EU Judiciary Research Articles

The Legal Professional Privilege in Competition Law Cases – A Key Element in Protecting the Proper Administration of Justice

The legal professional privilege is an important principle underpinning the EU judicial system as it ensures the proper administration of justice, procedural efficiency and protects fundamental rights such as a client’s defence rights and the right to privacy enshrined in Articles 47 and 7 of the Charter. In competition cases, the European Commission has relied on an old ruling from the Court of Justice of the European Union (the ECJ), and only acknowledged one of these aims – the protection of the client’s defence rights. While the ECJ has recently received the chance to align the EU standard to that of the ECHR by broadening the scope of protection, the Commission appears unwilling to abandon its previous stance. It is important that the Commission shoulders the responsibility to ensure a procedure that is fair, and which acknowledges the basic principles underpinning a society governed by the rule of law. The current approach breathes life into questions on the legitimacy of its actions and the appropriateness of letting it take on the roles of enforcer, prosecutor and judge in competition cases, where companies not only risk having to pay fines of up to ten percent of their annual turnover, but now also appear to have to face the threat of divestitures should the Commission find that they are infringing the EU competition rules.

The particulars of implementation of the community environmental policy regarding ensuring the right to a healthy environment

This research is devoted to the EU judicial system, communicated law and the analysis of national rules and national courts. The paper outlines the aspects and particularities of the international court such as the International Court of Justice, the European Court of Human Rights and other courts, including the adoptions issued by them, the adoption of important legislation in compliance with court decisions. Thus, the primary purpose of this research is the analysis of the criteria for the implementation of the community environmental policy by consecrating the right to a healthy environment.

Easy does it: pressing the right buttons in public access to documents of the EU

This article makes two claims regarding what is relevant in 2022 to the future of Regulation 1049/2001. The first is that an about-turn in the case law of the Court of Justice of the European Union (CJEU) has partly altered the formal scope of the EU policy concerning public access to documents (PAD) from document to information (PAI). This change in scope affects documents included in digital databases or other documents held in digital form but not the acquis regarding printed-on-paper documents. Second, we observe an uncomfortable stasis currently affecting both the EU judiciary and the Ombudsman. On the one hand, the judiciary remains imprisoned, without an alternative, within the bounds of insufficient remedial depth, i.e., concerning the action for annulment. Conversely, regarding the Ombudsman’s role, classical recommendations have proved insufficient to drive EU access policy. Interestingly, in reaction to suggestions that binding powers be considered for the Ombudsman, even the current head of this institution demurs. Such a proposal carries an inherent serious risk of cognitive dissonance between the EU framework and national frameworks.

The Principle of Effectiveness of Eu Law from the Perspective of the Obligations of National Courts

The principle of effectiveness of EU law, despite the lack of an explicit basis in EU primary law, is the source of principles regulating the nature of EU law and the manner of its application. It particularly affects the performance of duties by domestic courts, which, according to the wording of Art. 19 para. 1 item 2 TEU, is one of the elements of the EU judicial system. It is based on a systemic dualism that includes the CJEU and national courts. When analyzing the implementation of the principle of effectiveness, it should be noted that it covers two areas. The first is of general nature and concerns the obligation to ensure the effectiveness of EU law, and the second – the subjective one – is related to the obligation to ensure the effectiveness of EU law in a specific case by granting adequate protection to the rights of an individual that derive from EU law. In this aspect, the courts are of key importance, as they implement it through the systemic principle of effective judicial protection. It is a guide that indicates how to proceed and what principles should be followed in the process of application of EU law. This process consists of several stages, the implementation of which is subordinated to one goal – to guarantee effective judicial protection and thus the effectiveness of EU law. First, the court examines whether a given claim is based on a norm that has a direct effect, which will determine the next stage of action. Then, by referring to the principle of direct effect, it subsumes and, if necessary, applies the principle of primacy of EU law or a pro-EU interpretation. The last element that indirectly implements the principle of effectiveness of EU law is the referral for a preliminary ruling.

How the EU-induced Institutional Changes Facilitated Patronage over and Capture of Judiciary in North Macedonia

ABSTRACT Extensive reforms were undertaken to tackle the inefficiencies in judiciary in the Southeast European country of North Macedonia. The EU asked North Macedonia, as a candidate country for EU membership, to undertake intensive judiciary reforms. However, these reforms were not sufficient to eradicate and prevent patronage practices regarding the judiciary by the ruling political parties. Instead, contestation accompanied judiciary reforms. This article examines how the politics of patronage emerged and progressed and argues that it is possible to identify a quiet take-over of the judiciary by the executive. What is distinctive about North Macedonia is the failure of the reforms to constrain the ability of the ruling majorities to penetrate the judiciary. The result has been a patronage over and capture of the judiciary. This study demonstrates that there was informal resistance and failure to ensure internalization of EU judiciary norms.

