Galetta Procedural Autonomy of EU Member States: Paradise Lost?

A Study on the "Functionalized Procedural Competence" of EU Member States
1. Auflage 2010
ISBN: 978-3-642-12547-8
Verlag: Springer
Format: PDF
Kopierschutz: 1 - PDF Watermark

E-Book, Englisch, 145 Seiten, eBook

Is the procedural autonomy of EU Member State a myth or a reality? What should this concept be taken to mean? Starting from the analysis of requirements and principles regulating, generally speaking, the relationships between Member States' and EU law, this book provides a definition of procedural autonomy able to account for the concept's inherent limits. Out of an analysis of the more relevant EU jurisprudence, the author identifies the rationale underlying the interventions of the ECJ on issues of procedural autonomy and the common logic that emerges from it; and reveals how, in an unchanged context of 'procedural autonomy' of the Member States, national procedural law becomes more and more 'functionalized' to the requirements of effectiveness of substantive EU law. As such, we should speak of a 'functionalized procedural competence' rather than of procedural autonomy. But this is by no means a case of 'Paradise Lost.' The book includes a foreword by Prof. Jürgen Schwarze, one of the founding fathers of European Administrative Law.

Diana-Urania Galetta is a Full Professor of Administrative Law and European Administrative Law at the University of Milan (Italy). She studied Law and Political Science at the Universities of Milan (Italy) and Osnabrück (Germany). She speaks fluently and publishes in Italian, German, French and English. She has published books and papers on central topics of national, comparative and European Administrative Law (See her personal homepage: http://www.giuripol.unimi.it/persone/galetta.htm).

Zielgruppe

Research

Autoren/Hrsg.

