European Court Of Justice Case Law Research Articles

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.

Mutual Recognition of Family Relations in the EU. European Court of Justice Case-Law regarding the Children of Rainbow Families

The following study took shape in the context of concerns that exist at the level of the European Union regarding the recognition of filiation in cross-border situations, mainly aimed at the children of same-sex couples. Thus, at the center of the analysis are those established by the Court of Justice of the European Union in case C-490/20, aspects reiterated on the ruling of the Court Order in case C-2/21. The main conclusion refers to ensuring compliance with the best interests of the child by effectively recognizing the freedom of movement and the rights attached to the quality of European citizen, for families with LGBTQ parents.

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.

Article: Economic Substance for Holding Companies in the Post- BEPS World and after Recent ECJ Case-Law: An Analysis of Developments in Europe

Over the last decade, following the Base Erosion and Profit Shifting project (BEPS), the international tax framework has been in constant change. Some of those changes, such as the introduction of the Principal Purpose Test (PPT) in the Organization for Economic Co-operation and Development (OECD) Model Convention and the Anti-Tax Avoidance Directive (ATAD I and II) in the European Union (EU) aim at denying benefits to corporate structures and transactions put in place by Multinational Corporations (MNEs) whenever those are deemed to be abusive. Recent European Court of Justice (ECJ) judgments arguably further modified the international tax framework. One of the most important elements – following those developments – commonly analysed to assess abuse is ‘economic substance’. This article focuses on the analysis of substance requirements particularly for holding companies, which typically are less robust than those of companies generating active income. After analysing the definition and object of a holding company, the author explores the current views of the OECD and the EU on this topic, including ECJ jurisprudence, to assess to what extent those have converged. The article compares different instruments and concepts, as well as their underlying principles, aiming at applying them to specific cases of cross-border holding structures. Holding companies, substance, anti-tax avoidance directive (ATAD), principle purpose test (PPT), abuse of rights, tax treaty abuse, principal purpose test (PPT), general anti-avoidance rule (GAAR), beneficial ownership

Recent European Court of Justice case-law on Directive 2016/343 on the presumption of innocence (Milev, RH & DK): are pre-trial detentions covered by this instrument?

Directive 2016/343 on the presumption of innocence was adopted in 2016, setting common standards for strengthening mutual trust in criminal proceedings among Member States. Even though it significantly improved the level of treatment of suspects and accused persons, its application to pre-trial detentions has been quite controversial. This paper critically analyses three recent judgments of the European Court of Justice about this issue – Milev, RH and, especially, DK – with the purpose of clarifying whether the Directive – and in particular, Arts. 4 and 6 thereof – could be applicable to such measures and, if not, what actions might be taken to improve the protection of individuals in detention.

The Political Role of the European Court of Justice: How the EU Institutional Thresholds Shield the Integrationist Power of the Court

The aim of this paper is to analyse how the European Court of Justice (ECJ) has been a fundamental factor in the integration process of the European Union, in spite of the obstacles posed by the intergovernmental dynamics that have traditionally hindered the construction of a stronger, cohesive and more integrated Europe. Important principles such as direct effect or supremacy of EU law have been developed through ECJ rulings and case law, even when such principles were not literally foreseen in the foundational Treaties. Therefore, this paper argues that the role and power of the Court as an “indirect law-maker” have been essential for the construction of the European Union, and this has been possible due to the complexities and weaknesses of the legislative process involving the three main decision-makers: the Commission, the Council of the EU, and the European Parliament.

Freizügigkeit und Sozialstaat

Under which conditions a community supports people in need is a key question of equality. Sharing among equals is usually easy. In most countries citizens are taken care of when in need. Foreigners, in contrast, are not automatically entitled to benefits. With EU citizens, solidarity becomes controversial. This article deals with the dynamic development of the European Court of Justice case-law and contrasts it with a constitutional counter-image.

ECJ's Approach to EU Migrants' Social Benefit Claims: Tracing Judicial Influence on German Social Policy

The purpose of this paper is to investigate to what extent the European Court of Justice (ECJ) decides strategically on preliminary references in matters of access to social benefits by economically inactive EU migrants, and to what extent national courts decide to comply with ECJ preliminary rulings in these issues. In doing so, this paper attempted to contribute to a better understanding of judiciaries’ impact on public policy through the EU preliminary reference procedures. Knowing that the field of social policy is highly conflict-laden, this paper assumes that the ECJ activity in this area will largely reflect a strategic balancing between deeper EU integration through case law and respect for national (fiscal) interests and competences. The paper draws on an intergovernmental, rational-choice theoretical perspective and applies it in a case study on Germany, where three cases (Dano C-333/13, Alimanovic C-67/15 and Garcia-Nieto C-299/14) regarding the access to social benefits (i.e. special non-contributory benefits) have recently been referred to the ECJ. To draw conclusions, the author traces political circumstances, previous ECJ case law, ECJ reasoning in the case studies and final verdicts by national courts.