Easy Is Not Always Good \u2013 The Fragmented System for Adjudication of Unitary Trade Marks and Designs

While the creation and still outstanding implementation of the Unified Patent Jurisdiction system continue to cause contentious debates among academics and practitioners, the system introduced in the early 1990s for adjudication of conflicts concerning unitary trade marks (and, later on, unitary design rights) had the charm of simplicity. Building on the national court systems instead of providing for a genuine EU judiciary, the scheme could easily be fitted into existing structures. On the other hand, the imperfect, limping character of the system creates issues inter alia concerning international jurisdiction and applicable law. Furthermore, attributing jurisdiction in infringement litigation to separate national court hierarchies may jeopardize the coherence of the system. While the prospects for reform may be dim insofar as the system in its entirety is concerned, the detrimental effects of fragmentation could be overcome at least to some extent by creating a unitary catalogue of sanctions.

Achmea versus the Rule of Law: CJEU’s Dogmatic Dismissal of Investors’ Rights in Backsliding Member States of the European Union

We demonstrate that the CJEU’s Achmea judgment has resulted in significantly more damage beyond the termination of intra-EU BITs. It made the application of EU law difficult, if not impossible. Indeed, it has opened the floodgate to deficient judicial protection in the face of structural backsliding of the rule of law in some EU Member States. While the motives of the CJEU and by extension the European Commission to safeguard their ultimate control over the internal market by exclusively relying on the preliminary ruling system of integrated European judiciary may be understandable, they cannot serve as a credible justification for the long-term consequences of disempowering investors in the name of an ideological stance regarding EU judiciary, which cannot work in the backsliding Member States, where the ‘integration of the EU’s judiciary’ could stand for the absence of independent adjudication. Consequently, the Achmea judgment and post-Achmea developments such as the recently signed Termination Agreement to terminate the intra-EU BITs have been leading to significant—possibly irreparable in the short- to medium-term—lowering of the procedural and substantive protection standards for European investors in times when they are in need of more rather than less protection.

Saving Judicial Independence: A Threat to the Preliminary Ruling Mechanism?

Admissibility of questions for preliminary ruling – Independence of courts and tribunals in the case law of the Court of Justice of the European Union as Dorsch Consult criterion under Article 267 TFEU – Independence of courts and tribunals in the case law of the Court of Justice of the European Union as element of the Rule of Law value under Article 19 TEU – Structural inadmissibility of questions for preliminary ruling as perverse consequence of the attempts to safeguard independence of the EU judiciary

Rule of Law and the Fatal Mistake of Achmea: Could the Intra-EU BIT’s Have Been the Last Hope for Justice in Captured Illiberal Member States?

We demonstrate that the CJEU’s Achmea judgment has resulted in significantly more damage beyond the termination of intra-EU BITs. It made the application of EU law impossible. Indeed, it has opened the floodgate to deficient judicial protection in the face of structural backsliding of the rule of law in some EU Member States. While the motives of the CJEU and by extension the European Commission to safeguard their ultimate control over the internal market by exclusively relying on the preliminary ruling system of integrated European judiciary may be understandable, they cannot serve as a credible justification for the long-term consequences of disempowering investors in the name of an ideological stance regarding EU judiciary, which cannot work in the backsliding Member States, where the integration of the EU’s judiciary stands for the complete absence of independent adjudication. Consequently, the Achmea judgment and post-Achmea developments such as the recently signed Termination Agreement to terminate the intra-EU BITs have been leading to significant – possibly irreparable in the short- to medium-term – lowering of the procedural and substantive protection standards for European investors in times when they are in need of more rather than less protection.

Science, Legitimacy and the Judicial Function - A Need for More Intrusive Standards of Review

This chapter comparatively assesses the various standards of review major international courts and tribunals set in science-intensive environmental litigation. The overview of case law suggests that relevant fora have become gradually more inclined to apply more intrusive standards to assess the science-based positions of the parties. The reasonableness assessment of the ICJ, the coherence review of the WTO and the consistency test of the EU judiciary will be evaluated more closely in this contribution. It will be argued that these standards of review are structurally similar and share important epistemic characteristics, the analysis of which will lie at the center of this chapter. This contribution will challenge the view that international judges ought to grant a wide measure of deference to states in making scientific claims by proposing normative justifications for intrusive and science-intensive standards of review from the perspective of epistemic legitimacy.

