Court Of Justice Of The European Union Research Articles

Article: A Change in the Law or A Guideline from the EU VAT Committee? Evaluating Soft Law Instruments for Clarifying EU VAT Law Through the Lens of Legitimacy

In addition to amendments to the European Union (EU) value added tax (VAT) statutory law and the case law of the Court of Justice of the European Union (CJEU), various types of soft law have increasingly been used in recent years to elucidate the essence of EU VAT provisions. These include the guidelines issued by the EU VAT Committee which is a body explicitly enshrined in the EU VAT Directive. This article is aimed at discussing the significance of the EU VAT Committee guidelines from a legitimacy perspective. It will be demonstrated that they do not correspond to the ideals of inclusive governance that have long been advocated at the Union level and thus generally show deficits in input legitimacy. Some recent examples relating to the amended special scheme for small- and medium-sized enterprises (SMEs) will be utilized to argue that the EU VAT Committee guidelines can only be considered to have a certain level of output legitimacy. They can thus be useful as a legal opinion that national authorities and courts should take into account when interpreting and applying EU VAT law. However, they must therefore comply with the mandate of the EU legislature enshrined in Article 398 paragraph 4 of the EU VAT Directive. Value added tax (VAT), EU VAT law, EU VAT Committee, soft law, legitimacy, rule of law, interpretation of law, SME scheme, Amending Directive (EU) 2020/285

Multi-level governance and policy contestation: Ambiguity and conflict in the implementation of peatland conservation in Ireland

Biodiversity represents one of the most controversial areas of environmental governance. Objectives: Compliance with the EU regulatory framework is contained in the Habitats Directive (92/43/EEC) and in the designation of special areas of conservation which has prompted contestation in relationships between public authorities, farmers, and local landholders across all levels of governance. Methodology: Using Matland’s ambiguity-conflict model as a lens to view the implementation experience, the discussion uses official documentation and literature sources to explore Ireland’s compliance with EU biodiversity regulation with reference to peatlands. Results: This article uses the case of Ireland to explore inadequate implementation which led to prolonged legal proceedings culminating in an unfavourable judgement against the Irish state on 29th June 2023. In Case C-444/21 the Court of Justice of the European Union (CJEU) ruled that Ireland failed to fulfil its obligations under the directive, namely the appropriate designation of a Natura 2000 network of sites for important habitat and a protection regime for them. Central to Irish debates on the habitats directive is the protection of raised bogs which has resulted in considerable conflict, politicisation, and prolonged negotiations between peat-cutters and public authorities at national and local levels. Conclusions: The discussion highlights the difficulties in changing ingrained attitudes and practices for managing nature conservation in privately owned land and in securing collaborative engagement with stakeholders.

Round-up of European Union trade marks in 2023

Abstract The purpose of this article is to provide a quick overview of the most significant European Union trade mark (EUTM) cases decided in 2023 by the Court of Justice of the European Union (CJEU) and the General Court (GC). This article has a practical bias and is aimed at readers who rapidly wish to find the key decisions of 2023.

Joint controllers in large research consortia: a funnel model to distinguish controllers in the sense of the GDPR from other partners in the consortium

Large European research consortia in the health sciences face challenges regarding the governance of personal data collected, generated and/or shared during their collective research. A controller in the sense of the GDPR is the entity which decides about purposes and means of the data processing. Case law of the Court of Justice of the European Union (CJEU) and Guidelines of the European Data Protection Board (EDPB) indicate that all partners in the consortium would be joint controllers. This paper summarises the case law, the Guidelines and literature on joint controllership, gives a brief account of a webinar organised on the issue by Lygature and the MLC Foundation. Participants at the webinar agreed in large majority that it would be extreme if all partners in the consortium would become joint controllers. There was less agreement how to disentangle partners who are controllers of a study from those who are not. In order to disentangle responsibilities, we propose a funnel model with consecutive steps acting as sieves in the funnel. It differentiates between two types of partners: all partners who are involved in shaping the project as a whole versus those specific partners who are more closely involved in a sub-study following from the DoA i or the use of the data Platform. If the role of the partner would be comparable to that of an outside advisor, that partner would not be a data controller even though the partner is part of the consortium. We propose further nuances for the disentanglement which takes place in various steps. Uncertainty about formal controllership under the GDPR can stifle collaboration in consortia due to concerns over (shared) responsibility and liability. Data subjects’ ability to exercise their right can also be affected by this. The funnel model proposes a way out of this conundrum.

