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Conference Report - Legal Unity Through Specialized Courts on a European Level?

Published online by Cambridge University Press:  06 March 2019

Stefan Kirchner

Extract

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After last year's successful Academia Juris Internationalis workshop on local products, Prof. Dr. Thilo Marauhn and Dr. Sebastian Heselhaus (Academia Juris Internationalis Franz von Liszt, Faculty of Law, Justus-Liebig-University, Giessen) organized the second Jean Monnet – Workshop in the Senate Hall of the Main Building of Justus-Liebig-University in Giessen, Germany, on 2 July 2004.

Type
Developments
Information
German Law Journal , Volume 6 , Issue 1: Articles: Special issue - A Dedication to Jacques Derrida , 01 January 2005 , pp. 217 - 226
Copyright
Copyright © 2005 by German Law Journal GbR 

References

1 The Academia Juris Internationalis is a research unit of Justus-Liebig-University in Giessen, Germany, which focusses on the study of applied international law from a wide range of perspectives, bringing together experts on private, public and criminal law cooperating in international legal research. For further information see Sarah Isabelle Reich, Studies in Applied International Law (Tätigkeitsbericht 2003, S/A/I/L, Giessen (2004)).Google Scholar

2 See Staatliche Förderung für regionale Produkte – Protektionismus oder Umwelt- und Verbraucherschutz (Thilo Marauhn ed., 2004).Google Scholar

3 See BVerfGE 58, 300 (Nassauskiesungs-decision by the Federal Constitutional Court on property rights). Also see the jurisprudence of other high ranking federal courts: BGHZ 6, 270; BGHZ 64, 220; BVerwGE 15, 1; BVerwG, DÖV 1974, pp. 390 et seq. The conflicting opinions between the different high courts arises from Germany's multi-tier court structure in which, e.g., administrative courts form a separate tier, as do “ordinary” courts dealing with criminal and private law matters, labour law courts etc. Each tier has its own highest federal court, as the court of last instance. The German Federal Constitutional Court, unlike many national Supreme Courts in other countries, is not a court of last instance but is restricted to only dealing with questions of constitutional law.Google Scholar

4 Art. III-359 of the future constitution for Europe reads as follows: “1. European laws may establish specialised courts attached to the High Court to hear and determine at first instance certain classes of action or proceeding brought in specific areas. They shall be adopted either on a proposal from the Commission after consultation of the Court of Justice or at the request of the Court of Justice after consultation of the Commission. 2. The European law establishing a specialised court shall lay down the rules on the organisation of the court and the extent of the jurisdiction conferred upon it. 3. Decisions given by specialised courts may be subject to a right of appeal on points of law only or, when provided for in the European law establishing the specialised court, a right of appeal also on matters of fact, before the High Court. 4. The members of the specialised courts shall be chosen from persons whose independence is beyond doubt and who possess the ability required for appointment to judicial office. They shall be appointed by the Council of Ministers, acting unanimously. 5. The specialised courts shall establish their Rules of Procedure in agreement with the Court of Justice. Those Rules shall require the approval of the Council of Ministers. 6. Unless the European law establishing the specialised court provides otherwise, the provisions of the Constitution relating to the Court of Justice and the provisions of the Statute of the Court of Justice shall apply to the specialised courts.”Google Scholar

5 The text used for the purposes of this article is the Treaty establishing a Constitution for Europe, 6 August 2004, CIG 87/04, available online at http://ue.eu.int/igcpdf/en/04/cg00/cg00087.en04.pdf (Please note that at the time of the conference the latest version available was the Provisional consolidated version of the draft Treaty establishing a Constitution for Europe as amended by the 17 / 18 June 2004 Intergovernmental Conference.)Google Scholar

6 According to Marauhn, the fact that the draft Treaty for the creation of a Constitution of the European Union differs in some parts from the text adopted in late June 2004 shows that substantial work had been done during the 17 / 18 June 2004 intergovernmental conference.Google Scholar

7 O.J. 2001 C 80, pp. 1 et seq.Google Scholar

8 BVerfGE 73, 339.Google Scholar

9 O.J. 1976 L 31, pp. 1 et seq.Google Scholar

10 BVerwGE 92, 313 (317).Google Scholar

11 This approach was taken prior to the Bundesverwaltungsgericht's decision reported in NVwZ 1987, pp. 409 et seq.Google Scholar

12 BVerwGE 101, 157 (165).Google Scholar

13 For a definition of an act of administration under German Law, see § 35 Verwaltungsverfahrensgesetz (VwVfG).Google Scholar

14 § 28 Verwaltungsverfahrensgesetz (VwVfG).Google Scholar

15 This initial complaint or Widerspruch is a requirement for further legal action before the courts.Google Scholar

16 Art. 10 EC-Treaty.Google Scholar

17 See 88/591/ECSC, EEC, Euratom, O. J. 1988 L 319, pp. 1 et seq.Google Scholar

18 Case T-177/01 (Jégo Quéré et Cie S.A. v. Commission).Google Scholar

19 Case T-54/99 (max.mobil Telekommunikation Service GmbH v. Commission).Google Scholar

20 Art. 220 (2) and Art. 225a EC-Treaty Luxembourg, the seat of the European Court of Justice and Court of First Instance, added a separate declaration to the Treaty of Nice to the effect that the functions currently assigned to Alicante are to remain there even after the creation of the third level of courts. This suggestion is now being followed by Art. III-359 of the future constitution.Google Scholar

21 Art. 225 (2) and Art. 225 a, subpara. 3 EC-TreatyGoogle Scholar

22 Art. 225 (2) subpara. 2 EC-TreatyGoogle Scholar

23 The only exception being Art. 230 subpara. 2 EC-TreatyGoogle Scholar

24 Schlink, Vergangenheit, Schuld und gegenwärtiges Recht 29 (2002).Google Scholar

25 Supra note 3.Google Scholar