ECJ Judgment Research Articles

The interface between EU competition law and standard essential patents – from Orange-Book-Standard to the Huawei case

In this paper the recent ECJ judgment in Huawei is discussed in light of the earlier case law from the EU and the US. The Huawei case has been long awaited and many in academia hoped that it would finally deliver answers to if, when and on what terms access to so-called Standard Essential Patents would be granted under EU antitrust law. However, the question is whether Huawei is that case. On the contrary, it seems that the ECJ ruling gives room for speculation even in reference to core issues, some of which are dealt with in this paper.

Disapplication of Austrian Law Denying Compensation for Bereavement Damages: A Judgment by Italian Supreme Court on the Notion of “Public Policy”

This paper addresses the application of Article 4 and Article 26 (“Public Policy of the forum”) of Rome II Regulation specifically in relation to claims for bereavement damages in cross-border fatal accidents. It does so by first illustrating an Italian Supreme Court’s judgment that disapplied Austrian law denying awards for nonpecuniary damages to secondary victims. This precedent and other developments, including recent ECJ judgments on Motor Insurance Directives, show that there are grounds for national judges to limit the negative effects of Article 4: the ‘public policy’ rule can be an effective weapon against any denial of or any relevant restriction to victims’ right to full and fair compensation. More in general this paper’s conclusion is that a national judge, pursuant to Article 26, is entitled to disapply the foreign law which, in contrast with his internal public policy, would require him to discriminate in peius among victims suffering violations of fundamental rights.

Compliance with ECJ judgments vs. compatibility with EU law – Free movement of capital issues unresolved after the second ruling on the Volkswagen law: Commission v. Germany

Compliance with ECJ judgments vs. compatibility with EU law – Free movement of capital issues unresolved after the second ruling on the Volkswagen law: <i>Commission</i> v. <i>Germany</i>

Copyright at the interface between EU law and national law: definition of “work” and “right of communication to the public”

This paper lays out the latest developments of copyright law on EU level and their reception within the Member States, particularly in Germany. ECJ judgments on the definition of a work in copyright law and on the right of communication to the public serve to illustrate the fundamental considerations concerning the fully harmonized nature of EU law as well as the breadth of harmonization and depth of specification in individual cases. Here especially, the actively harmonizing case law of the ECJ generates considerable challenges for the individual national copyright systems. Going beyond the individual examples selected, this article addresses fundamental implications in detail and, in particular, the practical consequences of European harmonization for German law.

The CJEU's Intervention in Mortgage Enforcement Proceedings: Aziz, Morcillo &amp; Garcca, and Kuuionovv

This paper discusses a series of ECJ judgments on national mortgage enforcement proceedings in light of the Directive on Unfair Terms in Consumer Contracts. According to the Court, national courts must be able to provide interim measures suspending mortgage enforcement proceedings, thereby allowing the debtor to retain ownership of the property while the (un)fairness of clauses in the loan agreement is assessed. This in turn enables national courts to strike out these clauses if they are found to violate the Directive, thereby altering the relationship between debtor and creditor. Consequently, rights in the property held by the debtor, creditor, and third parties such as a second mortgage holder are directly affected by the ECJ’s intervention in national mortgage enforcement proceedings. This paper clarifies exactly how the parties’ rights in the property are affected and what these judgments mean for the protection of private home ownership in the ungoing economic crisis.

Preventing “benefit tourism” in the EU: A narrow or broad interpretation of the possibilities offered by the ECJ in Dano?

This article contributes to the debate on the boundaries of national solidarity systems in the context of the free movement of persons in the EU. It analyses the impact of the ECJ's judgment in Dano on the entitlement to social benefits of economically inactive Union citizens. First, it summarizes the legal discussion so far held on this issue and highlights the questions that remained open after earlier case law of the Court. Next, it explains why a narrow interpretation of the limitation of the principle of equal treatment allowed by the Court is the only acceptable one if legal coherence is to be preserved. It also analyses the consequences of a broad interpretation, arguing that this would undermine the very principle of free movement as a fundamental right, the principle of proportionality as well as the Union's policy objectives of combating poverty and social exclusion.

