European Court Of Justice Decisions Research Articles

Ongoing reporting obligations of a Cyprus International Trust

Abstract This article discusses the ongoing reporting obligations of a Cyprus International Trust in the context of evolving compliance requirements, particularly in relation to the latest European anti-money-laundering directives. It highlights the transposition of the 5th AMLD into Cyprus law and the recent European Court of Justice decision limiting public access to Ultimate Beneficial Owner (UBO) registers. The article also explores the laws governing regulated professionals and the disclosure of trust data in Cyprus; and further examines the Cyprus UBO register of express trusts and the limited access granted to the public, touching on the challenges that lie ahead.

Differentiated implementation and European integration: the development of EU food quality labelling

The article examines how differentiated national implementation of EU policies affects later European integration – whether it leads to renewed unified vertical integration, differentiated integration, the status quo or renationalisation. It examines the case of geographical indications (GIs), an EU labelling system for food and drink based on place of origin and processes of production. Despite features such as diverse national interests and gastronationalism, differentiated implementation has resulted in renewed unified vertical integration. The article identifies three processes: EU legislative requirements encouraging the establishment of producer groups; European Court of Justice decisions which gave priority to quality over cross-border trade; the use of free trade negotiations to alter EU rules. While the integration outcomes are those expected by neo-functionalist analyses, the processes are more institutionally-based. Differences in implementation may aid rather than hinder further integration due to institutional features of EU legislation and decision making.

The Dance of the Deal Exploring Culpa in Contrahendo and ECJ Jurisprudence

Culpa in contrahendo, also known as pre-contractual liability, is an essential legal doctrine that regulates the behavior of parties during contract formation and negotiation. In the European Union, culpa in contrahendo has been the subject of extensive jurisprudence by the European Court of Justice (ECJ), which has played a significant role in influencing its development and application in EU contract law. This paper provides an overview of culpa in contrahendo and its development, as well as an analysis of the ECJ's case law on the doctrine. Subsequently this paper examines important ECJ decisions and evaluates the efficacy of culpa in contrahendo in EU contract law. In addition, the paper examines the practical application of culpa in contrahendo and compares it to other legal doctrines including estoppel, unjust enrichment, and good faith. In comparison to these other doctrines, the advantages and disadvantages of culpa in contrahendo are highlighted. Ultimately, the paper asserts that culpa in contrahendo is a useful legal concept for regulating pre-contractual behavior, despite its restricted applicability and dependence on a fault-based approach, which hinders its efficacy.

European Court of Justice Decision in Coman Caseand Its Implications in the Same-Sex Spouses Matter

Romania is still showing a strong resistance towards the spectacular changes in the way the family is currently regulated by the legal systems of other EU Member States. Under such conditions, through this study we are concerned about the issue of the recognition, by the Romanian State, of a marriage validly concluded abroad, between a Union citizen and his spouse of the same sex, who is a third country national. Our analysis starts from the principles developed by the European Union Court of Justice, in Coman case, a decision that brought back into the debate issues such as the right to family life and the right to freedom of movement, viewed from the perspective of the discrimination prohibition on grounds of sexual orientation.

Regulatory status of genome-editing plants: perspectives for Russian Federation

The high-quality regulatory support for the use of plant genome editing technology is an urgent scientific and practical task of modern agriculture. Currently, the status of plants obtained using genomic editing (GE) technologies is not defined in Russian legislation. The article describes the principles and mechanism of CRISPR/Cas9 technology, and discusses the biological safety of the GE-plants. Fundamentally different approaches to genetically modified (GM) and GE-plants in the world are analyzed. We discuss the problems and contradictions of extending the GM-plants legal regulation to GE-plants. In particular, the European Court of Justice decision that extended the European GM-plants legislation for GE-plants. It is proposed to determine the legal status of GE-plants in Russian legislation, taking into account existing international practices, and protect the interests of the government in the field of biological and food security.

A Sense of Common Purpose. On the Role of Case Assignment and the Judge-Rapporteur at the European Court of Justice

This contribution deals with the assignment of cases to reporting judges and judicial formations at the European Court of Justice (ECJ). EU lawyers generally consider the ECJ’s system of case assignment to be one of the most problematic features in the Court’s decision-making process. They perceive a strong tension with the right to a fair trial. In this contribution, I aim to understand why the Court maintains a system that has been under severe attack for a long time. By closely analyzing the practice of case assignment between 2003 and 2019, I argue that the ECJ’s assignment system is an important mechanism for the Court’s institutional success. It has allowed the Court to maintain a sense of common purpose, a strong and persistent idea of its mandate as a guardian of the effectiveness and primacy of EU law. I identify three key functions case assignment performs. First, supporting jurisprudential stability and continuity by creating an ‘elite group’ of judges who writes the bulk of the most important ECJ decisions. Second, integrating new ECJ judges through gradually assigning them more difficult cases thereby structuring a learning process for becoming a full-fledged ECJ judge. And third, the ECJ’s system of case assignment has helped to maintain what is generally lost in courts of the ECJ’s size: a place where all 27 ECJ judges and 11 Advocates General are informed on all incoming cases, jointly engage in systematizing the ECJ’s case law and framing the Court’s agenda.