Article: Quantification of Harm in EU Consumer Antitrust Actions for Damages

This paper analyses the development of private actions for damages as a significant pillar of private enforcement of EU competition law and discusses the quantification and estimation of harm. Since the adoption of the EU Directive 2014/104/EU on Antitrust Damages Actions, private enforcement in Europe has undergone crucial clarifications in the case law of EU courts, yet the critical issue of quantifying damages in private actions has only recently been addressed by the Court of Justice of the European Union (CJEU). This paper takes a closer look at the recent ruling in the Tráficos Manuel Ferrer case (C-312/21) and assesses the implications of that case law for private enforcement proceedings. Concerning the allocation of procedural costs, this judgment has established that injured parties may be required to bear a cost risk, even if they are partially successful. This finding needs further reflection in the context of consumer claims for damages, as it is susceptible to add an additional cost burden on plaintiffs. The second intricate finding concerns the relation between the ability of national courts to estimate damages and the exhaustion of evidence disclosure. Taking the example of Spain, the paper advocates for the specific inclusion of the principle of proportionality when determining harm in private actions for damages and especially in cases involving consumers or smaller harmed parties. EU, antitrust, cartels, private enforcement, consumers, damages, quantification, estimation, cost allocation, disclosure of evidence

Limits to discretion and automated risk assessments in EU border control: Recognising the political in the technical

AbstractThis article analyses how the automation of border control challenges the rule of law requirement on sufficient limits to discretion by using the idea expressed by the Court of Justice of the European Union (CJEU) non‐delegation doctrine that it is possible to make a clear distinction between technically complex assessments and political discretion. To illustrate these challenges, the article uses the examples of the European Travel Information and Authorisation System (ETIAS) and the conferral of discretionary powers to EU agency Frontex to establish pre‐determined risk criteria. The article argues that not recognising the inherent political aspects of exercising technical powers leads to insufficient limits to discretionary powers in the context of automated risk assessments. Beyond raising serious rule of law concerns of arbitrary exercise of power, the idea that technical assessments and policy choices can be clearly separated enables ‘algorithmic discretion’ as a new form of administrative discretion.

Article: The Double Layer Test versus the VAT Neutrality Principle

With the Morgan Stanley judgment, the Court of Justice of the European Union (CJEU) established what is known as the double requirement (or double layer test) in order to exercise the right to deduct VAT in cases of cross-border transactions carried out by taxable persons. In this work, the author examines this test and its possible incompatibilities with a number of fundamental VAT principles through different cross-border transaction scenarios. The analysis elucidates problems that may arise, and proposals are advanced to address them. These solutions involve eliminating the double requirement or, alternatively, implementing an intra-Community transfer for services regime that is equivalent to that which already exists for goods. VAT, double layer test, intra-EU transfer of services, cross-border transactions, equal treatment principle, VAT deon, VAT refund, VAT neutrality principle

상표의 혼동가능성에 관련된 판례에 대한 고찰

The essential function of trademark is to distinguish the goods and services of one undertaking from those of other undertakings. However, if likelihood of confusion between the two trademarks occurs, that could trigger damage to the proprietor of the earlier trademark while customers cannot purchase goods or services they want.
 Accordingly, domestic courts in many jurisdictions have given verdicts on this important issue and particularly, the Court of Justice of the European Union (CJEU) also has handed over some relevant rulings. Therefore, this article would like to focus on judgments on the likelihood of confusion in the CJEU, analyzing main points and issues of the rulings. On that basis, this article aims to discuss controversial and important issues in those rulings.

Round-up of national decisions on copyright protection of works of applied art 2023

Abstract Following the judgments of the Court of Justice of the European Union (CJEU) in Cofemel, C-683/17 and Brompton, C-833/18, the treatment of works of applied art under copyright law has (re-)gained central attention. At the time of writing, the CJEU has just received two new referrals for a preliminary ruling (Mio, C-580/23 and USM Haller [case number pending; I ZR 96/22]), asking how the assessment of originality—including having regard to such works—is to be conducted. In 2023, national courts in the Czech Republic, Finland, France, Hungary, Italy, the Netherlands, and Spain delivered a series of important rulings in connection with the copyright treatment of works of applied art. This contribution provides a round-up of the most significant judgments issued in the period 1 January—31 December 2023. The analysis is divided by area (subsistence of copyright; infringement and enforcement aspects; exceptions and limitations; interplay between copyright and other rights in works of applied art) and country (Czech Republic, Finland, France, Hungary, Italy, the Netherlands, and Spain).

