European Court Of Justice Research Articles

Progress and Regress in the Interpretation of the Concept of Essential Security Interests in International and Regional Courts

Abstract This article explores the concept of ‘essential security interests’ (esi) within the framework of international and regional law, specifically focusing on its historical evolution and current interpretations. The esi exception, which allows states to prioritize their security concerns over international obligations, has gained increased relevance since the turn of the millennium. This study provides a detailed analysis of how the International Court of Justice (icj) and the European Court of Justice (ecj) interpret esi clauses, highlighting the convergence and divergence between international and regional jurisprudence. By examining both self-judging and non-self-judging esi clauses, the article assesses their reviewability and the implications for legal consistency and state sovereignty. The analysis aims to clarify the practical application of esi exceptions and offer insights into potential areas for improvement in their judicial review.

FIFA’s Football Agent Regulations and European Competition Law

Abstract We assess the relationship between professional sport and European Union competition law using the example of the FIFA Football Agent Regulations (FFAR), a set of rules enacted by FIFA, the world football governing body, to regulate the activities of football agents. The FFAR have been challenged under competition law before national courts and in arbitration proceedings before the Court of Arbitration for Sport. The European Court of Justice has been asked to rule on the matter. The FFAR are the result of an anti-competitive decision by an association of undertakings. In particular, there is no exception for such agreements under the so-called Meca-Medina test. This analysis is supported by the European Court of Justice’s 2023 rulings in sports cases, in particular the European Superleague.

Europe’s legal revolution and France’s Article 49-3: the constitutional audacity of Robert Lecourt

Abstract The European Legal order, created by the European Court of Justice [ECJ], is an astonishingly effective treaty enforcement system. Previous explanations of its ‘transnational’ or ‘constitutional’ development have focused on the politics of judicial networks, and the wider political and economic context of postwar European democracy. Judicial biography has been almost entirely overlooked, even in the case of Robert Lecourt, widely acknowledged as the leading judge in the Court’s revolutionary period. Unknown to research on the ECJ, however, Lecourt had already spearheaded the adoption of the famous Article 49-3 of France’s 1958 Constitution. This paper demonstrates that the constitutional doctrines of European law and Article 49-3 were in fact premised on a similar ideology, that the pursuit of ‘effectiveness’ may require unprecedented restrictions on the traditional law-making role of national parliaments. Those were the constitutional values of the judge that, more than any other, built the foundations of the European legal order.

Data Protection Considerations in Competition Law Assessments: A Qualitative Document Analysis of EU Decision Texts

Abstract Personal data are both protected by a fundamental right and serves as a source of market power. As such, a complex interplay between data protection and competition law arises, sparking debate among policymakers and scholars on whether to incorporate data protection considerations (DPCs) in competition law assessments. Proponents argue that competition cases involving such an interplay require a normative contribution from data protection law, while opponents emphasize the practical challenges of considering data protection as a non-economic public policy objective. We identify nine ways in which data protection might ultimately surface in competition law assessments, categorized into five areas: (i) competition enforcement actions, (ii) existing legal and regulatory framework, (iii) personal data collection, (iv) exclusionary abuses, and (v) alleviation of competition concerns. Using a multiple-step approach for qualitative document analysis, we explore how these considerations have surfaced in the European Commission’s decisional practice through a dataset of 2.041 EU competition decision texts based on articles 101 TFEU and 102 TFEU and the EU Merger Regulation. We identify 53 decisions where DPCs have surfaced, especially in the information and communication industry, where they are more frequently subjected to commitments. In line with the evolving literature, we observe an increasingly integrationist trend as these considerations surface more frequently, particularly since the adoption of the General Data Protection Regulation in 2016 and the Digital Markets Act proposal in 2020. We also find a pattern where data protection provisions are included in commitments as a ‘tick-the-box’ exercise. Several influential alleviations of competition concerns suggest that the Commission is more comfortable using data protection to approve transactions unconditionally rather than as a substantive argument for commitments. We conclude by making a case for a more collaborative approach based on the European Court of Justice’s recent Meta Platforms (2023) judgment. Data protection should be considered in competition law assessments if its normative contribution is required. Such a stance would simply align with the internal logic of competition law without unlawfully expanding its material scope.