CJEU Achmea Judgment and What Comes Next. Some Reflections on the Potential Implications of the CJEU Judgment (C-284/16)

In the judgment of 6.03.2018 (Achmea case, C-284/16), CJEU ruled that treaty clauses that allow investor from one of the Member States to bring proceedings against another Member State before an arbitraltribunal outside the EU judicial system are irreconcilable with Articles 267 and 344 TFEU when such tribunal may be called on to interpret or apply EU law. This principle is applicable to EU trade or investment agreements (FTAs and IIAs), since they are part of EU law, and to BITs, FTAs and IIAs, since they contain explicit or implicit referrals to municipal (EU) law. In intra-EU relations, such a conflict of norms must be solved according to customary international law codified in the VCLT. According to this law, TFEU would prevail as lex superior and, in the case of Poland and many other Member States, as lex posterior. In intra-EU relations, TFEU prevails ex proprio vigore, i.e. without the need to terminate intra-EU BITs. However, such termination is highly desirable, not only for reasons of clarity, but also because arbitral tribunals and extra-EU courts are not bounded by the ECJ’s ruling. In the case of agreements with non-Member States, the incompatibilities referred to in the Achmea judgment must be eliminated by renegotiation or formal termination (Article 307 (2) TFEU). In the case of the BITs, the latter seems to be the only practical solution.

Values and objectives of the EU in light of Opinion 1/17: ‘Trade for all’, above all

In Opinion 1/17 the Court of Justice of the European Union (CJEU) ruled that the new Investment Court System (ICS) in the Canada–EU Comprehensive Economic and Trade Agreement (CETA) is compatible with the EU constitutional framework. This article examines the CJEU’s analysis of the ICS in its Opinion through the prism of EU values and objectives. Given the judicial nature of the ICS, the article unfolds around the concept of the rule of law. The scope and the content of this core EU value are considered under both EU law and the European Convention on Human Rights (ECHR). In particular, the ICS is analysed in light of the two core rule-of-law requirements: equal treatment and the independence of courts, enshrined in Articles 20 and 47 of the Charter of Fundamental Rights (CFR). Importantly, in Opinion 1/17 the CJEU for the first time applied Article 47 CFR to a court outside the EU judicial system. While the CJEU ruled that the ICS complies with the CFR rule-of-law criteria, this article argues that it nevertheless falls short of the rule-of-law standards required for judicial bodies under EU law. The article demonstrates that the CJEU prioritises free and fair trade as the CETA’s core objective, rather than the rule of law, and endorses the ICS as the conditio sine qua non of guaranteeing such trade. The Court’s findings have wider consequences for the rule of law in international law as the EU continues to pursue the establishment of a Multilateral Investment Court (MIC).

The EU judiciary: epistemological principles of functioning and development

The article introduces the results of a theoretical analysis of the available research on the EU judiciary. Based on the analysis of the development and formation of the EU judiciary, it is proved that the Court of Justice of the European Union (CJEU) should be understood as the object of the historiography of studies of the EU judiciary in its historical progress, beginning with the Court of Justice of the European Communities, as a single object which as a result of functioning and under the influence of the creation of the integration union, acquired the further development of its form and content.
 It is established that the research of EU institutions in national science began in the 1990s. By this time, the EU judiciary and the principles of its functioning had been studied by foreign scholars whose works had become the basis for the formation of national scientific thought. After determining the periodization of the development of national scientific thought on the organization and functioning of the EU judiciary, three stages of the formation and development of scientific research of the CJEU have been distinguished.
 Based on the results of the analysis of the available research, Kharkiv, Kyiv and Lviv legal schools have been singled out, the representatives of which researched on certain aspects of the functioning and development of the EU judiciary. The content of researches and the volume of cognition of the EU judiciary have been analyzed, as a result of which the specificity of methodological foundations in different schools is presented. Therefore, the conclusion that the object of cognition is interdisciplinary is made.
 It is proved that there is no comprehensive study of the EU judiciary among the publications available. The analysis of the research has shown that there are different approaches among scholars to the study of the CJEU. The experience of the research findings is valuable for the understanding the multidimensional nature of the legal nature of the EU judiciary. The examples of the Republic of Poland and of the United Kingdom show that the functioning of the CJEU may have different impact on the national legal system. Attention is drawn to the importance of the proper functioning of the constitutional judicial body and of the national judiciary as a guarantee of the sovereignty of States in their relations with the EU.
 The dynamics of the development of integration processes, of the principles of the organization, and of the functioning of the judiciary in the EU is pointed out. It influences the need for introducing a new stage of development of national science in this field. The analysis of the available research shows that there are only a few complex studies on certain aspects of the functioning of the EU judiciary. At the same time, in its practice, the CJEU continues to form new acquis communautaire for the EU legal system that have not been studied in national science yet.
 It is proved that examining the legal nature of the EU judiciary and its case-law will facilitate the development of integration processes in Ukraine. And the study of the principles of its organization and of its functioning will have an impact on improving the legal system of Ukraine towards promoting democratic values.

