Court Of Justice Of The European Union Research Articles

CJEU clarifies that framing infringes copyright if TPMs are circumvented

This case review introduces the preliminary ruling of the Court of Justice of the European Union (CJEU) in the VG Bild-Kunst v Stiftung Preusischer Kulturbesitz case. The CJEU ruled that framing thumbnails in circumvention of effective technological protection measures is an act communication to the public. The case not critically analyses the content of the judgment and its practical relevance and consequences.

Unveiling Complex Discrimination at the Court of Justice of the European Union: the Islamic Headscarf at Work

The Court of Justice of the European Union (CJEU) has had the opportunity to address the sensitive matter of the wearing of the Islamic headscarf in the workplace in two preliminary rulings. The result of these decisions implies that the wearing of this veil at work is, in general, neither proscribed nor always justified as a legitimate expression of religious beliefs. However, the law studied and applied deals exclusively with discrimination in the workplace on religious grounds. Nonetheless, the Islamic headscarf is only worn by (some) Muslim women (never by men). This article reviews the EU legislation and policy on equality, intersectionality and multiple discrimination to verify that gender mainstreaming does not reach the work of the Court. Only the inclusion of a feminist perspective to the application of justice, with a clear methodology, can guarantee that gender does not disappear in cases of complex discrimination.

European integration: Quo vadis? A critical commentary on the PSPP judgment of the German Federal Constitutional Court of May 5, 2020

Abstract In its judgment of May 5, 2020, the Second Senate of the German Constitutional Court qualified for the first time a judgment of the Court of Justice of the European Union (CJEU)—C-493/17 Weiss—as “arbitrary from an objective perspective” and declared the underlying European Central Bank (ECB) decisions regarding the Public Sector Purchase Programme (PSPP) to be ultra vires. It requested the German Government and the German Parliament to take steps against the PSPP in its current form and to ensure that the ECB conducts a proportionality assessment of its PSPP. The judgment also prohibits the German Central Bank from participating, after a grace period of three months, in the implementation and execution of the ECB decisions at issue, unless the ECB assesses and substantiates that the measures provided for in its decisions satisfy the principle of proportionality. The present article, which was written by academics, lawyers, and civil servants from five countries, casts a critical eye on the judgment of the German Constitutional Court. It identifies significant shortcomings from both a German constitutional and a European Union perspective.

Reconciling Remote Sensing Technologies with Personal Data and Privacy Protection in the European Union: Recent Developments in Greek Legislation and Application Perspectives in Environmental Law

Using remote sensing technologies to ensure environmental protection responds to the need of protection of a right and a public good and interest. However, the increasing introduction of these technologies has raised new challenges, such as their interference with the rights of privacy and personal data, which are also protected fundamental rights. In this paper the importance of remote sensing technologies as tools for environmental monitoring and environmental law enforcement is analyzed, while legal issues regarding privacy and data protection from their use for environmental purposes are presented. Existing legislation for reconciling emerging conflicts is also examined and major European Court of Human Rights (ECtHR) and Court of Justice of the European Union (CJEU) case law on the issue is approached. Finally, recent developments in Greek legislation and their application perspectives in environmental law are presented as a timely “case study”.

COVID-19 and the Courts. The Case of the Court of Justice of the European Union (CJEU)

COVID-19 has put forth the value of proactive and good Court administration. The Court of Justice of the European Union (CJEU) ensures the uniform interpretation and application of the European Union law. It is a complex supranational organisation, and its workings involve 24 languages. Shifting from risk management to crisis management is an arduous task in such an environment. Nevertheless, based on previous experiences and alerts, the Court took advantage of the established crisis management plans to counter the Covid-19 pandemic. This article aims to offer insights into how the Court manifested its preparedness, remained resilient and managed the crisis by enhancing its contingency plans, using its teleworking experience, benefiting from a modernised IT infrastructure, and applying its procedural rules intelligently. It will also examine how the Court envisages consolidating the judicial and administrative changes in the future.

Is a Municipal Sales Tax Compatible with VAT?

