A Recap 30 Years after Keck: Unbridgeable Differences or Recurring Tales in EU Market Jurisprudence?

Summary: In the late twentieth century, most European states have adopted legislation on unfair contract terms. The Directive 93/13/EEC on unfair terms in consumer contracts has effectively made the European Court of Justice (ECJ) the final arbiter in interpreting much of this legislation. The present paper explores the impact which the ECJ case law and foreign legal writing has had in an individual Member State, that is, the Netherlands. Seven issues are highlighted. (i) First, especially in the United States, information requirements as to contract terms have been investigated and found wanting. Although it must be conceded that not every consumer will read the small print even when enticed by the legislature to do so, this paper submits that such requirements do have some value. (ii) Contra proferentem interpretation is one of three age-old weapons against unfair contract terms; but, unlike the common law, Dutch law has not made much use of it. (iii) Dutch law has used the overt control over the introduction into the contract and the content of standard contract terms, but the result is of little use to guide parties, attorneys, and judges. Dutch case law, unlike that in Germany, is so much attuned to the circumstances of the case that it hardly establishes useful precedents. (iv) One of the first cases on unfair contract terms decided by the ECJ, the Océano case, caused a major discussion in the Netherlands. Should the Dutch legislature step in and change the sanction of avoidance or nullification into that of considering an unfair term not binding, or should the consequences of ex officio avoidance or nullification be left to the existing statutory provisions? The Hoge Raad eventually came to terms with Océano and the following ECJ case law in Heesakkers v. Voet. (v) An issue with regard to which Dutch courts have not yet had the opportunity to tie in with the case law of the ECJ is the problem of geltungserhaltende Reduktion, rejected in the Banesto case, which is in line with German case law. Until Banesto, Dutch case law had in fact accepted the device of geltungserhaltende Reduktion. This paper strongly supports the approach applied by the ECJ and German case law. (vi) Dutch law does not extend the control of unfair contract terms to the main subject matter. This is in line with the EC Directive and the case law of the ECJ (Kásler), and it is an expression of the rejection of the iustum pretium doctrine. The Nordic experience with handling unfair contract terms, without the exception for the main subject matter, demonstrates that the exception is not necessary. (vii) Finally, with regard to enforcement, the Dutch experience shows some surprising discrepancies with that in Germany. The two models may be described as the Dutch poldermodel and the German ‘battle’ model. The final paragraph sets out the conclusion of the foregoing analysis. In dealing with unfair contract terms, a collective approach should be favoured. Indeed, the Unfair Contract Terms Directive itself directs Member States to do so. Unfortunately, this is hidden for practitioners, because their understanding of the Directive will usually be limited to the part which has been transposed into national legislation, and the national legislation usually does not include the relevant provisions of the Directive. Also, it may be argued that a collective breach needs a collective remedy. This has been illustrated by two issues concerning unfair contract terms. The first one is the validity or invalidity of exemption clauses in standard terms. A second example is the question of the (in)validity of an arbitration clause in standard building terms.

Recent case law suggests that the European courts are rethinking their position in respect of international law. On the one hand, the European Court of Justice (ECJ) is extending its case law on the WTO, denying ‘direct effect’ to all of its provisions, to other major international treaties, such as the United Nations Convention on the Law of the Sea (UNCLOS). In another recent judgment, the ECJ firmly said that it will not allow international agreements to jeopardize Europe's constitutional principles. These judgments might suggest that the ECJ is becoming more cautious, even skeptical toward international law. On the other hand, the WTO case law also illustrates that the ECJ has found more subtle ways than direct effect to give domestic law effect to international agreements. Examples are treaty-consistent interpretation, judicial dialogue with international tribunals, and transformation of international law into European legal principles. In this way, the ECJ is able to show respect to international law, which is indeed a core European value. At the same time, the ECJ maintains the power to act as a gatekeeper and resist those international legal norms that are considered inimical to the European legal order. On the whole the author welcomes this case law, albeit with some critical notes.