Belgium Following the Recent Excess Profit Rulings Decision

In this article, the authors comment on the Belgian excess profit rulings saga. After a short overview of the legal and factual background to the case, they examine the Commission’s negative decision and recovery order. Subsequently, they analyse the General Court’s decision and discuss its potential impact on the current proceedings pending before the EU judiciary. Finally, they reflect on the impact of the ongoing process on Belgium’s reputation on the international tax scene as an investor-friendly jurisdiction.

JCOERE Judicial Cooperation Supporting Economic Recovery in Europe Report 1: Identifying Substantive Rules in Preventive Restructuring Frameworks Including the Preventive Restructuring Directive which May Be Incompatible with Judicial Cooperation Obligations

The JCOERE Project, funded by the European Commission’s DG Justice Programme (2014-2020), addresses two aspects of the EU’s strategy to respond to the problems of cross-border insolvency within the increasingly integrated internal market. The Commission’s strategy is described in the Recommendation setting out A New Approach to Business Failure. The first aspect concerns the implementation of co-operation obligations that have been imposed on all EU domestic courts and judiciary under the EIR Recast. The second concerns the introduction through the Preventive Restructuring Directive (PRD) of a preventive restructuring framework in the domestic insolvency laws of all Member States. This first JCOERE Report examines these initial substantive and procedural aspects arising from the preventive restructuring frameworks. This, together with JCOERE Report 2, will contribute to answering the overall project research question, which asks: Based on existing experience with restructuring (e.g. Ireland), if obstacles to court co-operation will arise from substantive rules, which are particular to preventive restructuring. If some of these obstacles will be exacerbated in the preventive restructuring context, given that they pertain to existing procedural rules. JCOERE project Report 1 (reflecting the goals of Workpackage 2 of the Project) will accordingly concentrate on the nature of substantive and procedural aspects that may arise in complex preventive restructuring or rescue regimes as envisaged by the PRD. The Report also focuses on identifying substantive doctrinal and procedural restructuring rules relevant to court-to-court, and to court-to-practitioner co-operation obligations described in the EIR Recast Regulation 2015/848. The Report includes an analysis of pre-existing systems, such as the Irish Examinership process, the French sauvegarde, and the Spanish and Austrian reorganisation and restructuring procedures. In addition, the approaches of other jurisdictions included in the Project Consortium, namely Italy and Romania, will be discussed. In view of the anecdotal evidence of its influence on the drafting of the PRD, and given its popularity of a restructuring destination, the UK is also considered as a benchmarking exercise. The comparative analysis was extended to other jurisdictions, for example the Netherlands, because of its timely and pre-emptive response to the PRD, and Germany, Poland and Denmark. The JCOERE Project was conducted by a team at the University College Cork in collaboration with teams at the University of Florence, Titu Maiorescu University in Romania, and INSOL Europe. The content of this document represents the views of the author only and is his/her sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.

The Plea of Illegality as a Pillar of the Incidental Review

The plea of illegality as a limb of incidental review alongside the preliminary ruling procedure is examined in light of its raison d’être, nature, ratione materiae and personae scope and its interrelated characteristics with other remedies and procedures in the EU judicial system. This article considers the origin of anomalies in the inconsistent case law reaching different conclusions with regard to standing of different applicants on a selective basis in the transposition of national procedure of exception d’illegalité into the Rome Treaty with a general wording. It is argued that the broad interpretation of ratione personae scope of the procedure on the basis of the wording of Article 277 TFEU requires, in parallel, relaxation of the strict application of the admissibility requirements towards individual applications especially where irregularities might become apparent after the concrete application of the general act in order to prevent from carrying privileged or non-privileged status of applicants under the action for annulment to the plea of illegality. Plea of Illegality, Incidental Review, Acts of General Application, Legal Certainty v Legality, Complementary or Alternative Remedy.

