European Case Law Research Articles

Three Faces of Innovation Competition: Choosing the Framework for Horizontal Merger Assessment

Abstract This article discusses the assessment of horizontal mergers and harm to innovation when there is innovation competition. The goal is to establish a methodology for selecting the appropriate analytical framework for each situation, outlining mechanisms for recognizing innovation competition, defining relevant markets, evaluating the competitive significance of firms, identifying suitable theories of harm, and gathering pertinent evidence for each scenario. We review the literature on Competition Policy and on Economics of Innovation and take examples from the US and European case law. We also briefly discuss the strategic management literature to provide insights for the assessment. Considering post-merger reductions on innovation incentives as harm to innovation, we find differences of traditional merger procedure adequacy and challenges to build evidence, considering three faces of innovation, including possible combinations of these faces within a same merger case: (i) continuous innovation efforts in the product market, (ii) ongoing innovation efforts for developing new products, and (iii) future innovation efforts. In instances where the conventional approach to mergers falls short, exploring a capabilities-based assessment is recommended. Given the gaps found in the existing literature, we provide insights to the analysis as steps towards an agenda of capabilities-based merger assessment.

Understanding solidarity in the European Union: an analytical framework

Solidarity is a key concept in the European Union. However, the concept of solidarity lacks systematic theoretical examination to enable a sufficient understanding of its contextual meaning and to provide an operationalisable benchmark for analysis. To address this research gap, I propose an analytical framework for solidarity in the European Union that features four necessary conditions: particularity, instrumentality, reciprocity, and responsibility. I develop the framework through a transdisciplinary conceptual history approach, substantiated with a thorough document and legal analysis of European integration and CJEU case law. I demonstrate the robustness and validity of the proposed framework by using EU asylum policy as a test case, a field where the question of solidarity is notoriously salient, which is exemplified by an area-specific expression of the concept: fair sharing of responsibility between the EU member states. Moreover, I show that the EU’s solidarity principle is necessary to maintain the bloc’s raison d’être.

Gender discrimination in retirement

The article aims to discuss the issues related to the nature of entitlements to retirement benefits in connection with the regulations relating to the retirement age and to consider existing and future changes in the regulations considering gender discrimination resulting from the different retirement ages of women and men. In particular, the existing regulations regarding the retirement age in Poland and Europe are presented. Based on Polish law, the history of changes and the dynamics of reforms related to the retirement age in national law are shown. The introduced pension reforms confirmed different retirement ages, which were eventually restored to age sixty for women and age sixty-five for men. The issues of the reasons for the changes and the state of the Polish pension system, including the existence of the so-called pension gap are mentioned. A comparison of applicable regulations and principles relating to the rights of people was made. An analysis of European Union law and a review of both national and European case law has also become an essential need in consideration regarding pension gender discrimination. The article also quotes data on the retirement age in selected European countries, based on which conclusions were drawn. The analysis of legal provisions, proposed changes, case law, and legal theory became the basis for final considerations that attempt to answer the question of whether gender discrimination in pensions a common phenomenon is and whether this phenomenon occurs under the applicable legal status.

Proof in Dutch Administrative Law

The law of proof and evidence in Dutch administrative law is founded on a theory of free evidence. Over the years, evidential standards have been derived from general principles of sound administration, such as the duty of due care and the duty to give reasons. A flexible system of proof is the result, aptly tailored to the circumstances of the case. This article focuses on the dynamics of the law of proof and evidence in the Netherlands and aims to offer a perspective on future challenges and expected developments. It is argued that evidential norms have become more explicit and precise on the one hand, while at the same time being deformalised. Dutch administrative law courts are increasingly focusing on standards that offer citizens safeguards in fact finding. Evidential norms should increase the quality of fact finding, protect citizens from an over-intrusive administrative state and compensate for an inequality of arms. Over the past few years, courts have worked on effective options for litigants to adduce evidence in appeal. Most recently, the government has published a bill strengthening this evidentiary position by introducing a specific procedural instrument known as the ‘citizen loop’. These developments are bolstered by European case law, which asks for enhanced human rights protection and effective legal protection.