With the Bosman decision, the European Court of Justice (ECJ) forced the Federation Internationale de Football Association (FIFA) to change its transfer rules. These new rules, adopted in July 2001, were supposed to answer the ECJ concerns about the restriction of the free movement Introduction The Bosman (1) decision of the European Court of Justice (ECJ) transformed the rules of international soccer (2) transfers, giving more freedom to the players. It also placed the Federation Internationale de Football Association (FIFA), soccer's international governing body, in a difficult situation. They were forced to revise their rules on international transfers in order to align them to the ECJ ruling. After a lot of bargaining and dealing the new rules came in effect in September 2001. In 2005, FIFA changed the rules again, in the hope to make them more robust and prevent future contestation. The purpose of this paper is to examine these new rules and to determine whether they violate article 39 of the Treaty establishing the European Community (Treaty) by restricting the free movement of persons and if so, whether they would meet the test for legality of such rules created by the ECJ in the Bosman case. What are transfer fees? This question may seem superfluous for the soccer fan, but for the reader that does not necessarily know the ins and outs of this sport, a short explanation may be needed. There are two ways for a soccer club to get the rights on a player. First it can train him from the beginning via academies or related amateur soccer clubs. The second way is to buy the rights to field a player from another club, this is called a transfer. The money that is paid from the buying club to the selling club is called a transfer fee. The North American sports fans are familiar with the concept of trades where teams trade players for other players. However soccer's tradition is to transfer players for money. (3) Bosman, much ado about nothing? There is a lot of literature on the Bosman decision. I do not intend in going in a detailed analysis of the case, but I consider that a short history of it and an analysis of its impact on the soccer transfers is necessary to help the reader understand the context that led to new transfer rules. History of the case Mr. Bosman was a promising young Belgian soccer player. At the expiration of his contract he ended up in a contractual dispute with his current club. In consequence he asked to be transferred to a new club. A deal was made between Bosman, his old club and a French club for his transfer. However, the old club had doubts about the financial strength of the French club and stopped the transfer procedures. Bosman had to obtain a court order to be able to sign a contract of employment with another club. In the proceedings, Mr. Bosman asked for a permanent injunction and compensation from his old club. His main argument was that the transfer system was a violation of the right of free movement of persons within the EU and a violation of the EU competition law. The matter was referred to the ECJ by the Belgian court (4). The ECJ therefore had to determine the legality of the transfer system. It decided that the transfer fees charged for a player that had ended his contractual relationship with the club was an illegal restriction of the free movement of persons. Regarding the competition law and the possible restriction of the market for players, the ECJ refused to consider it, since it was unnecessary for their ruling. (5) However, before the ECJ decision, the Belgian appeal court had ruled that the transfer regulations were decisions of associations by which the clubs restrict competition for players between themselves, that transfer fees were dissuasive and tended to depress the salary of players and that the restriction on competition might constitute abuses prohibited by Article 86 (now 82). …

As a founding principle of the EU, a prerequisite for the exercise of most other EU rights, and a key component of EU integration, the freedom of movement right has carried great political and practical importance. It has also been one of the most contested, politically abused, and poorly understood of EU rights, particularly in the context of mobility of nationals from Central and Eastern Europe (“CEE”). Notably, misinformation regarding the free movement right that was spread by the media, politicians, and the public helped to propel both the UK’s renegotiation of its EU membership and, ultimately, its exit from the Union. Other EU-15 State politicians have also been perpetuating myths about freedom of movement and immigration. Scholars addressing free movement, even in the context of Brexit, have devoted little attention to this right’s conceptualization as it has evolved over time, to how EU branches other than the European Court of Justice have approached it, or to how CEE nationals have been positioned and impacted by mobility’s legal framework. Although some critical scholars have critiqued derogations from the free movement right imposed on CEE nationals in the aftermath of their States’ accession to the EU, they have also failed to situate their analysis within a broader look at the creation and application of the legal framework behind mobility. CEE movers in the UK and other EU-15 States have tended to be racialized by the media, politicians, and the public – that is, described and approached by individuals and institutions in ways which denigrate or assume their inferiority. Hence, several tenets of critical race theory (“CRT”) and critical whiteness studies (“CWS”) that expound the relationship between race, power, society, and law are helpful to the analysis of their mobility. This Article argues that the freedom of movement right has always been limited, and that CEE nationals’ mobility rights have been especially restricted by both EU statutes and case law – and further impeded by restrictive Member State policies. Ultimately, the right of free movement has been created and consistently applied in a way as to benefit EU-15 States’ economies, while approaching CEE movers as mere units of production. This broader understanding of this right is necessary to make Brexit negotiations more meaningful, and debates about intra-EU movers in other EU-15 States more responsible. Moreover, the discussion here also critiques CRT and CWS for overlooking the significance of immigrant background and of white minority ethnicities in the conceptualization and experience of equality. I suggest that both theoretical frameworks need to not only look beyond the black-white binary, but also consider contemporary transnational power dynamics to arrive at a more flexible and nuanced picture of micro-level racial and ethnic power relations in today’s globalized world.