Punctuality or a Safe Flight: Which Should Have Priority?

On the 4 May 2017, the European Court of Justice (EUCJ) delivered its judgment in the Pešková v. Travel Service case. The authors see a very thin ray of hope for the aviation industry in this judgment. It could be viewed as a break in a dangerous trend by the EUCJ of prioritizing punctuality over safety. In Pešková, the Court has for the first time recognized safety as being part of a ‘high level of protection for air passengers’, as referred to in the EU ‘passenger rights’ Regulation 261/2004. This article looks at both objectives, which are paramount for the industry. The authors take an ‘inside out’ view of the aviation industry through an overview of the reasoning of the Court regarding technical problems, on the one hand and, on the other hand, the entitlement of passengers to very high financial compensation from airlines pursuant to EU Regulation 261/2004 and subsequent EUCJ case law.

El impacto de la jurisprudencia del Tribunal de Justicia de la Unión Europea en la definición del principio de libre circulación de mercancías en la Comunidad Andina y el Mercosur

The Andean Court of Justice (ACJ) and the Permanent Tribunal of Review (PTR) of Mercosur have used the European Court of Justice (ECJ) case law to define the principle of free movement of goods enshrined in the Cartagena Agreement and the Treaty of Asuncion. This paper seeks to analyze the manner in which the ACJ and the PTR have applied the ECJ case law in order to determine the existence of trade restrictions. It is argued that there is a need to developed a contextual interpretation of the principle of free movement of goods in the Andean Community and Mercosur that clarifies and develop the concepts of the Cartagena Agreement and the Treaty of Asuncion in the light of their own integration processes, of which the ACJ and the PTR are part.

Free movement, the welfare state, and the European Union's over‐constitutionalization: Administrating contradictions

The European Union (EU) has to reconcile free movement rights with national welfare states. Case law of the European Court of Justice (ECJ) has broadened rights to welfare of economically inactive or marginally active EU citizens. Applying the Court's jurisprudence, which is vague and specific at the same time, poses serious challenges for national administrations. Vague criteria for individual assessments have to be translated into mass procedures. And legislative corrections of the case law are often foreclosed given the EU‘s skewed separation of powers and the over‐constitutionalization of European law, where crucial policy choices are taken by the Court's Treaty interpretation. We compare the British and the German approaches and show that ECJ case law impacts through different channels, but triggers similar challenges for national administrations.

In the Name of Effective Consumer Protection and Public Policy!

The European Court of Justice (ECJ) has established that under certain circumstances national courts have an obligation, ex officio, to apply specific consumer protection provisions. This article presents a model derived from the argumentation for this obligation in ECJ case law. The model consists of four steps that include the specific ideas behind consumer protection provisions as well as the interaction between the principle of effectiveness and principle of equivalence. It is found that the principle of effectiveness is stretched very long and is often not set aside by the ‘rule of reason’. It is also found that the ECJ is open to the idea of regarding consumer protection provisions as (European Union (EU)) public policy rules which seems to challenge the traditional principle of equivalence. Based on the findings, the author elaborates on the concept of a European public policy doctrine.

Interest Limitation under the Adopted Anti-Tax Avoidance Directive and Proportionality

This article scrutinizes the compatibility of the interest limitation rule the European Union (EU) legislature included in its anti-tax avoidance directive adopted on 12 July 2016 with the proportionality principle. Under its settled case law concerning domestic interest limitation rules restricting a fundamental freedom for purposes of combating tax avoidance practices, the European Court of Justice (ECJ) holds that such measures do not comply with the principle of proportionality if they, amongst others, either do not provide the taxpayer with an opportunity to substantiate the commercial reasons for not entering into an arm’s length loan arrangement, or restrict the deductibility of more interest than an arm’s length interest. As the rule does neither adhere to the counterevidence rule nor to the arm’s length principle, it is questionable whether its status as secondary EU law suffices for purposes of disregarding the aforementioned limitations set by the ECJ. Amongst others, the author takes the view that on the basis of ECJ case law, the interest limitation rule may be considered incompatible with the proportionality principle.

