EU Law Provisions Research Articles

The evolution of direct effect in the EU: Stocktaking, problems, projections

Focusing on the case law developed by the Court of Justice of the European Union since Van Gend en Loos, this article contends that three important shifts occurred concerning the effects of EU law in national courts since that case was decided. First, the existence of a particular category of effect) EU norms, which implies a process of selection among EU law provisions, is no longer as problematic as the method of comparison and combination of norms in judicial reasoning that has become a vehicle for the penetration of EU law in courts. Second, the possibility for individuals to claim (subjective) rights on the basis of the Treaty is overshadowed by questions concerning obligations imposed by the Treaty on individuals, and more generally, on the methods through which this horizontal effect occurs. Third, the duty for national courts to apply EU law provisions directly (direct enforcement) is now coupled with one prior question that these courts have to address, and which has become much more sensitive than before in view of the growing centrality of fundamental rights' protection in the EU system: the question of the applicability of EU and national (constitutional) law. Having examined these three shifts, the article concludes that it has become urgent to reconsider the effects of EU law in member states in order to avoid a decline of individual rights and freedoms resulting from EU law enforcement. Thus, Revisiting Van Gend en Loos leads to a reflection on the hypothesis, in which EU law should yield and national courts should be granted more discretion, when confronted with the resisting substance of national law (especially fundamental rights or freedoms protected by national constitutions).

The LOB Provision in the New Japan–Netherlands Tax Treaty

In this note, the authors review the compatibility of the limitation on benefits provision of the Japan–Netherlands tax treaty with the OECD Model Tax Convention and the non-discrimination provisions and fundamental freedoms of the Treaty on the Functioning of the European Union, and conclude that it is clearly in conflict with a number of essential EU law provisions.

Antitrust/Competition Arbitration in EU versus U.S. Law

The European Union and the United States have generally converged toward consumer welfare-based antitrustenforcement. In the United States, arbitration has been used extensively to resolve antitrust claims. In the European Union, only national courts, and not ad hoc arbitral tribunals, can refer questions to the European Court of Justice to obtain an interpretation or assessment of the validity of EU law provisions. Where national arbitration laws do not have manifest disregard of law as a reason for reviewing an award, courts cannot review the merits of awards for violation of EU competition law. The need for the recognition of an independent and alternative system to litigation, such as arbitration, is important both for the direct implementation of Article 81 of the EC Treaty in accordance with the scope of the Commission White Paper and to share the load of cases concerning competition disputes.