Flaminio Costa v ENEL, European Court of Justice, Case 6/64, 1964, preliminary ruling

The EU? It’s electric!

Why is this ruling so important?
In this ground-breaking ruling, the European Court of Justice held that European Law is of a higher legal order than National Law. In case of contrary national legislation, the European rules therefore prevail.

What happened?
In the early sixties, the Italian government nationalized the electricity sector. Mister Flaminio Costa disagreed with this course of affairs, because he owned shares in a small private electricity company that was now being merged into a state owned company: ENEL. As reprisal, he refused to pay his electricity bills, with a total sum of almost 2000 Lire. In the Italian court, he argued that the nationalization was against European Law. The Italian government however, held that under no conditions, a domestic court could set aside national law.

What was decided?
The European Court of Justice ruled that in this case the nationalisation of the electricity sector was a matter the European Commission should deal with, since the commission was competent to review such acts against European Law.

Please note that In casu, mister Costa did not win the argument. However, the court was very clear on one thing: the Italian government was wrong in assuming that no domestic court could set aside domestic law.

Important quotes from the verdict
The obligations undertaken under the treaty establishing the community would not be unconditional, mut merely contingent, if they could be called in question by subsequent legislative acts of the signatories. Wherever the Ttreaty grants the states the rights unilaterally, it does this by clear and precise provisions.

It follows from all these observations that the law stemming from the treaty, and independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question.

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Art. 288 TFEU (ex Art. .249 TEC, in the original ruling a reference is made to the earlier Art. 189 of the EEC treaty).

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Turkey and the Netherlands: The greatest enemy of democracy is democracy

ErdoganThis week we saw the emergence of a major diplomatic conflict between Turkey and the Netherlands. In short, the Dutch government used legal means to ban two Turkish ministers from Dutch territory, preventing them to hold speeches in support of the Erdogan campaign. This campaign is about a referendum that would change the Turkish Constitution, putting –bluntly said- more power in the hands of the Turkish President.

In the media, we see an explosion of articles that are about the ‘lawfulness’ of the Dutch actions and Turkish ministers. However, what I miss in the ‘mainstream’ debate is a very important underling question: ‘can you use democratic means to realize undemocratic results?’ Or, from the opposite perspective: ‘can you use undemocratic means to protect democracy?’

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Bhasin v. Hrynew (2014) the Supreme Court of Canada

CanadianSupremeCourtWhy is this ruling so important?
In this ground-breaking ruling, the Canadian Supreme Court affirmed the existence of the principle of good faith in contract law. This is a wonderful example of the application of ius cogens, or general principles of law. Since the Supreme Court of Canada had ruled that lower courts may not overrule decisions of higher courts (the so called Stare Decisis doctrine), and the Supreme Court is the highest Canadian court, the principle of good faith in contract law applies fully in all Canadian States.

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Dear history teacher

schrijven.jpegMy name is Bart Wernaart, I am a lecturer in law and ethics, and wanted to express my sincere appreciation to you for your profession. Well, that is an understatement: I guess I wanted to say that we need help, and we need you more than ever.

Some doubt the added value of your subject. Some might even suggest to delete history as a subject from school curricula. Amongst them, to my horror, we might even find policy makers. They are fools. I hereby would like to ask you to double your effort in your vital job to teach your subject. Law and ethics are important topics to reflect on our current society, but when people fail to learn from past experiences, my subject is rather meaningless.

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Van Gend en Loos: ECJ, Case 26/62, 1963, preliminary ruling

VanGendenLoos

How tax and trucks proved to be a very effective combination.

Why is this ruling so important?
In this groundbreaking ruling, the European Court of Justice held that citizens could invoke particular European law in the national courts of EU Member States. Before, international law was considered to be an agreement between States only, and therefore only affecting the relation between State Parties, not the relation between a State Party and its citizens.

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World peace – some suggestions

worldpeaceEach year at Christmas the members of my family (and my family-in-law) give each other presents. Each year I have no idea what material things to ask, so most of the time my wife makes a list for me with stuff she thinks I might need. Each year I jokingly ask for world peace. Each year, this is unfortunately not wrapped up in a fancy looking package underneath the Christmas tree.

It is of course something I still wish for. And as a matter of fact, I have some suggestions in how this could be realized. Most of them are open doors, but somehow I felt the need to list them just because it is Christmas.

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If Leonardo would only have a pussy – Trump and global warming

democracy

Today, fact free politics is increasingly accepted. I guess that the victory of Donald Trump in the American presidential elections is a manifestation of this phenomenon. As we have seen during the fierce campaign, it was hardly about facts but rather about virtues, and perhaps –though less visible- about values. In its core, fact free politics makes some sense. However, completely ignoring facts while taking decisions about something does not. Where should we draw the line?

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