Court Of Justice Research Articles

Artificial Intelligence: Contributions to Efficiency and Sustainability in the Court of Justice of The State of Goiás

Objective: To present analyses related to the integration between Artificial Intelligence (AI) and Sustainable Regional Development (SRD) regarding the expansion of access to justice, based on the experience of the Court of Justice of the State of Goiás (TJGO). Theoretical Framework: Advanced technologies in the Judicial System and their contribution to global sustainability, as well as implications for the formulation of public policies for the responsible integration of AI in judicial processes. Methodology: Qualitative and quantitative analysis of data acquired from research, bibliographical and documentary from Reports and Resolutions of the Court of Justice of Goiás – TJGO and National Council of Justice – CNJ, and literature related to AI and Sustainable Regional Development – SRD, about the relationship between sustainability, SRD and AI; the implementation of AI in Brazilian courts, with emphasis on the guidelines of the CNJ (TJGO); the evolution and impact of AI regulations in the Brazilian Judiciary (TJGO); and the effective use of AI in the context of TJGO and other Brazilian courts. Results and Discussion: As a result of this research, we have identified an improvement in procedural efficiency in the judicial system (in access to justice), based on the implementation of AI, especially for vulnerable groups. Implications of the research: The functionality and dynamism of the social and environmental spheres require studies and analyses that assist in the integration for development based on the balanced alignment between both. In this sense, it is important to direct efforts to identify how and to what extent technological advances can be useful for social development, in this case, based on the practices developed by TJGO. Originality/Value: This study presents recent information and analyses on strategies and practices of the Brazilian Judiciary for the integration of Artificial Intelligence and Sustainable Regional Development regarding the expansion of access to justice, based on the experience of the Court of Justice of the State of Goiás (TJGO).

Abortion from an International Perspective after the Dobbs case

The American Supreme Court of Justice recently overturned the precedents that legalized abortion in the Dobbs v. Jackson Women’s Health Organization case. This article analyzes whether this decision is consistent with the current status of abortion as established in International Human Rights Law (IHRL), according to its classical sources (treaties and customary law). Since no treaty includes a right to abortion and there is no consistent practice among states to legalize abortion, various soft law instruments are discussed to clarify the consensus on this issue. These instruments include the agreements reached at the World Population Conferences, the Fourth World Conference on Women of 1995, and the pronouncements and case law of human rights mechanisms (treaty monitoring bodies and regional courts). This analysis shows that the arguments and conclusions in the Dobbs case are consistent with what states have agreed to internationally on the matter.

Academic freedom in Europe: Limitations and judicial remedies

Abstract Europe has recently struggled with democratic backsliding and autocratization. This autocratization has accompanied a decline in academic freedom in many backsliding countries, as reported by the Academic Freedom Index. Can the standards set by the European supranational courts effectively safeguard academic freedom? This article provides answers to this question. It argues that despite differences in their approaches, the theoretical conceptions of scholarship held by the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (ECJ) share an essential feature: both have moved towards embracing the ‘liberal science script’ by protecting academic freedom. The main difference between the two courts’ approaches is the subject of protection. The ECtHR focuses on the individual rights of academics: It protects free speech in the academic context by establishing a high standard for holding academics liable for publicly expressing their views inside and outside of academia. The ECJ has applied the concept of institutional autonomy, thereby setting a high standard for safeguarding the freedom of academic institutions. This standard can be applied with regard to the demands placed by policy-makers on academia regarding its role in democracy, including gender equality requirements for EU research funding.

Региональное регулирование права работников на участие в управлении организацией на примере ЕС

The article considers the consequences of the impact of primary (Treaty on the Functioning of the EU) and secondary EU law (Regulation No. 2157/2001248 and Directive 2001/86/EC) on the implementation of the right of employees to participate in the management of the organisation. Based on the analysis of the positions of the European Court of Justice, it is noted that there are constructions that encourage abusive practices on the part of business, which create threats to the realisation of the right to participate in management.