Galetta, Diana-Urania

Inhaltsverzeichnis

1;Foreword;8
2;Preface to the English Edition;10
3;Acknowledgements;12
4;Contents;14
5;Chapter 1: Introductory Notes, Terminological Issues and Demarcation of the Scope of the Study;18
5.1;1.1 The Distinction Between Procedural and Substantive Law in EU Law;18
5.2;1.2 The Concept of `Procedural Autonomy´: Cross-Reference;19
5.3;1.3 The Analysis of the Jurisprudence: Delimitation to Preliminary Rulings and the Fundamental Decisions, in the Light of our “Well-Thought Path”
;20
5.4;1.4 A ``EU-Friendly´´ Approach: In Search of an Underlying Logic and Rejecting the Pessimistic `Paradise Lost´ Approach;21
6;Chapter 2: The Procedural Autonomy of the Member States from the Viewpoint of the Principles and Criteria Regulating the Relations
Between National Law and EU Law;23
6.1;2.1 The Procedural Autonomy of the Member States from the Viewpoint of the Principles and Criteria Regulating the Relation
s Between National Law and EU Law: Brief Introductory Remarks;23
6.2;2.2 The Procedural Competence of the Member States as a Consequence of the Principle of Conferral: The Absence of a Legal Basis, the Implicit Competences and the Notion of Effet Utile;25
6.3;2.3 Continued. From Procedural Competence of the Member States to Procedural Autonomy: Specifications, Not Only Ones Related to erminology, on the Concept and Scope
of the Notion of Procedural Autonomy;27
6.4;2.4 The Direct Effect and the Primacy of the EU Law Over the National Law: Main Aspects;30
6.5;2.5 Effet Utile of the Direct Effect and the Effectiveness of the EU Law: Effectiveness as the First External Limit of the Procedural Autonomy of the Member States
;32
6.6;2.6 Continued. The Effectiveness of Jurisdictional Protection as a Mere Corollary of the Requisite of Effectiveness of EU Law;35
6.7;2.7 Procedural Autonomy, Effectiveness of EU Law and the Obligation of Consistent Interpretation: The Meeting/Clashing Point Between EU
Substantive Law and Procedural Competence of the Member States;38
6.8;2.8 The Second Limit to the Procedural Autonomy of Member States: The Non-discrimination Principle Understood as Equivalence Criterion and the Inapplicability, in This Sense,
of a So-called Criterion of ‘Vertical Equivalence’;40
6.9;2.9 Continued. Equivalence Criterion and Obligation of Consistent Interpretation: Aligning the ECJ´s Monopoly on the Interpretation of EU Law with the Exigency of Uniform Application. From Consistent Interpretation to a ‘Uniform Procedural Law’ Through the Mechanism of Uniform Interpretation?;42
6.10;2.10 The Procedural Autonomy of the Member States: Competence of the Member States in Procedural Matters and the Duty of Sincere Cooperation. Closing Remarks
;46
7;Chapter 3: The Jurisprudence of the ECJ on the Procedural Autonomy of Member States: Analysis of the Fundamental Judgements;49
7.1;3.1 Introductory Premise;49
7.2;3.2 The First Phase of the ECJ´s Jurisprudence on the Procedural Autonomy of the Member States: The Two `Rewe Criteria´ and the Obligation of Consistent
Interpretation as an Instrument to Guarantee the
Effectiveness of EU Law;50
7.2.1;3.2.1 Procedural Autonomy of the Member States and National Norms Limiting the Repeatability of Amounts Obtained in Conflict with EU Provisions: The Explanation and
Specification of the Two ‘Rewe Criteria’ by the ECJ;51
7.2.2;3.2.2 Procedural Autonomy of the Member States and National Norms that Prevent the Recovery of Aid Paid in Violation of EU Law: The First Phase of the ECJ’s Jurisprudence
on This Matter;54
7.2.3;3.2.3 Procedural Autonomy of the Member States and Obligation of Consistent Interpretation: The Particular Case of the Directives on Equal Treatment for Men and Women in
the Workplace and in Relation to Social Security;57
7.3;3.3 The Second Phase of the ECJ´s Jurisprudence on the Procedural Autonomy of the Member States: From the Obligation of Consistent Interpretation to Functionalized
Procedural Competence;63
7.3.1;3.3.1 The `Functionalization´ of the Concept of `National Rules of Public Policy´;64
7.3.2;3.3.2 The `Functionalization´ of the Norms Concerning the `Revocation´ of Illegitimate Administrative Acts;69
7.4;3.4 The Most Recent Decisions by the ECJ on Res Judicata Reinterpreted in the Light of the Jurisprudential Trend Identified So Far
;75
7.5;3.5 The Specific Case of the National Procedural Norms Which Are an Obstacle to the Functioning of the Mechanism of Cooperation Between Courts Under Art. 267 TFEU (ex Art. 234 TEC): A Duty to “Disapply” the National Procedural Norms in the Absence of Primacy?;84
8;Chapter 4: The Procedural Autonomy of the Member States: Judges and Legislators. Conclusions;91
8.1;4.1 Primacy of EU Substantive Law and Procedural Autonomy of the Member States: The Difficult Role of the ECJ;91
8.2;4.2 Continued. In the Continuous Search of Equilibrium for a Greater `Unity in Diversity´;95
8.3;4.3 Duty of Sincere Cooperation, Procedural Autonomy of the Member States and Preliminary Ruling: The Role of the Referring Courts
;97
8.3.1;4.3.1 The Preliminary Ruling, from Its Origins Till Now: A Short Account;97
8.3.2;4.3.2 Continued. The Distribution of Competences Between the ECJ and the National Referring Court, and the Effect of a Decision on a Preliminary Reference
;99
8.3.3;4.3.3 `The More Questions the Merrier´? The Role of the National Referring Courts: Too Many Preliminary References and ‘Mistaken’ Preliminary References
;104
8.3.4;4.3.4 Continued. The Subsequent Role of the Referring Courts: Binding Force of a Decision on Preliminary Ruling, Margin of Appreciation of the National Court and
Obligation of Consistent Interpretation;113
8.3.5;4.3.5 The Relationship Between Obligation of Sincere Cooperation Under Art. 4, Third Paragraph, TEU (ex Art. 10 TEC) and Preliminary Ruling: Concluding Remarks
;116
8.4;4.4 The Directives on Public Procurement Procedures and the Procedural Competence of the Member States: Brief Remarks to Better Understand the Distinction Between the Lack of Procedural Competence and Functionalized Procedural Compete nce of the Member States;118
8.5;4.5 Continued. Procedural Autonomy of the Member States in the Areas Not Explicitly Regulated by the Directives on Public Procurement Procedures: Concluding Remarks on ‘Functionalized Procedural Competence’ in the Field of Public Procurements in View of the ECJ's Recent Jurisprudence;124
8.6;4.6 Procedural Autonomy of the Member States, Between Judges and Legislators, from the Perspective of a Necessarily Compound Normative System: Paradise Lost?
;130
8.7;4.7 `The Unsafe Haven of National Procedural Autonomy:´ EU Normative Competences, Primacy of Substantive EU Law and Functionalized Procedural Competence
of the Member States. Concluding Remarks;133
9;Conclusions;137
10;References;140
11;Table of Cases of the ECJ;156

Introductory Notes, Terminological Issues and Demarcation of the Scope of the Study.- The Procedural Autonomy of the Member States from the Viewpoint of the Principles and Criteria Regulating the Relations Between National Law and EU Law.- The Jurisprudence of the ECJ on the Procedural Autonomy of Member States: Analysis of the Fundamental Judgements.- The Procedural Autonomy of the Member States: Judges and Legislators. Conclusions.

Über Autor(innen)

Diana-Urania Galetta is a Full Professor of Administrative Law and European Administrative Law at the University of Milan (Italy). She studied Law and Political Science at the Universities of Milan (Italy) and Osnabrück (Germany). She speaks fluently and publishes in Italian, German, French and English. She has published books and papers on central topics of national, comparative and European Administrative Law (See her personal homepage: http://www.giuripol.unimi.it/persone/galetta.htm).