Court Of Justice Of The European Union Research Articles

The Emergence of the Established “By Law” Criterion for Reviewing European Judicial Appointments

AbstractThe “established by law” criterion recently emerged as an independent element of Article 6 of the European Convention on Human Rights (ECHR), through the European Court of Human Rights’ (ECtHR’s) judgment in Ástráðsson v. Iceland. The criterion imposes the obligation on states to appoint judges in accordance with the respective legal framework. Its emergence occurred at a precarious moment in European intergovernmental politics, with illiberal governments in several European states exhibiting tactics aimed at softening obstacles to their governing powers, upheld by their respective judiciaries. Through a dialog between the European Free Trade Association (EFTA) Court, the Court of Justice of the European Union (CJEU), and the ECtHR, the “established by law” criterion has now emerged in the European constitutional repository for thwarting such tactics. In this article, the story of this development is told through highlights from the case law of the European supranational courts and through the Icelandic backstory of the Ástráðsson case. This story reveals important nuances in how the case law needs to be understood with regards to the constitutional forces at stake. The conceptual approach of the ECtHR in Ástráðsson is also analyzed in context with Lon Fuller’s rule of law principle of congruence, which provides a framework for evaluating the merits of the Court’s tactic.

Reverse-Payment Settlements Under EU and US Patent Law: Convergence in Remedies

Abstract This paper investigates the existing case law on reverse-payment settlements from a comparative perspective, focusing on the US and EU panoramas. In this respect, we will illustrate the emergence of patent-related proxies in the anticompetitive assessment, which contaminate the antitrust benchmarks in a problematic way, with the effect of hampering patent law and policy. Primarily we will delve into seminal decisions in the EU framework. In this regard we will observe how the Court of Justice of the European Union (CJEU) shifted from a quick-look approach towards a case-by-case antitrust analysis of patent settlements, progressively neglecting, but not eliminating, patent-related presumptions. Then we will look at the fragmented US case law scenario. We will explore the various benchmarks deployed to challenge these agreements, highlighting the differences and similarities with the EU approaches. It will be concluded that a strong IP-law-based perspective about these agreements has arisen in both legal systems. This perspective orientates the anticompetitive assessment through quasi-absolute presumptions, hindering the consistency of competition law remedies and misrecognising the cruciality of patent law and policy. Therefore, we will try to outline that the intermingling of criteria adopted to scrutinise reverse-payment settlements and similar over-exclusionary strategies is pernicious under both antitrust and patent law.

2. Court of Justice of the European Union (CJEU)

2. Court of Justice of the European Union (CJEU)

Rethinking direct effect and its evolution: a proposal

AbstractThis article revisits the present and future of the direct effect principle and submits solutions for its appropriate understanding and enforcement. Once the topic has been put into context and it has been shown why direct effect is an evolving notion whose scope goes beyond the Van Gend & Loos judgement and the doctrine originating from it, the study presents five intertwined arguments. First, direct effect has two facets since, aside from a subjective-substitutive form of direct effect, there exists an objective-oppositive manifestation of direct effect, whereby a directly effective European Union (EU) provision entails the disapplication of national law, without either conferring immediately an individual right or replacing the domestic norm in governing the case at hand. Second, the article claims that the obligation to disapply is triggered always by primacy and direct effect, never by primacy alone. In fact, justifying disapplication on the basis only of the primacy principle and not on primacy and direct effect is likely to undermine the logic implied in the relationship between the EU legal order and domestic legal systems. Third, there are legitimate derogations from the obligation to immediately disapply a conflicting domestic provision with EU law endowed with direct effect in so far as they are admitted by the Court of Justice of the European Union (CJEU) on the condition that the replacement of a national provision by an EU norm may harm individual rights and/or question the national identity clause enshrined in Article 4(2) Treaty on European Union (TEU). Fourth, the test on clarity, precision and unconditionality for assessing whether an EU norm is directly effective, as it was conceived by the CJEU, is no longer a pillar in the conceptualisation and practice of direct effect. As a matter of fact, only unconditionality, in practice, proves to be the core element of direct effect. Moreover, direct effect and direct applicability are equivalent concepts since unconditionality, as the condicio sine qua non of direct effect, coincides with direct applicability. Fifth, a distinctive quality of direct effect, along with unconditionality, is the creation of an advantage resulting from the application of EU law and the subsequent disapplication of national law. This implies that an EU directly effective provision can never be only in malam partem (ie, detrimental for the individual) and thus disapplication, lacking the existence of an advantage for the individual, shall never come into play. The article concludes that the duty to refine the doctrine of direct effect must be performed, ultimately, by the CJEU. Indeed, only the CJEU can offer guidance to national authorities, since it has an interpretive monopoly on the ifs, whens and hows of direct effect. To this end, it is vital that the EU judges, by rejecting argumentative minimalism brought to its extreme, come to reassert their constitutional role and re-establish the common core of the EU system, beginning with the principles that created and shaped it.

