Court Of Justice Of The European Union Case Law Research Articles

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.

Dialogue between the Slovenian Highest Courts and the Court of Justice of the European Union

The relationship between European Union (EU) law and national Slovenian law progressed across three different stages starting from the beginning of this century to date, as discussed by EU and Slovenian legal theorists. The first one, just before Slovenia’s entry into the EU, considered the EU an international organisation and EU law a type of public international law. It was dismissed even before Slovenia joined the EU, with an amendment to the Constitution, and was succeeded by the second, supranationalist, view that required maximum restraint by national courts while dealing with EU issues. Finally, about a decade ago, the third pluralist view of EU law vis-à-vis national law emerged, calling the particularly highest national courts to enter a more critical dialogue with the Court of Justice of the European Union (CJEU). Although Slovenian theorists have been actively discussing the relationship between EU and national law before and immediately after Slovenia joined the EU, it seems that practising lawyers and judges needed time to adapt to the new law. Finally, in 2009, the first reference for a preliminary ruling was made by Slovenian courts. Soon after, the Slovenian Supreme Court made its first preliminary ruling reference and, in nearly 20 years since, proved itself to be the most frequent interlocutor with the CJEU from Slovenia. It regularly cites CJEU cases in its case laws, and demands that lower courts follow them wherever appropriate. From the highest national courts in Slovenia, the Constitutional Court joined the dialogue with the CJEU last. It has made four preliminary ruling references to the CJEU and demonstrated restraint vis-à-vis reviewing legal issues touching upon EU law. The legal culture (including public opinion) in Slovenia has predominantly been pro-EU. This applies to the internal legal culture, namely lawyers who support liberal democratic values such as the rule of law, human rights, and democracy. As long as the EU remains dedicated to these values, in such an environment, the highest Slovenian courts are not expected to show a bolder attitude vis-à-vis CJEU case law

THE REBELLION OF CONSTITUTIONAL COURTS AND THE NORMATIVE CHARACTER OF EUROPEAN UNION LAW

AbstractThis article offers a reconstruction and assessment of the emerging rebellion of European constitutional courts against the exceptionless supremacy of European Union (EU) law. It presents the ontological theories of supremacy and how the Court of Justice of the EU (CJEU) overcame the first two major challenges of its history: the existential challenge of canonizing the general doctrine of supremacy and the Solange challenge of national fundamental rights. It provides an account of the emerging ultra vires challenge, including its root cause and evolvement, and provides an assessment and sets out proposals. The article demonstrates that the crux of the matter is not the primacy of EU law but the interpretive primacy of the CJEU. It argues that the rebellion was triggered by the perception that the CJEU case law features a declining normative and an increasing policy character. The debate about the CJEU's evolutionary interpretation, in a certain sense, parallels US constitutional law's debate between originalism and the living constitution, with the difference that the EU is a pluralist legal order.

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.

RAZVOJ SUPRANACIONALNOG SUSTAVA JAVNIH FINANCIJA U SVJETLU PRIMARNOG PRAVA EUROPSKE UNIJE : ANALIZA PRAKSE SUDA EU-A

The Court of Justice of the European Union (CJEU) and its competence to interpret the EU’s primary law was particularly in focus during and after the financial crisis, when it decided on the validity of the Union’s recovery instruments in the Pringle, Gauweiler and Weiss cases. Therefore, this paper aims to analyse selected decisions of the CJEU (the Pringle, Gauweiler and Weiss cases), starting from the presentation of the socio-political context in which they were created. After the legal analysis of the CJEU’s argumentation in the selected decisions, the paper will present their impact on the development of the public finance law of the Union. Particular attention will be paid to the interpretative methods used by the CJEU. The aforementioned reflects in the structure of the paper. After the introduction, the second section comprises specific features of interpretation methods in the CJEU case law. The following section will focus on the socio-political context that preceded the selected CJEU decisions. The fourth section presents an analysis of the selected CJEU decisions and reviews the interpretation methods. The fifth section highlights the implications of the CJEU jurisprudence on the legal order of the Union, followed by concluding considerations.

Case C-817/19, Ligue des Droits Humains v. Council of Ministers (C.J.E.U.)

