Court Of Justice Of The European Union Research Articles

The cornerstones of the protection of fundamental rights in criminal matters in the EU

The present paper aims to provide an outline of the protection of fundamental rights, especially the right to a fair trial, from the perspective of criminal procedure and mutual legal assistance in criminal matters in the European Union. It concentrates on the attitude of the Court of Justice of the European Union (CJEU) towards the protection of fundamental rights on a European level - as opposed to national level -, also taking into account the evolution of the system of the European judicial protection of fundamental rights with respect to the dialogue between national ordinary courts and national constitutional courts and the CJEU. The central thematic element is the jurisprudence of the Court of Justice of the European Union, concentrating on the evolution of its case law concerning fundamental rights in criminal procedure and mutual legal assistance in criminal matters during the last two decades, which is the eraof the growing importance of criminal law and criminal procedural law in EU law. The background is rather the horizontal and vertical cooperation incriminal matters, its evolution, the central role of the principle of mutual recognition and the underlying mutual trust of the Member States’ authorities in respect of each other’s criminal justice systems. The relevance of both harmonisation and the application of the mutual recognition principle to mutual legal assistance is inevitably connected to both the similarities and the differences of national legislation and criminal justice systems which are the basis of the preliminary ruling procedures of the Court of Justice of the European Union which also serves as a driving force of mutual trust and development in the area of European criminal law, while also bearing a growing importance in the system of judicial protection of fundamental rights throughout Europe.

The right to effective access to justice in the European Union

The article will be devoted to investigation of the essence of access to justice as the general legal concept through its dynamic nature in Europe. It will analyze the European Union (EU) law and the case-law of the European Court of Human Rights (ECtHR) and Court of Justice of the EU (CJEU) to determine access to justice as the principle of access to court, that follows from the concept of justice, which is an integral part of the right to a fair trial and the rule of law. Key issues, special rights as component parts of the access to justice will be described. The study also aims to identify and understand the issues affecting effective access to justice raised by the EU citizens and residents. The recommendation to consider widening the rules on legal standing before the CJEU, ensuring changes in member state’s legislation required to avoid repetitive violations. The scope of this research is defined on the basis of the theory and understanding of the concept of the effectiveness of access to justice as developed in the literature, legislation and case law at the EU level. It looks at a large range of factors, including legal and procedural issues as well as practical, social, historical and political factors that influence the access to justice in the EU. In the article, the authors concluded that the concept of effective access to justice includes such principles as ensuring respect for community law, equal treatment, effectiveness, state liability for violations of EU law, access to national and supranational courts (the Francovich rule), where citizens are active subjects of protection under the EU legal order.

Product Oversight and Governance’s Actual Trends and Value for Money Provisions Within the IDD Framework

Abstract The article focuses on the renewed discipline of product oversight and governance in insurance law. Specifically, the contribution examines the significance of the value for money principle, which, through acts by the European Insurance and Occupational Pensions Authority (EIOPA), has had a considerable impact on the organization of insurance companies as well as on the policies ultimately distributed. Regarding the structure of the article, the first part addresses the contractual characterization provided by the Court of Justice of the European Union (CJEU) of so-called IBIPs (investment-based insurance products), for which the value for money principle is particularly impactful. The second part of the article focuses on the operation of product oversight and governance and the influence of the value for money principle on it. Finally, the last part of the analysis centers on the relationship between the CJEU’s precedents and their integration into the harmonizing policy conducted by European institutions, which inevitably also affects the field of financial and insurance law.

Cooperation between national courts and EU institutions in competition law cases

The article explores the interplay between national courts and European Union institutions in the context of competition law enforcement of rules enshrined in Articles 101 and 102 TFEU. Cooperation between national competition authorities and national courts on one hand and EU institutions on the other hand is crucial for ensuring the effective and consistent application of competition rules. The article deals with the mechanisms of this cooperation. It examines the role of the European Commission and the Court of Justice of the European Union (CJEU) in providing guidance to national competition authorities and national courts. The article underscores the importance of a cohesive approach to competition law enforcement that is applied by national institutions of the EU member states. The concept and meaning of legal security in criminal law is well defined by Professor Jadwiga Potrzeszcz who states that "legal security is a state achieved by law established in general, and in particular by means of criminal law, in which human life’s goods and interests are protected in the most comprehensive and effective possible manner (and) harmonizes properly with the most important functions of criminal law, namely with a protective function and a guarantee function." (Potrzeszcz, 2018, p. 301) In accordance with the aforementioned definition, the author aims to introduce Criminal Codes that were in effect in the territory of present-day Slovakia, shedding light on whether they were guarantees of legal security in the state or not, i.e., whether they protected "human life’s goods and interests in the most comprehensive and effective possible manner."