The European Telecommunication Standards Institute (ETSI): in search for legitimacy and resilience of European standardisation

European standardisation, a key institution for the functioning of the EU single market, functions at the crossroads of private rule-making and public policy. Recently, it has been subjected to fierce scrutiny by the European Commission and the European Court of Justice. Expressed concerns relate to the legal value of standards and the legitimacy of institutions creating them but have broader implications for European competitiveness, highlighting the strategic role of standards. By far much of this critique has been directed towards the European Telecommunications Standards Institute (ETSI), the EU’s crown jewel of technology standardisation. ETSI’s normative power manifests itself in policymaking, legislation and market processes, rendering it an interesting organisation to study as a proxy to understand the legitimacy and resilience of European standardisation. Against this backdrop, this introduction sets the theoretical and legal context for this Special Issue. Upon discussing the background and dynamic of European standardisation, it provides a theoretical framework for ‘crises' and ‘legitimacy’, tailoring it to the particular case of ETSI and the challenges it faces at the policy and judicial level. Lastly, it provides a critical reflection on the Research Articles in this Special Issue, linking them to the current discourses on legitimacy and resilience.

Running out the digital clock: transatlantic privacy politics and veto points in time

ABSTRACT Why does the European Commission continue to sign onto unstable international data flow agreements with the United States? After two agreements were struck down by the European Court of Justice, and clear signals that a new one could meet a similar fate, the European Commission agreed to the Data Privacy Framework. To make sense of this behavior, we connect traditional work on veto points with work on historical institutionalism to highlight an international negotiation strategy – running out the clock. While traditional veto points literature suggests multiple institutions with varying preferences will limit the set of potential policies or their adoption, we highlight how these dynamics change when considering veto points in time. We showcase our argument by building three historical narratives detailing the negotiation of the successive data flow agreements. Our findings have important implications for the future of the transatlantic privacy regime as well as negotiation dynamics.

In the name of analogy: Judicial copy-pasting and competence creep in the connection data case law

At the European Court of Justice, analogy reasoning often takes a specific form with the copy-pasting of numerous citations taken from the Court’s earlier case law. This article analyses the practice of copy-pasting in the contested case law on connection data. After offering a fresh look at the judgment in Digital Rights Ireland, it examines how the successive copy-pasting of that former case into Tele2 Sverige and its progeny has changed the parameters of the legal analysis of connection data legislation together with the competences of the Union, and in the Union for that matter. It is argued that, despite its advantages, judicial copy-pasting carried out in the name of analogy should be handled with utmost care in view of its potential consequences at constitutional level.

The Privacy/Antitrust Curse: Insights from GDPR Application in Competition Law Proceedings

In response to the emergence of large online platforms whose business model revolves around the collection and processing of personal data, it is usually suggested that competition and data protection are synergistic, hence requiring an integrated approach. In this respect, Europe represents the testing ground for evaluating how privacy breaches may inform antitrust investigations. Indeed, the General Data Protection Regulation (GDPR) on the one side and the German Facebook antitrust decision on the other side are considered the benchmarks of this new stance aimed at linking market power and data power. This paper tests the concrete viability of such an approach, analyzing how data protection rules and principles have been applied in antitrust proceedings by the European Commission and national competition authorities. Notably, the paper aims at demonstrating the fallacy of the narrative which describes the relationship between privacy and antitrust in terms of synergy and complementarity. Furthermore, the paper maintains that the principles recently affirmed by the European Court of Justice in Meta do not appear conclusive in addressing the issue. The strategic use of privacy as a business justification to pursue anticompetitive advantages currently addressed in the numerous Apple ATT investigations indeed shows the tension between these areas of law. Therefore, rather than strengthening the antitrust enforcement against gatekeepers and their data strategies, the inclusion of privacy harms in antitrust proceedings turns out to be a potential curse for competition authorities, providing players with an opportunity for regulatory gaming to undermine the antitrust enforcement. JEL Codes: D83, K21, L12, L4

The Court of Justice of the European Union and the Rule of Law

Abstract This paper addresses selected aspects of the procedure before the European Court of Justice which have contested from the perspective of the rule of law. It further explains recent initiatives on the side of the Court to improve compliance with it.

The Burden of Enforcing ECOWAS Court Judgement in Member States: Lessons from The European Court of Justice

The Burden of Enforcing ECOWAS Court Judgement in Member States: Lessons from The European Court of Justice

Religious dress in the healthcare setting: Unpacking legal arguments and balancing individual rights

This article explores the complex debate surrounding healthcare providers seeking to express their religious beliefs through the wearing of religious attire considering critical legal, ethical, and practical aspects. Drawing insights from the jurisprudence of the European Court of Human Rights and European Court of Justice, it sheds light on the implications for healthcare settings. The study highlights the sensitivity of the healthcare context, where specific arguments surface, such as the debated significance of religious neutrality given the vulnerability of patients and concerns about health and safety. Difficulties may arise when patients feel discomfort when treated by visibly religious healthcare providers. However, patients’ preferences regarding the religious neutrality of healthcare providers cannot be generalised, especially when considering the needs of certain minoritised communities. Furthermore, questions can be raised about the admissibility of potentially accommodating prejudice through prohibitions on religious dress. The article further examines hygiene and safety arguments used by healthcare institutions to restrict religious attire, arguing that while health and safety standards are crucial, scientific support for outright bans is limited, especially considering the possibility of reasonable adjustments. The central theme is the necessity for balanced considerations while upholding religious freedom and prioritising patient care, with particular emphasis going on the idea that the needs of patients cannot be generalised.

