ECJ Judgment Research Articles

The VAT Conundrum of Fuel Cards: Thoughts on the ECJ Judgment in Vega International

The ECJ’s judgment in Vega International has created a wave of controversy amongst VAT practitioners. The ECJ concluded that when a parent company provides fuel cards to its subsidiaries, enabling those subsidiaries to refuel the vehicles they transport at petrol stations, the parent company is not, for VAT purposes, the recipient of the fuel deliveries made by the service stations, nor is that company delivering fuel to its subsidiaries. On the contrary, the parent company is, for VAT purposes, providing services to the subsidiaries comparable to the granting of credit, which is exempt from VAT. In this article, the authors’ objective is to extrapolate the conclusions of this decision to other cases and explain how the usage of fuel cards operates in the market.

Fighting European ‘Copyright Tourism’: Lessons from Defamation Laws

In the recent cases of Pinckney and Hejduk, the ECJ revised European rules on jurisdiction over online copyright infringement disputes – making it possible for claimants to bring their lawsuits in virtually any European country. Due to the application of lex loci protectionis, this choice of venue also affects the law applicable to disputes. This article shows that this results in a substantial forum shopping risk, despite safety mechanisms built into the ECJ judgments. It explains that forum shopping is not inherently bad, but that it creates major problems for copyright laws, given its potential to shift the balance between the authors and exploiters of the work. In an attempt to identify a possible solution, this article turns to the substantive implementation of de minimis principle in Principles on Conflict of Laws in Intellectual Property (CLIP) Principles. The success of this approach is illustrated through the field of media law, and specifically, the way in which United Kingdom solved the problem of libel tourism. Examining the substantive requirement of ‘serious harm’ found in the UK Defamation Act of 2013, the article proposes amending national copyright laws as to state that absent showing of the intention to target a certain Member State by the online infringing activity or, alternatively, a ‘serious harm’ suffered on its territory, no copyright infringement is to be found. This way, forum shopping in online copyright infringement cases may be stopped in its tracks, before it becomes a rampant practice in Europe.

Formulaic metadiscursive signalling devices in judgments of the Court of Justice of the European Union

This paper investigates how paragraph initial metadiscursive lexical items serve as signalling devices in text organisation of judgments of the Court of Justice of the European Union (ECJ). The results of that investigation demonstrate that those metadiscursive items both shape a particular method of reasoning used by the ECJ, and have an impact on how readers process those texts.
 
 Based on assumptions grounded in linguistics/legal linguistics that legal language is formulaic and repetitive in nature, the paper focuses on the use of repetitive items in ECJ judgments that perform metadiscursive rather than legal functions. Such items play a crucial role in the presentation of reasoning in judgments by signalling when and how various types of information occur in a discourse. The paper builds on established work in the field of linguistics that claims that legal reasoning can be understood from the utterances used in a text (Crystal and Davy, 1969), but importantly also considers the context in which judgments of the ECJ are produced and applied. Demonstrating the impact of language patterns on the legal reasoning of the ECJ is an inherently interdisciplinary exercise that involves the exploration of the cognitive dimension of the process. Thus, this paper contextualises the findings of the linguistic analysis carried out within the unique multilingual setting of the ECJ, using Koestler’s theory of creativity and cognitive theories of text processing as the basis of analysis.
 
 The analysis leads to the conclusion that not only do language patterns found in ECJ judgments shape the method of reasoning used by that Court, but also that those judgments are made up of ‘almost wholly automised’ sub-codes of grammar and syntax. This conclusion supports claims made in law and language studies and among EU law practitioners that ECJ judgments are created in a ‘lego-building block’ fashion. The linguistic research carried out here can thus be used to triangulate results of research from other fields to allow a more holistic understanding of supranational adjudication in the EU context to be developed. This in turn can offer new ways for understanding how a multilingual legal order functions, as well as allowing researchers to work towards limiting inconsistencies arising in such a legal order.