On June 21, 2022, the Court of Justice of the European Union (CJEU), sitting as a Grand Chamber, rendered its decision in the preliminary ruling procedure C-817/19, Ligue des Droits Humains v. Council of Ministers. In its ruling, the CJEU held that the surveillance regime established by the Passenger Name Record Directive 2016/681 (PNR Directive) was compatible with the Charter of Fundamental Rights of the European Union (CFREU/EU Charter). Nevertheless, the CJEU strictly circumscribed the Directive's transposition within EU member states' domestic laws. While restricting permissible interpretations of the PNR Directive's provisions and imposing strict limitations on its scope to ensure its conformity with the EU Charter, for the first time the Court upheld an instrument of indiscriminate surveillance as compatible with EU primary law. This represents a significant development in the CJEU's case law on privacy rights, which is likely to affect the negotiation and development of future PNR agreements with third countries, as well as the development of the ePrivacy Regulation, discussions surrounding the regulation of AI, and negotiations for international instruments aiming to address serious crimes. Further, the ruling confirms the CJEU's increasing convergence with the European Court of Human Rights' (ECtHR) case law on the matter, thus inscribing national security as a legitimate exception to the general prohibition of indiscriminate bulk data collection and retention in Europe.

Case C-817/19, Ligue des Droits Humains v. Council of Ministers (C.J.E.U.)

On June 21, 2022, the Court of Justice of the European Union (CJEU), sitting as a Grand Chamber, rendered its decision in the preliminary ruling procedure C-817/19, Ligue des Droits Humains v. Council of Ministers. In its ruling, the CJEU held that the surveillance regime established by the Passenger Name Record Directive 2016/681 (PNR Directive) was compatible with the Charter of Fundamental Rights of the European Union (CFREU/EU Charter). Nevertheless, the CJEU strictly circumscribed the Directive's transposition within EU member states' domestic laws. While restricting permissible interpretations of the PNR Directive's provisions and imposing strict limitations on its scope to ensure its conformity with the EU Charter, for the first time the Court upheld an instrument of indiscriminate surveillance as compatible with EU primary law. This represents a significant development in the CJEU's case law on privacy rights, which is likely to affect the negotiation and development of future PNR agreements with third countries, as well as the development of the ePrivacy Regulation, discussions surrounding the regulation of AI, and negotiations for international instruments aiming to address serious crimes. Further, the ruling confirms the CJEU's increasing convergence with the European Court of Human Rights' (ECtHR) case law on the matter, thus inscribing national security as a legitimate exception to the general prohibition of indiscriminate bulk data collection and retention in Europe.

EU Restrictive Measures and Third Countries’ Evidence

EU restrictive measures, often referred to as ‘sanctions’, have become an increasingly used instrument of EU autonomous foreign policy. For some restrictive measures, however, the EU cannot act alone. In order to adopt them, the Council must rely on information transmitted by third states’ authorities and decisions taken by them at domestic level. This has been the case, in particular, of EU restrictive measures adopted in connection with misappropriations of state funds. The Council’s use of such evidence has been somewhat controversial and has led to numerous legal debates before the Court of Justice of the European Union (CJEU). To what extent was the Council free to rely on the evidence provided by these third states’ authorities? How to ensure that the fundamental rights of the targeted persons and entities were complied with in the process? Faced with these questions in its particularly abundant case law, the CJEU has progressively raised the threshold of validity for these sanctions. It has done so up to a point at which, in the authors’ opinion, the sanctions can no longer reach such threshold in practice. This article addresses the evolutions and implications of the CJEU case law on a legal aspect that is of crucial importance for the EU’s sanctions practice. Restrictive measures – Third States evidence – Misappropriations of State funds – Terrorism – Judicial review – Fundamental Rights – Ukraine – Tunisia – Egypt

Compensation liability for antitrust damages caused by related companies – development of the concept of a single economic unit Case comment to the CJEU judgment of 6 October 2021 in case C-882/19 Sumal SL v Mercedes Benz Trucks España SL

The subject of this case comment is the analysis and assessment of the judgment of the Court of Justice of the European Union (CJEU) issued on 6 October 2021 in case C-882/19, brought by Sumal SL v Mercedes Benz Trucks España SL. The Sumal judgment concerns an important issue in the area of competition law, both public and private (private enforcement) – determining the group of entities responsible for infringements of competition law operating within one economic body. Earlier CJEU case law in this regard focused primarily on determining the liability of the parent company within a group of companies. In the Sumal judgment, however, the CJEU raised the issue of the liability of subsidiaries in the event of a breach of competition law by the parent company. The CJEU has by no means crossed out its earlier case law on the single economic unit, but looked at the issue from the opposite direction and specified the liability conditions of subsidiaries. Such clarification was undoubtedly desirable. However, it calls into question the principle of liability of subsidiaries in a situation where they were not directly involved in the infringement, rather than only indirectly or informally.