Round-up of national decisions on online intermediaries and platforms 2023

Abstract Online enforcement of intellectual property rights has for a long time relied on the involvement of online intermediaries and platforms. Besides injunctions against ‘innocent’ intermediaries, questions surrounding the type of and conditions for establishing liability of online intermediaries and platforms have also gained increasing prominence. In Europe, for example, the Court of Justice of the European Union (CJEU) has repeatedly tackled these issues. European Union (EU) legislature has also legislated in this area: on the one hand, Article 17 of Directive 2019/790 is premised on the direct responsibility of certain types of online platforms—online content sharing service providers—for user-uploaded content; on the other hand, the Digital Services Act (Regulation 2022/2065), while reiterating the importance of safe harbours for online intermediaries, has introduced due diligence and transparency obligations that are not premised on any liability of their addressees. In 2023, national courts in Australia, Czech Republic, Germany, Italy, the Netherlands, Poland and Spain delivered a series of important rulings in connection with the treatment of online intermediaries and platforms This contribution provides a round-up of the most significant judgments issued in the period 1 January to 31 December 2023, with a special focus on copyright. The analysis is divided by area (liability of online intermediaries and platforms, enforcement aspects and other issues) and country (Australia, the Czech Republic, Germany, Italy, Poland and Spain).

The International Court System: A Solution to the Crisis in Investor-State Arbitration?

Most known investor-state disputes are referred to a form of international arbitration known as investor-state arbitration (ISA) or investor-state dispute settlement (ISDS). The rest are referred to domestic arbitration or litigation before the courts of host states. The International Centre for Settlement of Investment Disputes (ICSID) is the largest ISDS institution, having handled 829 out of 1190 cases by December 2021. However, in recent years the ISDS regime has faced challenges that have reached crisis proportions. States have responded to these challenges in different ways. For example, during 2014 the European Union (EU) intended to provide for ISDS in its anticipated trade agreements with the United States of America and Canada. In preparation the EU held public consultations wherein the public was invited to comment on whether ISDS could be used in these agreements. Over 90 per cent of the voters rejected the inclusion of ISDS therein. In response the EU abandoned ISDS and created a bilateral Investment Court System (ICS). The final death knell for ISDS in the EU came in 2018 and 2021 when the Court of Justice of the European Union (CJEU) ruled that ISDS among EU states is unlawful and incompatible with its legal order. This paper aims to assess the legal nature of the ICS, as well as whether the ICS can resolve the challenges that face ISDS worldwide. The paper concludes that firstly, the ICS is a hybrid of a court and a tribunal; secondly, that the ICS fails to fully address all the challenges faced by ISDS. It is a work in progress that must be interrogated further and be improved upon over time.

Case C-663/21, Bundesamt für Fremdenwesen und Asyl v. AA (C.J.E.U.)

On July 6, 2023, the Court of Justice of the European Union (CJEU) delivered its judgment in C-663/21 AA on a preliminary reference from the Austrian Supreme Administrative Court. The CJEU examined the international legal principle of non-refoulement and how it applies in EU law, particularly to expulsion decisions following the withdrawal of refugee status. It held that EU law “preclude[es] the adoption of a return decision in respect of a third-country national where it is established that removal of that third-country national to the intended country of destination is, by reason of the principle of non-refoulement, precluded for an indefinite period.”

