Media Attention for CJEU Case Law

In this article, we explore the case law of the Court of Justice of the European Union on value added tax using network analysis. We carry out a case study on the collection of rulings dealing with the VAT treatment of holding companies and economic activities. We construct a case-to-case network and we identify the most important cases of this topic-specific collection of VAT cases. We make a contribution to knowledge by showing how the construction of a paragraph-to-paragraph network and the application of a community detection algorithm effectively assist in identifying core judicial rules in the CJEU's case law.

This article discusses whether national courts in EU Member States, when interpreting tax treaty non-discrimination provisions, are influenced by the CJEU's case law on the fundamental freedoms. Because these non-discrimination standards are very similar, and because there is a perception that the non-discrimination standard developed by the CJEU outperforms the tax treaty nondiscrimination standard, those national courts could be tempted to draw inspiration from the CJEU's case law. However, this article concludes that, even though some examples are apparent in a number of recent cases, such an influence is currently not widespread in the reported case law. In addition, this article considers whether European law requires national courts of EU Member States to draw inspiration from the case law of the CJEU. In this regard, the article concludes that the principle of legal certainty requires tax treaty non-discrimination provisions to be interpreted uniformly by all national courts, without any influence from specific legal instruments aimed at regional market integration.

Two emerging principles of EU internet law: A comparative analysis of the prohibitions of general data retention and general monitoring obligations

With Directive 1999/70 on Fixed-Term Work – and more generally through European Directives on flexible work – the European legislator tried to strike a balance between the demands for flexibility coming from employers and the needs to safeguard the rights of flexible workers. This balance has been carried out through various provisions of the Directive, as the Court of Justice of the EU explained over the years: by placing side-by-side ‘hard’ rules, considered by the European judges as directly effective (like the principle of equal treatment between fixed-term workers and comparable permanent workers), and ‘softer’ provisions (like the ones directed to prevent abuse of successive fixed-term contracts) which leave a significant margin of appreciation to the Member States about how to implement them, provided that they do not compromise the objective and the practical effect of the Directive. Fifteen years after the adoption of Directive 1999/70, the present study aims to start from its purposes, in order to identify the basic components of a possible ‘European model’ for Fixed-Term Work by following the CJEU's case law, which has established, ‘in the name’ of the principle of effectiveness, some important restrictions to Member States' discretion in implementing the Directive: a model that may prove useful for evaluating the European consistency of the relevant national laws.

The reconciliation of the principle of freedom of transit, enshrined in the GATT Agreement, with the need to safeguard IP rights has become an increasingly complex issue since the judgment of the CJEU in Case C-281/05, Montex v Diesel. Over the last years, the question of whether Regulation 1383/2003 adequately addresses this relationship is fiercely debated before the national courts. This contribution explores the case law of the national courts during the post-Montex era. It points to the existing distortions as to the interpretation of the Regulation and of the CJEU's case law, in the first place, and the substantive provisions in place in the Member States, in the second place, which undermine the acquis communautaire as well as the rights of IP right holders when it comes to preventing the movement of counterfeit and pirated goods in transit. The conclusions of this analysis call for a definite and unequivocal delineation—either by the CJEU or, should the latter fail to do so, by the Community legislator—of the rights of IP right holders to oppose the transit of counterfeit and pirated goods through the EU territory.

Abuse, Proportionality and the Burden of Proof in CJEU's Case Law on Direct Taxation