Who shapes the CJEU regulatory jurisprudence? On the epistemic power of economic actors and ways to counter it

AbstractWhat role does the Court of Justice of the European Union (CJEU) play in holding European Union (EU) regulatory science, ie the science underpinning public regulation, to account for its epistemic quality? Since Pfizer, CJEU case law has strengthened the role of science in both EU risk regulation and litigation, whilst intensifying judicial scrutiny of scientific reasoning based on procedural standards. Scholars often welcome this approach as striking an adequate balance between effective judicial protection and institutional competence. Some praise the Court as an ‘information catalyst’ promoting procedures, in which epistemic quality is ensured through diligent consideration of and deliberation among all relevant voices. These debates, however, overlook the role of economic actors as information providers, in and challengers of EU risk regulation. This paper re-evaluates the modern post-Pfizer approach from a new, socio-legal perspective by studying, for the first time, the interactions between judicial review and the epistemic power of economic actors, ie their relative ability to influence what EU regulators know at the expense of other actors. We combine an epistemologically informed comparative institutional analysis with doctrinal critique of CJEU case law. Our findings show the need to rethink both legal standing and procedural review in EU risk regulation. Instead of catalysing inclusive procedures that open regulatory science to public scrutiny, the modern approach fosters an exclusive bilateral information exchange between the administration and the regulated industry. The Court reduces the function of process values, such as duty of care and reason-giving, to the protection of a small circle of actors, neglecting the public interest dimension of such values. Thus, the modern approach fails to address, and instead further entrenches the epistemic power imbalances inherent in EU risk regulation. We end by sketching out a normative and doctrinally sound vision of how CJEU review could contribute to EU expert accountability in a more publicly oriented way.

The Right of a Child to Contact Relatives in Cross-Border Situations – Comments Based on EU Legal Regulations and the Case Law of the CJEU

Abstract The article presents EU legal regulations and decisions of the Court of Justice of the European Union (CJEU) relating to one of the most important rights of children, which is their right to direct contact with their parents and other people close to them. Difficulties may be encountered in cross-border situations when the child moves to another Member State or to a third country. In the first case, EU regulations apply, in particular Art. 24 of the EU Charter of Fundamental Rights and the Council Regulation 2019/1111. They are complemented by the case law of the CJEU, which interprets the terms they contain, e.g. the right to personal contact with the child. Its decisions recognise the best interests of the child as an overriding principle. At the same time, the Court tries to adapt existing EU legal provisions to social realities related not only to increased mobility, but also to changes in the structure of the family itself (patchwork families, single-parent families, etc.).

Article: Abuse of Law by a Member State When Designing a Tax Measure

When Member States design tax measures, they have to comply with EU law. In this article the question is discussed whether a Member State has the liberty to intentionally design a domestic rule so that it falls outside the scope of the freedom of capital and prevent scrutiny in respect of third states by the Court of Justice of the European Union (CJEU). This question is investigated by using two Dutch rules as a case study. The author argues that the legislature walks a thin line. On the one hand there is a risk that the legislature is circumventing the application of the fundamental freedoms in an abusive way while on the other hand using an arbitrary criterion in a rule to distinguish between comparable cases could lead to the conclusion that a Member State has implemented a selective tax measure and thus granted state aid. The author concludes that the Dutch liquidation loss rule infringes EU law. Abuse of law, Liquidation loss, Withholding tax, State aid, Sincere cooperation, Freedom of capital

Article: European Union Law and Global Investment Regime: Unshell Proposal as a Next (Mis)step of the EU Against Investment Treaty Arbitration?