The Case Law Of The Court Of Justice Of The EU On Art. 17 Of The 1999 Montreal Convention: An Evaluation From A Comparative Perspective

This paper analyzes the case law of the Court of Justice of the European Union (CJEU) on Article 17(1) of the 1999 Montreal Convention (MC99) regarding the liability of international air carriers for death or bodily injury to passengers. The interpretational principles and methods applied by the CJEU are examined, accounting also for the particularities of the EU legal order. Furthermore, the results reached by the CJEU are compared with the case law of other jurisdictions, mainly the US, and doctrinal writings. Nonetheless, this paper does not explore the pertinent issues from a de lege ferenda perspective. The paper concludes that the judgments of the CJEU on Art. 17(1) MC99 have interpreted the notions of “passenger,” “accident,” and “bodily injury” broadly, in a passenger-friendly way. Although the interpretation of ‘passenger’ does not differ from the established case law in other jurisdictions, some aspects of the interpretation of “accident” and the interpretation of “bodily injury” significantly depart from the view currently prevailing among courts internationally. The CJEU has yet to rule on the scope of the exclusivity of the MC99, under Art. 29 thereof, regarding personal injury of passengers. However, the expansive interpretations of “accident” and “bodily injury” by the CJEU limit the practical effect of Article 29 compared to other jurisdictions. Given the regulatory influence that the EU exercises world- wide, the CJEU judgments might guide courts also outside the EU. Although this would bolster passenger protection, it would exacerbate the already fragmented application of the MC99 internationally.

The Arbitration Exclusion under the Brussels Regime: A Story of Colliding and Sinking Ships

‘O Captain! My Captain! our fearful trip is done’. In Walt Whitman’s poem ‘O Captain! My Captain!’, the ship arrived at the harbour with cheering crowds awaiting its arrival. In contrast, the ships on which the arbitration exclusion sailed under the Brussels Regime were assigned a different destiny. They either ran into collisions or sank to the bottom of the ocean. In this regard, the Court of Justice of the European Union (CJEU) was requested to rule on the scope of the arbitration exclusion. In particular, the absence of a definition of the term ‘arbitration’ gave rise to uncertainty and controversy which the CJEU was asked to resolve. The approach that the CJEU pursued to resolve this issue changed significantly throughout the history of the arbitration exclusion, reflecting the CJEU’s growing mistrust towards arbitration. This has left a mark on the arbitration landscape within the European Union (EU) that has earned criticism from the international arbitration community. In the wake of the CJEU’s most recent ruling concerning the arbitration exclusion, and the following reaction of the English High Court, this article evaluates whether the arbitration exclusion has followed the ships on which it sailed to the bottom of the ocean, or whether it was handed a lifebelt for its continued existence. Arbitration, Litigation, Award, Arbitration Exclusion, European Union, Brussels I Recast, European Court of Justice, Parallel Proceedings, West Tankers, London Steamship Owners

Die Konstitutionalisierung der Werte des Art. 2 EUV – zwischen Funktion und Axiom

The case law of the Court of Justice of the European Union (CJEU) on the values of Art. 2 Treaty on European Union (TEU) and the protection of the rule of law marks an important step in protecting the integrity of the European Union (EU). Moreover, the case law on values has repeatedly played a central role in justifying the autonomy of the European legal order. Both, the protection of the rule of law and the primacy of Union law can be justified functionally: The EU can only achieve its goals as a community based on the rule of law. However, with its decision on the legality of the Conditionality Regulation, the CJEU has opened the door to a new narrative. As the values of Art. 2 TEU shape the identity of the EU, they take on a special dignity and become immutable. This might signal the beginnings of a no longer functional, but rather axiomatic justification of the Union legal order with significant consequences for the relationship between the EU and the member states. Whether the CJEU will continue down this path remains to be seen.

‘Sporting merit’ in European Union law

‘Sporting merit’ played a central role in the judgments of the Court of Justice of the European Union (CJEU) in European Super League Company and Royal Antwerp, However, the concept has been undertheorised, and its role in the so-called ‘European sport model’ (‘ESM’) has been understudied. This article seeks to address this literature gap by understanding both the meaning and role of ‘sporting merit’ in EU law. It begins by analysing the Court’s use of ‘sporting merit’ in its recent case law, arguing that the concept has become a cornerstone of the ESM. It then attempts to conceptualise ‘sporting merit,’ arguing that there are two possible ways to define this concept: a ‘static’ one, which prioritises the reward of immediate sporting achievements; and a ‘dynamic’ one, which places a greater emphasis on the promotion of long-term competitive balance. To understand the respective implications of these definitions, this article then explores how sporting merit is approached in both Europe and the USA. It argues that, whereas the ESM places a greater emphasis on the ‘static’ understanding of sporting merit, its North American counterpart embraces a ‘dynamic’ approach thereto, for example through financial redistribution and through sport-related corrective mechanisms such as draft systems. Building on the above, this article queries whether – and if so how – such corrective mechanisms could be incorporated into the ESM; whether doing so would lead to a more coherent approach to the promotion of ‘sporting merit,’ and whether it would be more in line with Article 165 TFEU.