Since the 2018 Juízes Portugueses judgment, the European Court of Justice (ECJ) has developed a line of case law based on Article 2 of the Treaty on European Union (TEU) in conjunction with Article 19(1)(2) TEU. These two Articles list the values on which the EU is founded and describe the task and structure of European jurisdiction and the ECJ’s obligation to uphold the law within the framework of the Union Treaties. This new approach, identified as value-operationalizing, enables the ECJ to derive requirements for the independence of national judges from Article 2 TEU in conjunction with Article 19 TEU. The value of the rule of law in Article 2 TEU is thus ‘brought to life’ or ‘operationalized’ in the context of Article 19 TEU. Specific commitments under EU law for the national court organization, a core area of Member States’ competence, now arisen from the value clause of Article 2 TEU. It has been claimed that the ECJ has become the saviour of the rule of law in Member States such as Poland and Hungary. This article aims to investigate the following paradox lying within this case law: the ECJ is attempting to save national judicial independence, yet in doing so it is arguably exceeding its own mandate and acting ultra vires. Thus, paradoxically, the ECJ is encroaching on Member States’ judicial autonomy and undermining its own judicial authority. The article assesses why the wording, systematics and fundamental principles of EU law are violated, using doctrinal analysis and an evaluation of the ECJ’s value-operationalizing case law from the perspective of ultra vires theory. It concludes that establishing common values should be a joint effort. Therefore, the ECJ should not be a quasi-legislator; it should cooperate with national constitutional courts in a reverse preliminary ruling procedure.

This contribution deals with the assignment of cases to reporting judges and judicial formations at the European Court of Justice (ECJ). EU lawyers generally consider the ECJ’s system of case assignment to be one of the most problematic features in the Court’s decision-making process. They perceive a strong tension with the right to a fair trial. In this contribution, I aim to understand why the Court maintains a system that has been under severe attack for a long time. By closely analyzing the practice of case assignment between 2003 and 2019, I argue that the ECJ’s assignment system is an important mechanism for the Court’s institutional success. It has allowed the Court to maintain a sense of common purpose, a strong and persistent idea of its mandate as a guardian of the effectiveness and primacy of EU law. I identify three key functions case assignment performs. First, supporting jurisprudential stability and continuity by creating an ‘elite group’ of judges who writes the bulk of the most important ECJ decisions. Second, integrating new ECJ judges through gradually assigning them more difficult cases thereby structuring a learning process for becoming a full-fledged ECJ judge. And third, the ECJ’s system of case assignment has helped to maintain what is generally lost in courts of the ECJ’s size: a place where all 27 ECJ judges and 11 Advocates General are informed on all incoming cases, jointly engage in systematizing the ECJ’s case law and framing the Court’s agenda.

We live in the Europe Union (EU) in a context of relations between legal systems of different levels. Therefore the positions of EU New Member States Constitutional or Supreme Courts are analysed in the paper with the use of the multilevel constitutionalism theoretical approach and focus on changes introduced by the Lisbon Treaty, that opened a new constitutional horizon in the EU integration process. The European Court of Justice (ECJ) defined relations between EU law and national law thanks to the primacy principle of EU law. Nevertheless the EU law's formal authority does not depend exclusively on ECJ position. It is conditioned largely by characteristics of each national legal system and national supreme or constitutional court case law. In fact, in most of EU Member States, certain constitutional reserves or constitutional limits to the primacy of EU law in the constitutional and supreme court case law with regard to (constitutional) fundamental rights and principles, can be found. The paper analyses the origin and development of those limits in the case law doctrine of Constitutional Courts in two old and three new EU Member States and concludes with the identification of the consequences and perspectives of EU integration with regard to the coherent protection of fundamental (constitutional) rights and principles across the EU. (original abstract)

On the 4 May 2017, the European Court of Justice (EUCJ) delivered its judgment in the Pešková v. Travel Service case. The authors see a very thin ray of hope for the aviation industry in this judgment. It could be viewed as a break in a dangerous trend by the EUCJ of prioritizing punctuality over safety. In Pešková, the Court has for the first time recognized safety as being part of a ‘high level of protection for air passengers’, as referred to in the EU ‘passenger rights’ Regulation 261/2004. This article looks at both objectives, which are paramount for the industry. The authors take an ‘inside out’ view of the aviation industry through an overview of the reasoning of the Court regarding technical problems, on the one hand and, on the other hand, the entitlement of passengers to very high financial compensation from airlines pursuant to EU Regulation 261/2004 and subsequent EUCJ case law.