This article addresses a largely unchartered interdisciplinary research area of the global investment regime and European Union (EU) law with an emphasis on the prevention of international tax avoidance in the EU. It focuses on the intersections between newly proposed anti-tax avoidance legislation by the European Commission that is known as the Unshell Directive (UD) and international investment agreements (IIAs). In this article, the author sets a stage for the intersections by discussing the Court of Justice of the European Union (CJEU) case law and the commission’s actions aimed against the most powerful enforcement tool in the global investment regime, i.e., the investor-state dispute settlement (ISDS) mechanism, by attempting to render it illegal and ineffective within the EU. The corresponding reactions from the arbitral tribunals are also addressed. The discussion evolves to identify and analyse the interplay between the proposal of the UD (also the Unshell Proposal or UP) and the IIAs to reveal that the impact of the former on the latter is ambiguous by design in order to minimalize legal certainty vis-à-vis protection of foreign investment in the EU via shell entities. This constitutes a foundation for potential, seismic tensions between the UD and the global investment regime that are not beneficial for marketing and development of the EU internal (single) market and may thus weaken the EU’s global competitiveness in the area of foreign investments. international investment law, EU law, good faith, ISDS, tax avoidance, shell entities

Ketian v Hitachi: China’s first compulsory licence?

Emails: iva.gobac@bristows.com; pat.treacy@bristows.com There is, ordinarily, no obligation on an owner of intellectual property right(s) (IPR) to share its technology with other undertakings. The ability of IPR owners to prevent third parties from exploiting inventions or other subject matter covered by an IPR is precisely that which forms the core of the exclusive right. In the context of competition law, this has been recognized within the EU at the highest level by the Court of Justice of the EU (CJEU).1 In the particular case of patents, the CJEU has held that the specific subject matter of a patent is: ‘[T]he guarantee that the patentee, to reward the creative effort of the inventor, has the exclusive right to use an invention with a view to manufacturing industrial products and putting them into circulation for the first time, either directly or by the grant of licences to third parties, as well as the right to oppose infringements.’2

The timely administration of justice: using computational simulations to evaluate institutional reforms at the CJEU

ABSTRACT The Court of Justice of the European Union (CJEU) faces a growing backlog of cases and delays in administering justice. Identifying the factors that prolong the resolution of cases is critical for designing successful institutional reforms. In this article, we use a Bayesian model to identify the characteristics of cases, judges, and the Court's internal procedures that affect the duration of cases. Then, we run computational simulations that use our model to estimate the likely effect of potential institutional reforms aimed at reducing the Court's backlog. We offer policy recommendations based on our findings. Our methodology can be tailored to study the efficiency of other domestic and international courts.

Poland’s challenge to Article 17 CDSM Directive fails before the CJEU, but Member States must implement fundamental rights safeguards

Abstract The Court of Justice of the European Union (CJEU) has dismissed Poland’s action for annulment of the new copyright liability regime for specific online platforms but subjected its implementation to strict fundamental rights control. As a result, national implementations must ensure that the rights of users are given sufficient protection against preventive blocking and filtering of content uploads.

The Road to the EU’s Accession to the ECHR

Abstract The dual European judicial protection of fundamental rights with the two Courts, namely the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR), represents a multi-layered, yet dialectic, model of protection with no formal hierarchy between its components. In the aftermath of Opinion 2/13 and faced with uncontrolled ‘unwanted migration’ flows, the EU judicature defended the principle of mutual trust at any cost and appeared to prioritise the protection of the Dublin regime (the EU responsibility allocation mechanism for examining asylum applications) instead of addressing the novel human rights challenges facing the Common European Asylum System (CEAS). Yet, their interplay has entered a new era since the renegotiation of the EU’s accession to the ECHR launched. By analysing the case law of the two Courts, this article thinks anew their relationship to ascertain whether the evolution of the accession project, throughout the latest decade, has affected the protection offered to ‘unwanted migrants’ in Europe.