Unfair Contract Terms and the Consumer: ECJ Case Law, Foreign Literature, and Their Impact on Dutch Law

Summary: In the late twentieth century, most European states have adopted legislation on unfair contract terms. The Directive 93/13/EEC on unfair terms in consumer contracts has effectively made the European Court of Justice (ECJ) the final arbiter in interpreting much of this legislation. The present paper explores the impact which the ECJ case law and foreign legal writing has had in an individual Member State, that is, the Netherlands. Seven issues are highlighted. (i) First, especially in the United States, information requirements as to contract terms have been investigated and found wanting. Although it must be conceded that not every consumer will read the small print even when enticed by the legislature to do so, this paper submits that such requirements do have some value. (ii) Contra proferentem interpretation is one of three age-old weapons against unfair contract terms; but, unlike the common law, Dutch law has not made much use of it. (iii) Dutch law has used the overt control over the introduction into the contract and the content of standard contract terms, but the result is of little use to guide parties, attorneys, and judges. Dutch case law, unlike that in Germany, is so much attuned to the circumstances of the case that it hardly establishes useful precedents. (iv) One of the first cases on unfair contract terms decided by the ECJ, the Océano case, caused a major discussion in the Netherlands. Should the Dutch legislature step in and change the sanction of avoidance or nullification into that of considering an unfair term not binding, or should the consequences of ex officio avoidance or nullification be left to the existing statutory provisions? The Hoge Raad eventually came to terms with Océano and the following ECJ case law in Heesakkers v. Voet. (v) An issue with regard to which Dutch courts have not yet had the opportunity to tie in with the case law of the ECJ is the problem of geltungserhaltende Reduktion, rejected in the Banesto case, which is in line with German case law. Until Banesto, Dutch case law had in fact accepted the device of geltungserhaltende Reduktion. This paper strongly supports the approach applied by the ECJ and German case law. (vi) Dutch law does not extend the control of unfair contract terms to the main subject matter. This is in line with the EC Directive and the case law of the ECJ (Kásler), and it is an expression of the rejection of the iustum pretium doctrine. The Nordic experience with handling unfair contract terms, without the exception for the main subject matter, demonstrates that the exception is not necessary. (vii) Finally, with regard to enforcement, the Dutch experience shows some surprising discrepancies with that in Germany. The two models may be described as the Dutch poldermodel and the German ‘battle’ model. The final paragraph sets out the conclusion of the foregoing analysis. In dealing with unfair contract terms, a collective approach should be favoured. Indeed, the Unfair Contract Terms Directive itself directs Member States to do so. Unfortunately, this is hidden for practitioners, because their understanding of the Directive will usually be limited to the part which has been transposed into national legislation, and the national legislation usually does not include the relevant provisions of the Directive. Also, it may be argued that a collective breach needs a collective remedy. This has been illustrated by two issues concerning unfair contract terms. The first one is the validity or invalidity of exemption clauses in standard terms. A second example is the question of the (in)validity of an arbitration clause in standard building terms.

Right to collective action in cross-border employment contexts: a fundamental social right not yet covered by EU private international law

The purpose of this article is to describe the right to collective action in crossborder employment contexts, recognised as a fundamental social right at the national and European levels. On the one hand, some national Constitutional Courts, such as the Portuguese and Italian ones, have dealt with social rights and the economic crisis, and have clearly stressed the prevalence of constitutional social rights over austerity measures. On the other hand, Council of Europe documents and European Union law recognise social rights, but they do not offer a proper means of protection. The European Court of Justice case-law shows a complex interrelation between social rights and economic freedoms. The main issue concerns the existing EU private international law on collective action, which has led to an inconsistent system. A new European collective action framework could be a possible solution to effectively guarantee fundamental social rights.

Free Movement of Goods in the Andean Community: How far can Dassonville go?