Disharmonization in the Regulation of Transgenic Plants in Europe

In multilevel democracies, responding to environmental challenges requires ambitious policy action across all governmental levels. While substantial research has focused on environmental policy ambition at the national level, subnational efforts remain less explored, particularly in comparative case studies. Understanding subnational environmental capacity and initiative are essential to assessing the relevance of different factors enabling or hindering effective policy implementation in multi-level political systems. On the one hand, constituent units, might act as “laboratories” for public policy experimentation and counterweight central government inaction and support environmental sustainability. Conversely, limited capacity, lack of "vertical coordination" or conflicts among regions and central government might hinder environmental policymaking. On the other hand, studying this level also helps clarifying to what extent such dynamics are transversally influenced by partisanship. We know that party ideology plays a key role in shaping environmental policy preferences of political parties, but other factors such as institutional and capacity building or vertical congruence (Stefiruc, 2009) between different tiers of government remains still underexplored in environmental policies at multi-level systems. To address some of these research gaps, the current study aims to comparatively assess the relevance of different factors shaping intergovernmental relations in environmental policies between the central and the regional government in Spain’s multilevel system since the early 2000s. The country’s geographical diversity and quasi-federal model provides a unique opportunity to deepen on similarities and differences among regions that have different contextual features (islands, small regions, bigger regions), started distinct pathways to autonomy (faster and slower), have developed distinctive legal frameworks and institutions (including different coordination mechanisms with the central government), and have been governed by different parties and coalition governments influenced generating several vertical partisan congruence problems . Thus, we will focus on the Canary Islands, Murcia Region, and the Valencian Community, all of them not particularly explored by the literature on multi-level governance or environmental policies. Drawing on qualitative documentary analysis, legislative reviews, and semi-structured interviews with key stakeholders, the study seeks to provide a comprehensive understanding on how the above-mentioned factors have influenced institutional cooperation and coordination in environmental governance in Spain. More specifically, this paper will focus on those periods where vertical partisan congruence did not exist between the central and regional governments spanning from the adoption of the first National Adaptation Plan in 2006 to the present. By examining different capacities, institutions and center-periphery dynamics in these regions, the study aims to identify patterns and lessons that can be shared across similar political systems. Therefore, the empirical findings will enhance our understanding of path dependence, intergovernmental institutions and party politics factors shaping environmental policy implementation in multi-level political systems.

At the occasion of honoring the career of prof. Laurence W. Gormley - celebrated mentor and friend - this chapter asks one simple question: what does it mean to interpret the free movement of goods, persons, services or capital under EU law reasonably? Reasonableness takes center stage – both explicitly and implicitly – in the European Court of Justice (ECJ)’s jurisprudence on the four freedoms of the EU internal market. For all doctrinal attempts to find a grand unified theory of EU internal market law, deducing ever more principles from the expanding body of case law, the ECJ has never succumbed to calls for settling these questions once and for all, stoically persisting in pragmatism and judicial minimalism. Taking a bird’s eye perspective, perhaps the case law can be roughly summarized as follows. First, reasonable measures of the Member States are compatible with EU internal market law. Second, direct and indirect discrimination is usually unreasonable. Third, truly non-discriminatory barriers to free movement are usually reasonable, but sometimes they are not. Fourth, what is ‘reasonable’ and ‘unreasonable’ is ultimately for the Court to decide. If reasonableness is central to EU internal market law, the Court’s seminal Dassonville judgment seems to contain right about everything one needs to know. However, since reasonableness is in the eye of the beholder, and it is unclear what a ‘reasonable’ approach to the legal rules entails, the guiding function of EU law would benefit from some further clarification. At the same time, the EU legal system’s relative youth entails that the substantive content of EU law is at an early stage of development, and the meaning of autonomous EU concepts is only developing as appropriate cases arise. Consequently, it is up to the ECJ to exercise good judgement in individual judgments. Four possible sources of reasonableness are identified: the notion of ‘regulatory autonomy’ (II), the definition of a trade barrier (III), the burden and standard of proof (IV) and the notion of ‘holistic interpretation’ (V).