The State-owned Maritime Concessions in Italy: the Cross-border Interest Issue and the Ongoing Reform of the Sector

The Italian State-owned maritime concessions regulatory framework testifies the seminal impact of Title IV of the Treaty of the Functioning of the European Union (TFEU) and of the Services Directive (Directive 2006/123/EC) on national administrative procedures. Recently, the Plenary Assembly of the Council of State (following the reasoning of the Court of Justice of the European Union (CJEU) in joined cases C-458/14 and C-67/15 Promoimpresa and Mr. Melis), has confirmed the illegitimacy of the automatic extension of State-owned maritime concessions provided by the Italian law until 2033, as contrary to both Article 49 TFEU and Article 12 of the Services Directive. It has modulated the effects of the unlawfulness of the ongoing extension calling on the Italian legislator to reform the sector's regulations by the end of 2023. Therefore, both the legislator and the national administrations will have to find a balance between all relevant interests at stake in a transformed service market of bath tourism, since the beginning of the implementation of the Services Directive. Moreover, also in a case-by-case analysis of the 'scarcity of available natural resources', they both will have to consider the cross-border interest of these concessions as necessarily existing in re ipsa, whilst balancing this aspect with some peculiar features of the Italian bathing sector. Firstly, it is clear how the national legislator has to implement the EU law taking into account the concrete facts and context at stake. Secondly, the protection of private operators and of recipients is a basic condition not only for a general equitable and solidarity-based reform, but also for each selection procedure.

Liability for Competition Restrictions: EU Law Developments

Abstract This article concerns recent developments in the field of liability claims for infringements of EU competition law. After overviewing topical matters, this contribution focuses on the Court of Justice of the European Union (CJEU) and the continuing relevance of its case law to several basic questions that arise in damages cases. The evolving interpretation of primary law, and what is required to ensure its full effectiveness, still occupies a central position in the private enforcement of EU competition law. Moreover, principles such as effectiveness and equivalence constrain the discretion of Member States to lay out and apply supplementary remedial and procedural rules. The foregoing implies that, despite the apparent legislative harmonisation of damages claims in the EU, litigants and national courts should follow developments in the case law.

The Shifting Approach of the Court of Justice of the European Union towards the Principle of Mutual Trust and the Impact of the Rule of Law

Summary The principle of mutual trust is based on the idea that there is mutual confidence between Member States that their national legal systems are in line with the European Union law and are able to provide similar protection of the shared values. However, the experience of last years has brought multiple challenges questioning these fundamental building blocs. This article focuses on understanding the role of fundamental rights and the rule of law in limiting the principle of mutual trust as suggested by the case law of the Court of Justice of the European Union (CJEU). It discusses the shift in the approach of the CJEU towards the limitations, exploring whether the recent case law suggests that the current crises of values, including the systemic violations of the rule of law and fundamental rights play a crucial role in widening the limits of mutual trust.

Case Law Trends: Chargeable Events and Chargeability of VAT in the Context of Successive Payments: Comments in the Light of the Judgments in Cases C-324/20 and C-9/20

The moment of accounting for Value Added Tax (VAT) is determined by the moment when the chargeable event occurs. In some cases, this moment may be linked to the date of payment of remuneration, including when it is paid in instalments. Does splitting the remuneration into parts (instalments) always affect the moment when the chargeable event occurs, or is it relevant only for services which are by their nature performed in parts? These questions are answered by the Court of Justice of the European Union (CJEU) in the rulings presented here. Chargeable event, VAT chargeability, successive payments, instalments, one-time service, continuous services, repetitive services