Case C-80/23: A Quest for Clarity. The Law Enforcement Directive 2016/680, a Bulgarian Court and Case C-205/21

Abstract This contribution examines the legal intricacies surrounding law enforcement data collection practices in Bulgaria within the framework of the Law Enforcement Directive 2016/680 (LED) and relevant Court of Justice of the European Union (CJEU) rulings, particularly cases C-205/21 and C-80/23. The analysis underscores challenges in interpreting the concept of “strict necessity” and ensuring compliance with its provisions, in particular, Art. 10. Key findings reveal ambiguities in the LED’s application, particularly concerning judicial review and the scope of data collection. The subsequent Case C-80/23 further seeks clarification on the strict necessity standard and the scope of judicial review in the collection of biometric and genetic data. The outcome of both cases has broader implications for EU member states, highlighting the need for legislative alignment and underscoring the complexities and challenges in balancing effective law enforcement with the protection of fundamental rights.

The Court of Justice in Staatsanwaltschaft Berlin v. M.N. (EncroChat): From cross-border, data-driven police investigations to evidence admissibility

The ruling of the Grand Chamber of the Court of Justice of the EU (CJEU) in Case C-670/22 Staatsanwaltschaft Berlin v. M.N. addresses the realities of data-driven police investigations in the light of the Directive 2014/41/EU on the European Investigation Order (EIO Directive). In particular, it examines the cross-border, digital investigation of the encrypted communication network EncroChat and the use and sharing of intercepted telecommunication data in criminal proceedings. In doing so, the CJEU offers clarifications as to the interpretation of the term ‘issuing authority’ under the EIO Directive and the proportionality requirements for issuing an EIO, taking into account its prior jurisprudence on the implications of access to traffic and location data for the private life of the persons concerned. More importantly, this CJEU ruling takes a stand on admissibility of intercepted data as evidence in criminal proceedings, considering the technical complexity of contemporary investigation measures and the secrecy of said police methods. Overall, although this judgment seems to hold no great surprises regarding the interpretation of the EIO Directive's provisions, it underscores the important role of the national legislator and national courts in striking the right balance between rearing the rewards of data-driven policing and safeguarding defence rights.

The role of collective interest representatives in enforcing EU labour rights

This article explores the role of collective interest representatives (CIR) in the enforcement of EU labour rights. To that end, the article starts with an analysis of the regulation of CIR in other fields of EU law, particularly consumer protection law and non-discrimination law. The analysis follows the approach of the Court of Justice of the European Union (CJEU) in cases on the legal standing of actors to enforce EU rights, namely, by defining first the protective scope as a matter of Union law itself based on a textual and teleological analysis and, second, the margin of discretion left to Member States to exercise their own procedural autonomy, including the possibility for Member States to determine locus standi according to their own legal systems. The article continues with drawing inspiration from forms of CIR in international and transnational law, particularly the collective complaints procedure of the European Social Charter (ESC), the representation procedure of the International Labour Organization, and the specific instances of the National Contact Points of the Organisation of Economic Cooperation and Development (NCP OECD). The article concludes with an assessment of the acceptance of CIR in the enforcement of (EU) labour rights from a substantive perspective and elaborates on the possible tasks, requirements, and powers of CIR in enforcing EU labour rights.

The Unproductive “Overconstitutionalization” of EU Copyright and Trademark Law – Fundamental Rights Rhetoric and Reality in CJEU Jurisprudence