The case law of the Andean Court of Justice (ACJ) and rthe Resolutions of the General Secretariat regarding restrictions on imports, suggest that these institutions have tried to ensure the fulfillment of state obligations in favor of the principle of free movement of goods as an essential and important avenue to attain the common market in the Andean Community. Since the early 1990s, through the jurisprudence on the free movement of goods, the ACJ has adopted a broad interpretation of the provisions of the Cartagena Agreement. The need to interpret the Cartagena Agreement based on the need to establish a common market triggers the application of a broad definition of restriction on trade, such as the European Court of Justice (ECJ) Dassonville doctrine. The Dassonville formula helped not only to understand the meaning of “restrictions of all kinds” provided for in Article 73 of the Cartagena Agreement but also to delimit the competence of community institutions as regards the assessment of restrictive national measures.The Treaty on the Functioning of the European Union (TFEU) and the ECJ case law are a source of inspiration for the General Secretariat and the ACJ when determining the existence of a restriction on trade. Both community institutions cite the ECJ case law, Article 34 TFEU, and the European doctrine. Some aspects of the ACJ case law need to be further clarified. In light of the ACJ case law, Article 34 TFEU has acquired the status of supplementary source of law in the Andean Community. Nevertheless, the ACJ needs to develop or explain the implications of this position adopted in the 1990s. As yet, the ACJ has not done this work. A special challenge for the ACJ follows from the fact that the Cartagena Agreement has adopted a different approach to restrictions on trade to that found in the text of the TFEU and it does not contain a clause for MEQRs. Additionally, the Cartagena Agreement clearly takes a position concerning the concept of restrictions of all kinds.

The Free Movement of Goods in MERCOSUR: Developing a European Court of Justice Approach in MERCOSUR?

This paper analyses the case law of MERCOSUR's Permanent Tribunal of Review (PTR), examining the influence of the European Court of Justice (ECJ) jurisprudence in the interpretation and orientation of MERCOSUR law. Although the ECJ jurisprudence could shed some light on the interpretation of certain rules, such case law has been used as de facto authority. Such a conclusion holds true in particular for the interpretation of MERCOSUR law where a legal vacuum is identified. The manner in which the PTR quotes the ECJ case law and immediately after, without further consideration of other sources, completely applies such case law supports this view. A more creative interpretation of MERCOSUR law is called for. The construction of a case law developed in the light of the MERCOSUR integration process itself is required. Taken together, the PTR reasoning in the three rulings on the occasion of the Remolded Tires case demonstrates the willingness of the PTR to follow the ECJ jurisprudence. The PTR could have engaged in a thorough review of MERCOSUR legislation which could have shed light on the scope of the exceptions to the free movement of goods.

Class struggle in the shadow of Luxembourg. The domestic impact of the European Court of Justice's case law on the regulation of working conditions

ABSTRACTIn recent years, the European Court of Justice (ECJ) has extended the scope of the four fundamental freedoms to politically and economically highly sensitive areas such as the right to strike and the regulation of working conditions of posted workers. This article analyses the domestic impact of two of the most controversial judgments – Laval (C-341/05) and Rüffert (C-346/06) – in Denmark, Sweden and Germany. In order to explain the different outcomes of the national adaptation processes, the article connects the literature on judicial Europeanization with political economy perspectives on the role of employers in economic and social regulation. The findings show that the differences between the cases can be traced back to different preferences of employers towards wage competition. The reason for this is that the ECJ's case law has shifted the balance of power between labour and capital in the domestic arenas in favour of business.

The right to family life in the framework of ECHR and EU case law

The paper that follows offers a short account regarding the nature and concept of the right to family life in the framework of the European Court of Human Rights (ECtHR) and European Court of Justice (ECJ) case law. More specifically, the nature and concept of the right to family life and its many aspects will be analysed both from a theoretical and a comparative point to view. Thus, the many dimensions of the right to family, as a social right of the family unit, as an institutional guarantee and as a freedom for its members are presented in a comparative constitutional framework (Ireland, Italy, Spain, Portugal, Germany and Greece). Moreover, the right to family life as an open and evolving concept is analysed both in the ECtHR and in the ECJ case law.

The Directive 24/2011 concerning patients' rights to cross-border Health care

Over the last decades, the European Court of Justice (ECJ) has confirmed Member States’ responsibilities in the health care sector, while at the same time it has emphasized patients’ rights to move freely “cross-border” so as to access health care (both medical and thermal) services. Not only has the relevant ECJ case-law (starting with Kohl and Decker in 1998 until Femarbel in 2013) been codified in this aforementioned directive, it has also brought additional clarity concerning responsibilities of the Member States and set the basis for (voluntary) cooperation between them in this field. Against this background the presentation highlights the potential of the Directive as to Health SPAs services. In particular the presentation refers to experience and potential future role of the EGTC (European grouping of territorial cooperation) named “EuropaRegion – Euregio”, established and formed by the Land Tyrol (Austria), South Tyrol and Trentino (Italy), as a tool to foster cross-border access to health care services. In this respect, a strategic partnership between tourism and health needs to be pursued. From a more general perspective, the author’s aim is also to underline any possible limitations on the right to access such services that – due to financial restrictions – the single Member States may introduce in the implementation process.