브렉시트 이후 해상책임보험의 보험자에 대한 제3자 직접청구권의 행사에 관한 고찰 : 로마Ⅱ 및 Retained EU-Law를 중심으로

Article 18 of REGULATION (EC) No. 864/2007 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 July 2007 on the law applicable to non-contractual obligation (Rome Ⅱ) stipulates that the court chooses a law that is advantageous to the victim ex officio by selectively linking direct claims to the governing law of non-contractual obligation and the governing law of insurance contract. Regarding the interpretation of the above provision, the Court of Justice of the European Union(CJEU) ruled that victims can directly claim against insurers as long as the governing law of non-contractual obligation permits, regardless of the provisions of the governing law chosen by the parties to the insurance contract. In addition, after Brexit, Rome II is Retained EU-law, and CJEU's ruling on Article 18 of Rome II is Retained EU case-law, which remains effective in the UK, respectively. Meanwhile, the Supreme Court of the UK declared the basic principle that victims cannot stand in a better position than policyholders in the Fanti and Padre Island cases, revealing the validity of the pay to be paid rule. Subsequently, the lower court rulings in the UK also did not allow the victim to exercise the right to claim directly against the insurer in other countries on the grounds that the victim also was bound by the jurisdiction agreement stipulated in the insurance contract between the insurer and the insured. However, the Fanti and Padre Island cases of the Supreme Court of the UK were not only before the enforcement of Rome II, but CJEU clearly ruled on the nature of Article 18 after the enforcement of Rome II, and its effect is still maintained in the UK. In addition, in the current situation where CJEU's ruling applying the Brussels I regulations and the above regulations is no longer effective for the UK, the exclusive jurisdiction clause(e.g., the English Court) stipulated in the insurance contract is likely to take precedence. However, if the UK joins the 2007 Lugano Convention in the future, which is substantially the same as the Brussels I Regulations, the purpose of CJEU's ruling, which was based on the Brussels I Regulations, can be considered important again. In the end, even if a lawsuit is filed in a Korean court to exercise the victim's right to claim directly against the insurer, and insurance contracts between the insurer and the insured stipulate English laws and customs as governing law, relevant interpretations should be made based on Article 18 of the Roman II(Retained EU-law) and the purpose of CJEU's ruling(Retained EU case-law), so that victims can be protected heavily by allowing selective connections to the governing laws of the country in which the damage occurs.

Addressing Heteronormativity: The Not-So-Lost Requirement of Discretion in (Austrian) Asylum Law

Abstract In refugee matters concerning sexual orientation, ‘discretion’ reasoning is as commonplace as it is unlawful. In its 2013 ruling in X, Y, and Z, the Court of Justice of the European Union (CJEU) declared that it was unreasonable to expect that asylum seekers should conceal their sexual orientation by being ‘discreet’ in order to avoid persecution, and that such a requirement in domestic refugee status determination procedures would be incompatible with European Union (EU) law. However, this did not put an end to the matter. Discretion reasoning still forms part of the process to determine refugee status in many EU countries. This article examines the persistence of discretion reasoning, using Austria as an example. It argues that, whilst the CJEU definitively banned such reasoning, the court failed to give any indication as to how decision makers should proceed from this point. X, Y, and Z has thus created a legal vacuum, and there is a risk that normative sociocultural concepts like heteronormativity will be applied in such cases. Indeed, despite the CJEU ruling, it is still common in many societies to expect that LGBTIQ people be discreet. As such, decision makers may find themselves imposing a discretion requirement, even if unconsciously. The main aim of the article is to assess the resulting persistence of discretion reasoning through the lens of heteronormativity, and to provide practical suggestions for assessing refugee status in a way that ensures discretion is no longer required.

The competence of non-lead supervisory authority under the EU GDPR’S one-stop-shop mechanism: CJEU judgment in Facebook and Others (C-645/19)

ABSTRACT On 15 June 2021, the Court of Justice of the European Union (CJEU) ruled in case C-645/19 between Facebook and the Belgian Data Protection Authority. The CJEU offered some clarification on the General Data Protection Regulation’s (GDPR) one-stop-shop mechanism. In particular, the Court addressed the question of whether a national supervisory authority that is not the lead authority can bring legal proceedings before a court in its Member State with respect to the cross-border data processing. In its judgment, the CJEU reaffirmed the allocation of competences between the ‘lead’ and ‘concerned’ supervisory authorities laid down by the GDPR, while emphasising the importance of sincere and effective cooperation between them, in order to ensure consistent and homogeneous implementation of the GDPR.

The ‘licence to distrust’ and the protection of individual rights in the execution of a European Arrest Warrant: A comment

AbstractThis comment on Ermioni Xanthopoulou's insightful article starts by revisiting the nature and role of trust in the European Arrest Warrant (EAW) procedure, considering the recent developments in the case law of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) (from Aranyosi/Căldăraru to Bivolaru/Moldovan). It is argued that trust is distinct from the presumption of respect for fundamental rights that underlies mutual recognition. The exercise of trust is now monitored by those Courts, as a means of protecting individual rights. This rehabilitates the proper meaning of trust, which can be reinforced by assurances. Prison conditions and legal changes affecting the rule of law are analysed in this light, as ‘drivers of distrust’. In sum, distrust can legitimately provide immediate protection for the individual, and the spectre of distrust causes the appreciation of trust, which in turn is beneficial for fundamental rights.