Court Of Justice Of The European Union Research Articles

Correlation between freedom of capital movement and freedom of establishment in European Union law

The study highlights the correlation between freedom of movement of capital and freedom of establishment in the law of the European Union, taking into the account modern case law of the Court of Justice of the European Union (CJEU). The author analyses the case law of the CJEU in the context of determining the scope of application of freedom of movement of capital and freedom of establishment in certaincases, including decisions made in 2021 and 2022. The author identifies the factorswhich are taken into account by the CJEU when determining whether to give preference to the application of a particular freedom. The author also highlights the approaches which have developed in the international and European law science to address thisissue. The author establishes that, based on the analysed case law, the CJEU assesses the main purpose, objective and impact of a national measure on the exercise of freedom of movement of capital and/or freedom of establishment. The Court may favour one freedom over the other based on these factors or consider both freedoms equally when assessing the compatibility of the measure with EU law. It often turns out that restrictive national tax measures may violate one or both of these fundamental freedoms of the EU’s internal market.The author concludes that guided exclusively by the provisions of the EU founding treaties on freedom of movement of capital (Article 63 TFEU) and freedom of establishment (Article 49 TFEU), it is often impossible to establish for certain which freedom will be applied to a particular economic activity of individuals and legalentities. In accordance with the case law of the CJEU, when deciding on the applicationof a particular freedom, in particular, the following factors should be taken into account: the presence of a “definite influence” of an owner of capital share (investor);the type of restriction on the freedoms of the EU internal market imposed by the EUMember State on the activities of entities engaged in economic activity. However, according to the author, there appears to be a lack of consistency indetermining the application of the freedom of movement of capital and/or freedom of establishment, which may be eliminated with the adoption of more judgments by the CJEU in the future and their further scientifi c understanding Key words: EU law, international economic law, international treaties, freemovement of capital, freedom of establishment, investment, company law, Court of Justice of the European Union, European integration.

Case Law Trend: The End Does Not Justify the Means: On How the Secondary EU Law Infringes the Primary EU Law in the Light of the Recent Judgments of the CJEU

The constitutional character of the Union legal order based on the rule of law requires that secondary sources of Union law are not infringing the primary sources, including the Charter of the Fundamental Rights of the European Union (CFR). The latter’s importance as a valid instrument to be invoked against measures that are excessive in their interference with the fundamental rights has recently been reinforced by the Court of Justice of the European Union (CJEU) in the judgments in cases such as C-694/20, Orde van Vlaamse Balies and Others, and joined cases C-37/20 and C-601/20, Luxembourg Business Registers and Sovim. The CJEU invalidated provisions of the Directive on Administrative Cooperation (DAC6) and 5AMLD which reminded that this is the case even when rules are motivated by important collective interests. These include the combat against tax evasion and tax fraud and enhancing broadly understood transparency and are agreed upon and are ‘validated’ by a Union’s legislature. The lessons to be learned are not to be underestimated. Understanding where the limits lie is decisive for valid law making and law enforcement as well as for effectively invoking the rights of individuals and businesses. Charter of the Fundamental Rights, taxpayers’ rights, DAC6, AMLD, EU constitutional order, transparency, proportionality, compatibility with primary Union law, right to privacy, right to fair trial

The Law Is Elastic but Does Not Bend: A Literal Interpretation of European Union Chemical Legislation Could Leave Health and the Environment Unprotected

AbstractThis piece addresses Case C-458/19 P before the Court of Justice of the European Union (CJEU) concerning a substance of long-term exposure, namely bis(2-ethylhexyl) phthalate (DEHP). The case concerned the interplay of two complex procedures of European chemical law, namely: the procedure for authorising the use of a substance listed in Annex XIV of Regulation (EC) No 1907/2006 (REACH Regulation); and the procedure for listing a substance in Annex XIV of the REACH Regulation on the basis of its intrinsic properties as a substance of very high concern for the risks it poses, or may pose, to human and environmental health. The significance of this judgment is that it provides a better understanding of how Article 60(4) of the REACH Regulation is interpreted in an analogous manner in relation to other provisions of the same Regulation. Whether DEHP is a question of reproductive toxicity (Article 57(c) of the REACH Regulation) or endocrine-disrupting properties (Article 57(f) of the REACH Regulation), this judgment offers insights into the limits of the CJEU’s willingness and/or ability to use a teleological approach to interpret legislation in this area. Furthermore, this work supports the possibility of applying the principle of intergenerational equity to issues related to long-term exposure such as this one.