This paper analyses the Judgement of the Court of Justice of the European Union (CJEU) of 7 August 2018, case C-475/17, on the request for a preliminary ruling made by the Estonia Supreme Court on the compatibility between the municipal sales tax, which said country’s legislation allows municipalities to establish, and value added tax (VAT), which is Community-wide in scope. Pursuant to its interpretation of the VAT Directive, the CJEU concluded that this municipal tax is compatible with VAT and therefore endorses its levying. Based on an analysis of said Judgement, this paper assesses its potential transference into domestic Spanish legislation, be this within the current legal framework or as a possible new tax type within a future reform of the local finance system.

How the European union deals with surrogacy. Birth without borders as a driver of value conflicts?

Surrogacy has appeared in the European Union (EU)’s agenda since the early 2010s following the rulings of the Court of Justice of the European Union (CJEU), the advisory opinions of the European Court of Human Rights (ECtHR), and the rejection of this practice by the European Parliament (EP). This is part of a broader evolution imposing surrogacy as a transnational issue setting major ethical challenges. Against this background, our research question is two-fold. First, is the EU likely to develop a full-fledged regulatory framework on surrogacy? Second, is surrogacy a bone of contention that fosters morality politics at the EU level? Morality politics is here defined as a political style characterized by two features: a dynamics of politicization leading to uncompromising value conflicts; the primacy of “first principles”, frequently with a religious dimension, over interests. Our findings suggest that surrogacy does not fully develop into an EU policy area. This is largely explained by the resistance of European institutions to engage in a morality politics-like debate. In other words, this is precisely the controversial dimension of surrogacy and the impossibility to deal with it in the usual EU policy style based on compromise and avoidance of value clashes that prevent any EU regulation.

Are the OECD/G20 Pillar Two GloBE-Rules Compliant with the Fundamental Freedoms?

In this article the authors focus on whether the Global Anti-Base Erosion (‘GloBE’) rules, as set out in an Organisation for Economic Co-Operation and Development (‘OECD’) Blueprint of October 2020, comply with the EU fundamental freedoms. This compatibility is tested in two distinct scenario’s. In the first scenario the assumption is taken that the GloBE-rules will be implemented directly by the Members States and in the second scenario the assumption is taken that the GloBE-rules will be implemented indirectly through an EU Directive. It is clear from the analysis of the first scenario that the GloBE-rules collide with the freedom of establishment. For the GloBE-rules to be fully in line with this freedom, it is recommended that they include a substance-based carve-out such like the one foreseen in Article 7(2) of the Anti-Tax Avoidance Directive (ATAD). The analysis of the second scenario, which focuses on the EU principles of subsidiarity and proportionality, shows that, even though the GloBE-rules might collide with the freedom of establishment, they could still be successfully implemented given the broad discretion that the Court of Justice of the European Union (CJEU) leaves to the Union legislature. Nonetheless, also here recommendations are made to reduce disproportionate frictions. Pillar II – GloBE – OECD – BEPS – Minimum taxation – Tax competition – European Law – Freedom of Establishment – Subsidiarity – Proportionality

Tax Consolidation Regime in European Union: Towards One Unified Approach Among All Member States?

The article presents the current scope of harmonization of tax consolidation systems within European Union. On the grounds of the Court of Justice of the European Union (CJEU) judgements author identifies the issues of group taxation that are already actually harmonized despite the lack of formal directive or ordinance. The conducted analysis confirm that the Member States (MS) do not have currently the full discretion in construction of their domestic tax consolidation regimes. The country lawmaker will have to rethink once again such elements as the eligible entities, the types of tax integrations or the scope of tax advantages granted solely to the companies acting as a single tax entity. Corporate income tax, tax consolidation, single tax entity, horizontal tax integration, tax losses, tax avoidance, parent company, fiscal unity, freedom of establishment, common tax base

Institutional Change in the Banking Union: The Case of the Single Supervisory Mechanism

Abstract This article is about institutional change in the Banking Union. It has two related aims. The first is to engage with the law of the Single Supervisory Mechanism (SSM)—the first pillar of the Banking Union—and in this context to discuss tensions that have lately emerged between the case law of the Court of Justice of the European Union (CJEU) and that of the German Federal Constitutional Court. The second, but main, aim of this article is to put the law of the SSM as it was enacted in the SSM Regulation, and as it was interpreted by the CJEU and by the German court, in a broader perspective of institutional change. For this purpose, this article adopts an interdisciplinary approach that seeks insights on institutional change in the political science literature. In particular, the article seeks to shed light on the role played by courts. In short, it argues that whilst the SSM is a story of change following an exogenous shock (ie the sovereign debt crisis), it is also an account of change and contestation between courts made possible by the ambiguities and incompleteness of the SSM rules. It will show that the evolution of the SSM is by no means frictionless and that it is only by tracing change from the point of the enactment of the law to its interpretation by the courts that one gains a real appreciation of the dynamics and salience of change within the SSM.

