European Court Of Justice Research Articles

Regulation of genetically modified organisms, food and feed in the EU with particular reference to Poland – protection of consumers and the environment or merely a response to public expectations?

This article aims to establish the rationale for its introduction within the European Union and subsequent changes to the legal regulation of its release into the environment, genetically modified organisms (GMOs), and the placement of genetically modified food and feed on the market. Following the presentation of the original regulation, public reactions to GMOs and the resulting changes in the European Union and national regulations are discussed based on cases before the European Court of Justice. The analysis leads to the conclusion that in the case of GMOs and genetically modified food and feed, the legislature has acted mainly based on public expectations, while neglecting a full scientific assessment of the solutions adopted to protect consumers and the environment.

Accounting for the specificities of sport in EU law: Old and new directions in the 21 December 2023 judgments

This article reflects on sport interests as accounted for by the European Court of Justice in the three judgments delivered on the 21st of December 2023: Case C-333/21 European Superleague Company SL v FIFA, UEFA, Case C-680/21 UL, SA Royal Antwerp Football Club v URBSFA, UEFA and Case C-124/21 P International Skating Union v Commission. In the cases, the Court does not treat sport as a special interest that would justify excluding the application of European Union (EU) substantive law to the situations at hand. Rather, the Court adopts a strict reading of Article 165 TFEU as a provision that does not shield the sport sector from the application of EU law. However, the paper demonstrates that the Court does recognise the particularities of sport and accounts for them in the application of EU free movement and competition law. This is especially when characterising rules as object or effect restrictions, but also when exploring the defence under Article 102 TFEU, the justifications under Article 101(3) TFEU as well as under free movement law. The Court guides and encourages the referring courts to pay attention to the specific content of the rules and the context in which they are implemented. The Court thereby follows the traditional assessment of a measure and its context under EU substantive law while devoting great attention to the specific characteristics of the sport sector in its substantive analysis.

The Dieselgate Returns at the CJEU: Lack of Conformity, EU Consumers’ Rights and Responsibility

The answers given by the European Court of Justice in Cases C-145/20 and C-873/19 are groundbreaking for consumer law. Indeed, these decisions bring together two areas of law traditionally kept apart. They coordinate private law and technical regulations concerning polluting emissions in the light of the need to ensure both consumer and environmental protection. The approach suggests an evolutive interpretation of national law, capable of collecting contemporary regulatory trends and implementing the principle of sustainable development.

What the European Court of Justice is for – Making Sense of the ECJ’s Procedural and Organisational Law

What the European Court of Justice is for – Making Sense of the ECJ’s Procedural and Organisational Law

European Court of Justice.

European Court of Justice.

Recognition of a Danish Monetary Penalty in Employment Matters and Public Policy

Abstract The contribution is focused on a recent decision of the Italian Supreme Court, in which it was held that a Danish judgment imposing a monetary sanction (bod) on an employer for the failure to perform its obligations under a collective employment contract can be recognized in Italy under Regulation (EU) No. 1215/2012 (applicable to Denmark via the 2005 EU-Denmark Agreement). The request to refuse recognition had been raised on the assumption that the Danish measure amounted to a condemnation to punitive damages and was thus incompatible with public policy. The Corte di Cassazione came to the opposite conclusion, but the solution reached may cause a mixed reaction. It is regrettable that, notwithstanding the applicability of Regulation (EU) No. 1215/2012, the Italian Supreme Court simply relied on the principles developed in its previous judgment No. 16601/2017 (concerning a judgment of a non-EU court) and did not deem it necessary to request a preliminary ruling from the European Court of Justice (“cjeu”) on the interpretation of the relevant provisions of the mentioned Regulation. In a different vein, it is to be welcomed that the nature of the foreign measure was assessed in accordance with the so-called Engel criteria, developed by the European Court of Human Rights. However, the analysis conducted in the instant case by the Italian Supreme Court, which appeared to overlook some characteristics of the Danish bod, is not completely convincing.