Equal treatment as an instrument of integration. The CJEU's case law on social rights for third-country nationals under the EU migration directives

There is a growing tendency for the EU Member States to introduce conditions relating to the right to social benefits that are mostly disadvantageous to third-country nationals. These conditions are at risk of conflicting with provisions on the right to equal treatment with the nationals of the host country, as set down in a number of EU migration directives. This is all the more the case now that the Court of Justice of the European Union (CJEU) has recently given a broad interpretation of these provisions. Consequently, the Member States are to take these provisions as well as the CJEU's case law into account when seeking to limit access to social benefits for third-country nationals. This article examines the content and meaning of these provisions and the relevant case law of the CJEU. It concludes that it is apparent from this case law that the main objective of the right to equal treatment in these directives is to promote the integration of said third-country nationals into the host country and, therefore, the Member States may not make this right dependent on a prior sufficient level of integration in that host country.

Editorial: We Need to Know When Previous Case-Law Has Been ‘Overruled’! - A Plea for More Legal Certainty in EU Tax

In its recent judgment inW AG the Court of Justice of the European Union (CJEU) fundamentally departed in substance from earlier case-law concerning the treatment of ‘final losses’ incurred by foreign permanent establishments. However, like in other tax cases before, the Court did not clarify that previous decisions (in particular, Lidl Belgium) are ‘overruled’ now. This causes unnecessary damage to legal certainty in the area of EU tax law, and the CJEU should reconsider this approach towards ‘overruling’ in future cases. Furthermore, situations of ‘overruling’ also deserve special attention within the framework of the current reform of the preliminary ruling system. overruling, legal certainty, direct taxation, final losses, Marks & Spencer doctrine, preliminary ruling, Court of Justice, General Court, Grand Chamber, CJEU Statute, CJEU Rules of Procedure

EU Case Laws on Customs in 2022

This article provides an overview of the judgments of the Court of Justice of the European Union (CJEU) regarding EU customs in the year 2022,in particular, with respect to valuation, classification and value-added tax upon importation (import VAT). EU customs, valuation, classification and import VAT, Court of Justice of the European Union (CJEU)

Some Remarks on the CJEU’s ‘Pancharevo’ Decision With Special Regard to the Nexus Between the Primacy of EU Law and the National Identity of Member States’

This paper analyses same-sex marriage and adoption and the nexus between the primacy of EU law and national identity of the Member States in the light of the decision of the Court of Justice of the European Union (CJEU) in the Pancharevo-case delivered in December 2021. The CJEU ruled that the Bulgarian authorities were obliged to issue a child’s birth certificate, which is a condition for the issuance of an identity document or passport under Bulgarian national law. A Member State may not rely on national law and identity in this respect. The CJEU relied on the principle of ‘ functional recognition’, which same-sex marriageit had first adopted in its judgment in the Coman-case.

Crafting the language of borders: The European Court of Justice's strategic opinion writing in rights cases

AbstractCourts, particularly those with the power of constitutional review, engage in supplementary lawmaking. Like other policymakers, judges seek the proper interpretation and implementation of their decisions. Research on the United States of America (U.S.) Supreme Court indicates that it strategically alters its language to obtain better compliance, but little is known about whether international courts do the same. We test the generalizability of these findings by examining the opinion‐writing tactics of another powerful court, the Court of Justice of the European Union (CJEU), in a highly salient policy area, citizenship rights. Like the U.S. High Court, the CJEU must guide judges in interpreting constitutional law. In the European Union (EU) context, this entails directing Member State judges through the preliminary reference procedure, a form of indirect supranational judicial review. We expect that the CJEU will carefully craft the language of its opinions to obtain the cooperation of national judges in this area of law. Our findings indicate that, like the U.S. Supreme Court, the CJEU strategically alters its words in anticipation of this key audience's reactions to its decisions, and that the court's strategies may undermine EU citizens' rights in the long term.