Supreme Site Services v. Shape (C.J.E.U.)

On September 3, 2020, following a request from the Dutch Supreme Court, the First Chamber of the Court of Justice of the European Union (CJEU) rendered its preliminary ruling in Supreme Site Services and Others v. SHAPE on the interpretation of Articles 1(1) and 24(5) of the European Union (EU) Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation).

The European Court of Justice on the EU-Morocco agricultural and fisheries agreements: an analysis of the legal proceedings and consequences for the actors involved

ABSTRACT Over the past few years, the Court of Justice of the European Union (CJEU) has issued several judgments on the international agreements between the European Union (EU) and Morocco and their territorial scope, including the non-self-governing territory of Western Sahara. This study examines cases C-104/16 P and C-266/16 concerning, respectively, the Agricultural Agreement and the Fisheries Partnership Agreement between the EU and the Kingdom of Morocco, both of which have revealed a tug-of-war between the judiciary and the legislative and executive powers of the EU regarding the Western Sahara conflict. While the highest European legal authority stated that Western Sahara has a separate and distinct status from Morocco, the Parliament, Commission, and Council have persisted in their long-standing position of viewing the conflict as a result of postcolonial relations between France and Spain, on the one hand, and the Alawite kingdom, on the other. This article analyses the two cases at both the procedural and political levels, in addition to their consequences with regard to the positioning of the actors involved to show that, in the case of the Western Sahara conflict, EU economic and geopolitical interests have prevailed over the application of European and international law.

Telenor Magyarország Zrt. v. Nemzeti Média- És Hírközlési Hatóság Elnöke (C.J.E.U.)

An important ruling, with international implications regarding the increasingly fraught and unsettled realm of state regulation in the digital sphere, came from the Court of Justice of the European Union (CJEU) on September 15, 2020. In its ruling in the case of Telenor Magyarország Zrt. v Nemzeti Média- és Hírközlési Hatóság Elnöke, the CJEU stepped in to make a strong defense of legislation intended to secure so-called “net neutrality”—the principle of internet regulation meant to ensure that internet service providers cannot unduly restrict end-user access to certain internet applications or services based solely on commercial considerations. The ruling continues the CJEU's strict legal interpretations in furtherance of EU regulation and protection of consumer and individual rights in the digital sphere, with a clear eye toward cementing Europe's position in the vanguard of digital regulation and in the hope that such principles will be replicated and upheld elsewhere.

Privacy Int'l v. Secretary of State for Foreign & Commonwealth Affairs and La Quadrature du Net v. Premier ministre (C.J.E.U.)

In October 2020, the Court of Justice of the European Union (CJEU), sitting as a Grand Chamber, handed down its preliminary rulings in Privacy International v. Secretary of State for Foreign and Commonwealth Affairs (Privacy International) and in the joined cases of La Quadrature du Net v. Premier ministre and Ordre des barreaux francophones et germanophone v. Conseil des ministers (La Quadrature du Net). In Privacy International, the CJEU held that member states are precluded from enacting laws enabling bulk transmission of communications data from providers to the state. In La Quadrature du Net, it laid down requirements for various types of data processing, including bulk and targeted retention and automated analysis, and held for the first time that bulk retention of communications data could be justified on national security grounds. The judgments represent a significant development of the CJEU's jurisprudence on communications data processing and state surveillance, as the European Union (EU) continues to move towards a new digital privacy law.

Standard contractual clauses for cross-border transfers of health data after Schrems II.