Roads Forward for European GMO Policy-Uncertainties in Wake of ECJ Judgment Have to be Mitigated by Regulatory Reform.

This article gives an overview of legal and procedural uncertainties regarding genome edited organisms and possible ways forward for European GMO policy. After a recent judgment by the European Court of Justice (ECJ judgment of 25 July 2018, C-528/16), organisms obtained by techniques of genome editing are GMOs and subject to the same obligations as transgenic organisms. Uncertainties emerge if genome edited organisms cannot be distinguished from organisms bred by conventional techniques, such as crossing or random mutagenesis. In this case, identical organisms can be subject to either GMO law or exempt from regulation because of the use of a technique that cannot be identified. Regulatory agencies might not be able to enforce GMO law for such cases in the long term. As other jurisdictions do not regulate such organisms as GMOs, accidental imports might occur and undermine European GMO regulation. In the near future, the EU Commission as well as European and national regulatory agencies will decide on how to apply the updated interpretation of the law. In order to mitigate current legal and procedural uncertainties, a first step forward lies in updating all guidance documents to specifically address genome editing specifically address genome editing, including a solution for providing a unique identifier. In part, the authorization procedure for GMO release can be tailored to different types of organisms by making use of existing flexibilities in GMO law. However, only an amendment to the regulations that govern the process of authorization for GMO release can substantially lower the burden for innovators. In a second step, any way forward has to aim at amending, supplementing or replacing the European GMO Directive (2001/18/EC). The policy options presented in this article presuppose political readiness for reform. This may not be realistic in the current political situation. However, if the problems of current GMO law are just ignored, European competitiveness and research in green biotechnology will suffer.

SoS Back-and-Forth? Minimum v. Exhaustive Harmonization of the Right to be Protected Customers in Gas Supply Crises: Eni and Others

The Russian-Ukraine gas supply crisis in January 2009 brought an unprecedented disruption for the gas supply in Europe. As a response, the SoS Regulation put in place an ambitious plan to mitigate not only the risks of another gas supply crisis, but also to protect a defined group of customers in case of unavoidable gas shortage - households, small and medium enterprises, institutions providing essential social services among others. While it was thought the SoS Regulation had pursued exhaustive harmonization standards in the definition of protected costumers, the ECJ's judgment in Eni and Others reopened the question. This article, instead, argues that the Court got it wrong. Neither the judgment nor the opinion of the Advocate General took into sufficient account the legal content Fof the provision that defined protected customers. If the Court had done so, the judgment would have likely taken additional linguistic, systemic, and teleological arguments into account. The analyses and comments on Eni and Others here offered focus on the first referred question about whether Member States could impose additional obligation on gas undertakings by reviewing the definition of protected customer.

A Bird’s Eye View on ECJ Judgments on Immigration, Asylum and Border Control Cases

Abstract Many experts of EU migration law deal with ECJ judgments on a regular basis, but they rarely reflect on how individual rulings on diverse themes such as asylum, family reunification or return relate to each other. This article fills that gap and presents a horizontal analysis of 155 judgments combining quantitative and qualitative findings. Our statistical survey shows that selected themes and references from certain countries dominate the ECJ’s activities. In qualitative terms, the article considers three overarching themes: the concept of public policy; the practice of statutory interpretation, including in light of objectives: the principle of proportionality and interaction with domestic courts. Our study shows that the search for cross-sectoral coherence defines much of the case law, although success of this venture is compromised by enduring inconsistencies, which complicate the emergence of a reliable and predictable judicial approach towards the interpretation of secondary legislation on migration.

ECJ Judgment in Hamamatsu Case: An Abrupt End to Interaction Between Transfer Pricing and Customs Valuation?