Harmonizacija prekograničnih kretanja privrednih društava u pravu EU

In this paper the author presents an overview of the EU legal framework for cross-border company's mobility. It gives a historic background to various obstacles related to cross-border mobility and puts it into the context of the European Court of Justice decisions on the various issues of right of establishment. EU Company Law Directive on Cross-border Mobility regulates cross-border conversions (resulting in the change of applicable law and at least registered seat of the company) and cross-border divisions for the first time. It also improves already existing regime for cross-border mergers. Directive on CrossBorder Mobility gives an opportunity for various internal market participants, including economically strong as well as smaller business forms to use advantages of predictable, efficient legal procedure to perform cross-border operations. It includes various harmonization instruments in order to protect interests of (minority) shareholders, creditors and employees. Double control, including issuance of the pre-merger certificate in the country of origin and control of the procedure in the destination country before cross-border procedure has been registered and becomes effective provides for optimal co-ordination of national authorities, and offers safe business environment for various market participants.

European Court of Justice decision for genome editing: Consequences on food/feed risk assessment and detection

On 25 July 2018 the European Court of Justice (ECJ) clarified that organisms obtained by mutagenesis are genetically modified organisms (GMOs) as defined in the European Directive 18/2001/EC. However, the GMO directive shouldn't apply to organisms obtained by mutagenesis using techniques developed and applied before the respective Directive came into force (i.e. the application of chemical or physical mutageneous agents) and that have a long ‘history of safe’ use. Accordingly a safety assessment and labelling of products containing or consisting of GMOs obtained by mutagenesis developed after the Directive came into force will be needed. From a scientific point of view a similar basis for the risk assessment can be assumed when comparing ‘classical’ GMOs and GMOs obtained by mutagenesis using new plant breeding techniques (NPBTs). In both cases a conventional organism has been modified. Therefore the classical approach of comparing the GMO with the non-GM variety is the straight way to conduct the safety assessment. In contrast, for the identification of GMOs obtained by mutagenesis using NPBTs the development and validation of new tools are needed. However, scientifically it will not be possible to distinguish between GMOs bearing a single mutation, if it is either the result of the intended use of NPBTs, the application of chemical or physical mutageneous agents or the natural process of spontaneously occurring mutations.

When is Personal Data 'About' or 'Relating To' an Individual? A Comparison of Australian, Canadian and EU Data Protection and Privacy Laws

The definition of “personal information” or “personal data” is foundational to the application of data protection laws. One aspect of these definitions is that the information must be linked to an identifiable individual, which is incorporated in the requirement that the information must be “about” or “relating to” an individual. This article examines this requirement in light of recent judicial and legislative developments in Australia, Canada and the European Union. In particular, it contrasts the decisions rendered by the Federal Court of Australia in Privacy Commissioner v Telstra Corporation Ltd and by the European Court of Justice decisions in Scarlet Extended and Patrick Breyer v Bundesrepublik Deutschland as well as the new General Data Protection Regulation with Canadian law. This article also compares how the three jurisdictions deal with the vexed issue of IP addresses as personal information where the connection between the IP address and a particular individual often raises particular problems.

‘Trouble Always Comes in Threes’: The Taricco Case Saga and the Italian Limitation Period in VAT Fraud

The European Court of Justice (ECJ) decision on the so-called Taricco case has been a source of significant debate among Italian scholars for the past year. The peculiarity of this case derives from the fact that more than one legal discipline is involved, ranging from tax law, criminal and procedural criminal law to constitutional law. The purpose of this article is therefore to examine the entire Taricco case by considering in turn the three different judicial phases which have characterized it. Beginning with the ECJ decision, it is then necessary to take into account how the Italian Supreme Court (Corte di Cassazione) has implemented in its case law the dispositions contained in the European decision. Finally, it is important to analyse the recent ordinance of the Italian Constitutional Court addressing again the ECJ and therefore opening new phases in the ongoing debate. Particular attention is given to the implications of this case on fundamental principles characterizing most of the European Member States and the role this decision might have in the adoption of the European Directive on the fight against fraud to the Union’s financial interests by means of criminal law that will replace Convention on the Protection of the European Communities’ Financial Interests (PFI) Convention.