Application of the Principle of Legal Certainty to Legal Relations in the field of Customs by the Court of Justice of the European Union and the Court of the Eurasian Economic Union

The principle of legal certainty, according to which the established rules should allow interested parties to clearly understand the scope of the obligations imposed on them, has found wide application in the practice of the Court of Justice of the European Union (CJEU) and the Court of the Eurasian Economic Union (EAEU Court) on customs legal relations. The CJEU and the EAEU Court not only use this principle as an additional method of argumentation, but also as an independent basis for monitoring the legality of secondary law acts adopted by the bodies of these integration associations. As the analysis of the practice of the CJEU shows, this principle has two main aspects: material, expressed in the requirement of clarity of the act, and temporal, associated primarily with the prohibition of retroactive effect of the EU act. At the same time, within the framework of the material aspect, the EU Court draws attention not only to the absence of internal contradictions in the act, but also to compliance with the requirement to publish the act and to indicate the legal framework. In the practice of the EAEU Court (and earlier the EurAsEC Court) on customs legal relations, compliance with the principle of legal certainty is checked in terms of clarity and consistency of the Commission’s decisions. As the practice of the EAEU Court devoted to the classification of certain types of goods shows, a violation of these requirements may be a consequence of both the confusion in the content of one classification decision of classification features characteristic of different commodity items, and the absence in the classification decision of the necessary classification features that allow distinguishing the goods subject to classification in different commodity items. In these cases, non-compliance with the requirement of legal certainty serves as an unconditional basis for recognizing the Commission’s decisions as inconsistent with the law of the Union.

The EU Court of Justice as a relational actor: an introduction

AbstractThis introductory Article sets out the background and summarises the content of the Symposium on ‘The Court of Justice of the European Union (CJEU) as a Relational Actor’. Observing that the CJEU has been a key player in shaping European legal integration, the Symposium takes as its starting point that courts – and the CJEU is no exception in this regard – are unable to drive developments in isolation. For the Court to carry out its role as guarantor of the Treaties and guardian of the rule of law in the Union, it needs not to isolate itself but to interact with other European Union (EU) and national institutions. Relations, the Symposium argues, are not only unavoidable but also legitimate and even vital for the adequate execution of the judicial function. This introduction briefly explores six of the Court’s most important relationships: those with the other EU institutions; the courts of the Member States; the Member States themselves; the parties appearing before it; other international courts; and the general public. It then summarises the contributions and highlights how they complement each other in examining the CJEU as a relational actor.

Meta platforms: How the CJEU leaves competition and data protection authorities with an assignment

Competition authorities can identify a violation of the data protection rules when such a finding is necessary to establish an abuse of dominance under the competition rules. This is the main outcome of the judgment that the Court of Justice of the European Union (CJEU) delivered in Meta Platforms on 4 July 2023. The judgment is the next step in the saga that started with the 2019 competition decision of the Bundeskartellamt (the German Federal Cartel Office) requiring Facebook (now Meta) to refrain from combining user data from different sources beyond its social network. The judgment provides a welcome confirmation that data protection standards can also matter for the interpretation of the competition rules. However, what is more remarkable and less expected is the general framework the CJEU sets out for coordination between competition and data protection authorities building on the duty of sincere cooperation and the clarity with which it evaluates the different legal bases Meta invoked for processing user data. The judgment can become a reference point for assessing the legality of personal data processing by powerful firms, but also leaves competition and data protection authorities with an assignment to explore how to coordinate their work in the future.

