Knowing EU Law

In this Issue

The relationship between European Union (EU) law and national Slovenian law progressed across three different stages starting from the beginning of this century to date, as discussed by EU and Slovenian legal theorists. The first one, just before Slovenia’s entry into the EU, considered the EU an international organisation and EU law a type of public international law. It was dismissed even before Slovenia joined the EU, with an amendment to the Constitution, and was succeeded by the second, supranationalist, view that required maximum restraint by national courts while dealing with EU issues. Finally, about a decade ago, the third pluralist view of EU law vis-à-vis national law emerged, calling the particularly highest national courts to enter a more critical dialogue with the Court of Justice of the European Union (CJEU). Although Slovenian theorists have been actively discussing the relationship between EU and national law before and immediately after Slovenia joined the EU, it seems that practising lawyers and judges needed time to adapt to the new law. Finally, in 2009, the first reference for a preliminary ruling was made by Slovenian courts. Soon after, the Slovenian Supreme Court made its first preliminary ruling reference and, in nearly 20 years since, proved itself to be the most frequent interlocutor with the CJEU from Slovenia. It regularly cites CJEU cases in its case laws, and demands that lower courts follow them wherever appropriate. From the highest national courts in Slovenia, the Constitutional Court joined the dialogue with the CJEU last. It has made four preliminary ruling references to the CJEU and demonstrated restraint vis-à-vis reviewing legal issues touching upon EU law. The legal culture (including public opinion) in Slovenia has predominantly been pro-EU. This applies to the internal legal culture, namely lawyers who support liberal democratic values such as the rule of law, human rights, and democracy. As long as the EU remains dedicated to these values, in such an environment, the highest Slovenian courts are not expected to show a bolder attitude vis-à-vis CJEU case law

This article examines how conflicts between European Union (EU) law and Bilateral Investment Treaties (BITs) between EU Member States (intra-EU BITs) are to be tacked following the judgment of the Court of Justice of the EU (CJEU) in Achmea (C-284/16). Starting from an analysis of the CJEU’s ruling and its aftermath (Sections II and III respectively), the article argues that conflicts in the interrelation of EU law with inter se agreements, such as intra-EU BITs, are to be approached as normative conflicts between different sub-systems within the broader system of public international law and resolved in favour of EU law. This argument is based on a two-fold premise, analysed in Section IV: first, that EU law does not constitute a ‘new legal order’, outside of and cut off from international law, but rather a ‘self-contained regime’, operating ‘within’ the broader system of international law. Since EU law is treaty law, conflicts in its relationship with (other) inter se agreements are, therefore, to be addressed using the conflict rules of international law. Against this background, the second premise of the article is that the EU Member States have agreed on a special conflict rule to regulate conflicts between EU law and inter se agreements. That rule is the principle of primacy of EU law. Having established the applicable conflict rule, Section V expands on the consequences of its application to the conflict between EU law and investor-state arbitration clauses in intra-EU BITs affirmed by the CJEU in Achmea.

THE COHERENCE OF EU LAW: THE PROMOTION OF INVESTMENTS VS. THE PROTECTION OF HUMAN RIGHTS

Copyright Infringement in the EU Digital Single Market

This article analyses the normative landscape of future generations within the current body of European Union (EU) law, including the treaties, the EU Charter of Fundamental Rights, existing and potentially emerging general principles of EU law, as well as relevant international treaties and customary international law. The article argues that, even though there is currently no explicit legal obligation for EU institutions in the treaties founding the Union to respect and protect the long‐term needs of future generations, several legal hooks exist in the sources of EU law that invite an intergenerationally conscious reading and reinterpretation of EU obligations and competences. Such a reinterpretation could justify, or even prompt, stronger protection of future generations' interests across all EU policies. Future‐proofing EU law primarily depends on how EU institutions, including the Court of Justice of the European Union (CJEU), interpret intergenerational equity‐related concepts already embedded in primary EU legislation. Additionally, the contours of EU obligations towards future generations could be influenced by the dynamically evolving rules of international law.

