Begreppet domstol i EU-rätten: En studie av domstolsbegreppet i bestämmelserna om förhandsavgörande
2010 (Swedish)Doctoral thesis, monograph (Other academic)
Begreppet domstol i EU-rätten. En studie av domstolsbegreppet i bestämmelserna om förhandsavgörande. The concept court or tribunal in EU law. A study of the concept court or tribunal in the preliminary rulings procedure.
This thesis deals with the concept of court or tribunal in article 267 of the Treaty of the functioning of the European Union. According to this article, the Court of Justice has jurisdiction to give preliminary rulings concerning the interpretation and the validity of EU law at the request of courts or tribunals of the member states. The concept of court or tribunal has been interpreted by the Court of Justice for about 50 years. In recent years, the Court of Justice has settled several important questions concerning the interpretation. At the same time, different aspects of the concept have become increasingly disputed.
It is settled case-law that in order to determine whether a body making a reference is a court or tribunal for the purpose of article 267 of the Treaty, which is a question governed by union law alone, the Court of Justice takes account of a number of factors, such as whether the body is established by law, whether it is permanent and whether it is independent. Moreover, a national court may only refer a question to the Court of Justice if it has a judicial function.
The intention in this thesis is to examine the case law of the Court of Justice in this field. The contents and function of the factors or criteria as well as the functional aspect of the concept are analysed in depth. The situation as regards some Swedish organs is also dealt with.
The way the Court of Justice makes a demarcation between national public bodies with judicial functions and private judicial bodies, such as arbitration boards, is analysed. Further, the doctrine of separation of powers is used as a starting point for the analysis of the other basic demarcation, viz. that between public administrative authorities on one hand and courts or tribunals on the other. In addition to this, several other matters are discussed, such as whether the interpretation made by the Court of Justice matches the underlying purpose of the preliminary rulings procedure and whether, as asserted by an Advocate General, case-law is suffering from legal uncertainty. The proposal put forward by the same Advocate General for a reformed interpretation, which is more in co-ordination with the national judiciaries, is also discussed.
Place, publisher, year, edition, pages
Uppsala: Iustus Förlag AB , 2010. , 385 p.
Skrifter från Juridiska fakulteten i Uppsala, ISSN 0282-2040 ; 115
domstol, domstolsbegreppet, artikel 267, fördraget om Europeiska unionens funktionssätt, förhandsavgörande
Law (excluding Law and Society)
Research subject Procedural Law
IdentifiersURN: urn:nbn:se:uu:diva-123436ISBN: 978-91-7678-755-7OAI: oai:DiVA.org:uu-123436DiVA: diva2:314209
2010-05-25, Auditorium Minus, Gustavianum, Uppsala, 10:15 (Swedish)
Bernitz, Ulf, professor
Andersson, Torbjörn, professorBergström, Carl Fredrik, professor