The Concept of Conflict of Interest in Lithuanian and EU Public Procurement Law and the Case-Law

[full article and abstract in Lithuanian; abstract in English]
 Until the implementation of the public procurement law reform of 2014 at the EU level and respectivlely 2017 in the Lithuanian legal environment, the legal analysis of the concept of conflicts of interest in public procurement law was scarce. Neither did the features of this phenomenon or its’ legal evaluation was the subject of any solid scholar research. However, the demand for such academic insights has recently become very bright because the courts on numerous occasions started to face the disputes with the subject conflicts of interest being at the heart of the disagreements between the litigating parties. The courts, at least in Lithuania, have even started to search the relevant answers elsewhere, including making the references to the EU judiciary for the preliminary rulings regarding this matter. Therefore, this publication is a contribution to the minimization of this “scholar thirst” in the mentioned field or at least our sincere attempt to do that.

Sustainably reconciling offshore renewable energy with Natura 2000 sites: An interim adaptive management framework

The nascent nature of offshore renewable energy (ORE) technologies coupled with the existence of considerable data gaps and uncertainty on the receiving marine environment demands a paradigm shift in our approach to assessing and managing the impacts of the ORE sector on marine Natura 2000 sites. This paper investigates how the ecosystem-based principles of resilience and adaptive management can be best applied under the appropriate assessment process of the Habitats Directive to reconcile the increasing demand for offshore renewables and biodiversity conservation. In so doing, it challenges the strict interpretation of the precautionary principle which has been crystallised by the EU judiciary under the regime of Article 6(3) of the Habitats Directive and suggests embracing adaptive management as a better methodology to enhance the outcomes of the appropriate assessment in the face of uncertain impacts on Natura 2000 sites and their qualifying features. The aim of this study is solution-based: it seeks to improve the implementation of the assessment procedure of the Habitats Directive before it truly becomes an ‘obstacle course’ for offshore renewable energy developers.

Actions and inactions in the investigation of breaches of Union law by the European Supervisory Authorities

This article takes stock of one of the major innovations under the European System of Financial Supervision (ESFS): the breach of Union law procedure. Under this procedure, the European Supervisory Authorities (ESAs) have a key role to play in policing breaches of Union law, but they have rarely taken formal action. Many decisions are decisions not to act, i.e. declining to open investigations following a request by a complainant. Some of these “inactions” have been scrutinized before the Joint Board of Appeal of the ESAs (BoA). One was appealed before the EU judiciary, which denied “ordinary” complainants procedural safeguards, including rights of appeal before the BoA and the EU courts. This article seeks to shed light on the ESAs’ decisions not to act under the breach of Union law procedure, focusing on the ESAs’ very substantial discretionary right not to initiate an investigation, and suggesting that the procedural position of some ordinary complainants should be revisited.

‘Access to Justice’ and the Development of the Van Gend En Loos Doctrine: The Role of Courts and of the Individual in EU Law

Abstract The ‘access to justice’ within the meaning of the Treaty of Lisbon and the pertinent CJEU jurisprudence is primarily seen as access to the EU judicial system, i.e. to the EU Member States’ national courts applying the EU Law or/and the CJEU. The concept of ‘access to justice’ is therefore developing such premises of the Van Gend en Loos judgment as direct effect, vigilance of the EU individual, and the symbiotic relationship between the CJEU and national courts via the preliminary reference procedure. This work aims to explore the development of two basic ideas of Van Gend en Loos, i.e. granting directly enforceable EU rights to individuals and authorizing national courts to protect those rights, in light of the ‘access to justice’ concept within the meaning of the Lisbon Treaty – considering their importance for the realization of EU individuals’ substantive rights and uncertainty surrounding this issue. The paper develops a critique of the theory of justice in EU Law, analyzing if and how the Van Gend en Loos premises influenced the role of individuals making an attempt to claim their EU rights and the role of the EU courts responsible for the enforcement of ‘access to justice’ in the European Union. The claim of this paper is that the new concept of ‘access to justice’ brought by the Lisbon Treaty may be seen as the further development of the Van Gend ‘federalizing effect’ for greater integration through law and an enhanced protection of the individual within the EU multilevel system of Human Rights protection.