Roberto Baratta

The Role of the ECJ Beyond EU Law

When intended to complement EU law or to enlarge its application to Third Parties, international treaties can empower the ECJ with additional tasks beyond the realm of EU law. This paper explores both the potential and legal constraints of the ECJ’s extra powers, building upon some selected cases of practice. It argues that if one looks at this practice in depth through the prism of the purposes for which such special category of treaties were enacted and the reasons that led to them, the common denominator for involving the ECJ can be identified in the need to safeguard their consistency with the fundamental role the ECJ enjoys in the EU legal order under Article 19 TEU. The reference to the ECJ, both for solving disputes between themselves and for protecting individual rights as guaranteed by EU law (or by provisions which are identical in substance to it), is not just in line with the principle of institutional conferral. It is also a route the Contracting Parties are bound to take in order to respect the autonomy of EU law.

Complexity of EU Law in the Domestic Implementing Process

Abstract This article Highlights how the complexity of EU secondary law (other than self-executing acts) can cause real difficulties at the stage of its transposition at national level. Two practical examples, involving the intervention of the Commission, illustrate the problem. It is assumed, on the one hand, that the general principles of law (legal certainty, legitimate expectations and transparency) require the EU legislator to ensure intelligibility and drafting quality, and on the other hand that these features are of the essence not only for citizens and for business, but also to enable the national authorities to adopt domestic implementing measures in an effective and timely manner. In that perspective, that article outlines some tentative methodological suggestions, while addressing, in the light of the ECJ case-law, the methods of interpreting EU law, the role of recitals, the Commissions use of soft-law instruments to guide national implementing measures, as well as tile proactive attitude from Member States within and outside the Council. A practical suggestion is made to establish a close connection at national level between the personnel taking part in the drafting of an EU legal act (upstream phase, i.e. those people contributing to the draft of legislation at the Council level) and the personnel engaged in the process of implementing that act at the domestic level (downstream phase). Linking the two phases so as to rely on the same national staff for advising on both appears to be a quite simple scheme to ensure better understanding of the EU legal texts and to sound a warning wherever there is a risk of an infringement due to inadequate implementation.