In EU copyright and trademark law, the protection of the right to intellectual property is the rule, and breathing space for competing fundamental rights, such as freedom of expression and the right to a healthy environment, is the exception. While formally recognizing the need to balance protection interests against other fundamental rights and values, the Court of Justice of the European Union (CJEU) fails to use competing fundamental rights productively. Instead, the Court has developed a meaningless fundamental rights rhetoric that produces the false impression that there is sufficient room for all competing rights and interests within the existing copyright and trademark systems. However, the current configuration of EU copyright and trademark law fails to offer users the chance of meeting right holders as equals, even if their fundamental rights are of equal ranking in the Charter. By adding fundamental rights cosmetics to imbalanced protection systems, the CJEU only cements and further stabilizes the existing rule/exception edifice that is strongly in favour of right holders. Introducing the mantra of internal balancing – requiring the reconciliation of competing rights and interests within the confines of secondary copyright and trademark legislation – the Court has even created a considerable risk of sacrificing competing fundamental rights on the altar of the EU harmonization agenda. By letting the harmonization objective reign supreme, the CJEU has also given the three-step test in copyright law and the honest practices proviso in trademark law a quasi-constitutional status. As a result, these open-ended provisions undermine limitations of exclusive rights that could support competing fundamental rights. To remove the imbalances in current EU copyright and trademark law, it would be necessary to introduce upfront gatekeeper requirements that prevent illegitimate infringement claims from the outset when competing fundamental rights are at stake.

Case C-634/21, OQ v. Land Hessen (C.J.E.U.)

On December 7, 2023, the Court of Justice of the European Union (CJEU) delivered its judgment on a preliminary ruling under Article 267 TFEU from a request of the Verwaltungsgericht Wiesbaden (Administrative Court, Wiesbaden, Germany). The CJEU examined the interpretation and application of Article 22 of the General Data Protection Regulation (GDPR) regarding automated individual decision-making, including profiling, in the context of the probability values (or scorings) that are made to evaluate and predict the future payment capacity of individuals when they request credits to financial institutions.

Article: Preliminary Procedures at the General Court: More than Meets the Eye?

From 1 October 2024, the General Court will have jurisdiction to hear preliminary rulings in a number of specific areas of EU law. These include VAT, excise duties, customs and tariff classification, compensation and assistance to travellers, and greenhouse gas emissions trading. In this article, the author discusses and evaluates this reform of the preliminary ruling procedure. Among other things, the article discusses the extent to which the reform contributes to reducing the workload of the Court of Justice of the European Union (CJEU). It is further argued that the reform could potentially go beyond a merely practical, technical reallocation of preliminary ruling powers. Any future extension of the General Court’s preliminary ruling jurisdiction to other jurisdictions will potentially fundamentally change the judicial structure of the EU and put the CJEU even more on the track of a constitutional court.

The concept of ‘due cause’ and its role in safeguarding fundamental rights under EU trade mark law: how should the CJEU rule in IKEA, C-298/23?

Abstract While trade mark rights themselves constitute fundamental rights within the right to property, they may also collide with the fundamental rights of third parties. The latter is particularly evident where third parties try to justify their unauthorized use of a trade mark on the basis of their own fundamental rights. The collision between the fundamental rights–protected interests of the trade mark proprietor and the third parties become all the more apparent when it comes to the protection of trade marks with a reputation. Trade marks with a reputation are particularly exposed to use by third parties due to their high level of appreciation and recognition among the public and therefore deserve a special protection. However, this special protection must not get out of hand and must be restricted wherever the fundamental rights interests of third parties outweigh those of the trade mark proprietor. As a result, a balance must be struck between the colliding fundamental rights interests. All this raises the question where such a balancing of interests could take place in the context of the European Union (EU) Trade Mark Regulation 2017/1001 (EUTMR) and Directive on the European Union Trade Mark (EUTMD). And once the ‘where’ has been resolved, a question still remains as to how an appropriate balance can be achieved or rather what criteria need to be taken into account when balancing these interests. To answer these questions, existing case law of the Court of Justice of the European Union (CJEU) provides only limited to no substantive guidance. It is therefore not surprising that a Belgian national court requested the CJEU to clarify precisely these questions at EU level in 2023 (IKEA, C-298/23). In this case, the main role is played by the negative condition ‘without due cause’, which arises from the EUTMR and EUTMD provisions protecting trade marks with a reputation and which stipulates that the trade mark proprietor can only enforce the special protection if the third party is unable to establish that the use of the trade mark takes place with ‘due cause’. It is therefore the task of the CJEU to clarify whether the required balance of fundamental rights interests can be achieved within the framework of the undefined legal concept of ‘due cause’ and, if so, to specify the criteria by which such a balance can be achieved. This article sets out and discusses how the CJEU should solve this task and concludes that the concept of ‘due cause’ must be interpreted broadly in order to provide a flexible counterweight to the far-reaching protection of trade marks with a reputation. Hence, the concept of ‘due cause’ can be understood as a safeguarding mechanism for the fundamental rights of third parties, whereby various criteria must be taken into account in order to achieve a fair balance with the fundamental rights–protected interests of the trade mark proprietor.