In view of case law from Danish courts, the article will analyse whether provisions, such as the previously existing Danish provision in section 5 G of the Danish Tax Assessment Act, are inconsistent with the freedoms in EU law, which grant the right to free establishment within the borders of the EU. The article will illustrate the problem via a Danish High Court decision, SKM 2011.486 ØL, where the High Court held that the Danish provision was not inconsistent with community law, as it merely eliminates the risk of double dip, which, according to the High Court, is in compliance with existing EU law. Taking as its starting point the Danish decision, which will be reproduced in detail herein, the article will analyse the basis in EU law for deducting losses incurred abroad. The article uses the Danish provision as a platform for analysing the claims of EU law.

The doctrines of primacy and direct effect of European Union (EU) law, harmonious interpretation, effectiveness, and the preliminary ruling procedure have become formidable instruments that allow national judges to undertake judicial actions normally not permitted under national law. Various scholars focus on the aspects of, inter alia, the application of EU law by the highest national courts, and their attitudes towards the principle of supremacy and direct effect of EU law, or towards the process of cooperation of various national courts with the Court of Justice (CJ). The constitutional and institutional legal frameworks in Poland do not, in principle, present any serious obstacles to the fulfillment of expectations imposed on national judges in relation to EU law. This chapter argues that the theoretical model of a decentralised EU judge as established by the CJEU reveals an arresting and plausible, at least in writing, but certainly an elusive legal perspective.Keywords: Court of Justice (CJ); European Union (EU) law; national courts; national judges; national law; Poland

Looking Towards Europe: Regulation of Dominance in Nigerian Telecommunications

Due to the concerns which are raised regarding the impact of automated decision-making (ADM) on transparency and their potential discriminatory character, it is worth examining the possibility of applying legal measures which could serve to increase transparency of ADM systems. The article explores the possibility to consider algorithms used in ADM systems as documents subjected to the right to access documents in European Union (EU) law. It is focused on contrasting and comparing the approach based on the right to access public documents developed by the Court of Justice of European Union (CJEU) with the approach to the right to access public information as interpreted by the European Court of Human Rights (ECtHR). The analysis shows discrepancies in the perspectives presented by these Courts which result in a limited scope of the right to access public documents in EU law. Pointing out these differences may provide a motivation to clarify the meaning of the right to access information in EU law, the CJEU’s approach remaining as for now incoherent. The article presents the arguments for and ways of bringing together the approaches of the CJEU and the ECtHR in the light of a decreasing level of transparency resulting from the use of ADM in the public sector. It shows that in order to ensure compliance with EU law, it is necessary to rethink the role which the right to access information plays in the human rights catalogue.

This chapter presents the factual duties and expectations that are placed on national courts by means of European Union (EU) acquis. It illustrates how national judges ought to function as decentralised EU law judges: namely, how they are expected to respond to EU law and to decide EU law cases. The chapter presents a theoretical model of the functioning of a national judge as an EU law judge. The national legal systems and sources have mostly been affected in the process of harmonisation through the adoption of EU regulations and directives pertaining to particular realms of substantive law. Furthermore, Court of Justice of the EU (CJEU) case law has played an important role in the process of Europeanisation of national law, since the Court ensures that the law is observed in the interpretation and application of EU law.Keywords: CJEU; European Union (EU) law; national judges; national legal system; substantive law