Running out the digital clock: transatlantic privacy politics and veto points in time

ABSTRACT Why does the European Commission continue to sign onto unstable international data flow agreements with the United States? After two agreements were struck down by the European Court of Justice, and clear signals that a new one could meet a similar fate, the European Commission agreed to the Data Privacy Framework. To make sense of this behavior, we connect traditional work on veto points with work on historical institutionalism to highlight an international negotiation strategy – running out the clock. While traditional veto points literature suggests multiple institutions with varying preferences will limit the set of potential policies or their adoption, we highlight how these dynamics change when considering veto points in time. We showcase our argument by building three historical narratives detailing the negotiation of the successive data flow agreements. Our findings have important implications for the future of the transatlantic privacy regime as well as negotiation dynamics.

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.

Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukr. v. Russ.) (Judgment on Preliminary Objections) (I.C.J.)

On February 2, 2024, the International Court of Justice (the Court) delivered its preliminary objections judgment in the case brought by Ukraine against Russia under the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention).

Upstream Review of intra-EU ICSID Arbitrations and Its Consequences: A Commentary on the Order of the Bundesgerichtshof (German Federal Court of Justice) in I ZB 43/22 MAINSTREAM Renewable Power et al. v. Germany

EU Member States may have recourse to ‘upstream’ national judicial protection under the German Civil Procedure Code to declare inadmissible and thereby preclude intra-EU investment arbitration proceedings brought under the auspices of the International Centre for Settlement of Investment Disputes (ICSID) Convention. That remarkable conclusion by the Bundesgerichtshof (German Federal Court of Justice) constitutes the first attempt of a higher court of an EU Member State to render compatible the seemingly contradictory obligations on national courts arising from EU law and the ICSID Convention. However, even more important than the court’s conformity assessment are the inherent consequences of its conclusion: the incompatibility of the ICSID Convention with EU law and the obligation, on all EU Member States and their institutions, to disapply that convention in intra-EU investment arbitration matters and ultimately to denounce it collectively.

Бремя доказывания отрицательных фактов в практике международных судов и арбитражей: что сулит рассмотрение иска Украины по делу о заявлениях о геноциде?

On 2 February 2024 the International Court of Justice delivered its judgment in Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), where it established its jurisdiction in relation to Ukraine’s claim requesting the Court to declare that there is no credible evidence that Ukraine is responsible for committing genocide in DPR and LPR. In his declaration, Judge Tomka notes that the unusual form in which Ukraine’s submission is framed raises the problem of the allocation of the burden of proving negative facts. Judge Tomka invites the parties to express their views on this fundamental question, considering the contradictory approaches in the Court’s jurisprudence. This article constitutes an attempt to suggest what the Court’s approach to the allocation of the burden of proof at the merits stage of the proceedings may be in light of the practice of the Court, other international courts and tribunals and international legal scholarship.

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.

A systematic content analysis of innovation in European competition law

Innovation plays a crucial role in defining competitive dynamics. Given this fact, one might expect ‘innovation’ to play a consistent role in antitrust law. The present article conducts a systematic content analysis of the case law of the Court of Justice of the European Union to test this hypothesis. The findings suggest that EU courts treat innovation inconsistently in competition law cases, often assigning different weight to innovation in similar contexts and neglecting central parameters agreed upon in the literature. To address this inconsistency, the article proposes measures to maintain the predictability of competition law analysis while giving innovation a more central role in the definition of relevant markets, evaluation of market power, and assessment of practices.

In the name of analogy: Judicial copy-pasting and competence creep in the connection data case law

At the European Court of Justice, analogy reasoning often takes a specific form with the copy-pasting of numerous citations taken from the Court’s earlier case law. This article analyses the practice of copy-pasting in the contested case law on connection data. After offering a fresh look at the judgment in Digital Rights Ireland, it examines how the successive copy-pasting of that former case into Tele2 Sverige and its progeny has changed the parameters of the legal analysis of connection data legislation together with the competences of the Union, and in the Union for that matter. It is argued that, despite its advantages, judicial copy-pasting carried out in the name of analogy should be handled with utmost care in view of its potential consequences at constitutional level.