Divisional patents: a system prone to abuse

Abstract Divisional patents are derivatives to an already active patent or pending application used to separate part of the parent-patent’s subject-matter and create a new autonomous patent. They are extensively used in the pharmaceuticals sector to protect blockbuster medicines with multiple overarching patent rights, thus creating complex patent portfolios. These strategies have attracted the attention of competition enforcers and judicial bodies as potential abuses of dominant position because they aim to prevent and delay generic market entry for the patent holder to maintain their monopolistic prices. However, scrutinizing these strategies has proven challenging because the current rules are prone to exploitation, there is no unified approach to evaluating them, and the core of the issue is the much-debated interplay between IP and competition law. It will be shown that European case law varies across jurisdictions, with none of the current solutions fully addressing the issues. In the search for a functional, effective system, it is essential to understand the rationale behind patent rights, the unique features of the pharmaceuticals sector, and the arguments for and against the use of competition law to scrutinize patent strategies. On this basis, the article proposes a system which combines competition law enforcement with patent law amendments.

The Right to Privacy and Data Protection in European Healthcare Systems With an Emphasis on the Relevant Case Law And European Legislation

Are personal data and information, which we trust entirely to healthcare systems, sufficiently protected? The article deals with the crossroads of law and medicine, specifically at the point where the right to data protection of a patient is being breached or insufficiently protected by law. In this regard, we have to first learn what is the actual scope of person’s right to (medical) data protection and second, understand when is that breached. The article analyses the origin of data protection and its historical development to find its core meaning. Further, it seeks the limits of data protection’s scope with the content of other related rights. With a comprehensive overview of European case law, the article exposes some serious violations of individual’s right to (medical) data protection.

Round-up of European enforcement case law 2023

Abstract In 2023, several noteworthy decisions relating to the enforcement of intellectual property rights (IPRs) were handed down, including in relation to anti-counterfeiting, parallel trade, litigation aspects and restrictions on the enforcement of IPRs. The decisions of the Court of Justice of the European Union and Supreme Courts and Courts of Appeals of the European Union Member States that the authors consider important are summarized in this contribution. The judgments were rendered between 1 January 2023 and 31 December 2023. As in previous editions, the authors have adopted a practical approach aimed at readers seeking an overview of the key IPR enforcement decisions of 2023.

2023/26 The obligation to record working time in the light of European and national (German) case law - part 1 (GE)

2023/26 The obligation to record working time in the light of European and national (German) case law - part 1 (GE)

2023/27 The obligation to record working time in the light of European and national (German) case law – Part 2 (GE)

2023/27 The obligation to record working time in the light of European and national (German) case law – Part 2 (GE)

Constructing the Viking and Laval cases as a major defeat for social Europe: a contextual and processual analysis

AbstractThis Article brings new perspectives on the well-known Viking and Laval cases, decided by the Court of Justice of the European Union (CJEU) in December 2007, by studying the processes and modalities of the construction of this case law as a major defeat for social Europe. It demonstrates that the political and legal implications of these two rulings were socially constructed by a variety of European actors (especially trade unionists and academics specialising in labour law) rather than legally inscribed in the rulings. In doing so, the author defends a constructivist approach in the analysis of European case law, both contextual and processual. The Article is divided into two parts. The first retraces the pre-ruling construction of the Viking and Laval cases, and shows that trade union and academic actors as well as parliamentarians worked to construct the judgements on these cases as decisive landmarks for social Europe. The second part considers the process of interpretation of the rulings after they were delivered by the CJEU. It evidences the central role played by trade union and academic actors in promoting a critical reading of the rulings, arguing that the Court subordinated social rights to economic liberties. The Article concludes by showing that this interpretation has tended to become subject to consensus, to the extent that it is now European common sense.

Human Rights Penality and Violence Against Women: The Coloniality of Disembodied Justice

AbstractDespite the persistence of violence inside and around prisons, and the dubious adequacy of criminal law to respond to victim–survivors, international human rights (IHR) discourse increasingly promotes the mobilisation of the state’s penal apparatus to respond to human rights violations, including violence against women (VAW). Using an anticolonial feminist approach, this article scrutinises the ontological and epistemological commitments underlying ‘human rights penality,’ by analysing features of the Western-colonial register vis-a-vis more relational worldviews. Separateness, abstraction, and transcendence broadly underpin the exclusion of embodied experience, context, and material reality from the juridical field. In the second part, through discourse analysis of Inter-American and European case law, the author shows the deployment of human rights penality, the displacement of experience, and the disregard of context in IHR discourse. VAW is construed as a procedural and penal matter: it is the absence of a penal process that courts regard as failure to protect women, rather than the state’s inability/unwillingness to address structural subordination. Moreover, the ‘virtues’ attributed to the penal system justify its expansion, which facilitates the continuity of penal violence and debilitates alternative approaches to justice. Finally, the author posits penal abolition as an anticolonial praxis, pointing at examples of anti-carceral feminist work.