In Dubio Pro Tributario/In Dubio Mitius as a Rule of Reasoning in Tax Law Interpretation

The is devoted to the principle of in dubio pro tributario (the principle of resolving doubts in favour of the taxpayer) as a rule of legal reasoning. The article points out its following two aspects: (1) the evidential aspect whereby it is concerned with resolving uncertainties regarding the proof of facts that are relevant to the determination of the amount of tax and (2) the interpretative aspect whereby it is used to resolve doubts related to the ambiguity of a legal regulation. The article focuses on the second aspect. The authors present how various legal systems have developed different ways of understanding this principle. They point out that it is not a universally applied principle in tax law and that it has been rejected in the case law of the Court of Justice of the European Union (CJEU). interpretation, in dubio pro tributario, in dubio mitius, tax law, tax avoidance, EU law

The European Union and global warming: A fundamental right to (live in) a sustainable climate?

Multiple developments are taking place in the European Union (EU) as concerns climate action through fundamental rights. On the one hand, the Court of Justice of the European Union (CJEU) might afford protection from climate change via first- and second-generation human rights; on the other, the EU is progressively recognizing the human right to a sustainable environment, and possibly to a sustainable climate, via Article 37 of the Charter of Fundamental Rights. These developments are nonetheless restrained by the limited possibility for individual natural and legal persons to act in the Court. On the other hand, EU Member States are parties to the European Convention on Human Rights (ECHR), to which the EU will also foreseeably accede in the future and through which a string of claims has been brought to the attention of the European Court of Human Rights (ECtHR). Also in this context, protection from climate change might be afforded via first- and second-generation fundamental rights, and possibly via the third-generation right to a sustainable environment and climate. Contrary to the CJEU system, however, there are no procedural limits to action by individual natural and legal persons in the ECtHR. The article argues that an extensive interpretation of first- and second-generation human rights, particularly the rights to life and to private and family life under ECHR articles 2 and 8, collectively interpreted as the rights to live in a sustainable environment and climate in line with the jurisprudence of the ECtHR, reverses the burden of proof and is essentially tantamount to acknowledging an independent fundamental right to a sustainable environment and climate, thus ensuring adequate climate protection in the EU from a human rights perspective.

Food access and commercialization in integrated markets: a bridge linking private and public aspects

The purpose of this paper is to analyze what are the changes in the legal regulation on food in the European Union (EU) and in the Common Market of the South (MERCOSUR) that have occurred in recent times to account for the impact on the actions of legal and natural persons as consumers in integrated spaces. It starts from the premise that -currently- there are three purposes pursued by legislation issued both locally and regionally: food safety, quality and competitiveness. The regional legal framework must ensure that the rules applied to food allow a wide offer to ensure competition in the regional market, and at the same time that food is safe and of high quality so that consumers have the possibility of choosing freely. The jurisprudence of the Court of Justice of the EU (CJEU), exemplifies, through its interpretation - in selected cases - of the norms concerning the multiple facets - from the introduction and circulation (commercialization) of a food in the regional market- and allows reflection from the public (member states-third states) and private (operators and consumers) spheres on the importance of the rules. The main data collection technique used -in this work- is the analysis of documentation from the EU regulatory framework, both original and secondary law - in particular, Parliament and Council regulations, or directives - as well as the analysis of jurisprudence of the CJEU, through which secondary data is collected -mainly Decisions of the Common Market Council (CMC), Resolutions of the Common Market Group (GMC), Directives of the Common Market Trade Commission (CCM)-. In relation to the data analysis procedures, qualitative and comparative analyses are used.

‘To Move Is to Stir, and to Be Valiant Is to Stand’. Some Challenges Concerning Free Movement: Restrictions and Guarantees Post Covid-19, New Family Models and Digitalization

In the past half a century, free movement has faced a number of challenges. Few have been on the scale of the Covid-19 pandemic, which was characterized by unsuspected difficulties. This paper aims to analyse the responses to these difficulties, both in terms of the restrictions arising from instruments such as the Covid Passport and possible guarantees for the future. Vaccination certificates, derived from a regulation that seeks to ensure free movement, have a dual nature as a restriction that deserves to be analysed. On the other hand, the consolidation of the idea of key occupations is set to be of great importance but requires a final effort for effective implementation. In addition to these issues, the study examines the adaptation of existing legislation to new family configurations, including considerations on the case law of the Court of Justice of the European Union (CJEU) on same-sex marriages and the clash with certain legislative provisions. Theoretical attention is also paid to the problems potentially arising from marriages in nonrecognized forms. Finally, some issues are examined with regard to platform work and digital teleworking. Free Movement, Covid-19, Vaccines, Family Models, Digitalization