The impact of intercompany transfer pricing (adjustments) on the customs value of goods is increasingly attracting attention, particularly since the remarkable judgment of the EU Court of Justice in the Hamamatsu case. The authors discuss the interaction between transfer pricing and customs valuation in a general sense, with specific consideration of the impact of the Hamamatsu judgment. They subsequently propose new statutory or other guidance for aligning the setting of transfer prices and customs values more closely, based inter alia on a comparative law study of the position in the United States and Canada

The European disability rights revolution

Until recently, an EU citizen's legal standing to challenge disability discrimination was non-existent or sharply curtailed in most jurisdictions. The situation changed drastically with the adoption of Directive 2000/78, also known as the Employment Equality Directive. Most academic commentary has been highly critical of the judgments of the Court of Justice of the European Union (ECJ), taking it to task for failing to embrace the “social model of disability”. In this article, I seek to demonstrate the value of analysing ECJ case law from a perspective other than the dominant paradigm, and to show how a different methodological approach can provide new insights into our understanding of the trajectory of the ECJ's jurisprudence. Instead of using the social model of disability to benchmark how the ECJ's case law has developed, I compare Directive 2000/78 and ECJ judgments to those of the Americans with the Disabilities Act and decisions of US courts.

The ECJ Ruling in Coty and the Future of Vertical Restrictions in the Internet Space

This article discusses the ECJ preliminary ruling in Coty and its impact on the law of vertical restraints. Although the legal test for selective distribution cases dates back to the 1970s ECJ judgment in Metro and has since been applied rather consistently, the rapid growth of ecommerce has created serious uncertainties as to the compatibility of certain selective distribution practices with competition law. National regulators and courts throughout Europe have been enforcing the law in different and sometimes conflicting ways. This article provides a rather extensive review of such national case law and emphasizes the important contribution of the Coty judgment in clarifying the law and allowing for a more consistent enforcement of competition law in the area of vertical distribution. Finally, this article discusses some of the questions left open by Coty, which are likely to give raise to inconsistencies in the enforcement of the law at national level, such as the concept of luxury good.

Case C-528/16 : Questions Raised by the ECJ's Judgement on Gene Editing Technology

Case C-528/16 : Questions Raised by the ECJ's Judgement on Gene Editing Technology

Can a Judicial Authority Refuse to Execute a European Arrest Warrant Due to the Situation of Spanish Prisons? – On the Catalan Procés

The ECJ judgment of 5 April 2016 (joined cases Aranyosi y Caldararu) admitted limitations on the principles of mutual recognition and mutual trust. The ECJ recognized these limitations in the context of inappropriate prison conditions in the issuing Member State, provided that an individualized and particular risk of breach of fundamental rights is proved. With this starting point and bearing in mind the European prison standards, this paper focuses on whether prison conditions in Spain could be an obstacle to judicial cooperation in criminal matters in the Area of Freedom, Security and Justice.

No Easy Way Out - Humanitarian Visas at the Nexus of Refuge, Migration and Development

The Court of Justice of the European Union (ECJ) decided in his recent judgement X v Etat belge on 7 March 2017 that Member States do not have to issue humanitarian visas in their embassies. Humanitarian visas would have given refugees the possibility to travel to Europe regularly, thereby avoiding the dangerous irregular migration routes. This paper analyses the ECJ judgement and examines if humanitarian visas could still be a viable policy solution. The approach is twofold: first, the Court's decision will be contextualised with the ongoing reform discussions of the new EU Visa Code and an analysis of the respective institutional positions. Secondly, humanitarian visas will be embedded in an analysis of the overall EU refugee policy. While doing so, this paper aims to discuss underlying assumptions in the current asylum policy from a development economical, post-colonial, and ethical perspective.

The Devil Is in the Detail: An Analysis of the ECJ’s Attributes to the Fixed Establishment Concept

There is a lack of harmonized guidance concerning the definition of “fixed establishment” for VAT purposes. As a result, this important concept is being interpreted differently across EU Member States, causing both commercial uncertainty and situations resulting in double or non-taxation. In this article, the author examines the definition of the fixed establishment arising from EU legislation and ECJ judgments.