The Hungarian Retail Sales Tax in the Changing EU Context

In the last twenty years, Hungary has had three periods of special taxes (introduced as a result of the crises), but before and after 2010, and after the recession following the COVID-19 epidemic and the Russian-Ukrainian war, there were different legal policy reasons behind special taxes (including the retail sales tax). This raises questions as to whether the regulatory solutions implemented to address market failures during the first period are playing the same role today as they did in the past, and how their role has changed over the years. The introduced taxes often remain part of the general tax system, i.e. they are applied on a permanent basis (rather than on a temporary basis, as is usual with special taxes), and in 2023 they already accounted for almost 14% of total tax revenue (a higher proportion than, for example, corporate tax), which puts their role in the tax system in a different light. The Court of Justice of the European Union (CJEU) has repeatedly examined the EU framework, but it appears that the control has been weakened, mainly due to the impact of the current crises. At the same time, the Hungarian Constitutional Court is bound by the limits of the debt brake when examining the constitutional framework. The study explores the regulation of the Hungarian retail sales tax and its EU context, in particular with regard to the changes triggered by the crises. The introduced taxes often remain part of the general tax system, i.e. they are not applied on a temporary basis, and in 2023 they already accounted for almost 14% of total tax revenue (a higher rate than, for example, corporate tax), which puts their place in the tax system in a different light. The Court of Justice of the European Union (CJEU) has repeatedly examined the EU framework, but it appears that the control has been weakened, mainly due to the impact of the current crises, while the Hungarian Constitutional Court is bound by the limits of the debt brake when examining the constitutional framework.The study deals with the regulation of the Hungarian retail sales tax and its EU context, in particular with regard to the changes induced by the crises.

Restricting access to AI decision-making in the public interest: The justificatory role of proportionality and its balancing factors

In the European Union, individuals subject to fully automated AI-based decisions by the government have the right to request access to the processing information under Article 15(1)(h) of the General Data Protection Regulation (GDPR). However, this right may be restricted on public interest grounds, such as preventing system manipulation to ensure the effectiveness of the law or reducing excessive burdens on public officials to maintain efficiency in government operations. The principle of proportionality is a key instrument to assess the legality and legitimacy of such restrictions, yet its application has been largely overlooked in discussions concerning the competing public interests under Article 15(1)(h) of the GDPR. This paper draws on legal and interdisciplinary scholarship, as well as the case law of the Court of Justice of the European Union (CJEU) to explore the role of proportionality and its balancing factors in shaping justifications for public interest restrictions on the data protection right of access to AI decision-making information.

Intellectual Property and the European Courts, Conference at the Court of Justice of the European Union, Luxembourg, 5 June 2024

Abstract On 5 June 2024, the German Association for Intellectual Property Law (GRUR) and the University of Luxembourg organised a conference on Intellectual Property and the European Courts at the Court of Justice of the European Union (CJEU) in Luxembourg. This one-day event featured fruitful discussions on the role of courts in protecting and enforcing intellectual property rights. Among the renowned speakers and moderators were judges from European courts, prominent attorneys, representatives of various organisations and associations, and leading academics from across Europe.

The Audi Spare‐Parts Case (CJEU): A closer look at critical opinions

AbstractThe present article is confined to the legal examination of the ‘critical opinions’ and the ‘misconceptions’ rendered or drawn with regard to a recent judgement of ‘Court of Justice of the European Union (CJEU)’ in a case, commonly known as ‘Audi Spare Parts Case’ (C‐334/22), whereby the CJEU has disallowed the use of a registered mark/sign (or a shape which is identical or similar to a registered mark/sign) on the spare parts of the car (or any complex product or machine for that matter) which interferes with the ‘essential functions’ of a mark/sign. The article summarily notes the involved facts and the legal context of the aforesaid case and then proceeds to analyse the congruity and the legal validity of the noted ‘critical opinions’, with the support of established legal principles, precedents, and statutory frameworks. The article also addresses and clarifies some misconceptions drawn with regard to the relevant legal concepts (of the Trade Marks Law), and concludes, in the wake of the findings of the legal analysis, that the Hon'ble Court has rightly upheld the intent and purport of ‘The Trade Marks Regulation’. At the end, the implications of the aforesaid judgement are also mentioned within a broader perspective, explaining their significance beyond the immediate context.