The ripple effect: A critical analysis of the successful development of the material scope of Directive 2000/78/EC in the context of age

This article analyses the material scope of Directive 2000/78 as it has been interpreted by the Court of Justice of the European Union (CJEU). From the outset, a very broad interpretation of the material scope provisions in Article 3 has been promulgated to ensure that the equality purposes of the Directive are met. The article analyses three particular areas of concern which have arisen in the age context, namely: access to employment, occupation and vocational training; employment conditions, including pay; and termination of employment and occupation. The article comes to three main conclusions in this regard. Firstly, when access is restricted, the CJEU will invariably find such a measure to fall within the scope of the Directive. Secondly, where conditions of employment, including in this context pay, are impacted in some way, the CJEU has been willing to stretch the boundaries of the scope of the Directive through the use of a contractual nexus approach. There are some red lines that the CJEU has been unwilling to cross, but these are rare. Finally, in the termination of employment, including dismissal and retirement, the CJEU has applied an access/exercise approach so as to adeptly include such measures within the scope of the Directive, despite textual challenges. The article then goes on to apply these principles set out by the CJEU in the context of some recent preliminary references. This application also provides support for the proposition that the material scope is a very broad one which can encompass a range of measures within its terms, and that the situations in which some measures fall outside the scope of the Directive are very limited.

Dismissal for objective reason of data protection officer between data protection law and national legislation

This contribution analyses the content and the relevance of the ruling of the Court of Justice of the European Union (CJEU) in the Leistritz AG/LH case which does not preclude national legislation from providing that a data controller (or a data processor) may terminate the employment contract of a data protection officer (DPO) only with just cause, even if the contractual termination is not related to the performance of that officer's tasks, in so far as such legislation does not undermine the achievement of the objectives of that regulation.

Individual Rights in International Personal Data Transfers Under the General Data Protection Regulation

Within the General Data Protection Regulation (GDPR), individuals have certain rights ('data subject rights') towards their own personal data. These rights include the option to access, rectify or erase one's data. The GDPR also foresees specific rules for international personal data transfers, thus situations in which personal data becomes accessible outside its territorial scope. The goal of these rules is to ensure that the level of protection for the fundamental rights of individuals is not undermined by data transfers. The Court of Justice of the European Union (CJEU) clarified that this level has to be maintained to an 'essentially equivalent' extent, and that this requires also the upkeeping of (some) data subject rights. This paper analyses the role of data subject rights when personal data are transferred under the GDPR. It concludes that the existence of some data subject rights is required for lawful data transfers under the GDPR.

Seizing opportunities: the determinants of the CJEU’s deference to national courts

ABSTRACT Recent studies of the preliminary reference procedure highlight that the Court of Justice of the European Union (CJEU) defers to national courts at higher rates than scholars initially expected. However, we know little about how the Court chooses which questions to leave for national courts to determine and which ones require its attention. I argue that the CJEU evaluates whether a referred question is representative of a broader set of cases nascent in European judiciaries. I expect that Member States expressing an interest in a reference signal that the Court’s answer would have an impact on cases in European judiciaries beyond the dispute in the referring national court. Drawing on an original dataset covering more than 5,000 questions referred to the CJEU between 1995 and 2011, I show that the likelihood of the CJEU leaving legal questions unresolved decreases with the number of Member States submitting briefs to the Court.

EU Case Laws on Trade Defence Instruments (TDI) in 2022

This article provides an overview of the judgments of the Court of Justice of the European Union (CJEU) regarding EU’s trade defence instruments (TDI) in the year 2022, in particular, with respect to admissibility, dumping, injury and procedural aspects. EU trade defence instruments (TDI), anti-dumping, anti-subsidy, safeguards, Court of Justice of the European Union (CJEU)