The “Cultural Turn” of the Debate around Immigration and Crime: Examples from European Legislation and Case Law

The “Cultural Turn” of the Debate around Immigration and Crime: Examples from European Legislation and Case Law

The right to encryption: Privacy as preventing unlawful access

Encryption technologies are a fundamental building block of modern digital infrastructure, but plans to curb these technologies continue to spring up. Even in the European Union, where their application is by now firmly embedded in legislation, lawmakers are again calling for measures which would impact these technologies. One of the most important arguments in this debate are human rights, most notably the rights to privacy and to freedom of expression. And although some authors have in the past explored how encryption technologies support human rights, this connection is not yet firmly grounded in an analysis of European human rights case law. This contribution aims to fill this gap, developing a framework for assessing restrictions of encryption technologies under the rights to privacy and freedom of expression as protected under the European Convention of Human Rights (the Convention) and the Charter of Fundamental rights in the European Union (the Charter). In the first section, the relevant function of encryption technologies, restricting access to information (called confidentiality), is discussed. In the second section, an overview of some governmental policies and practices impacting these technologies is provided. This continues with a discussion of the case law on the rights to privacy, data protection and freedom of expression, arguing that these rights are not only about ensuring lawful access by governments to protected information, but also about preventing unlawful access by others. And because encryption technologies are an important technology to reduce the risk of this unlawful access, it is then proposed that this risk is central to the assessment of governance measures in the field of encryption technologies. The article concludes by recommending that states perform an in-depth assessement of this when proposing new measures, and that courts when reviewing them also place the risk of unlawful access central to the analysis of interference and proportionality.

아동의 가족재결합에 대한 연구: 유럽인권재판소 판례를 중심으로

Family unity and family reunification (or family reunion) are similar in that they deal with protection of family as one unit. However, since family reunification focuses on the maintenance of families that have already been formed but separated due to migration, these two concepts are not strictly regarded as the same ones. Family reunification is important as it promotes the stability and social integration of the people directly involved. In particular, for children, the necessity of applying the right of family reunification deserves special emphasis as an effective preventive measure against various kinds of risks they face. In Korea, it is difficult as yet to find cases or legislation dealing with family reunification of the child, however, there is a possibility of increasing the future occurrence of the issue due to continuous influx of foreigners.
 Thus, this research attempts to provide a starting point for further discussions through reviewing international legal bases and introducing related case law of the European Court of Human Rights.
 As a result, the research found that there is an international consensus to ensure the family reunification of the child on the basis of the Convention on the Rights of the Child, European Convention of Human Rights and other related documents. The case law of the ECtHR also provides two meaningful implications in this sense. First, it embodied the concept of the family reunification of the child by active consideration of universal and regional standards. The Court confirmed that the family reunification of the child means not only entry into, but also ensuring stable stay. In this regard, the Court recognized a related positive obligation of the authorities. In determining whether there is a violation of the obligations, the Court consistently considered a fair balance between individual and public interests. Second, the Court solidified its position that the best interests of the child should be given priority in all cases concerning children. In the trial processes, the Court comprehensively regarded several factors that may cause significant influence, such as the age of the children concerned, their situation in their country of origin and the extent to which they are dependent on their parents, and so on.
 There may be some differences in family type and culture between Europe and Korea. Nevertheless, the introduction of somewhat advanced judgments from ECtHR is really meaningful in a situation where related discussions are not yet enough. It is expected that this study containing analysis of the European case law on family reunification of the Child would contribute to the improvement of related domestic case law and legislation, considering properly both national interests and human rights.

Procedures for Reviewing Tax Disputes of Entrepreneurial Entities and Practical Analysis of Proceedings (Comparative Analysis)

This article presents the procedures for reviewing tax (business) disputes in Georgia, the peculiarities of imposing liability in case of violation of entrepreneurial, tax and customs legislation and practical shortcomings. The article provides a practical analysis of tax (business) litigation based on important interpretations of common courts and Constitutional Court decisions. Also, the significant clauses of the Association Agreement between the EU and Georgia are analyzed, which, on the one hand, ensure the regulation of tax relations and the other hand, Georgia's European integration and stable, sustainable economic progress. The paper discusses the regulatory norms of business disputes in the member countries of the World Trade Organization and the existing statistics. The paper discusses the regulatory norms of business disputes and existing statistics of the member countries of the World Trade Organization, as well as analyzes European and American case law and legislative regulations for resolving business disputes.

