Ambtshalve toepassing van EU-recht door de Belgische burgerlijke rechter
- Full Title:
- Ambtshalve toepassing van EU-recht door de Belgische burgerlijke rechter
- Nowak, Janek Tomasz.
- Statement of Responsibility:
- Janek Tomasz Nowak
- 411 p.
- The national judge is the natural judge for disputes between private parties and between private parties and public authorities on matters governed by EU law....
Summary:The national judge is the natural judge for disputes between private parties and between private parties and public authorities on matters governed by EU law. When national courts settle these disputes, they use their national procedural law. In the absence of harmonized procedural rules, national procedural law is the applicable procedural law for EU law disputes. Since rules of national procedural law can stand in the way of the effective application of substantive EU law, the Court of Justice has developed a number of conditions in its case law that national procedural law must meet. These include the principle of equivalence, the principle of effectiveness, the principle of loyalty, the effectiveness of EU law and Article 47 of the Charter of Fundamental Rights of the European Union. This dissertation examines how these EU law requirements affect the Belgian rules on the task of the judge, in particular the case law of the Court of Cassation on the powers and obligations of civil courts to raise legal grounds of their own motion. The goal is to determine the obligation of Belgian civil courts to apply EU law ex officio through a combined reading of the case law of the Court of Cassation and the case law of the Court of Justice. The research will discuss the tasks of civil courts both in general EU law matters and in matters of EU competition law and EU consumer law. In this way, the dissertation aims to provide a clear framework for Belgian judges to meet their EU legal obligations. The result is a conciliatory reading of the case law of the Court of Justice and the case law of the Belgian Court of Cassation. Under EU law, the Belgian civil courts have an obligation to raise pleas in fact and law that appear clearly from the case file, even when not pleaded by the parties. This way, EU law requires a broader ex officio activity of the civil courts than the Court of Cassation.
However, the obligation does not go so far as to require the civil courts to guarantee the application of EU law in an absolute way. There is an obligation to act in a loyal way and not to remain passive when it is clear from the case file that a relevant plea based on EU law was not put forward. The research also shows that there is no separate regime for EU competition law. In addition to this, in Belgium there is not much difference between the general obligation of civil courts to apply EU law ex officio and the obligations imposed upon national courts to apply EU consumer law ex officio. The justification for the extensive ex officio obligations of the Belgian civil courts with regard to EU law is not the public order (ordre public) nature of EU law. Most EU law rules are not a matter of (EU) public order. Moreover, the public order nature of a rule has little relevance to the question of whether Belgian civil courts should raise pleas in law of their own motion. Conversely, it is the binding nature of EU law as well as the policy-implementing approach to national procedural law that justify why Belgian civil courts have an intensified obligation to raise pleas of EU law on their own motion.
- Publisher & Date:
- Leuven : KU Leuven, 2021.
- Date of Publication:
- KU Leuven
- BE 281.7
In the Library
|Call Number||Location||Availability||Description||Loan Type|
|BE 281.7 Now 2021||General collection||On Shelf||-||For regular loan|
In the Library
BE 281.7 Now 2021