Port State Control of Civilian Search and Rescue Vessels before the European Court of Justice: The Sea Watch Cases

Abstract On 1 August 2022, the Grand Chamber of the European Court of Justice (ECJ) rendered its preliminary ruling in the joined cases C-14/21 and C-15/21, which concerned the detention of two German-flagged civilian rescue vessels operated by the German non-governmental organisation Sea Watch. The detention was executed by Italian port authorities following port State inspections carried out pursuant to Directive 2009/16 on Port State Control (PSC Directive). The ECJ’s judgment is the first to comprehensively address and clarify the legal framework governing the European Union’s system of port State control. The Court provided several clarifications concerning the interpretation of the PSC Directive as well as relevant rules of the international law of the sea. Overall, these clarifications may be considered positive for the rule of law in the context of port State inspections of civilian search and rescue vessels.

FRAND determination under the European SEP Regulation Proposal: discarding the Huawei framework?

ABSTRACT As part of the recent proposal for a regulation that would overhaul the entire standard essential patents licensing system (SEP Proposal), the European Commission has envisaged a pre-trial mandatory FRAND determination by a conciliator. The paper investigates the relationship between the FRAND determination process under such a proposal and the test developed by the European Court of Justice (CJEU) in Huawei v. ZTE, which represents the current guiding framework for SEP licensing negotiations in the EU. The paper aims at demonstrating that even, if the SEP Proposal were not to displace Huawei, it endorses an anti-injunction approach which is inconsistent with the CJEU’s stance and is essentially triggered by the German case law.

The judicial dialogue between the European Court of Justice and the European Court of Human Rights

Despite the evolution, recognizing fundamental rights on a case-by-case basis, the CJEU failed, however, to develop a complete system of fundamental rights protection, covering all areas of Community law and, subsequently, EU actions. Furthermore, due to the lack of specific references to fundamental rights in EU law, EU citizens have continued to rely on the protection system provided by the CEDO. On the other hand, the CEDO referred less often to the jurisprudence of the CJEU, which was not totally unexpected. In fact, the CEDO's citation of CJEU judgments did not result from a need to legitimize its own jurisprudence in relation to the contracting states. In the case of the CEDO, it rather proved that there is a consensus at the European level that could justify either a reversal of the jurisprudence or an evolutionary interpretation of a right guaranteed by the Convention.

Environmental rights protection in the European Court of Human Rights

A relevant issue of environmental law in Ukraine is the total violation of environmental human rights and the lack of guarantees for their restoration, as well as the imperfection of the procedure for bringing violators to justice. Since Ukraine is an active participant in international relations in the field of environmental protection, and the basic principles of foreign policy are enshrined in the Constitution of Ukraine, an appeal to the European Court of Human Rights may be a way to defend the violated rights to a clean environment. The study aims to examine the issue of environmental rights protection in the European Court of Justice. The study is based on the following methods of scientific cognition: formal legal, dogmatic, and comparative legal. The author analyses international legislation in the field of environmental rights protection. The author notes that environmental problems are borderless, and therefore, their overcoming requires all countries to join forces and share experiences. As stated, the issue of environmental protection and environmental security is becoming geopolitical in nature, given the international cooperation in the field of environmental protection which began more than 100 years ago. The author shows the signs of ensuring the implementation of the environmental rights of citizens both in Ukraine and abroad. Examples of effective international cooperation in the field of environmental protection are given. The author analyses the judgments of the European Court of Human Rights in cases related to the subject matter of the study. It is determined that when making a decision, national courts should adhere to the criteria set out by the European Court of Human Rights; find out how a certain situation arose; whether the State knew and should have known that the danger or harmful effect would affect the applicant’s private life; to what extent the applicant contributed to the deterioration of the situation and was able to remedy it without excessive costs. The practical significance of the study lies in the possibility of using its results in specialised classes, as well as in the preparation of scientific texts

European Court of Justice

European Court of Justice

Recent case law on equal treatment of agency workers: broad interpretation of a limited concept?

AbstractDirective 2008/104/EC calls for the equal treatment of agency workers and directly employed staff at the user company. This article focuses on the limits of this principle inherent in the Directive and on how the European Court of Justice has recently striven to interpret agency workers’ right to equal treatment as broadly as possible. The article also explores how the European Court of Justice has tried to broaden the material scope of agency workers’ right to equal treatment and points out the possible shortcomings of the narrow interpretation given to derogations by collective agreements. Finally, possible ways of enhancing the Directive’s effectiveness are addressed.