SPC squatting

Abstract Supplementary protection certificates (SPCs) for pharmaceutical products are an important complement to patent protection which is often inadequate in commercial terms. SPCs are designed to ensure that originators can amortize their high investments in research and clinical trials. But unlike in the USA, for example, the European SPC is not simply a patent term extension. Rather, it is a unique form of intellectual property right whose subject matter is not the overall patented invention, but the active ingredient or combination of active ingredients of a patented and authorized pharmaceutical product. This link between the basic patent and market authorization has led to many questions of interpretation and Court of Justice of the European Union (CJEU) rulings since the SPC Regulation was adopted. An issue that has not yet been decided by the CJEU concerns the discrepancy between the ownership of the patent and the marketing authorisation under pharmaceutical law. This scenario, in which a patent proprietor relies on the marketing authorisation of a third party (possibly even a competitor) in said patent proprietor’s application for an SPC, is also referred to as “SPC squatting”. The following article discusses the admissibility of such a practice de lege lata, which also becomes relevant in light of current reform efforts by the legislator.

EU attacks on investor rights

Abstract The European Commission, with the cooperation of the Court of Justice of the European Union (CJEU), continues a crusade against investors’ rights. This is done by reducing the rights of access by investors to an independent arbitral tribunal to resolve disputes and by making arbitral awards impossible to enforce. The CJEU judgments which are discussed in this article are arbitrary, lack logical argument, and ignore international law (in particular, the 1969 Vienna Convention on the Law of Treaties). Recent judgments by states that are not EU Member States have restored the validity of arbitral awards that were annulled by EU courts. The judgments show that they do not believe in the CJEU judgments, which have led to the cancellation of inter-EU Bilateral Investment Treaties and the annulment of Energy Charter Treaty awards.

A Few Words on Drittwirkung, Transparency and Personal Integrity in the Light of Digitalization

This article analyses the three topics listed in the headline in that order, and it subsequently identifies and discusses a common thread between them. The fact that they have all been affected by the enactment of the EU Charter of Fundamental Rights (CFR), of which they belong to the core area, is very crucial here, and so is the interplay or interaction between the European Courts and leading national courts, not least in the constitutional area. Cases such as Melloni, from 2013, have shown the problems that may occur should the Court of Justice of the EU (CJEU) not respect fundamental rights and national constitutional values. If the CJEU wants to maintain its key role in the future structure of EU law, it needs to show that it cares about fundamental rights and that it wants to work together, not against the European Court of Human Rights (ECtHR) and national courts. The three concepts discussed in this article, all strengthened by the Charter, have so far been most helpful in this process – and may become even more important in the future.

Personal Autonomy and Human Corporeality: What Protects the Right to Personal Integrity?

This paper discusses the controversial and evolving nature of the right to personal integrity in the context of modern legal discourse, with a specific focus on its intersection with bodily boundaries and bio- and digital technologies. It points out that the traditional understanding of this right may no longer be sufficient to protect individuals, especially given the advancements in digital technologies, the Internet of bodies (IoB), as well as the challenges posed by the COVID-19 pandemic.This research highlights the ongoing debate and legal complexities surrounding the right to personal integrity and personal autonomy, especially in the face of technological advancements, and suggests the need for a broader perspective to safeguard human dignity and physicality, both in the physical and digital domains. For these purposes, the evolving legal landscape is explored, with reference to the case law of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR).We believe that the classic concept of the right to personal integrity no longer ensures the security of the individual, and in order to achieve this goal, it is necessary to expand its scope taking into account the human dignity, especially in the context of the continuous progress of bio- and digital technologies.

Indirect Tax Impacts of Transfer Pricing Adjustments: EU & US Approaches When the Price Evolves To Make It “Right”?

How do you handle the indirect tax (VAT/sales tax) impact of year-end transfer pricing profit adjustments between related members of a multinational group? This is, by definition, a worldwide question, since such groups operate across borders. Existing approaches (if any) vary across jurisdictions. The European Union and the United States are both grappling with this subject. Three key cases entailing the VAT consequences of such adjustments are currently before the Court of Justice of the European Union (CJEU). Likewise, in various states in the United States, a growing number of cases reveal potential sales/use tax liabilities arising from transfer pricing adjustments. While awaiting the pending CJEU decisions, in this article, the authors explore, from a comparative perspective, how two fundamentally different systems are trying to address the same problem.