness to accept unconditionally the supremacy of EU law by announcing the supremacy of the Constitution. Even though this doctrine is only at its early stages and is far from being fully elaborated, it might allow for the constitutional review of EU secondary law. Even if it is expected that such a review will be limited, the control of the compatibility of EU measures with “constitutional identity” might be expected. This could open the way for the CC to become involved in the elaboration of EMU choices in the future. It is expected that, in elaborating its doctrine, the Croatian CC will pay attention to the positions adopted by other CCs in the EU Member States.
The paper was presented at the International Conference “III ‘Erasmus’ Legal Science Week”, held at the University of Sofia on 29-30 March 2019 and will be published in: Martin Belov, (ed.) The Role of Courts in Contemporary Legal Orders, Eleven, 2019 (forthcoming). I am grateful for any comments on the paper, which may be sent to: tamara.capeta@gmail.com. I especially welcome comments from physicists and lawyers.
affects judicial interpretation of EU law. In the EU, the European Court of Justice is in the position of having the fi nal say on what EU norms mean. Therefore, the article looks into the case law of that Court. It is well known that all offi cial EU languages (23 of them at present) are authentic languages. Less known is what the related consequences are for interpretation in judicial proceedings. The first aim of the article
is to fi nd out what consequences the ECJ has drawn from this
fact. Secondly, even though in some cases (eg CILFIT) the ECJ has postulated language comparison as a necessary step in construing the meaning of EU law, it is clear that such comparisons are not performed on a regular basis. Therefore, the article looks into when, on whose initiative, and for what purpose the Court performs a comparison of the same EU norm(s) expressed in different languages. The article then looks into what the Court does if discrepancies in different
language versions are found, and concludes that such a problem is overcome by looking for the purpose of a legal norm. Finally, it is found that multilingualism does not signifi cantly affect the manner and outcome of interpretation by the ECJ.
The paper was written for a book to be published in memory of Nada Bodiroga Vukobrat, a colleague and a dear friend. It will appear in: Exploring the social dimension of Europe, Essays in honour of Nada Bodiroga-Vukobrat, Verlag Dr Kovač, 2021.
Procedurally, constitution-based limits to Croatia’s further economic integration in the EU flow from the need for a two-third parliamentary majority to uphold any new transfer of powers to EU institutions. This might be coupled with a referendum, which is not mandated by the Constitution, but exists as an option. Substantively, the Constitution does not impose any express limits to further economic or fiscal integration. However, the Croatian CC has started to develop the concept of “constitutional identity”, which might prove to impose certain limits on the transfer of budgetary powers. However, the CC is procedurally powerless to stop Treaty amendments agreed upon by the Government and approved by Parliament, and also cannot stop Croatia’s ratification of international agreements in the area of economic and financial integration, as it lacks the power of either prior or posterior control of the constitutionality of international treaties. Thus, the concept of “constitutional identity”, even if understood by the CC as preventing the transfer of fiscal and economic powers (or some parts of them), can only influence Treaty amendments or intergovernmental agreements indirectly if political institutions feel prevented by this concept from agreeing to the further economic and fiscal empowerment of the EU. The CC has also announced its unwillingness to accept unconditionally the supremacy of EU law by announcing the supremacy of the Constitution. Even though this doctrine is only at its early stages and is far from being fully elaborated, it might allow for the constitutional review of EU secondary law. Even if it is expected that such a review will be limited, the control of the compatibility of EU measures with “constitutional identity” might be expected. This could open the way for the CC to become involved in the elaboration of EMU choices in the future. It is expected that, in elaborating its doctrine, the Croatian CC will pay attention to the positions adopted by other CCs in the EU Member States.
The paper was presented at the International Conference “III ‘Erasmus’ Legal Science Week”, held at the University of Sofia on 29-30 March 2019 and will be published in: Martin Belov, (ed.) The Role of Courts in Contemporary Legal Orders, Eleven, 2019 (forthcoming). I am grateful for any comments on the paper, which may be sent to: tamara.capeta@gmail.com. I especially welcome comments from physicists and lawyers.
affects judicial interpretation of EU law. In the EU, the European Court of Justice is in the position of having the fi nal say on what EU norms mean. Therefore, the article looks into the case law of that Court. It is well known that all offi cial EU languages (23 of them at present) are authentic languages. Less known is what the related consequences are for interpretation in judicial proceedings. The first aim of the article
is to fi nd out what consequences the ECJ has drawn from this
fact. Secondly, even though in some cases (eg CILFIT) the ECJ has postulated language comparison as a necessary step in construing the meaning of EU law, it is clear that such comparisons are not performed on a regular basis. Therefore, the article looks into when, on whose initiative, and for what purpose the Court performs a comparison of the same EU norm(s) expressed in different languages. The article then looks into what the Court does if discrepancies in different
language versions are found, and concludes that such a problem is overcome by looking for the purpose of a legal norm. Finally, it is found that multilingualism does not signifi cantly affect the manner and outcome of interpretation by the ECJ.
The paper was presented at the International Conference “III ‘Erasmus’ Legal Science Week”, held at the University of Sofia on 29-30 March 2019 and will be published in: Martin Belov, (ed.) The Role of Courts in Contemporary Legal Orders, Eleven, 2019 (forthcoming). I am grateful for any comments on the paper, which may be sent to: tamara.capeta@gmail.com. I especially welcome comments from physicists and lawyers.