Revisiting ECJ Judgment in Outokumpu Oy Case - Focused on Comparison with WTO Jurisprudence on Environment Issues and its Implications -

Revisiting ECJ Judgment in Outokumpu Oy Case - Focused on Comparison with WTO Jurisprudence on Environment Issues and its Implications -

Umbrella pricing and cartel damages under EU competition law

This article explores whether cartelists should be liable for losses resulting from umbrella pricing, thereby critically evaluating the ECJ's judgment in Kone. Since the EU legislature did not resolve the question of liability for umbrella pricing, it has to be evaluated in accordance with national law, which must however comply with the principles of equivalence and effectiveness pursuant to Article 4(3) TEU. Therefore and in accordance with the court's judgment in Courage, the decisive criterion should be the effect a cartelist's liability for umbrella pricing would have on effective and efficient enforcement of competition law. An analysis based on the standard model of optimal sanctioning reveals the ambivalent effect of such a liability. Thus, in view of opposing risks of systematic over- and under-deterrence and in accordance with the principle of institutional balance, the court has to leave the EU legislature and the national legislatures, respectively, with the discretion not to provide for compensation in the case of umbrella effects.

EU域内市場における集団的労働法（交渉制自治モデル）の受容の困難

The ECJ judgments in the Viking and Laval cases constitute part of the sometimes so-called ‘Laval-quartet’ decisions; they involve relation between the right to take collective action including the right to strike and European fundamental economic freedoms such as freedom of establishment (now TFEU Art. 49) and freedom to provide services (now TFEU Art. 56). At first sight, Viking and Laval are notable because they recognize the fundamental right to take collective action by means of the general principles of Community law; no previous legally binding provisions in Community law had explicitly laid down such a right. Nevertheless a more striking feature of the decisions is that the Court subordinates the workers’ fundamental social right to economic freedoms, as labour lawyers correctly point out.

Who’s in and who’s out? The Court’s emerging case law on the definition of a refugee

This article considers recent ECJ judgments addressing the definition of a refugee found in the 2004 refugee qualification Directive, itself heavily drawing on the 1951 Geneva Convention Relating to the Status of Refugees. Refugee law is a relatively new area of competence for the EU; these cases represent the emergence of a jurisprudence on refugee law and the Geneva Convention. An outline of the relevant decisions is given and their mixed reception, from the perspective of the Court's sensitivity to international refugee law is highlighted. It is argued that these cases can best be explained with reference to the nature of the EU's competence in relation to refugee law and the political factors involved. The article then highlights the potentially crucial role of the ECJ in shaping global standards of refugee law, due to both the predominant crucial role of judicial interpretation in the development of the Geneva Convention, and the powerful force of the Court's rulings thanks to their binding nature and the primacy of Union law.

The Application of Competition Law in the Communications and Media Sectors: A Survey of Recent Cases

This article presents an overview of key competition law developments in the communications and media sector in 2010. Following the EU Commission's focus on abusive pricing practices in 2009 (as highlighted in last year's survey) 2010 has seen a significant ECJ judgment in the telecoms sector confirming and clarifying the approach to be taken under EU law to margin squeeze, as well as a number of national investigations into the pricing practices of incumbent telecoms and media providers. The Commission has also tested enforcement in relation non price-based exclusionary practices against Apple in relation to its iPhone operating system and after-sales repair services (although the case ultimately settled). In addition, there have been a number of high-profile mergers in this sector in 2010, most notably the Orange/T-Mobile joint venture and News Corporation's proposed acquisition of BSkyB.

グローバル化による近代的国際／国内法秩序枠組みの再編成 : カディ事件を契機とした試論的考察

グローバル化による近代的国際／国内法秩序枠組みの再編成 : カディ事件を契機とした試論的考察

Commission appeals against ECJ judgment in case T-465/11 Globula; ECJ judgment on restrictions to the free movement of capital in electricity and gas markets C-105 to 107/12 Essent

"Commission appeals against ECJ judgment in case T-465/11 Globula; ECJ judgment on restrictions to the free movement of capital in electricity and gas markets C-105 to 107/12 Essent" published on Jan 2014 by Edward Elgar Publishing Ltd.