This contribution revisits the phenomenon of ‘reverse discrimination in the light of the latest Treaty amendments, recent developments in the CJEU's case law and evolutions in the law of selected Member States. It follows that ‘reverse discrimination’ caused by national measures applying to internal situations in non-harmonized policy fields remains acceptable under EU law as a matter of principle. The Union's non-unitary constitutional structure compels the CJEU to exercise judicial restraint when reviewing such rules against the fundamental freedoms of the Treaties as long as the Union legislator does not address the issue. Although the CJEU's traditional and increasingly incoherent case-law on ‘purely internal situations’ is not a necessary corollary of this reasoning, alternative judicial approaches risk unduly undermining Member States' competences and constitutional identities. Whilst much of the academic debate on reverse discrimination focuses on possible remedies under EU law, this paper also looks at solutions available under national law. Member States are well equipped to address reverse discrimination and to progressively live up to their responsibility in this respect. Evidence from different Member States suggests that national law (subject to an external control of the ECtHR) can provide a valuable and effective tool to assess whether or not restrictions of individual freedoms can be justified by overriding constitutionally recognized principles.

Over the last few decades, free movement of services has acquired a ‘central’ and ‘connecting’ position in the structure of the EU internal market. This position has an important impact on the relationship between positive and negative integration in the internal market. Empirical analysis of the CJEU's case law on Article 56 TFEU and the Services Directive in the period of 2014 to 2023 shows that there is still a significant amount of negative integration in the field of services. Moreover, there is a significant amount of interaction between positive and negative integration. Because of the nature, aim and scope of legislation in the field of services, it is often difficult for the CJEU to demarcate the ‘boundaries’ between the respective scopes of application of positive and negative integration. Therefore, it is important to develop a harmonious relationship between positive and negative integration, which should be characterized as a ‘mentoring relationship’.

Abuse is one of the core issues in EU direct tax matters. Much has been written over the past years. The discussion on the interpretation and application of the different elements of the anti-abuse clauses appears to be settling. However, an equally fascinating discussion appears to be emerging: in applying anti-abuse provisions, who faces the burden of the proof of abuse: the taxpayer or the tax authority? Among the different research questions that could be addressed, one of the most interesting ones appears to be the following: what guidance can one extract from the direct tax case law of the Court of Justice of the European Union in what concerns the distribution of the burden of proof in abuse situations? This study addresses that research question. It solely focuses on direct taxation and the application of anti-abuse provisions. It will purposedly adopt a wide concept of burden of proof, comprising all rules that deal with producing or evaluating evidence as well as the allocation of the respective burden. However, it will focus on the subject that has to provide evidence of the existence of abuse, leaving aside the interesting intertwined questions of determining the object of that proof (i.e., what is abuse and what are its internal elements) and the standard of that proof (i.e., the degree or intensity of the proof that has to be provided.

Public healthcare is a fundamental task of welfare states. Its real character is ambiguous though as, on the one hand, healthcare is a cornerstone of social security while, on the other, it is an enormous economic sector. At the same time, maintenance of healthcare services constitutes one of the biggest financial burdens on public budgets and will remain so for the foreseeable future. In order to cope with this challenging subject matter, Member States have evolved a wealth of healthcare regulations. Considering the potential cross-border economic activity in the healthcare sector by patients and healthcare providers, the question of the compatibility of national healthcare planning with European Union Law arises. This article analyses how Member States' healthcare planning is both limited and preserved by European primary law and by the CJEU's case law. The study reveals a surprising result.

The CJEU has no jurisdiction to rule in purely internal situations, save for three exceptions. As easy as this may sound, the CJEU's case law is not entirely consistent and created uncertainty for national courts. This article critically examines how the CJEU has dealt with purely internal situations. It shows that the CJEU should be stricter in defending its gates. Instead of turning the three exceptions into the rule, the CJEU should treat the three exceptions as they were originally envisaged: Exceptions. The recent Grand Chamber inUllens de Schootenis a step in the right direction. A stricter approach makes it necessary that the CJEU looks a bit more over the national judge's shoulder, which changes the cooperative dynamic by putting the CJEU into a more vertical position vis-à-vis national courts. National courts can, however, escape this more conflictual setup by providing more detailed information as to the fulfillment of one of the three exceptions.