Standard contractual clauses (SCCs) have long been considered the most accessible method to transfer personal data legally across borders. In July 2020, the Court of Justice of the European Union (CJEU) in Data Protection Commissioner v Facebook Ireland Limited, Maximillian Schrems (Schrems II) placed heavy conditions on their use. The Schrems II Court found that SCCs were valid as ‘appropriate safeguards’ for data transfers from EU entities to others outside the EU/EEA as long as unspecified ‘supplementary measures’ were in place to compensate for the lack of data protection in the third country. Data protection officers are under intense pressure to explain these measures and allow routine transfers to continue. Some authorities interpret the decision as preventing the use of SCCs to transfer personal data outside of the EU because private contracts cannot comprehensively redress gaps in national law. This article argues that these authorities are mistaken and that notwithstanding Schrems II SCCs can still be useful instruments for cross-border transfers. This is especially true in highly regulated contexts such as medical research. This paper traces the history of SCCs under the General Data Protection Regulation (GDPR) and shows how the CJEU in Schrems II misunderstood the purpose of SCCs and other Article 46 GDPR ‘appropriate safeguards’. The CJEU mistakenly approached Article 46 safeguards such as SCCs as being similar to country-specific adequacy rulings under Article 45 GDPR. But unlike Article 45 adequacy rulings, SCCs were not intended to provide a stand-alone mechanism for transfer reliant on the law of the importing country. Rather SCCs provide an alternative, multi-layered standard for data protection that encompasses law, technology and organizational commitments. Their purpose is to be used in situations where legislation alone is insufficient to protect data subject rights. The European Commission’s new draft SCCs support this analysis.

The precautionary principle and genetically modified organisms: A bone of contention between European institutions and member states.

This manuscript examines how the Precautionary Principle has been applied to provide a mechanism for protection of the environment and health in response to the introduction of Genetically Modified Organisms (GMOs) in Europe. It discusses how the Court of Justice of the European Union (CJEU) handled national requests across four cases in which Member States had failed in their attempt to trigger the Precautionary Principle in order to uphold a ban or suspension of the cultivation or sale of GMOs in their territory. The analysis of these judgements suggests that the court has applied a narrow interpretation to the scientific evidence emerging from risk assessments, and has thereby limited the potential for precautionary measures by Member States to be upheld by the court. This outcome reflects a `weak' application of the Precautionary Principle by the court in contrast with the `moderate' formulation and `strong' interpretation of the principle offered by the European legal framework. Moreover, the analysis highlights that the CJEU's rulings are not keeping pace with the development of the European normative framework which considers the Precautionary Principle as a key tenet and, through the 2015 Directive, enables Member States to ban GMO cultivation without referring to scientific evidence.

The Role of the CJEU in Shaping the Future of the Circular Economy

The case-law of the Court of Justice of the European Union (CJEU) has had a crucial impact on the development of the EU law. In particular, the role of CJEU case-law has been emphasized in relation to paradigm shifts in the EU. Currently the EU is aiming to transition to a circular economy by 2050. The drive towards a circular economy is based on the recognition that currently the world’s natural resources are used to excess and inefficiently. Waste management and in particular the regulation governing the transformation of waste back into raw materials plays an integral role in the circular economy. This article examines the CJEU case-law on the concept of waste and its implications towards circular economy from 1980s to the modern today. It shows that the case-law has had a crucial role in the development the concept of waste and the rules for excluding secondary materials from it. The article concludes that the CJEU’s powers are emphasized when a regulatory regime is in transition. Moreover, the circular economy regulatory environment is prone to generating numerous preliminary rulings. The importance of reconciling the objectives of the waste, product and chemicals regulation will be emphasized in the future. A natural continuation in the case-law would entail a gradual transition to a single regime for the regulation of materials and their flow. The CJEU could play an important role in the transition to the circular economy. waste, circular economy, Court of Justice of the European Union, transition, secondary raw materials, chemicals, end-of-waste, product safety

To What Extent Can the CJEU Contribute to Increasing the EU Legislative Process’ Transparency?

Alongside other actors such as the European Ombudsman, the Court of Justice of the European Union (CJEU) plays what looks like, at first sight, a key role in improving the transparency of EU legislative procedures. To take two relatively recent examples, the <em>De Capitani v. European Parliament</em> (2018) judgment was perceived as a victory by those in favor of increased transparency of EU legislative procedures at the stage of trilogues, as was the <em>ClientEarth v. European Commission</em> (2018) judgment regarding the pre-initiative stage. Both rulings emphasize the need for “allowing citizens to scrutinize all the information which has formed the basis of a legislative act…[as] a precondition for the effective exercise of their democratic rights” (<em>ClientEarth v. European Commission</em>, 2018, §84; <em>De Capitani v. European Parliament</em>, 2018, §80). Nevertheless, while the CJEU’s case law may indeed contribute to improving the legislative process’ transparency, its impact on the latter is inherently limited and even bears the potential of having a perverse effect. This article sheds light on the limits of the CJEU’s capacity to act in this field and the potential effects of its case law on the EU institutions’ attitudes or internal organization.