POL-INTEL

AbstractSince the adoption of Section 2a of the Danish Police Act in 2017, the police have been able to conduct cross-sectional information analyses in IT systems designed for this purpose, and thus process personal data for purposes other than those for which they were originally collected. This is regulated by the Executive Order on Cross-sectional Information Analyses. According to this executive order, the police shall use the POL-INTEL system to perform the analyses. The article discusses the police’s use of personal data for new purposes based on the Law Enforcement Directive, the Danish Law Enforcement Act, and relevant case law from the European Court of Justice. It assesses whether the regulation of POL-INTEL in the Executive Order on Cross-sectional Information Analyses adheres to the principles of purpose limitation, data minimisation and legality, or whether there is a need for changes to the Danish regulation .

Reinforcing Institutional Power: The Discourse of Normalcy in European Union Governance

This paper examines the notion of normalcy within the discourse of the European Union (EU), with a focus on its response to transformative dynamics and challenges, especially post-2008. I analyse how the EU, facing diminishing ideological supremacy, has reinforced its institutional power through the framework of normalcy. By emphasizing constitutionalisation and integration through legal means, bodies such as the European Court of Justice (ECJ) have expanded their roles, promoting "integration through law" to counter alternative political projects invariably labelled as populist, thereby giving rise to anti-populism as a discursive tool. Drawing on crisis discourse and diagnostic practice, this paper explores how normalcy legitimises and perpetuates existing power structures within EU governance, subtly coercing member states and citizens into accepting its norms and values, thus shaping perceptions of normalcy and also inevitability. At the core of this framework lies the rule of law (RoL), which establishes legal boundaries in the first place, but in the same move shapes political contexts.My paper argues that the exclusive focus on legalistic interpretations obscures the underlying structural factors perpetuating power dynamics and economic disparities among member states, constraining adaptive responses. I examine the narrative of "growing up to democracy" and its impact on the European project discourse, particularly in Central and Eastern European (CEE) countries. I then scrutinise the roles of experts and the “juristocracy” in reinforcing this narrative while simultaneously masking underlying inequalities and power differentials. Furthermore, the paper explores the strategic deployment of language and discourse by EU institutions during crises, highlighting their implications for public understanding, political action, and outcomes. Finally, it investigates the EU's strategic use of crisis discourse and diagnostic practices, focusing particularly on the ascendancy of the judiciary, but also highlighting how this trajectory may also have negative influence of legislative and executive bodies as their role diminishes in the process.

Mines, environment, questions, and disagreements: An analysis of the Turów coal mine disputes

This is a story of costs of 114 million EUR incurred by stubbornness and unwillingness to cooperate, or, in other words, by sticking to dead ends in discussions where parties disagree strongly enough that they cannot find common ground. This paper proposes an approach to analyzing such cases of disagreement by employing a multidimensional model involving deontic, ontological, and ethical axes. We use an example of the Turów coal mine disputes, which, from March 2020 to February 2022, involved the governments of the Republic of Poland, the Czech Republic, and the European Court of Justice. Our model results in a tree-like structure of the consecutive issues being considered, represented by questions, governed by the dependency between questions and external actions and events related to the dispute. We aim to provide a comprehensive understanding of the dynamics and resolution paths in such complex disagreements.

Follow the leader: the European Commission, the European Court of Justice, and the EU's rule of law revolution

ABSTRACT The autocratization of Hungary and Poland prompted a revolution in the European Court of Justice (ECJ)'s caselaw. Brick by brick, the ECJ imposed novel obligations on EU member states to safeguard the rule of law while expanding the legal bases for the EU to sanction governments breaching the Union's fundamental values. In this article, we ask whether the ECJ pioneered this rule of law revolution or, conversely, whether the Court responded to an entrepreneurial European Commission acting as ‘guardian of the Treaties’. While supranationalist theories depict the Commission as a proactive agenda-setter guiding the Court's innovations, studies of the EU's rule of law crisis argue that the Commission dragged its feet or only recently seized the reins of leadership. Which perspective is closer to the mark? Deploying a new theoretical framework to study judicial innovation and agenda-setting on an original dataset of all rule of law cases adjudicated by the ECJ from 2010 through 2023, we demonstrate that the Commission has been an inconsistent and often indifferent agenda-setter. Besides several proactive interventions limited to the latter years of the Juncker Commission, the Court's innovative rulings prompted the Commission to act more than the reverse, belying a fundamental shift in leadership.