This article, within the Special Issue’s ‘Justice beyond investor-state dispute settlement’ theme, looks at whether the protections offered by European Union (EU) law are adequate alternatives to those offered by international investment law (IIL) in the post-Achmea world of intra-EU investment protection. While EU law offers far-reaching protections to businesses operating in the EU, sometimes going beyond the protections offered by IIL, from an investment law perspective the article argues that not all the substantive and procedural protections offered by EU law are adequate for the purposes of IIL. This is because investment law has a narrower focus on protecting and promoting investments, which in turn influences how the legal provisions are interpreted. EU law, on the other hand, has the much broader and deeper purpose of creating an ‘ever-closer’ Union with an internal market, a ‘systemic’ purpose that permeates the Court of Justice of the European Union (CJEU)’s interpretation of EU law. Thus, the deeper we look, the more differences we find in the personal and material scope of the two systems, the substantive standards of treatment, the derogations from the substantive standards, and the procedural protections and remedies. Coming full circle, the different epistemic communities of adjudicators, just like the different purposes and objectives, result in similar or the same concepts being interpreted differently. It is quite unfortunate that the CJEU viewed these two systems as competitors, in which investor–State arbitration ‘removed’ cases from the jurisdiction of EU Member State courts, when in fact they are complementary systems of protection.

This chapter shows how national courts receive European Union (EU) law by way of dualism in the same way they receive international law. From the member states’ point of view EU law is not the law of a new jurisdiction but the law of an international legal order. Incorporation is not a simple transfer. Member state courts incorporate EU law through three structural principles: ‘conditional primacy’, ‘institutional tolerance’, and ‘integrity’. These principles are uniquely relevant to the transnational nature of EU law. The member states remain independent political communities. Integrity, thus, applies to EU law on the basis that the EU is a community of communities of principle. The ideals of a community of principle apply to the EU only when it is seen as a union of peoples that come together on the basis of the law of nations. The practical or deliberative understanding of law provides an account of the relationship between domestic and EU law without paradox.

This book explores the coming into being in European Union (EU) law of the fundamental right to personal data protection. Approaching legal evolution through the lens of law as text, it unearths the steps that led to the emergence of this new right. It throws light on the rights significance, and reveals the intricacies of its relationship with privacy.The right to personal data protection is now officially recognised as an EU fundamental right. As such, it is expected to play a critical role in the future European personal data protection legal landscape, seemingly displacing the right to privacy. This volume is based on the premise that an accurate understanding of the rights emergence is crucial to ensure its correct interpretation and development.Key questions addressed include: How did the new right surface in EU law? How could the EU Charter of Fundamental Rights claim to render more visible an invisible right? And how did EU law allow for the creation of a new right while ensuring consistency with existing legal instruments and case law?The book first investigates the roots of personal data protection, studying the redefinition of privacy in the United States in the 1960s, as well as pioneering developments in European countries and in international organisations. It then analyses the EUs involvement since the 1970s up to the introduction of legislative proposals in 2012. It grants particular attention to changes triggered in law by language and, specifically, by the coexistence of languages and legal systems that determine meaning in EU law. Embracing simultaneously EU laws multilingualism and the challenging notion of the untranslatability of words, this work opens up an inspiring way of understanding legal change.This book will appeal to legal scholars, policy makers, legal practitioners, privacy and personal data protection activists, and philosophers of law, as well as, more generally, anyone interested in how law works.

This chapter considers, in light of recent case law, the potential of European Union (EU) law to further advance LGBTQ+ persons and same-sex couples’ rights. The EU system offers numerous opportunities in this respect due to the manifold influences of the EU concept of citizenship resulting in extensive free movement provisions and non-discrimination requirements as further enhanced by strengthening ties between the EU and the Council of Europe. The European Court of Human Rights stresses a lack of consensus on claims for same-sex marriage between its divergent 47 Member States leading to a wide margin of appreciation. In contrast, it is argued that the Court of Justice of the EU gives concerns about subsidiarity less prominence than over-riding EU law imperatives such as free movement of persons and non-discrimination provisions. All of these points, together with more effective EU law enforcement provisions, provide impetus and lead to opportunities for the EU further to develop rights for LGBTQ+ persons and same-sex couples. The possible impact of Brexit, where this would affect free movement of persons, means that UK LGBTQ+ persons and same-sex couples would not benefit from the possibilities of future development of EU law.