‘The CJEU Сase-law and the Area of Freedom, Security and Justice’
Module supervisor: Andrey LEONOV
Scope and objectives
The teaching module aims at in-depth case-study-based studying of an institutional dimension of the Area of Freedom, Security and Justice (AFSJ) with regard to a particular EU supranational institution – the Court of Justice of the European Union (CJEU). This issue is worth a specific attention due to the role and importance of the CJEU for policy development, which are more considerable than its legal mandate defined by the Treaties would have suggested. The CJEU took a proactive role in the AFSJ notwithstanding some treaty restrictions. The CJEU`s activism meaning judicial law-making, sometime going far beyond a mere interpretation of the EU law, resulting in its development, has become an instrument of enhancing and deepening integration within the AFSJ and, particularly, in some sensitive issues (migration law, family reunification etc). We also analyze the CJEU as a guardian of constitutional rights and as an integrationist institution in the EU.
The module is designed to complement the existing course “Current Issues of European and International Law” touching, with no doubts, upon one of those issues and mainstreaming the EU topic into the general international legal studies, which is one of the mail objectives of the Module.
The module is designed as mandatory part of the course “Current Issues of European and International Law” for MA students with different undergraduate backgrounds (mainly in law, political science, international relations), following an MA programme ‘Master in international law’ at the Department of European and International Law. It will be open for other students who want to enhance their knowledge in EU studies.
Teaching methods and assessment
The course includes a general introductory module explaining the course objectives, tools, main issues, concepts and topics, as well as assessment and feedback methods. Moreover, it will build on and will be complemented by other courses at MA level at the Department and focusing on different EU-related issues (History of European Integration, Current Issues of EU Law, Law of EU External Relations, EU-Russia Relations).
The module consists of lectures (20%) and seminars (80%). It will be mostly based on case-law analysis and practical exercises, student presentations, class discussions. In all areas, the active participation of students is considered an essential element of teaching. Students are also expected to give one in-class presentation, which will serve class discussion. The course will be supported by the online database of the relevant CJEU case law in the AFSJ. The assessment will be done based on class participation (20%), in-class presentation and debating activities (50%), and written assessment at the end of the module (30 %).
Module1 /Theoretical and historical framework
Topic 1.1 – The EU Court of Justice and European Integration Processes
Topic 1.2 – ‘Depillarisation’ of the CJEU`s judicial role
Topic 1.3 – The CJEU and the AFSJ: constitutionalisation process
Topic 1.4 – Mutual recognition in the AFSJ and the role of the CJEU
Topic 1.5 – Interaction of the CJEU with other international (regional) courts
Module 2 / Case-study sectoral approach
Topic 2.1 – Case-law of the CJEU in the migration law
Topic 2.2 – Case-law in EU asylum law
Topic 2.3 – Case-law in EU criminal law and procedure
Topic 2.4 – Case-law in counter-terrorism field
Core course readings (indicative):
De Somer, M. (2019), ‘Precedents and Judicial Politics in EU Immigration Law’, Palgrave Macmillan.
de Waele H (2016), ‘Entrenching the Area of Freedom, Security and Justice: Questions of Institutional Governance and Judicial Control’, in M Fletcher, E Herlin-Karnell and C Matera “The European Union as an Area of Freedom, Security and Justice”, Routledge, ch 19.
Fichera M. and Herlin-Karnell (2013), ‘The Margin of Appreciation Test and Balancing in the Area of Freedom Security and Justice: A Proportionate Answer for a Europe of Rights?’, 19 European Public Law, 759.
Halberstam E (2015), ‘It’s the Autonomy, Stupid!” A Modest Defence of Opinion 2/13 on EU Accession to the ECHR, and the Way Forward’, 16 German Law Journal 105.
Herlin-Karnell, E. (2018), ‘The European Court of Justice as a Game Changer: Fiduciary Obligations in the Area of ‘Freedom, Security and Justice’, in Ripoll Servent, A., F. Trauner (eds.) (2018), ‘The Routledge Handbook of Justice and Home Affairs Research’. London: Routledge.
Hinarejos A, (2009), ‘Judicial Control in the European Union’, Oxford: Oxford University Press.
