Hybrid | The Proper Reach of EU Judicial Authority

The Proper Reach of EU Judicial Authority: Does the European Court of Justice Respect the Limits of EU Competence?

Abstract

This talk focuses on three main questions: first, why the European Court of Justice (ECJ) is an ‘unfree’ court, and how its position in the EU’s legal order differs from that of supreme and constitutional courts in national legal systems; second, how the ECJ has expanded EU competences, or powers, through the interpretation of so-called EU free movement rules; and third, how that case law has shaped the balance (or separation) of powers between EU legislature and judiciary, in some cases depriving the former of its constitutional lawmaking prerogative.

About the Paper

Vilija’s talk is based on her recent book ‘Judicial Authority in EU Internal Market Law: Implications for the Balance of Competences and Powers’ (Hart Publishing 2022)—shortlisted for the University Association for Contemporary European Studies (UACES) Best Book Prize 2023.

The book examines the role of the European Court of Justice in the regulation of the internal market from a competence perspective. Challenging the conventional view of the ECJ as the enforcer of the limits of EU competence, the book demonstrates how the ECJ itself expands those limits—and the limits of its own powers—through the interpretation of EU free movement law. The book examines the case law of the ECJ in light of the constitutional principles that govern the allocation of competences and powers in the EU: on the vertical level, conferral, subsidiarity and proportionality; on the horizontal level, institutional balance. It argues that the ECJ’s observance of the four principles has not been consistent throughout its case law. This has created imbalances in the constitutional allocation of competences and powers in the EU, thereby putting into question the credibility of the ECJ as a guardian of the rule of law in the EU and implicating the legitimacy of the EU as a whole.

About the Speaker

Dr Vilija Velyvyte is Lecturer in Law at the University of Reading. Previously, she was British Academy Postdoctoral Fellow in Law at the University of Oxford, where she taught EU Law, Constitutional Law, and Law and Public Policy. Prior to that, Vilija was Emile Noël Postdoctoral Research Fellow at the Jean Monnet Center at NYU School of Law.

Vilija has written on EU “competence creep”, the balance of powers between EU legislature and judiciary, tensions between EU internal market and socioeconomic rights, and the relationship between the European Court of Justice and European Court of Human Rights.

Vilija has a DPhil in EU Law from the University of Oxford, where she also graduated from MPhil in Law and MJur degrees. She studied at Mykolas Romeris University (Lithuania), Ghent University, Paul Cézanne (Aix-Marseille III) University, and Michigan University.

About the Commentators

Commentators for this seminar include:

The event is chaired by Dr Oliver Gerstenberg who joined UCL in 2016. He is also Member of the Project Team on the European Law Institute (Vienna) on Fundamental Constitutional Principles of a European Democracy. Among his publications are "Euroconstitutionalism and Its Discontents (Oxford Constitutional Theory Series: 2018); Fundamental Rights and Democratic Sovereignty in the EU: The Role of the Charter of Fundamental Rights in Regulating the European Social Market Economy, Yearbook of European Law (vol. 39: 2020, pp. 199—227); and "The Constitution as a Law of Lawmaking. Reflections on Frank Michelman’s Constitutional Essentials, in: Philosophy and Social Criticism (forthcoming 2024), a shorter version of which will appear on the Balkinization blog (2023).

 

Dr Andi Hoxhaj OBE is a Lecturer in Law at the University College London, Faculty of Laws, and teaches in the European Union Law, Public Law, and Tort Law modules. Dr Hoxhaj research areas include corruption, the rule of law and EU enlargement policy in the Western Balkans and he is an author of a book entitled, “The EU Anti-Corruption Policy: A Reflexive Governance Approach (Routledge, 2020)”. Dr Hoxhaj has a number of peer-reviewed articles published in leading academic journals on the rule of law, anti-corruption, academic freedom, authoritarianism, migration, European enlargement policy and the Western Balkans. His current research project is entitled "Albanian Migrants in the UK," and it is funded by the UK Arts and Humanities Research Council and supported by UCL Public Policy. He is regularly quoted in the media, and he has given evidence several times before the UK Parliamentary Committees on issues related to the Western Balkans. Dr Hoxhaj was appointed an Officer of the Most Excellent Order of the British Empire (OBE) in The King's New Year Honours List 2024 for his services to the UK and Albania relations. His research and work contributed in shaping parts of "The UK-Albania Joint Communique: Enhancing Bilateral Cooperation in Areas of Common Interest" singed by both by the Prime Ministers of the UK and Albania in December 2022.

Jeff King has been Professor of Law at UCL, Faculty of Laws, since 2016. He is currently Director of Research at the Bingham Centre for the Rule of Law and was between 2019-2021 a Legal Adviser to the House of Lords Select Committee on the Constitution. He sits on the Editorial Committee of Public Law, the General Council of the International Society of Public Law (ICON Society), and is a member of the Study of Parliament Group. His book Judging Social Rights (Cambridge University Press, 2012) won the Society of Legal Scholars 2014 Peter Birks Prize for Outstanding Legal Scholarship, and in 2017 he was awarded a Philip Leverhulme Prize in Law. He is currently working on the use and abuse of delegated powers, comparative legal responses to Covid-19, and is writing a book on the social dimension of the rule of law. Among his recent publications are The Democratic Case for a Written Constitution, (2019) Current Legal Problems; The Province of Delegated Legislation (2020), The Foundations and Future of Public Law Essays in Honour of Paul Craig Oxford University Press, USA (King J., Fisher, E. & Young A (eds.); and The Cambridge Handbook of Constitutional Theory, forthcoming: 2024 Cambridge University Press.

About the Group

The UCL Public Law Group is a community of scholars working in the field of public law, broadly understood. Our aim is to provide a supportive forum for the discussion and development of theoretical and doctrinal questions in constitutional theory, comparative constitutional law, human rights, judicial review, legal and political theory, and more. 

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You can attend this event in-person at UCL Faculty of Laws (Bentham House, 4-8 Endsleigh Gardens, London WC1H 0EG) or alternatively you can join via a live stream.

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