ANTICOMPETITIVE PRICE FIXING IN DISTRIBUTION AGREEMENTS – ECJ C-211/22, SUPER BOCK V. PORTUGUESE COMPETITION AUTHORITY

On June 29, 2023, the judgment concerning the case C-211/22, Super Bock v. Portuguese Competition Authority, was released by the European Court of Justice (“ECJ”). This judgment delivers a comprehensive review of fundamental competition law principles pertaining to vertical agreements. In this judgement was examined the business approach of Super Bock, a manufacturing Portuguese company. The preliminary ruling emphasizes to the court referring the case the vital distinction between hardcore restrictions as defined by the Vertical Block Exemption Regulation (VBER) and competition-constraining practices falling within the purview of Article 101(1) of the Treaty on the Functioning of the European Union (TFEU). Furthermore, the ruling clarifies the expansive scope of the term “agreement” according to Article 101(1) of the TFEU, while also highlighting the array of (both direct and indirect) evidence that can substantiate the identification of an agreement. In alignment with established legal precedents, ECJ reinforces the principle that an agreement encompassing nearly the entire geographical expanse, though not entirely exhaustive, of a Member State can still impact the inter-member trade. Vertical agreements involve relationships between entities at various levels of the supply chain, such as manufacturers and distributors. The key aspects addressed in this judgment have direct relevance to how manufacturers interact with their distribution networks and set pricing policies, which in turn can affect market dynamics and competition within the manufacturing industry. The Super Bock v. Portuguese Competition Authority judgment serves as a pivotal milestone in clarifying the legal framework governing vertical agreements in the European Union. Its comprehensive analysis of competition law principles provides valuable guidance to businesses operating within the EU, ensuring a more transparent and predictable regulatory environment for vertical agreements and, consequently, fostering healthy competition in the market. The ECJ confirmed for the first time the established EU law principles regarding vertical price-fixing agreements. It emphasizes that an agreement should not rigidly be classified by actions without considering the broader context. Although deviating from stricter framework centered on the primary purpose and severe restrictions may complicate the application of the law, this ruling encourages a more thoughtful evaluation of vertical agreements and their overlap with competition law.

Food or medicine? A European regulatory perspective on nutritional therapy products to treat inborn errors of metabolism.

Dietary or nutritional management strategies are the cornerstone of treatment for many inborn errors of metabolism (IEMs). Though a vital part of standard of care, the products prescribed for this are often not formally registered as medication. Instead, they are regulated as food or as food supplements, impacting the level of oversight as well as reimbursed policies. This scoping literature review explores the European regulatory framework relevant to these products and its implications for current clinical practice. Searches of electronic databases (PubMed, InfoCuria) were carried out, supplemented by articles identified by experts, from reference lists, relevant guidelines and case-law by the European Court of Justice. In the European Union (EU), nutritional therapy products are regulated as food supplements, food for special medical purposes (FSMPs) or medication. The requirements and level of oversight increase for each of these categories. Relying on lesser-regulated food products to treat IEMs raises concerns regarding product quality, safety, reimbursement and patient access. In order to ascertain whether a nutritional therapy product functions as medication and thus could be classified as such, we developed a flowchart to assess treatment characteristics (benefit, pharmacological attributes, and safety) with a case-based approach. Evaluating nutritional therapy products might reveal a justifiable need for a pharmaceutical product. A flowchart can facilitate systematically distinguishing products that function medication-like in the management of IEMs. Subsequently, finding and implementing appropriate solutions for these products might help improve the quality, safety and accessibility including reimbursement of treatment for IEMs.

The ‘European Multilevel Constitutional Review Composite’ Between ‘Primacy/Precedence’ and ‘Supremacy’: European Legal Integration After the Judgments by the German Bundesverfassungsgericht in ‘ECB-PSPP’ and the Polish Trybunal Constytutyjny in ‘K 3/21’ [pre-publication