Methodologies for calculating FRAND damages: an economic and comparative analysis of the case law from China, the European Union, India, and the United States

In the last several years, courts around the world, including in China, the European Union, India, and the United States, have ruled on appropriate methodologies for calculating either a reasonable royalty rate or reasonable royalty damages on standard-essential patents (SEPs) upon which a patent holder has made an assurance to license on fair, reasonable and non-discriminatory (FRAND) terms. Included in these decisions are determinations about patent holdup, licensee holdout, the seeking of injunctive relief, royalty stacking, the incremental value rule, reliance on comparable licenses, the appropriate revenue base for royalty calculations, and the use of worldwide portfolio licensing. This article provides an economic and comparative analysis of the case law to date, including the landmark 2013 FRAND-royalty determination issued by the Shenzhen Intermediate People’s Court (and affirmed by the Guangdong Province High People’s Court) in Huawei v. InterDigital; numerous U.S. district court decisions; recent seminal decisions from the United States Court of Appeals for the Federal Circuit in Ericsson v. D-Link and CISCO v. CSIRO; the six recent decisions involving Ericsson issued by the Delhi High Court; the European Court of Justice decision in Huawei v. ZTE; and numerous post-Huawei v. ZTE decisions by European Union member states. While this article focuses on court decisions, discussions of the various agency decisions from around the world are also included throughout.

Decline of Controlled Foreign Company Rules and Rise of Intellectual Property Boxes: How the European Court of Justice Affects Tax Competition and Economic Distortions in Europe

AbstractThe European Court of Justice (ECJ) has become an influential player in the field of direct taxation in the European Union (EU) in the past 20 years. However, it is unclear whether or not the ECJ's decisions and the corresponding reactions by the member states actually contribute to tax neutrality in economic terms and, therefore, to the achievement of the internal market. In 2006, the ECJ limited the applicability of specific tax rules in the EU that are intended to prohibit the excessive use of low‐tax countries by multinationals. Our counterfactual analysis shows that the court's restriction of so‐called controlled foreign company rules and the related second‐round reactions by some member states – i.e. the introduction of low‐tax regimes for income from acquired intellectual properties (IP boxes for acquired IP) – cast doubt on the seemingly positive effects the ECJ has on reducing tax distortions. In addition, we demonstrate that the restricted applicability of IP boxes as endorsed by the OECD and the European Commission would strengthen tax neutrality in Europe.

Methodologies for Calculating Frand Damages: An Economic and Comparative Analysis of the Case Law from China, the European Union, India, and the United States

In the last several years, courts around the world, including in China, the European Union, India, and the United States, have ruled on appropriate methodologies for calculating either a reasonable royalty rate or reasonable royalty damages on standard-essential patents (SEPs) upon which a patent holder has made an assurance to license on fair, reasonable and non-discriminatory (FRAND) terms. Included in these decisions are determinations about patent holdup, licensee holdout, the seeking of injunctive relief, royalty stacking, the incremental value rule, reliance on comparable licenses, the appropriate revenue base for royalty calculations, and the use of worldwide portfolio licensing. This article provides an economic and comparative analysis of the case law to date, including the landmark 2013 FRAND-royalty determination issued by the Shenzhen Intermediate People’s Court (and affirmed by the Guangdong Province High People’s Court) in Huawei v. InterDigital; numerous U.S. district court decisions; recent seminal decisions from the United States Court of Appeals for the Federal Circuit in Ericsson v. D-Link and CISCO v. CSIRO; the six recent decisions involving Ericsson issued by the Delhi High Court; the European Court of Justice decision in Huawei v. ZTE; and numerous post-Huawei v. ZTE decisions by European Union member states. While this article focuses on court decisions, discussions of the various agency decisions from around the world are also included throughout.

The European Court of Justice case of Breyer

This case note analyses the impact and significance of the European Court of Justice decision of Breyer . The European Court of Justice has expanded the definition of personal data to include dynamic IP addresses. The judgment improves the privacy situation of internet users across the European Union.