On 18th December 2014, the CJEU rendered its’ much-anticipated decision in C‑364/13 International Stem Cell Corporation v Comptroller General of Patents (ISCC). Qualifying its’ earlier ruling in Brustle v. Greenpeace (Brustle) with regard to non-fertilised human ova stimulated by parthenogenesis, the Court held that in order to constitute a ‘human embryo’ - and thus to be unpatentable under the EU Biotechnology Directive - the stimulated ovum must have the “inherent capacity to develop into a human being”. This would allow patents on innovative parthenotes which had not been genetically modified to achieve totipotent capabilities. Hence the judgment establishes a crucial limitation of the broad interpretation of “human embryos” in Brustle, where the CJEU held that parthenotes are covered by the term “human embryo” since they are “capable of commencing the process of development of a human being”. The ISCC decision is to be welcomed since it provides an ethically justifiable leeway for patenting and offers reasonable support to the commercial viability of European cell therapy research. Yet, ISCC’s impact still depends on national implementations and only applies to certain hESC cells. Thus, further clarifications would be helpful concerning other non-totipotent hESCs.

The idea of repatriating national powers from the EU is en vogue. The EU Treaty as amended by the Lisbon Treaty gave considerably more weight to the principles of subsidiarity, proportionality and national identity. This paper will look into the potential limiting effect of the Lisbon Treaty’s emphasis on national identity upon EU legislative competence. Against constructive approaches regarding the added value of the national identity provision of Article 4 (2) TEU, this paper will attempt to unpack the constitutional lack of utility of the principle through a critical interpretation of new CJEU case law. We will look at cases before the Luxembourg Court where Member States have resorted to national identity as a means of derogating from their EU law obligations. It is argued that these cases have only been successful in rebranding the old CJEU cases on legitimate interests to a new breed of case law bearing the national identity tag. The CJEU seems to have envisaged a form of constitutionalism where although Member States enjoy a monopoly over the definition of national identity (the 'what'), the power to determine the compatibility of those interests with EU obligations (the 'how') is vested in the CJEU. As such, this paper will explore whether this development constitutes a cause for celebration vis-a-vis the repatriation of national powers from the EU.

IntroductionEven though botanicals are increasingly popular ingredients for food supplements, health claims related to their putative bene ts remain unclearly regulated.MethodsThrough an analysis of EU and national case law from the Netherlands, including self-regulatory decision-making, we have studied the implications of case law on botanical health claims.ResultsOur analysis reveals that there are multiple issues related to claims on botanical-containing products: whether it should be classi ed as food or medicine; what statements should be understood as health claims; what type of evidence should underlie health claims and, more specically, botanical health claims; and how to deal with online commercial communication. The case law analysis highlights rst that a gray area will continue to exist when classifying products as foods or medicinal products, particularly when it comes to products that contain botanical ingredients. Most importantly, our study also reveals that claims—even when they are on hold, like botanical claims—need a certain scienti c foundation before they can be used on products. Finally, the courts believe that even though on-hold claims will continue to give a certain level of uncertainty for food business operators, this is not a legal but rather a regulatory issue.DiscussionThe findings from our case law analysis highlight that even though case law is useful in further interpretation of legislation, it does not provide any policy advancement. In the case of botanicals, a political decision regarding their substantiation is highly desired.

The article discusses the W AG case and the Court of Justice’s (the Court) previous cases on the cross-border deduction of foreign permanent establishment (PE) losses. The inconsistency of the case law is highlighted by demonstrating first the conflicts that remain in the case law regarding the status of final PE losses in the enterprise’s residence state, second, by the arbitrary use of comparability criteria by the Court when comparing the situation of domestic and foreign PEs. The article examines the consequences of the W AG decision with regard to the remaining questions on foreign PE losses, the potential impact on foreign subsidiary losses, and the damaging effect of the inconsistency of the Court’s methodology on the quality of its case law. EU fundamental freedoms, CJEU case law, foreign losses, permanent establishment losses, final losses, exemption method, unilateral exemption, exemption under tax treaty