Apparently, European legal integration currently faces once again its most fundamental doctrinal problem, i.e.,: the nature of EU supranational law and its relation to the traditional ‘superiority’ of constitutional law within its Member States. Since the European Court of Justice (ECJ) repeatedly re-emphasizes the ‘primacy’ and needed effectiveness of the former, this provokes the question about the latter’s remaining functional nature. Indirectly, this issue goes also to the heart of the EU’s judicial-system of a ‘European multilevel constitutional review composite (EMCRC)’. It relates thus not only to the ECJ, but also to the functions of Member State authorities exercising constitutional review powers within the overall EU legal integration process. Whilst this inter-institutional question had received a new impulse with the German ‘Bundeverfassungsgericht (BVerfG)’-ruling of 5 May 2020 in case ‘ECB-PSPP’, it became finally undeniable with the decision of 7 October 2021 by the Polish ‘Trybunal Constytutyjny’ in case ‘K 3/21’; there regarding the persistent EU-Poland ‘rule of law’-conflict. At issue is thus not only a theoretical approach to laws at different levels, but particularly also the EMCRC’s appropriate inter-institutional future setting. Arguably, this in turn calls however for a commensurate differentiation of terminology in both EU law and national constitutional law. This article enquires into a necessary differentiation between EU law ‘primacy/precedence’ on the one, and national constitutional law ‘supremacy’ on the other side. It aims to demonstrate that such distinction cannot be based on legal-theoretical considerations alone. Instead, particular attention deserves also how the courts factually position themselves, functionally, within the EMCRC. The basic aim is thus to show that the legal-conceptual differentiation and the judicial-institutional functions interrelate decisively. With this in mind, a judicial system such as the EMCRC functionally remains plausible only when it builds upon EU law ‘primacy/precedence’, while it must respect the ‘supremacy’ of national constitutional law(s) as a reactive safeguard for national constitutional courts. Accordingly, legal ‘supremacy’ constitutes a national constitutional law principle indispensable for national courts or tribunals exercising constitutional review. While safeguarding their constitutions’ validities, it indirectly also secures their role as ‘guardians’ over possibly excessive EU acts. By contrast thereto, legal ‘primacy/precedence’ arguably defines the ECJ’s fundamental procedural prerogative to regularly lead the way with interpretative ‘inputs’ introduced into the EMCRC. However, under the above basic conceptual distinction, the national judicial bodies’ capacity to ‘supremacy’-based disagree with the ECJ’s ‘primacy/precedence’-based rulings can only commensurate with the EMCRC’s functioning, if certain additional procedural conditions are met: initially, that their constitutional review over ECJ-rulings remains an ‘exception to the rule’, and therefore, that national constitutional review bodies should ‘regularly’ also bear the burden to substantiate their exceptional disagreement Finally, that this should normally be combined to a ‘constructive input’-consideration, i.e.,: one that avoids a ‘misuse’ of constitutional legal supremacy and, instead, allows the EMCRC to think EU law constructively forward. **To substantiate the existence of indications supporting this approach, is this article’s main objective.

Consumer Law Entangled: Comparative Approaches in European Private Law After Aziz and Addiko Bank

This paper argues that an EU-focused viewpoint is not sufficient to adequately characterize developments in European private law. It proposes to take a critical look at the core activity of national courts. The paper begins with a comparison between two consumer law cases decided by the European Court of Justice (ECJ): Aziz and Addiko Bank, showing that the same problem already solved in Aziz still existed at the national level years later (Addiko Bank). By presenting two reasonings, one of the second referring court and one of the ECJ, it is shown how consumer law is nationally entangled. In the second part, the paper proposes a solution, namely that the disentanglement can be achieved by conducting a comparative study of national case law through four lenses: spotlighting, comparing, functionalizing and Europeanizing. It is argued that such a comparative approach in European private law could facilitate moving beyond entanglements not perceivable solely from an EU-focused viewpoint. It would allow for a broader view of the efficacity of European private law from a bottomup perspective. And this perspective, in turn, would help in tackling some of the systemic shortcomings of European private law (including consumer law) developed on the basis of the ECJ case law.