Lenaerts K and J. Gutiérrez-Fons, (2016), ‘The European Court of Justice and Fundamental Rights in the Field of Criminal Law’, in M. Bergstrom, V. Mitsilegas and T. Konstadinides (eds), Research Handbook on EU Criminal Law, Cheltenham: Edward Elgar Publishing, Chapter 1.
Lenaerts K, (2010), ‘The Contribution of the European Court of Justice to the Area of Freedom, Security and Justice’, 59 ICLQ 255.
Molnár T. (2018), ‘The Place and Role of International Human Rights Law in the EU Return Directive and in the Related CJEU Case-Law: Approaches Worlds Apart?’, in ‘EU External Migration Policies in an Era of Global Mobilities: Intersecting Policy Universes’, Immigration and Asylum Law and Policy in Europe, Volume: 44, Brill | Nijhoff.
Ripoll Servent, A., F. Trauner (eds.) (2018), ‘The Routledge Handbook of Justice and Home Affairs Research’. London: Routledge.
Temple Lang J, (2008), ‘The Developments of the Court of Justice on the Duties of Cooperation of National Authorities and Community Institutions Under Article 10 EC’, 31 Fordham Int’l L.J, p. 1483.
Trauner, F., and Ripoll Servent, A. (eds.) (2015), ‘Policy Change in the Area of Freedom, Security and Justice: how EU institutions matter’. Routledge Studies on Government and the European Union, Vol. 3. Routledge International.
Case C/123/08 Wolzenburg, ECR I-09621, C-411/10 and C-493, judgment of 21 December 2011 nyr.
Case C-105/03 Pupino  ECR I-05285.
Case C-116/02, Gasser, ECR I-000;
Case C-130/10, European Parliament v Council, Opinion of AG Bot delivered on 31 January 2012.
Case C-131/85 Emir Gül v Regierungspräsident Düsseldorf ECR 1573.
Case C-176/03 Commission v.Council  ECR I-07879.
Case C-187/01 and C-385/01 Gözütok and Brugge  ECR I-1354. See also C-436/04 Van Esbrock,  ECR I-2333.
Case C-189/00 Urszula Ruhr v Bundesanstalt für Arbeit ECR I-8225.
Case C-293/12, judgment of 8 April 2014.
Case C-294/83, Les Verts  ECR 1339.
Case C-300/89 Commission v Council  ECR I-2867.
Case C-303/05 Advocaten voor de Wereld VZW v. Leden van de Ministerraad  ECR I-03633.
Case C-35/82 Elestina Esselina Christina Morson v State of the Netherlands and Head of the Plaatselijke Politie within the Meaning of the Vreemdelingenwet; Sweradjie Jhanjan v State of the Netherlands  ECR 3723.
Case C-362/14 Schrems v. Data Protection Commissioner Judgment of Court (Grand Chamber) 6 October 2015, nyr.
Case C-399/11, Criminal proceedings against Stefano Melloni, judgment of 26 February 2013, nyr.
Case C-411/10, N.S, judgment of 21 December 2011 nyr.
Case C-415/05P Kadi  ECR I-6351.
Case C-61/11, El Dridi judgment of 28 April 2011.
Case C-617/10, Åkerberg Fransson, judgment of 26 February 2013 nyr.
Case C-68/88 Commission v. Greece  ECR 1-02965, para. 24.
Case C-85/96 María Martínez Sala v Freistaat Bayern  ECR I-2691.
Case C-94/84 Office national de l’emploi v Joszef Deak  ECR 1873.
Case Kadi II, Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, judgment of 18 July 2013 (not yet reported).
Case M.S.S. v Belgium and Greece Judgment of 21 January 2011, Application No 30696/09.
Joined Cases C-203/15 and C-698/15, Telia2 Sverige, judgment 21 December 2016 Case C-40/76 Slavica Kermaschek v Bundesanstalt für Arbeit ECR 1669.
Joined Cases C-404/15 and C-659/15 PPU, Aranyosi and Căldăraru, Judgment of the Court of Justice (Grand Chamber) of 5 April 2016.
Opinion 2/13 of the Full Court, Accession to the ECHR, 18 December 2014