Is Private Enforcement of EU Law through State Liability a Myth?:An Assessment 20 Years after <em>Francovich</em>

This paper assesses the success of Member State liability as a tool for the private enforcement of European Union law. The argument made is that Member State liability, first established 20 years ago in the Francovich case, is not a suitable and reliable mechanism to compensate for the weaknesses of public enforcement. The argument is based on statistical findings concerning the case law on Member State liability in two key Member State jurisdictions, England and Germany. The findings reveal that surprisingly little litigation has taken place so far and that only a handful of cases were litigated successfully. This leads the author to conclude that Member State liability has not been successful as a mechanism for the enforcement of EU law. The article continues by analyzing why most of the proceedings initiated remain unsuccessful. It is shown that the criteria for the remedy are very difficult to satisfy and that there is reluctance on the part of national courts to award damages for the failure of Member States to comply with EU law. Before this background it is suggested that state liability under EU law should be chiefly regarded as a means of individual compensation rather than a tool for the private enforcement of EU law

Beyond <em>Bosphorus</em>:The European Court of Human Rights’ Case Law on the Responsibility of Member States of International Organisations under the European Convention on Human Rights

Abstract included in the text

The ECJ and the ECtHR:The Future Relationship between the Two European Courts

The current relationship between the two European courts has been discussed in some great detail while the future of that relationship has been widely neglected. This is somewhat surprising as the entry into force of the Lisbon Treaty and with it of the EU Charter of Fundamental Rights as well as the EU's succession to the ECHR are probably going to take place before too long. The article first examines Article 52(3) of the Charter, which prescribes that the ECHR be the minimum standard of human rights in the EU. It is argued that Article 52 (3) does not entail a reference to the ECtHR's case law so that the ECJ will not be bound by that case law. After an accession of the EU to the ECHR, it is likely that both courts will assert that they have exclusive jurisdiction over the ECHR in inter-state cases, which creates a jurisdictional conflict for which a solution must be found. In addition, the article explores whether after an accession, the Bosphorus case law will have a future and whether the dictum found in Opinion 1/91 will be applicable, according to which the ECJ is bound by the decisions of courts created by an international agreement to which the EC is a party

Why the European Union is not a State:Some Critical Remarks

German Constitutional Court decision of 30 June 2009 on the compatibility of the Lisbon Treaty with the German Constitution – Analysis of inconsistencies – Differences between the EU and a state – Sovereignty of the member states and Kompetenz-Kompetenz – Argument for a relative concept of sovereignty – Sovereignty and the right to withdraw – Critical analysis of BVerfG’s assessment of the EU’s democratic deficit and denial of the importance of the European Parliamen

The European Court of Justice:What are the Limits of Its Exclusive Jurisdiction?

The article explores the limits of the ECJ's exclusive jurisdiction by addressing two main issues: firstly, whether there are exceptions to that exclusivity, such as the application of the CILFIT case law or the exclusion of Community law from the dispute. Secondly, it asks whether other international courts must respect the ECJ's jurisdiction over a case. The article commences by briefly discussing the ECJ's exclusive jurisdiction as it was established in Opinion 1/91 and the Mox Plant-Case and draws conclusions from this case law. It then addresses the above-mentioned points and comes to the conclusion that there are generally no exceptions to the ECJ's exclusive jurisdiction and that the only option open to Member States is to exclude Community law from a dispute (and even that option is subject to limitations). Furthermore, after exploring several routes advanced in the academic discussion, the article comes to the conclusion that other courts must respect the ECJ's jurisdiction and as a consequence declare the case inadmissible

Walking on a Tightrope:The Draft Accession Agreement and the Autonomy of the EU Legal Order

The ongoing negotiations on accession of the European Union to the European Convention on Human Rights (“ECHR” or “Convention”) prove to be a difficult task for the negotiators. Since the accession involves the unusual occurrence of a supranational organization signing up to a sophisticated system of human rights protection, this does not come as a surprise. Apart from the political difficulties of obtaining the consent of forty-seven signatories to the Convention and of the EU’s institutions and Member States, the requirements of two very different legal orders need to be brought in line. From the point of view of European Union law, the most prominent obstacle to an integration of the EU into the external supervision mechanism of the Convention is the autonomy of the EU legal order. From the very start of the negotiations it has been clear that that autonomy, which is jealously policed by the Court of Justice of the European Union, would be a major issue for the negotiators. This contribution is therefore dedicated to the intricacies which the negotiators, and potentially the ECJ, face in this respect. It refers to the different versions of a draft agreement published by the informal working group on accession.1 It contains a critical analysis of the draft with regard to the autonomy of the EU’s legal order but also makes more general comments on whether the proposed solutions would be workable