The Untapped Potential of the Systemic Criterion in the ECJ’s Case Law on Judicial Independence

AbstractThis article explores the use of the systemic criterion in the European Court of Justice’s (ECJ) case law on judicial independence under Article 19(1)(2) Treaty on European Union (TEU). It starts from the observation that ever since the Portuguese Judges judgment, the case law has moved towards a more abstract and general assessment of issues of judicial independence. Yet, despite that evolution, the Court—perhaps surprisingly—only rarely uses the systemic criterion in its judgments. There are only two strands of case law to be found, neither of which tell us much about how the Court understands the notion of “systemic” in this field. This article argues that this criterion nevertheless has an important role to play in the case law on judicial independence and that the Court should explicitly limit the finding of a violation of Article 19(1)(2) TEU to those issues that have a systemic impact on the functioning of the domestic judiciary. By limiting the effects of Article 19(1)(2) TEU in such a way, the Court would strike a balance between the protection of the independence of the domestic judiciary, which is crucial for the proper functioning of the European Union (EU), and respect for the autonomy of the Member States as to the organization of their judiciary.

유럽연합법의 자치성 원리와 기본권 보호에 관한 연구

The European Union's accession to the European Convention on Human Rights began in the 1970s and was marked by the Lisbon Treaty, which authorized the EU's accession. In 2013, a draft agreement was prepared by the Council of Europe's Steering Committee on Human Rights, but the draft agreement was rejected by the European Court of Justice in Opinion 2/13 on the question of the autonomy and specificity of EU law. The negotiations resumed after a gap of more than five years, and the issues raised in Opinion 2/13 were addressed through a process of consensus and amendments were finalized.
 This article revises the intent of the European Court of Justice's decision to reject the draft and compares the content of the final amendment to the draft to understand the process of reaching a consensus on respect for EU autonomy.
 The renegotiation process of the CDDH Negotiating Group has also organized the sections relating to the autonomy of EU law, which were challenged by the European Court of Justice in Opinion 2/13, into four baskets: Basket 1 is the EU’s specific mechanisms of the procedure before the European Court of Human Rights, Basket 2 is the operation of inter-party applications (Art. 33 of the Convention) and of references for an advisory opinion (Protocol No. 16 to the Convention) in relation to EU Member States, Basket 3 is Discussion of proposals submitted on the principle of mutual trust between the EU member states (in the area of freedom, justice and security), Basket 4 is Discussion of proposals submitted on the situation of EU acts in the area of the Common Foreign and Security Policy that are excluded from the jurisdiction of the Court of Justice of the European Union.
 From the 6th meeting in 2020 to the 18th meeting in March 2023, the amendments largely accepted the issues of autonomy of EU law raised in the opinion 2/13. There was consensus in the negotiating group that the CFSP policy aspect of basket 4 should be resolved internally by the EU, and the recommendation to keep the CDDH informed of the EU's efforts and progress, and to actively monitor relevant issues, was accepted, leaving it up to the EU to resolve the issue, while respecting its autonomy.
 The future of the EU's accession to the Convention depends entirely on the will of the EU and its Member States. The rapid entry into force of the amendments proposed by the CDDH Negotiating Group will depend on how quickly the EU and its member states can come up with a solution to Basket 4, the issues of common foreign and security policy whose resolution is pending.
 As a result, the unanimous agreement on the amendment by the Negotiating Group of the Council of Europe's Human Rights Steering Committee is a clear indication that all countries involved are committed to the EU's accession to the European Convention on Human Rights.

The European Court of Justice in Meta Platforms leaves competition and data protection authorities with an assignment

The European Court of Justice in Meta Platforms leaves competition and data protection authorities with an assignment

Crafting the language of borders: The European Court of Justice's strategic opinion writing in rights cases

AbstractCourts, particularly those with the power of constitutional review, engage in supplementary lawmaking. Like other policymakers, judges seek the proper interpretation and implementation of their decisions. Research on the United States of America (U.S.) Supreme Court indicates that it strategically alters its language to obtain better compliance, but little is known about whether international courts do the same. We test the generalizability of these findings by examining the opinion‐writing tactics of another powerful court, the Court of Justice of the European Union (CJEU), in a highly salient policy area, citizenship rights. Like the U.S. High Court, the CJEU must guide judges in interpreting constitutional law. In the European Union (EU) context, this entails directing Member State judges through the preliminary reference procedure, a form of indirect supranational judicial review. We expect that the CJEU will carefully craft the language of its opinions to obtain the cooperation of national judges in this area of law. Our findings indicate that, like the U.S. Supreme Court, the CJEU strategically alters its words in anticipation of this key audience's reactions to its decisions, and that the court's strategies may undermine EU citizens' rights in the long term.