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 to Be Forgotten in the UK: A Case Note on the English and Welsh High Court Reasoning in NT1 & NT2 v. Google and the Post-Brexit Prospects in the GDPR era

The joined cases NT1 & NT2 present the first claim before the High Court of England and Wales (the Court) on the right to be forgotten, established by the Court of Justice of the European Union (CJEU) in the seminal Google Spain case. Both claimants, NT1 and NT2, had submitted a request for the de-listing of search results related to their prior criminal convictions. This case note considers how the Court was therefore faced with the question how to strike a balance between, on the one hand, the right to privacy, and, on the other hand, the publicity of criminal trials. In deciding upon this question, the Court notably weighed both EU and national law sources. It considered three main criteria: the nature of the offence, the public interest in the disclosure of the information concerned, and the rehabilitation of the claimant. This case note argues that the opposing conclusions reached in either of the joined cases are exemplary of the way these three criteria are embedded in the broader common law understanding of privacy and the concept of rehabilitation after criminal convictions. As regards the first criterion, on the nature of the offence, the joined cases suggest that if the offence does not involve dishonesty or is old and ‘not serious’, there is a greater chance that the Court does not consider it necessary for the information to remain public. As regards second criterion, on the public interest, it appears that if the claimant is active in public life in a manner related to the offences, this enhances the public interest in the information. Regarding the third criterion, on rehabilitation, it appears that the Court attaches great value to the concept of remorse for past convictions. The case note embeds these judicial considerations in the emphasis on ‘privileged principles of open justice’ in the English and Welsh common law jurisdiction, which have inhibited the post-war revolt to develop a strong right to privacy in civil law jurisdictions on the European continent. Finally, the case note reflects on post-Brexit data protection standards in England and Wales. Whilst assessing that courts will not be able to easily dismiss the relevance of CJEU case law on data protection, the case note identifies several stumbling blocks to lasting EU-UK equivalence on data protection laws and concludes that if anything, Brexit will diminish legal certainty for citizens and data subjects in England and Wales.

Article: The EU’s Uncoordinated Approach to Tax Avoidance and Tax Abuse in Relation to ‘Uncooperative’ Tax Jurisdictions

The European Union (EU)’s external tax policies in relation to ‘uncooperative’ tax jurisdictions are predominantly shaped by the case law of the Court of Justice of the European Union (CJEU), the Member States’ domestic tax laws and, most recently, the EU list of non-cooperative jurisdictions for tax purposes (EU blacklist). Research in academia scholarship has assessed the EU blacklist from various angles. The objective of this article is to contribute to this discussion by contextualizing the EU blacklist with the relevant CJEU case law on anti-avoidance and antiabuse provisions applied in third country situations. Beyond an assessment from a doctrinal perspective, particular emphasis is placed on related tax policy issues. This combined evaluation yields three primary conclusions: the EU blacklist’s soft law character allows the Member States to continue to take advantage of type-casted and irrebuttable anti-avoidance and anti-abuse provisions in light of the CJEU case law; the EU blacklist’s inability to meet its initial objectives can be explained by political dynamics at the EU level; and the EU blacklist might relieve some of the currently manifesting symptoms without addressing the fundamental flaws in the international tax system. CJEU case law, developing countries, EU blacklist, EU external tax policies, free movement of capital, harmful tax competition, mutual assistance, tax abuse, tax avoidance

Article: The Potential Relevance of the CJEU Case Law on Group Taxation Under the EU/UK Trade and Cooperation Agreement