Accession of the EU to the ECHR: A more developed fundamental rights low for the EU after the Lisbon Treaty?

The Treaty of Lisbon introduced important changes in the protection of human rights in the EU, the most important of which lie in the changes in Article 6 of the Treaty on the European Union. These provisions indicate that the EU Charter of Fundamental Rights is now legally binding, having the same status as primary EU law, and that the EU "shall accede" to the European Convention on Human Rights (ECHR). Since the entry into force of the Treaty of Lisbon, the Charter has been referred to on numerous occasions by the European Court of Justice and now acts as the main source of human rights in the EU. This article examines the import of this case law, some of which are ground-breaking and controversial, as well as how the higher profile for human rights under the Charter is likely to change the nature of the EU’s relationship with the ECHR. The article also examines the complex procedure for the EU’s accession to the ECHR, which is now underway, highlighting particularly significant aspects of this process. The article concludes with some general reflections about the status of human rights protection in the EU, suggesting that this has become one of the most significant areas of EU law that has had, and continues to have, a crucial impact on the EU’s relationships with its Member States, the EU and international law.

Broad collection of consumer data by Big Tech: exclusionary or exploitative abuse?

ABSTRACT The ability to gather and process large amounts of personal data is primarily held by a small group of companies. Some regulators, scholars, and practitioners have expressed concerns that major advertising-based platforms such as Google and Facebook may abuse their dominant position in the data market by requiring users to agree to the intensive collection of their data as a condition to the free access and use of those platforms’ core services. This raises the question of whether such broad collection of consumer data should be examined by European competition authorities as a foreclosure aiming at excluding current and potential competitors from the market of consumer data or as an excessive collection of personal data having the effect of lowering user’s privacy. This paper seeks to discuss this matter by examining the recent ruling in Meta by the European Court of Justice.

The Obligation to Establish and Uphold Judicial Independence under Article 19(1) TEU

This article explores the obligation of Member States, under Article 19(1) TEU, to uphold the judicial independence of all national courts who ‘may’ rule on Union law. The European Court of Justice (ECJ) first set out this obligation in their seminal ruling in Associação Sindical dos Juízes Portugueses and has since developed an extensive case-law. This article explores and discusses that case-law with the purpose of setting out, in a general manner, the key obligations Member States have under Article 19(1) TEU. Furthermore, where the ECJ has only set out general requirements without detailing their content, this article expands on the case-law by supplementing and contrasting solutions provided to similar issues in the case-law of the European Court of Human Rights (ECtHR), the recommendations of the Venice Commission and in wider International Human Rights Law. Finally, this article discusses whether judicial independence can be balanced against other aims, concerns and goals, and what room that leaves Member States to justify potential restrictions on judicial independence by the pursuit of (other) legitimate objectives.

The ‘autonomization’ of EU fundamental rights protection: Insights into the recent ECJ case law on Article 52(3) CFR

In a new line of case law on the interpretation and application of Article 52(3) of the Charter of Fundamental Rights, the European Court of Justice has explicitly applied the autonomy of EU law in the field of fundamental rights protection by referring to the non-binding Explanations relating to Article 52(3) CFR. According to these Explanations, Article 52(3) CFR has the purpose to ensure the consistency of the interpretation of the Charter with the European Convention on Human Rights, without ‘adversely affecting the autonomy of Union law and of that of the Court of Justice of the European Union’. Since the Grand Chamber judgment in N. (C-601/15 PPU, 15 February 2016), 23 cases have subsequently made this same reference to the autonomy of EU law when applying Article 52(3) CFR. The main point of this article is to showcase how the ECJ uses the Explanations in this line of case law as an instrument to establish an autonomous interpretation of the fundamental rights of the CFR, which are influenced, but not fully determined, by the ECHR.

The positive obligations doctrine: A means of effective fundamental rights protection in EU Member States?

Over the last years, the idea of positive obligations under Charter rights was brought up as an argument in some cases before the European Court of Justice in order to claim action from Member States or the European Union. However, a general doctrine of positive obligations does not seem to be able to assert itself in EU law. The article starts with identifying challenges for a concept of positive obligations under EU law. Further, different levels of manifestations of positive obligations are determined in the case-law of the ECJ in relation to the Member States. Through revisiting the case-law in light of the challenges identified, the article points out possibilities and limits for endorsing positive obligations in EU law, particularly in relation to the Member States. Lastly, the article looks into potentials of further developing a concept of positive obligations under the Charter.