Reduced Rates and the Digital Economy: The Treatment of (E-)Books Highlights Some Possible Inconsistencies of the EU VAT System

The author analyses the VAT treatment of books and e-books. He provides an overview of the legal framework regulating reduced VAT rates and of the ongoing debate surrounding this topic, and critically examines recent ECJ judgments in this field. The article highlights some inconsistencies arising from the current reduced rates scheme which are amplified by the most recent technological advancements, and aims to stimulate debate regarding possible solutions.

THE USE OF A MARK IDENTICAL OF SIMILAR TO WELL KNOWN TRADEMARK WITH AND WITHOUT ‟DUE CAUSE”

Protection of trade mark is available for any sign which is capable of distinguishing the goods and services of one enterprise from others. These signs include, inter alia, words, personal names, letters and numerals, figurative signs, colors and color combinations, three dimensional shapes, including the shape of goods or their packaging. They are essential in market economies, fostering market transparency, permitting their owners to create a direct link with consumers, allowing consumers to identify and memorize the products and services they prefer, thus contributing to a system of fair and undistorted competition. However, with the growth of globalization, e-commerce consumers and advertising, reputation and distinctiveness of trade marks are particularly vulnerable to attack by those who wish to take advantage of them, for profits and enhance their financial gain (using a sign, identical or similar, to an earlier trade mark). The damage and exploitation of distinctiveness as well as the damage and the exploitation of the reputation of the wellknown trademark can be discussed only in the event when there are no specific ‟due causes” coming from the side of a potential infringer. This means that the lack of ‟due cause” is the requirement for the protection of well-known trademarks. In this paper, we analyzed the BGH and the ECJ judgments whose subject was to determine the existence of ‟due causes”. Since this reason can be based on the regulations of trademark rights, but also on the basis of more general rules of legal order, such as constitutional provisions protecting freedom of thought, freedom of artistic creativity, as well as the communitarian regulations on freedom of transport and services in the single market, establishing a valid reason is based on all the circumstances of specific cases, which is why judicial decisions often come to opposite conclusion. ‟Due cause” limits the scope of protection of well known trademark. In terms of peacock sting, the limit should be reduced to the suitable measure, mainly in the sense that new competitors, with the use of additional features, must be distinguished from the already well known trademark.

Free choice of a lawyer: the ECJ judgments of 7 April 2016 and the concept of 'administrative proceedings'

Free choice of a lawyer: the ECJ judgments of 7 April 2016 and the concept of 'administrative proceedings'

Remarks on ecj judgment in C-137/14 – eu Commission vs. Germany of 15 October 2015

Remarks on ecj judgment in C-137/14 – eu Commission vs. Germany of 15 October 2015

Typology of Pre-Lisbon Acts and Their Legal Effects According to Protocol No. 36

The legal effects of acts in the field of police cooperation and judicial cooperation in criminal matters, adopted on the basis of the TEU prior to the entry into force of the Treaty of Lisbon, are preserved until those acts are repealed, annulled or amended. There is still a considerable number of such acts in force. The article looks into what exactly these legal effects are today, distinguishing between four categories of such acts (framework decisions, decisions, implementing decisions and conventions); one of the legal effects looked at is the possibility of infringement procedures. Reference is made to a recent ECJ judgment which clarifies the legal effects of implementing decisions and rules that such decisions can still be adopted today, under certain procedural requirements.

Suspected Terroristss Rights between the Fragmentation and Merger of Legal Orders: Reflections in the Margin of the Kadi ECJ Appeal Judgment

The article comments on the systemic significance on the ECJ judgment in Kadi from the viewpoint of the interdependence and mutual resistance of legal orders in the contemporary world.

Huawei v ZTE: Established Case Law and Open Issues after ECJ's Judgment

The referring Court had raised the question whether an action for infringement brought by a FRAND-encumbered SEP holder against an undertaking which manufactures products in accordance with that standard constitutes an abuse of a dominant position.The ECJ’s judgment had been long awaited as it was expected to strike a balance among two different approaches.