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.

Ochrona danych genetycznych – od koncepcji indywidualnej do grupowej

The article presents a gradual shift from the individual concept of data protection to the application of the group concept in the case of genetic data, which by its nature applies to more than one person. The application of the group concept is based on the norms of EU law, the case law of the European Court of Human Rights, the Court of Justice of the European Union, the Supreme Court of Iceland, as well as soft law documents. The jurisprudence presented in the paper argues that genetic information is relevant both to the donor of genetic material and to his relatives. Thus, the genetic data of person A created from a biological sample taken from him, may also constitute the genetic data of person B. Thus, the status of the data subject established under EU law should be extended to a larger number of persons than suggested by EU data protection legislation. The argumentation presented confirms the formation of indicating the group nature of genetic data. The continuous increase in the amount of genetic information in social and economic circulation will only reinforce this trend, which is aimed at the full realization of the right to personal data protection.

People’s Republic of China and the adequacy – Why Chinese data protection law is not adequate within the meaning of the GDPR

Chinese data protection seems to be problematic. On the one hand, it does exist, at least formally, especially after the reform initiated by the adoption of the Cybersecurity Law and finished by the Personal Information Protection Law entering into force. However, the mere adoption of personal data protection regulations does not guarantee that they provide personal data protection at an appropriate level. For EU law, the adequacy standard is the reference point for verifying personal data protection in a third country. Therefore, it is necessary to meet specific criteria summarising the term of essential equivalence, as introduced by the Court of Justice of the European Union. This article discusses the three most critical problems that result from comparing the provisions of the Chinese Cybersecurity Law, the Civil Code, the Data Security Law and the Personal Information Protection Law with the EU’s adequacy standard. The article consists of the introduction, four parts and closing remarks. The first part explains the methodology of research on Chinese data protection law and criteria applied to its examination. The second, third and fourth parts discuss the complicated relationships between the laws related to the protection of personal data, the status of state authorities as data controllers and multi-stakeholder supervision over personal data protection.

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.

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 Privacy/Antitrust Curse: Insights from GDPR Application in Competition Law Proceedings

In response to the emergence of large online platforms whose business model revolves around the collection and processing of personal data, it is usually suggested that competition and data protection are synergistic, hence requiring an integrated approach. In this respect, Europe represents the testing ground for evaluating how privacy breaches may inform antitrust investigations. Indeed, the General Data Protection Regulation (GDPR) on the one side and the German Facebook antitrust decision on the other side are considered the benchmarks of this new stance aimed at linking market power and data power. This paper tests the concrete viability of such an approach, analyzing how data protection rules and principles have been applied in antitrust proceedings by the European Commission and national competition authorities. Notably, the paper aims at demonstrating the fallacy of the narrative which describes the relationship between privacy and antitrust in terms of synergy and complementarity. Furthermore, the paper maintains that the principles recently affirmed by the European Court of Justice in Meta do not appear conclusive in addressing the issue. The strategic use of privacy as a business justification to pursue anticompetitive advantages currently addressed in the numerous Apple ATT investigations indeed shows the tension between these areas of law. Therefore, rather than strengthening the antitrust enforcement against gatekeepers and their data strategies, the inclusion of privacy harms in antitrust proceedings turns out to be a potential curse for competition authorities, providing players with an opportunity for regulatory gaming to undermine the antitrust enforcement. JEL Codes: D83, K21, L12, L4

The Rise in the Participation of Asia Pacific States in the Proceedings of the International Court of Justice (2010-2023)

The Rise in the Participation of Asia Pacific States in the Proceedings of the International Court of Justice (2010-2023)