The Court of Justice of the European Union (CJEU) ruled that the national treatment provision in Article 49 Treaty on the Functioning of the European Union precludes Member States from disallowing consolidation between entities resident in the same Member State, where the top holding or intermediate holding company is resident in another Member State. After the United Kingdom left the EU from 1 January 2021, this case law no longer directly applies to situations with a top holding or intermediate holding company resident in the United Kingdom. However, the Trade and Cooperation Agreement concluded and in force between the EU and the United Kingdom (TCA) contains in Article 129 a provision on national treatment. The authors argue that the TCA could be interpreted in line with the national treatment provision in Article 49 TFEU and the case law of the CJEU on this. Notwithstanding the absence of any direct effect to the provision of the TCA, Member States should interpret their bilateral tax treaties in line with the TCA. The consequence is that the non-discrimination provisions in existing bilateral tax treaties between Member States and the United Kingdom should be interpreted in line with the TCA. Group regimes, Brexit, Trade and Cooperation Agreement, Non-Discrimination, National Treatment, Capital Ownership, Bilateral Tax Treaties, Interpretation of EU law, Interpretation of Bilateral Tax Treaties

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

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

Unfair Pricing and Standard Essential Patents

Technical standards that are agreed within a Standard Development Organization (SDO) often cover several ‘essential’ patents for the implementation of a standard (i.e., Standard Essential Patents, SEPs). In order to allow for the standard implementation, the SEP holder commits to license its patents to any potential licensee on the basis of Fair and Reasonable and Non-Discriminatory (FRAND) conditions. In view of the recent ruling of the UK Supreme Court in Unwired Planet and the judgement of the German Bundesgerichtshof in Sisvel v. Haier, the paper assumes that the FRAND commitment implies a ‘range’ rather than a ‘single’ royalty rate. On the other hand, a royalty rate ‘beyond the outer boundary of the range’ should be considered ‘unfair’, and thus incompatible with the FRAND commitment. Besides representing a breach of the FRAND commitment, an ‘unfair’ royalty rate might also be considered an abuse of a dominant position by the SEP holder, in breach of Art. 102(a) TFEU. This paper analyses whether, and under what circumstances, Art. 102(a) TFEU can be relied upon by a competition authority in Europe to sanction a case where an ‘unfair’ royalty rate has been set by the SEP holder. To this regard, the paper provides a detailed analysis of the EU Court of Justice’s jurisprudence on Art. 102(a) TFEU. In particular, the latter jurisprudence is relied as a ‘yardstick’ to assess ‘when’ competition policy should sanction a request of unfair royalty rate by the SEP holder, ‘how’ a competition agency should assess the case and, eventually, ‘what’ remedies the competition authority might adopt. Economists have elaborated a number of ‘filters’ to define ‘when’ EU competition policy should sanction unfair pricing cases. In particular, antitrust intervention would be justified only in markets that are characterized by high and stable entry barriers, in which a firm enjoys a super-dominant position. Due to the phenomenon of over-declaration, not every SEP is indeed ‘essential’; the market power of the SEP holder thus requires a case-by-case analysis of the ‘essentiality’ of every SEP. A number of authors have also argued that excessive pricing cases should not be sanctioned in industries characterized by dynamic efficiencies. The paper argues that innovation considerations could be considered as efficiency defences in the context of antitrust investigations, rather than in excluding a priori competition policy enforcement in this field. The paper argues that a competition agency should rely on the case law of the Court of Justice of the European Union (CJEU) on Art. 102(a) TFEU to analyse a case of unfair royalty rate. In particular, United Brands cost/price test is not suitable for assessing an unfair royalty rate requested by the SEP holder, since it is de facto impossible to determine the ‘costs of production’ of individual SEPs. On the other hand, in accordance with the CJEU case law, the competition agency might rely on a number of benchmark methods with which to assess the alleged unfairness of the rate. In particular, the agency should verify its findings under multiple benchmark tests, in order to minimize the risk of false negative errors. Finally, the SEP holder could argue that the requested royalty rate is justified by its past R&D investments. In terms of remedies, the paper argues that a competition agency could require the SEP holder to license its ‘essential’ patent; such behavioral remedy is well established in the practice of the European Commission. In light of the recent Broadcom interim decision, if the competition authority was confident about its preliminary findings of unfair pricing, the agency might require the SEP holder to license its ‘essential’ patents via an interim decision; the scope, duration and exact obligations of such a duty would later be refined in the final commitment decision.

The Economic Succession Doctrine in Private Enforcement of EU Competition Law: 'Nothing Extraordinary' After Skanska Industrial?