On the lawfulness of the EncroChat and Sky ECC-operations

Over the last years, cryptodatacommunications have become an important piece of evidence in criminal procedures all across the European continent. Especially due to the EncroChat- and Sky-operations, prosecution authorities were able to arrest and charge a large number of suspected criminals that probably would have remained unnoticed without the data acquired. As a result, the legality of the use of EncroChat- and Sky-data is increasingly being disputed in multiple courtrooms in various European countries. This article will therefore dive into European case law relevant in this respect and will on that basis discuss the lawfulness of both operations.

Round-up of European enforcement case law in 2022

... Whilst new challenges awaited us in 2022, with the war in Ukraine raging on and the economic downturn and high inflation, practitioners are still and rightfully so continuing to focus on IP Rights (IPRs). The most recent report on IP-intensive industries has shown again how important IPRs are for the economy and for the job market.1 Specifically regarding hybrid working, hybrid conferences and new technologies continued to present challenges in 2022 and, as far as IP is concerned, a specific focus was on non-fungible tokens and the Metaverse. To be able to embrace the future with its continued challenges, learning from the past is a must and, with that, this article aspires to be a helpful guide. The authors start by summarizing the relevant Court of Justice of the European Union (CJEU) judgments interpreting the Enforcement Directive2 before moving on to CJEU decisions pertaining to substantive IPRs. Part 3 covers the relevant decisions of national courts.

Access to medicines for rare diseases: A European regulatory roadmap for academia.

Background: Novel or repurposed medicines for rare diseases often emerge from fundamental research or empirical findings in academia. However, researchers may be insufficiently aware of the possibilities and requirements to bring novel medicinal treatment options to the patient. This paper aims to provide an easily applicable, comprehensive roadmap designed for academic researchers to make medicines for rare diseases available for patients by addressing the relevant regulatory frameworks, including marketing authorization and alternative routes. Methods: Key points of the regulatory chapters "Placing on the Market" and "Scope" of Directive 2001/83/EC relating to medicinal products for human use were summarized. Provisions in EU directives regarding blood products, radiopharmaceuticals, and herbal and homeopathic medicinal products were excluded. Cross-referencing to other provisions was included. European case-law was retrieved from the InfoCuria database to exemplify the implications of alternative routes. Results: Medicines may only be placed on the market with a valid marketing authorization. To obtain such authorization in Europe, a "Common Technical Document" comprising reports on quality and non-clinical and clinical studies must be submitted to a "competent authority", a national medicine agency or the European Medicines Agency. Timely interaction of academic researchers with regulators via scientific advice may lead to better regulatory alignment and subsequently a higher chance for approval of academic inventions. Furthermore, reimbursement by national payers could be essential to ensure patient access. Apart from the marketing authorization route, we identified multiple alternative routes to provide (early) access. These include off-label use, named-patient basis, compassionate use, pharmacy compounding, and hospital exemption for Advanced Therapy Medicinal Products. Discussion: Aligning academic (non-)clinical studies on rare diseases with regulatory and reimbursement requirements may facilitate fast and affordable access. Several alternative routes exist to provide (early) pharmaceutical care at a national level, but case-law demonstrates that alternative routes should be interpreted strictly and for exceptional situations only. Academics should be aware of these routes and their requirements to improve access to medicines for rare diseases.

VAT and Education: Lessons from A & G Fahrschul-Akademie

In this article, the author focuses on the exemption for education provided in article 132 of the VAT Directive. He examines the most recent European case law and attempts a critical assessment of how the Court of Justice of the European Union construes the concept of school and university education.

Older people, discrimination and citizenship: What specific insights in light of disability law on the national and international level?

Our research first delves into the complexity of ageism in law to understand to what extent the existing legal norms are sufficient to encounter the stereotypes linked to old age and the individual as well as systemic discrimination which ensues. According to European and national case law, age is an ambiguous ground of discrimination law and masks the complexity of age discrimination. It seems the scope of the UN Convention on the Rights of People with disabilities overlaps with some difficulties of older people in terms of rights but the CRPD also illustrates how an international convention can be a game changer, creating an impetus to gain insight on the particular characteristics of disability, but not age. The concept of disability discrimination has in turn enriched the way we think of discrimination in a more relational way. In order to prove the inadequacies of the current international legal framework on the human rights of older people, the second part of our study will illustrate how the right to vote exemplifies the challenges of age discrimination in terms of citizenship and full participation of older people in the democratic process, demonstrating the need to adopt a tailored international convention for older individuals.