The Right to Breathe Clean Air and Access to Justice - Legal State of Play in International, European and National Law

Despite the fact that “heavy skies” (gravioris caeli) have been identified and legally classified as a serious concern since ancient times, air pollution still leads to millions of avoidable deaths and significantly impacts the climate. Today more than ever, the protection of people and a biophysical interconnected environment is the subject of a global discussion on the right to breathe clean air (RBCA) in international, interregional and national law. The Sustainable Development Goals (SDGs) as a global normative concept through SDG 3.9 target the reduction of air pollution, related deaths, diseases and the effects on climate change as a global health risk. But what is the exact status of the RBCA and who can claim access to justice from it? This paper attempts to classify RBCA as an exertable right in the realm of public law in a pan-European context and to shed light on the possibilities of its implementation and enforcement, also in connection with climate justice. To this end, its origins as philosophical thought or private right in Greek and Roman antiquity are first revealed and then connected in a doctrinal approach with the structures and legal bases of contemporary German law, which has contributed significantly to the emergence of the EU environmental legal framework. As a qualitative framing, the SDGs serve as an all-encompassing policy and target of the EU, whose agenda with SDG 16.3 also includes access to justice. The actual scope and enforceability of “clean air for all” is therefore determined not only by legislative but also through judicial review in the EU multi-level system. Additionally, international law forms an interpretive context of the RBCA. The Paris Climate Agreement and the Aarhus Convention as well as the “polluter pays principle” and the “common but differentiated responsibilities principle” will be examined for their effects on the granting and linking of rights. The paper also focusses on the connection of environmental and climate change claims with human rights obligations since this is a recurring assessment of the Court of Justice of the European Union (CJEU) and forms part of its rich jurisprudence. The results of the analysis show a varied picture. An independent human right to breathe clean air does not exist internationally or under European law to date. However, within the EU and in domestic German law, a right to clean air is attached to obligations under public and property law. This opens up a legal spectrum which not always leads to a comprehensive state liability. It is even more difficult for individuals or non-governmental organisations to gain access to justice under such legal framework. This is prevented in particular due to a lack of legal standing (locus standi) or further procedural requirements. Also substantially, the linking of fundamental rights to this very technical, environmental entitlement, both at European and national level, is associated with difficulties in its enforcement. Besides, effective enforcement regularly take unsatisfactorily lengthy periods of time to bring about change in the polluter’s behaviour and yet more time to bring about a real, effective and visible change to the situation, i.e. air pollution and its disease-inducing effects. The classification of RBCA as a right in the diverse context of the EU makes it possible to identify difficulties that may provide learnings for universal application, particularly with regard to the derivation and enforceability of the right. The paper also illustrates the status of the SDGs, which provide potential solutions, but ultimately have little more than a supportive function in this area, despite their multiple linkages in policy and legal instruments. Overall, the analysis reveals the weakness in the enforcement of an RBCA on the international, European and national levels.

The CJEU and EU (De)constitutionalization—Unpacking Jurisprudential Strategies

The Court of Justice of the European Union (CJEU) has long been considered a steadfast advocate and engine of the constitutionalization of the European Union (EU). More recently, however, critical voices about the Court’s seemingly deferential stance on executive (crisis) governance have amplified among legal scholars and political scientists. We take issue with this claim and show that the Court’s jurisprudence is neither predominantly hard-wired in favour of constitutionalization, nor is it deferential to governments’ wishes. Instead, we highlight in our interdisciplinary study, which combines analytical tools and conceptual insights from legal scholarship and political sciences research, that contextual elements prompt the Court to pursue different jurisprudential strategies on issues of constitutional salience, ranging from the expansion of constitutionalization to its retreat. To probe our assertion, we zoom into the EU’s internal and external security policies – namely Justice and Home Affairs, on the one hand, and the Common Foreign and Security Policy, on the other – which exhibit contrasting constitutionalization trajectories. Based on a qualitative case law analysis, we demonstrate that the Court’s constitutionalization strategies are likely to be affected by two factors, namely different levels of politicization and juridification.