Decentralisation of EC Competition Law Enforcement and General Principles of Community Law. Research Papers in Law, 4/2004

From the Introduction. By virtue of Council Regulation No. 1/2003, as of 1st May 2004 the full application of EC competition law will be entrusted to national competition authorities (hereinafter NCAs) and national courts. The bold reform of EC competition law enforcement adheres to the system of executive federalism1 which characterises the EC legal system. The repartition of competences within the Community allocates implementation of Community law mainly at Member States level. Pursuant to Article 10 EC, they are responsible for the implementation of the measures which have been adopted at Community level for the achievement of the objectives specified in the EC Treaty. Consequently, the attainment of the Community objectives depends very much upon the cooperation of national authorities, which act in accordance with their own national procedural rules.2 The various national procedural rules present themselves as conduits through which Community law is implemented and enforced. While as a rule Community law is not designed to alter national procedural rules, the Community legal order cannot afford to leave national procedural rules untouched when they are liable to hamper the effective application of Community law....For reason of space, this contribution intends only to highlight some aspects of Regulation No. 1/2003 with regard to which general principles of Community law are able to condition national procedural rules.

Ten Years of Judicial Cooperation. Occasional Paper 4/2014

This paper intends to illustrate the respective roles and functions of the Court of Justice of the EU (CJEU) on the one hand, and the Maltese national courts on the other. It will then define the scope and role of the judicial cooperation between the CJEU and the national courts, highlighting the procedure relating to the preliminary rulings. The paper will then briefly describe the cases brought before the CJEU involving Malta, including those concerning requests for preliminary rulings originating from Malta, and the direct actions by the European Commission before the Court of Justice, as well as those before the General Court. After a description of the rationale behind the publication of the book Malta u l-Qorti tal-Ġustizzja tal-Unjoni Ewropea (Malta and the Court of Justice of the European Union), and following the conference in which it was presented, the main points that emerged from the conference will serve as a backdrop to some statistical analysis pertaining to the Maltese cases, as well as some reflections on the current situation of the judicial cooperation obtained after ten years. It will propose that, besides a mere statistical analysis of the raw figures that emerge, one must rather address his attention to the spirit of EU membership, and reflect on whether Malta’s legal system has actually absorbed and understood the full meaning of the EU membership, ten years after it took place.

Testing limited environmental liability against human rights requirements. IES WORKING PAPER 3/2009

Questions regarding oil spills remain high on the political agenda. Legal scholars, legislators as well as the international, European and national Courts struggle to determine key issues, such as who is to be held liable for oil spills, under which conditions and for which damage. The international regime on oil spills was meant to establish an “equilibrium” between the needs of the victims (being compensated for their harm) and the needs of the economic actors (being able to continue their activities). There is, however, a constantly increasing array of legal scholars’ work that criticizes the regime. Indeed, the victims of a recent oil spill, the Erika, have tried to escape the international regime on oil spills and to rely instead on the provisions of national criminal law or EC waste legislation. In parallel, the EC legislator has questioned the sufficiency of the international regime, as it has started preparing legislative acts of its own. One can in fact wonder whether challenging the international liability regime with the European Convention on Human Rights could prove to be a way forward, both for the EC regulators as well as the victims of oil spills. This paper claims that the right to property, as enshrined in Article P1-1 of the Human Rights Convention, could be used to challenge the limited environmental liability provisions of the international frameworks.

National Security and Secret Evidence in Legislation and before the Courts: Exploring the Challenges. CEPS Liberty and Security in Europe No. 78/January 2015

This study provides a comparative analysis of the national legal regimes and practices governing the use of intelligence information as evidence in the United Kingdom, France, Germany, Spain, Italy, the Netherlands and Sweden. It explores notably how national security can be invoked to determine the classification of information and evidence as 'state secrets' in court proceedings and whether such laws and practices are fundamental rights- and rule of law-compliant. The study finds that, in the majority of Member States under investigation, the judiciary is significantly hindered in effectively adjudicating justice and guaranteeing the rights of the defence in ‘national security’ cases. The research also illustrates that the very term ‘national security’ is nebulously defined across the Member States analysed, with no national definition meeting legal certainty and “in accordance with the law” standards and a clear risk that the executive and secret services may act arbitrarily. The study argues that national and transnational intelligence community practices and cooperation need to be subject to more independent and effective judicial accountability and be brought into line with EU 'rule of law' standards.

The Future Organisation of the European Courts. Research Papers in Law, 2/2005

From the Introduction. According to Article 220 of the EC Treaty, the Court of Justice and the Court of First Instance (hereinafter CFI) “each within its jurisdiction, shall ensure that in the interpretation and application of [the EC] Treaty the law is observed”. The “pre-Nice” allocation of jurisdiction between the two Community courts can be summarized as follows. At Court of Justice level, mention should first of all be made of references for a preliminary ruling. A national court, in a case pending before it, can - or in some circumstances must - refer to the Court of Justice a question relating to the interpretation of provisions of the EC Treaty or of secondary Community law, or relating to the validity of provisions of secondary Community law.1 Moreover, the Court of Justice ensures the observance of the law in the context of actions for annulment or failure to act brought before it by the Community institutions, the European Central Bank (hereinafter ECB) and the Member States.2 These actions concern, respectively, the legality of an act of secondary Community law and the legality of the failure of the institution concerned to adopt such act. The Court of Justice also has jurisdiction in actions brought by the Commission or by a Member State relating to the infringement of Community law by a Member State (hereinafter infringement actions)3 and in actions relating to compensation for non-contractual damage brought by Member States against the Community.4 Finally, as regards the jurisdiction of the Court of Justice, mention should be made of appeals which can be lodged on points of law only against rulings of the CFI.5

The German Constitutional Court’s decision about the European Central Bank’s OMT [Outright Monetary Transactions] mechanism: A masterpiece of judicial arrogance. European Policy Briefs No. 30, April 2014

The German Constitutional Court (BVG) recently referred different questions to the European Court of Justice for a preliminary ruling. They concern the legality of the European Central Bank’s Outright Monetary Transaction mechanism created in 2012. Simultaneously, the German Court has threatened to disrupt the implementation of OTM in Germany if its very restrictive analysis is not validated by the European Court of Justice. This raises fundamental questions about the future efficiency of the ECB’s monetary policy, the damage to the independence of the ECB, the balance of power between judges and political organs in charge of economic policy, in Germany and in Europe, and finally the relationship between the BVG and other national or European courts.