The article analyses the recent judgment of the Court of Justice of the European Union (CJEU) in Skanska Industrial. In its preliminary ruling, the CJEU recognised for the first time the so-called “economic succession doctrine” in damage claims concerning a breach of EU competition rules. In the judgment, the CJEU relied on its well-established case law. From this point of view, the ruling is “nothing extraordinary”. Nevertheless, the judgment represents an important milestone that contributes to the development of damage claims in Europe. The article first discusses the origins of the economic succession doctrine, which derives from the broad concept of “undertaking” developed by the CJEU case law and the so-called “single economic entity” doctrine. Afterwards, the article discusses the Skanska Industrial case, in particular by comparing the opinion of Advocate General (AG) Wahl with the CJEU ruling in the case. The article concludes by discussing the potential consequences of the CJEU ruling in Skanska Industrial on private enforcement of EU competition law, as well as the questions that remain open after the judgment. After Skanska Industrial, it remains unclear how the disclosure of evidence will take place in practice in the context of a damage claim following a corporate restructuring. Secondly, the limits of the economic succession doctrine remain unclear: it is unclear when a corporate restructuring indeed leads to the establishment of a “new” undertaking, free from the antitrust liability acquired by its predecessor. Finally, it remains unclear whether Skanska Industrial case law could also be extended to other remedies besides damage claims, such as actions requesting a court injunction, compensation for unjust enrichment, or a declaration that a contract is null and void. The article argues that in the coming years the CJEU will probably be called to clarify SkanskaIndustrial case law in order to answer these remaining questions.

Podstawa traktatowa przyjmowania aktów prawa pochodnego z dziedziny środowiska i energii w prawie UE

Despite the considerable volume of the Court of Justice of the European Union (CJEU) case-law on Treaty basis for secondary legislation, the claim that any doubts concerning the choice of the Treaty basis for secondary legislation in the area of environment and energy in the EU law have been clarified is incorrect. On several occasions, the choice of the proper legal basis for such a legal act gave rise to serious doubts. It was unclear whether the subject matter of the act determined the application of Article 192(1) TFEU (ordinary legislative procedure) or Article 192(2), first paragraph of the TFEU (special legislative procedure).
 The aim of this article is to analyse the control criteria for the check of the Treaty basis for secondary legislation in the area of environment and energy conducted by the CJEU. This issue is considered in a broader context of the Treaty provisions, practice and the CJEU case law. The utmost attention is given to the judgement of the Court of Justice of the European Union issued on 21 June 2018 in the case C-5/16, Republic of Poland v European Parliament and Council of the European Union, where the Court dismissed the action for annulment of the Decision (EU) 2015/1814 of the European Parliament and of the Council of 6 October 2015 concerning the establishment and operation of a market stability reserve for the Union greenhouse gas emission trading scheme and amending Directive 2003/87/EC.
 The Author of the article comes to the conclusion that the Court, when reviewing the choice of the Treaty basis for a legal act, considers mainly its purpose and content, while the likely impact is of secondary importance. According to the Author, the judgement of the Court in the case C-5/16, Republic of Poland v European Parliament and Council of the European Union is likely to impede the application of Article 192(2)(c) TFEU (special legislative procedure) as a proper legal basis for legal acts in the area of environment which may affect a Member State’s energy mix.

COVID-19, the European Health Union and the CJEU: Lessons from the Case Law on the Banking Union

This contribution will draw on the literature that has accumulated on how the Court of Justice of the European Union (CJEU) has responded to the European Banking Union, which was established in similar crisis circumstances that now face the European Union (EU) in the age of COVID-19, to illustrate the legal issues on which the CJEU’s input will be particularly important in the shaping of any future European Health Union. This contribution will highlight three legal issues in particular: the interpretation of EU Treaty provisions in the health field; the scope of EU competence; and the powers of EU institutions and agencies. This contribution will argue that the CJEU case law to date on health issues is encouraging with respect to competence and agencies, but more cautious with respect to the Treaty’s health provisions.

Doceram, Cofemel and Brompton: How does the Current and Future CJEU Case Law Affect Digital Designs?

