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EG-domstolens tolkningsutrymme: om förhållandet mellan normstruktur, kompetensfördelning och tolkningsutrymme i EG-rätten
Stockholm University, Faculty of Law.
1997 (Swedish)Doctoral thesis, monograph (Other academic)
Abstract [en]

The study deals with the judicial discretion of the European Court of Justice (the ECJ). Judicial discretion means the authority vested in a person who applies law to make a choice between two or more conceivable alternatives. The legal element in the conceF, appears in the form of the requirement that the choice must be found within the realm of law, that is, based on a valid legal norm. Thus legitimate judicial discretion is constituted by the authority (jurisdiction) which the law vests in the judge to choose between alternatives found within the b undaries of the law. The requirement that the choice must be found within the boundaries of the law raises methodological and theoretical problems relevant to the entire legal system.

The main part of the study is devoted to the legal limitations on judicial discretion. The thesis is that limitations on the judicial discretion of the ECJ can primarily be derived from the relationship between the structure of norms and the division of powers within EC law. The starting-point is that the origins of the limitations on judicial discretion are primarily found in the general normative system (EC law) and the relationship between EC law and national law.

The study endeavours to show how the normative structure and the division of jurisdiction between EC law and national law are related to the judicial discretion of the ECJ. The study shows that the relationship between the normative structure and the division of jurisdiction does not place any clear limits on the judicial discretion of the ECJ. By an extensive use of judicial discretion, the ECJ's interpretation of the Treaty has led to restrictions on the procedural and constitutional autonomy of the Member States. This limitation has come about by collaboration between two phenomena: the pragmatic position of the ECJ regarding the judicial division of jurisdiction between the ECJ and national courts in accordance with the system for preliminary rulings and the doctrines concerning the effectiveness of EC law and effective legal protection for private individuals.

The ECJ has, by using its judicial discretion, created a legal situation where every advance notification in constitutionally important issues stretches the limits of the judicial and legislative division of jurisdiction.

Place, publisher, year, edition, pages
Stockholm: Juristförlaget , 1997. , p. 543
Keywords [sv]
Europeiska gemenskaperna. Domstolen
National Category
Law
Identifiers
URN: urn:nbn:se:su:diva-152883ISBN: 91-39-20043-4 (print)OAI: oai:DiVA.org:su-152883DiVA, id: diva2:1181710
Note

Med sammanfattning på engelska

Available from: 2018-02-09 Created: 2018-02-09 Last updated: 2018-09-19Bibliographically approved

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