Ação por incumprimento : a técnica do diálogo cooperativo entre o Tribunal de Justiça da União Européia (TJUE) e a jurisdição nacional dos estados-membros
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Data
2011-05-06
Autores
Sousa, Leandro Eloy
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Universidade Federal do Espírito Santo
Resumo
Aiming to achieve higher levels of economic and social development some European countries decided to establish an international body with sui generis caracteristics for which were transferred portions of their sovereignty. The formation of the European Union rests on the Community legal order which gives the key legal features. The adjectival law feature of this legal order relates to the European litigation whose design seeks to protect and ensure the normativity of European law. From this perspective, it is evident that the action for failure to fulfil obligations consists in relevant procedural mechanism aimed to control the European legality under the superivision of active and passive behaviors of all Member States. The action for failure to fulfil obligations has a peculiar two-step procedure: pre-litigation and litigation stages, and this last is developed exclusively in the Court of Justice of the European Union (ECJ) that pronounces itself by ruling regarding the existence or not of the infringement of Europena law by the inspected Member State inspected. The effects of judgement in action for failure to fulfil obligations does not have the power of force and/or suggest forcefully to restore Europena law compliance by Member States. Note that the action for failure to fulfil obligations is not structured procedural and conceptual understanding in order to consider the fundamental and structural peculiarities of the EU. In this sense, underlying the formation and performance of the European Union appears to be consistent, unprecedented and deep the relationship between European legal order and constitutional order of the Member States. Moreover, to materialize this profound interrelation, there is the fundamental implementation of the technique of institutional dialogue within the EU, through which it makes possible the participation and influence of the Member States in decision making of that international body. Even under the procedural mechanisms of European litigation - preliminary ruling - there is the implementation of the technique of institutional dialogue. Despite the preliminary ruling, there is an evident need to expand the cooperative dialogue between the ECJ and national courts to other procedural devices, such as the action for failure to fulfil obligations, whose effectiveness could be enhanced through participation of Constitutional Courts in the construction of the judicial rulings that examines the possible failure of Member States.
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Actions for failure to fulfil obligations , Dialogue , European Court of Justice , Constitutional Courts , Países da União Européia , Ação por incumprimento , Diálogo , Tribunal de Justiça da União Européia , Cortes constitucionais