The interaction between international and domestic courts
The project’s main objective is to analyze the impact of EU general principles of law, on judicial decision-making concerning choice of remedies and their precise application by national courts. Although effective implementation of CJEU judgments and EU legislation requires concerted efforts of multiple actors, including courts, legislatures, executives and national human rights institutions (NHRIs), there have been cases where the lack of necessary implementing actions from the legislator or executive, have forced courts or NHRIs to take certain measures, thereby filling the gap, and, even on occasions, compelling national legislators to act.
The project will explore jurisprudence from the EU Member States for the purpose of identifying the impact of the EU general principles of effectiveness, dissuasiveness and proportionality on modelling national legal remedies.
In order to ensure a comprehensive overview, examples from civil, criminal and administrative judicial adjudication will be selected. Collection of cases with the active contribution of 28 national judiciaries will provide the basis for one handbook and one set of guidelines to be used in training courses especially focused on transnational and comparative methodologies.
Structure of the project
The project will address these questions by combining desk research, two questionnaires and the elaboration of the data in collaboration with the judge rapporteur and with other judges. The questionnaires will be sent to different bodies of the administrative, criminal, and civil judiciaries for each MS, and to some specialized private enforcers (for example, private dispute mechanisms in the field of advertising, or sport federations, as well as arbitrators).
The questionnaire is structured in a modular way: A common core of questions and a set of specific questions tailored to specific enforcement’s regimes.In the first stage the questionnaire will be drafted in collaboration with national judiciaries. Thereafter, the accuracy and width of the questionnaire, drafted on the basis of collaboration between academics and judges, will be tested by a significant number of countries selected according to the different legal traditions and system of justices focusing on the sector specific section.The data coming from the questionnaires will be presented and discussed by the reporting judges with other judges and academics in workshops. The discussion will produce a new draft of the questionnaire which will be sent to the 28 Member States. The material from the questionnaires will then be jointly elaborated and analysed in training sessions that will highlight reasons and solutions to divergences in the practice of application of EU principles to remedies.
The final result of the training sessions will be the production of a handbook on the principles of EU concerning remedies in administrative and civil enforcement. Training sessions will take place in different locations in Europe gathering judges from groups of countries selected according to the identified divergences and convergences. The handbook will include a general part with references to relevant case law and national annexes that could be used in training courses for single and multiple countries. The project will include a database where summaries of the relevant national cases will be collected.
The project duration will be approximately 2 years (2015/2016).
In the first phase the first version of the questionnaire on administrative enforcement will be tested in 10 countries with the collaboration of the Association of European Administrative Judges. The results of this first round will be presented by prof. Cafaggi and the legal expert team of the CJC at the Meeting of the Working Group on Independence and Efficiency in Utrecht, on April 23-24.
Questionnaire - first version