Towards Neutral Distribution Taxes and Vanishing Tax Effects in the European Union

The European Union (EU) has no explicit common income tax law. Nevertheless, Court of Justice decisions have driven EU member states to adopt more similar corporate tax systems, and thus, to align the tax treatment of corporate profit distributions—dividends and capital gains. This paper empirically analyzes the influence of the tax preferences of individual and corporate shareholders for the two corporate distribution types—dividends or capital gains—from 1990 to 2012. In the first years of the observation period, European tax systems have provided opposing tax advantages, where individual shareholders have preferred capital gains and corporate shareholders have preferred dividends. To account for these differences depending on the firm’s shareholder structure, we derive firm-specific tax preferences for profit distributions. Our empirical analysis reveals that—in line with current literature—the firm-specific tax preferences indeed affect dividend payments. Moreover, we show that in contrast to our detailed study, a simplified approach to measure tax effects on distributions overestimates this influence. In subsequent years, as European Court of Justice decisions have indirectly aligned EU corporate tax systems, we find that tax preferences have converged to a great extent with the tendency to equal tax treatment of dividends and capital gains for both—individual and corporate—shareholder groups. In line with this development, we find that the association of tax preferences and distribution policies vanishes in the last years of the observation period. Our study implies that the EU common regulatory framework, even in the absence of explicit law, can affect corporate distribution decisions and foster neutral taxation of dividends and capital gains across EU member states.

El juez nacional de medidas cautelares y la tutela del orden público y del interés público de la Unión Europea

During the last few years the European Court of Justice has established a consistent case law strengthening the fundamental role of member States judges acting as EU ordinary judges, assigning them some powers in interim measures, when public interest of the EU or its public order is threatened. It’s quite a new phenomenon that increases the duty of diligence of the national judges in charge of interim measures, who must ensure the effectiveness of those provisions and legal principles at issue, as well as prevent infringements of such fundamental elements of EU legal order, which claim to be protected and applied in its entirety among all member States. The whole of the European Court of Justice decisions which developed the afore mentioned regime of competence on interim measures for national judges, stands out for its dynamism, high technicality and because it tends to some didactics. This jurisprudence highlights a common thread: the balance between effectiveness of EU law and the due discretion of the national judge who is compelled to ensure effective judicial protection.

The curious case of the right to be forgotten

This paper considers the so-called ‘right to be forgotten’, in the context of the 2014 decision of the European Court of Justice (ECJ) in the case of Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González. It also considers the ‘right of erasure’ contained in the current EU Data Protection Directive, as well as the proposal for a new right of erasure to be included in the new EU data protection framework. The paper proposes a particular way of understanding the right to be forgotten and suggests a broad definition of it. It examines claims that the ECJ's decision in Google ‘invented’ a right to be forgotten. It also considers whether individuals have a right to be forgotten under the current EU Directive, and whether they will have such a right when the new data protection regulation becomes law. More generally, the paper considers whether a right to be forgotten has been recognised as an aspect of a broader right to privacy, and whether the Google decision moves us closer to an understanding of privacy as the right to an appropriate flow of information, in line with Nissenbaum's framework of contextual integrity.

Google Spain SL v. Agencia Esñpaola de Protección de Datos (AEPD)

European Court of Justice decision on the right to be forgotten under the European data protection directive

Interim Measures of Protection, Injunctions and the Role of English Courts in International Arbitration

This paper examines the role of English Courts in international arbitration where the seat of the arbitration is in England. It focuses substantially but not exclusively on the power of the courts to grant injunctions in arbitration cases. It seeks to answer the questions: whether there exist a jurisdictional conflict between the power of the English Courts in granting injunctions against oppressive foreign proceedings brought in breach of arbitration agreement and the European Court of Justice decision in The Front Comor? Whether the alleged difficulties from the Front Comor case still exist in the wake of the recent decisions of the English Courts and in light of the Recast Brussels Regulation?

Internet Jurisdiction: A Survey of German Scholarship and Cases

In late June 2013, Fordham CLIP completed a study, “Internet Jurisdiction: A Survey of German Scholarship and Cases.” This project provides a survey of the case law and legal literature analyzing jurisdiction for claims arising out of Internet activity in Germany. A companion study, released simultaneously, explores similar issues as they are treated in the United States. The goal of the report is to identify trends in legal literature and case law and to serve as a comprehensive, objective resource to assist scholars and policy-makers looking to learn about the issues of jurisdiction on the Internet with a focus on the German legal system and relevant EU laws. The research survey shows that, although various trends can be identified within German and EU case law, no consensus on the treatment of international jurisdiction can be ascertained. Although the academic literature demonstrates awareness of the problems and pitfalls in Internet-related cases, clear solutions are seldom offered. Moreover, notwithstanding German Federal Supreme Court and European Court of Justice decisions that have set the stage for further development, the research indicates that the coexistence of German and European Law, as well as the presence of separate subject matter-specific legal regimes, preclude the identification of any real consensus views.