Digital design is generally associated with web design namely graphic design for digital products off or online. This includes web sites but also movies and videogames. These designs are, traditionally, in two dimensions and more recently, can be in three dimensions such as augmented or virtual reality. There are also designs initially made digitally namely computer-aided (CAD) designs which are then manufactured in the traditional way or more recently 3D printed. The concept of digital design is therefore broad involving both two-dimensional (2D) and three dimensional (3D) designs, both functional and non-functional (i.e. purely decorative) designs. This paper examines two recent and important decisions and one pending reference to the Court of Justice of the European Union (CJEU) affecting the protection of 2D and 3D designs including digital designs. In the EU, designs can be protected by several intellectual property laws, the chief ones being copyright and design laws. Designs can also be protected by patent and trade mark laws and in some Member States by utility model laws and unfair competition law. This contribution will focus only on copyright and design laws. After having introduced the protection for designs in the EU by design rights, section 1 summarises and comments on the Doceram decision. Section 2 then explains how copyright protects designs and then comments on the Cofemel and Brompton cases. Section 3 proposes solutions raised by these decisions before the chapter concludes.

Unfair Pricing and Standard Essential Patents

Technical standards that are agreed within a Standard Development Organization (SDO) often cover several ‘essential’ patents for the implementation of a standard (i.e., Standard Essential Patents, SEPs). In order to allow for the standard implementation, the SEP holder commits to license its patents to any potential licensee on the basis of Fair and Reasonable and Non-Discriminatory (FRAND) conditions. In view of the recent ruling of the UK Supreme Court in Unwired Planet and the judgement of the German Bundesgerichtshof in Sisvel v. Haier, the paper assumes that the FRAND commitment implies a ‘range’ rather than a ‘single’ royalty rate. On the other hand, a royalty rate ‘beyond the outer boundary of the range’ should be considered ‘unfair’, and thus incompatible with the FRAND commitment. Besides representing a breach of the FRAND commitment, an ‘unfair’ royalty rate might also be considered an abuse of a dominant position by the SEP holder, in breach of Art. 102(a) TFEU. This paper analyses whether, and under what circumstances, Art. 102(a) TFEU can be relied upon by a competition authority in Europe to sanction a case where an ‘unfair’ royalty rate has been set by the SEP holder. To this regard, the paper provides a detailed analysis of the EU Court of Justice’s jurisprudence on Art. 102(a) TFEU. In particular, the latter jurisprudence is relied as a ‘yardstick’ to assess ‘when’ competition policy should sanction a request of unfair royalty rate by the SEP holder, ‘how’ a competition agency should assess the case and, eventually, ‘what’ remedies the competition authority might adopt. Economists have elaborated a number of ‘filters’ to define ‘when’ EU competition policy should sanction unfair pricing cases. In particular, antitrust intervention would be justified only in markets that are characterized by high and stable entry barriers, in which a firm enjoys a super-dominant position. Due to the phenomenon of over-declaration, not every SEP is indeed ‘essential’; the market power of the SEP holder thus requires a case-by-case analysis of the ‘essentiality’ of every SEP. A number of authors have also argued that excessive pricing cases should not be sanctioned in industries characterized by dynamic efficiencies. The paper argues that innovation considerations could be considered as efficiency defences in the context of antitrust investigations, rather than in excluding a priori competition policy enforcement in this field. The paper argues that a competition agency should rely on the case law of the Court of Justice of the European Union (CJEU) on Art. 102(a) TFEU to analyse a case of unfair royalty rate. In particular, United Brands cost/price test is not suitable for assessing an unfair royalty rate requested by the SEP holder, since it is de facto impossible to determine the ‘costs of production’ of individual SEPs. On the other hand, in accordance with the CJEU case law, the competition agency might rely on a number of benchmark methods with which to assess the alleged unfairness of the rate. In particular, the agency should verify its findings under multiple benchmark tests, in order to minimize the risk of false negative errors. Finally, the SEP holder could argue that the requested royalty rate is justified by its past R&D investments. In terms of remedies, the paper argues that a competition agency could require the SEP holder to license its ‘essential’ patent; such behavioral remedy is well established in the practice of the European Commission. In light of the recent Broadcom interim decision, if the competition authority was confident about its preliminary findings of unfair pricing, the agency might require the SEP holder to license its ‘essential’ patents via an interim decision; the scope, duration and exact obligations of such a duty would later be refined in the final commitment decision.