Restraints on Selective Distribution Agreements

The application of competition law to selective distribution agreements has softened somewhat as a result of the new Block Exemption for Vertical Restraints; however the recent approach by the French Competition Authority to online sales, supported by the Court of Justice of the European Union (ECJ), reveals that there remain traces of the old regulatory approach, which rests on poorly worked out theories of harm that afford competition authorities the power to monitor closely the details of selective distribution contracts. While the episode discussed here may be driven by a policy of facilitating online sales, there is a risk that given the broad sweep of the ECJ's judgment, it risks widening the scope of application of Article 101, and the remedies available thereunder, to breaking point.

Recent ECJ Judgment Regarding Portuguese Exit Tax Provisions

The European Court of Justice has ruled that Portuguese exit tax provisions infringe the freedom of establishment. This article presents details surrounding the case and considers its ramifications.

The protection from discrimination and harassment by association in EU law: ECJ judgment of 17 July 2008, Coleman (C-303/06, ECR 2008 p.I-5603)

In Coleman, the ECJ ruled that the protection from discrimination and harassment against disabled persons as enshrined in Directive 2000/78/EC is to be extended to any individuals associated with such disabled persons. In so doing, by a purposive interpretation of Directive 2000/78/EC, the ECJ extended the ratione personae scope of the principle of equal treatment in the field of occupation and employment. The introduction of the concept of associative discrimination is innovative and subject to multiple applications in fields other than employment and on other grounds than disability. It also contributes to the effectiveness of the fight against all forms of discrimination and harassment in the EU. It not only promotes the social integration of disabled people, it also gives the opportunity to reflect on the employer’s obligations to grant some kind of flexible working arrangement triggered by a third-party to an employment contract.

Football Dataco v Yahoo! Implications of the ECJ judgment

Football Dataco v Yahoo! Implications of the ECJ judgment

Bringing the ‘Market Economy Agent’ Principle to Full Power

The recent ECJ Judgment in case C-124/10 P Commission v Electricite de France (EDF) has clarified an important point in EU State aid law that bears attention: the ‘private investor’ test is not an exception, but the general test that the Commission must apply. This paper critically appraises the potential implications of such finding.

Clarifying the Concept of Victim in the Motor Vehicle Drivers' Liability Insurance: The ECJ's Judgment in Case C-442/10

Case C-442/10, Churchill Insurance Company Limited v Benjamin Wilkinson and Tracy Evans v Equity Claims Limited [2011] ECR I-00000Article 3 No. 1 of Council Directive on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability, as amended, codified and repealed by Directive 2009/103/EC, OJ L - 103, of 02.05.1972. pp. 1–6. [First Motor Insurance Directive]Article 2 No. 1 of Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, as amended, codified and repealed by Directive 2009/103/EC, OJ L – 8, of 11.01.1984. pp. 17–20. [Second Motor Insurance Directive]Article 1 No. 1 of Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, as amended, codified and repealed by Directive 2009/103/EC, OJ L – 129, of 19.05.1990. pp. 33–35. [Third Motor Insurance Directive]

Shackles for Bees? The ECJ's Judgment on GMO-Contaminated Honey

Case C-442/09, Bablok and Others (not yet reported)An old German proverb says: What the farmer doesn't know he doesn't eat. In the case of the Bablok decision delivered by the European Court of Justice on 6 September 2011, it is not the farmers, but the judges who seem to be wary about the unknown. According to their judgement, substances derived from genetically modified plants require market authorisation to be placed on the market as food, even if the substance itself is not fertile anymore. Since the Court takes the view that pollen is an ingredient of honey rather than a natural component, honey contaminated with pollen from genetically modified organisms will fall within the classification of foodstuffs requiring marketing authorisation. So whenever a bee collects pollen from a genetically modified plant, this can make the entire honey harvest unmarketable. Not even the slightest contamination will be tolerated, irrespective of whether it was intentional. Because the prohibition to put unauthorised honey on the market applies abstractly, regardless of whether there is a concrete risk for the health of consumers, the judgement will have considerable impact on the coexistence of conventional, ecological and genetically-modified farming.