At the occasion of honoring the career of prof. Laurence W. Gormley - celebrated mentor and friend - this chapter asks one simple question: what does it mean to interpret the free movement of goods, persons, services or capital under EU law reasonably? Reasonableness takes center stage – both explicitly and implicitly – in the European Court of Justice (ECJ)’s jurisprudence on the four freedoms of the EU internal market. For all doctrinal attempts to find a grand unified theory of EU internal market law, deducing ever more principles from the expanding body of case law, the ECJ has never succumbed to calls for settling these questions once and for all, stoically persisting in pragmatism and judicial minimalism. Taking a bird’s eye perspective, perhaps the case law can be roughly summarized as follows. First, reasonable measures of the Member States are compatible with EU internal market law. Second, direct and indirect discrimination is usually unreasonable. Third, truly non-discriminatory barriers to free movement are usually reasonable, but sometimes they are not. Fourth, what is ‘reasonable’ and ‘unreasonable’ is ultimately for the Court to decide. If reasonableness is central to EU internal market law, the Court’s seminal Dassonville judgment seems to contain right about everything one needs to know. However, since reasonableness is in the eye of the beholder, and it is unclear what a ‘reasonable’ approach to the legal rules entails, the guiding function of EU law would benefit from some further clarification. At the same time, the EU legal system’s relative youth entails that the substantive content of EU law is at an early stage of development, and the meaning of autonomous EU concepts is only developing as appropriate cases arise. Consequently, it is up to the ECJ to exercise good judgement in individual judgments. Four possible sources of reasonableness are identified: the notion of ‘regulatory autonomy’ (II), the definition of a trade barrier (III), the burden and standard of proof (IV) and the notion of ‘holistic interpretation’ (V).

The conclusion addresses certain major features of the overall course of European integration in light of the book's priorities and findings, indicating that the book has pursued two main objectives: the first, to demonstrate that the course of European integration has been profoundly shaped by a system of adjudication managed by the European Court of Justice (ECJ); the second, to test a range of propositions about how the legal system operates, and to trace the effects of the ECJ's case law on policy outcomes, and on the policy‐relevant behaviour of nonjudicial actors. In some areas, including free movement of goods and sex equality, judges – not governments or legislatures or the Member States – have broadly determined the paths along which institutions evolved. Judicial supremacy partly inheres in the ECJ's status as trustee, partly in the dynamics of the constitutionalization process provoked by the ECJ in the mid‐1960s, and partly by the propagation and diffusion of specific techniques of judicial governance, such as those associated with precedent‐based balancing standards. Every chapter of the book presents evidence refuting claims that the ECJ and the national courts operate as relatively perfect ‘agents’ of the Member States or national governments, and shows that the activities of supranational organizations such as the ECJ routinely produce ‘unintended consequences, from the perspective of those who have designed and redesigned the EC. The author concludes that he does not see how theories that make predictions about how integration has proceeded from institutional design can be rescued.

It would not be an overstatement to suggest that the principle of equality constitutes a cornerstone of European Community Law. The prohibition of discrimination on the basis of nationality, enshrined in Article 6 of the EC Treaty, is a theme that runs through Community Law. It has been central to the realization of SingleMarket dream, in eliminating inter-state barriers to develop greater free movement of the four key factors of production, namely goods, persons, services and capital within the Union. The European Court of Justice (ECJ) has even developed a general unwritten principle of equality, binding on all Community legislative action. However, beneath this appearance of uniformity of approach there lies, paradoxically, a marked difference in relation to the prohibition of hidden forms of unequal treatment (or indirect discrimination) in EC Law. Here, the ECJ has been unable to sustain the unifying quality of the equality principle. It has singularly failed to establish a comprehensive legal test relating to the concept of indirect discrimination. Instead, the case law has diverged considerably, the ECJ apparently willing to develop principles on a sectoral as opposed to a generic basis. This paper aims to analyse and expose the inconsistency of treatment by the ECJ in its appraisal of indirect discrimination in relation to the following key economic sectors: free movement of goods, services and workers and gender equality in employment. Behind the presentation of uniformity of approach, the ECJ has established subtle but significant legal distinctions which have had profound economic consequences for litigants and markets alike. Such a state of affairs raises serious questions about the universality and impartiality of the application of the principle of equality in the European Community Law context, not least because hidden as opposed to more express forms of discrimination tend now to take on a more prevalent and signification role in the Single Market.

This paper analyses the case law of MERCOSUR's Permanent Tribunal of Review (PTR), examining the influence of the European Court of Justice (ECJ) jurisprudence in the interpretation and orientation of MERCOSUR law. Although the ECJ jurisprudence could shed some light on the interpretation of certain rules, such case law has been used as de facto authority. Such a conclusion holds true in particular for the interpretation of MERCOSUR law where a legal vacuum is identified. The manner in which the PTR quotes the ECJ case law and immediately after, without further consideration of other sources, completely applies such case law supports this view. A more creative interpretation of MERCOSUR law is called for. The construction of a case law developed in the light of the MERCOSUR integration process itself is required. Taken together, the PTR reasoning in the three rulings on the occasion of the Remolded Tires case demonstrates the willingness of the PTR to follow the ECJ jurisprudence. The PTR could have engaged in a thorough review of MERCOSUR legislation which could have shed light on the scope of the exceptions to the free movement of goods.