The EU Terror List and the Islamic Revolutionary Guard Corps (IRGC): About the Law as an Alleged Obstacle to Political Action

This article examines the legal requirements for a listing on the so-called European Union (EU) terror list, an aspect that remains underdeveloped in both legal scholarship and policy debates on counter-terrorism measures. The analysis elucidates the substantive requirements governing listings on the EU terror list and applies them to the case of the Islamic Revolutionary Guard Corps. It highlights the two-tiered nature of the EU terror listing process, in which an EU terror listing relies on a national authority’s decision regarding the potential target. Furthermore, an analysis of recent Court of Justice of the European Union (CJEU) case-law outlines prospective developments in the Court of Justice’s scrutiny of restrictive measures. It will be shown that the CJEU exercises judicial deference in its examination of restrictive measures adopted by the Council, particularly in cases involving threats to the EU’s legal and democratic order or international security orchestrated by foreign state actors.

Limitation of Actions and Air Passenger Rights in Thailand: Importing the Law but Leaving Judicial Reasoning Behind

This article comparatively analyses limitations regarding the submission of passenger claims in Thailand and the EU. Thailand transposed EU Regulation 261/2004 on denied boarding, delay and cancellation of flights into its national law. Since EU Regulation 261/2004 does not contain any provision referring to a statute of limitations for legal actions, the Court of Justice of the European Union (CJEU) found that the limitation period was governed, and continues to be governed, by the domestic law of each Member State, as opposed to the Montreal Convention of 1999 which prescribes a single standard for limitation period. Despite importing this piece of secondary EU legislation, the Thai judicial branch has, so far, not followed the said CJEU judgment. The Thai court selected the two-year limitation period under its domestic law which implemented the Montreal Convention of 1999. Since this lack of harmonization does not benefit the orderly development of international civil aviation, this author suggests that the International Civil Aviation Organization (ICAO) should take action. Limitation of Actions, Air Passenger Rights, Thailand, Denied Boarding, Time Bar

THE ISSUES OF CHALLENGING EU SANCTIONS DECISIONS: MECHANISMS AND CJEU CASE LAW ANALYSIS

This article examines the legal framework and judicial oversight of the European Union's (EU) restrictive measures, which are integral to the EU’s Common Foreign and Security Policy (CFSP). The focus of this study is on the mechanisms available for challenging these measures and the pivotal role played by the Court of Justice of the European Union (CJEU) in ensuring their legality and procedural fairness. Through a comprehensive analysis of relevant case law, this article explores the procedural requirements for challenging sanctions, including the prerequisites for standing, the timelines for lodging complaints, etc. It highlights the CJEU’s approach to balancing the EU’s policy objectives with the protection of fundamental rights, emphasizing the court’s scrutiny of the Council of the EU's decisions and the necessity for robust evidence supporting sanctions. Key findings include an examination of the evolving landscape of EU sanctions in response to geopolitical events, such as the conflicts involving Russia and Ukraine, and the legal challenges that have arisen from these measures. The article provides insights into the broader implications for international law and the ongoing need for judicial oversight to ensure the effectiveness and fairness of EU sanctions.

The discretion of the EU Member States in shaping the non-conviction based confiscation regime in the light of CJEU and ECHR case law

The research presented in the article aims to assess the scope of the normative freedom of EU Member States when implementing non-conviction based confiscation. This study was based on the case law of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECHR). The study shows that despite the broad discretion of the Member States resulting from the position of the CJEU, domestic regulation of this type of confiscation falls outside the scope of EU law; the extensive jurisprudence of the ECHR sets quite precise boundaries concerning the concept of confiscation without prior conviction. Thus, it limits the discretion of Member States in this regard, providing both safeguards for individuals and guidelines for national legislators that intend to develop non-conviction based confiscation regimes in their domestic legal system.