European Court Of Justice Decisions Research Articles

The ECJ's Judgment in Krankenheim – The Last Piece in the Cross-Border Loss Relief Puzzle?

The author, in this contribution, examines the significance of the European Court of Justice decision in the case of Krankenheim with regard to completing the picture in respect of cross-border loss relief in the European Union.

Free Movement, Immigration Control and Constitutional Conflict

European Court of Justice decision of 25 July 2008, Case C-127/08, Metock et al. v. Minister for Justice, Equality and Law Reform – EU citizens and their third-country family members – ECJ largely reverses Akrich case-law – Dividing line between national and Community competences on immigration – ‘Reverse discrimination’ not a matter of concern for Community law – Analysis of repercussions of decision on EU and national legal orders

Renneberg: ECJ Unjustifiably Expands Schumacker Doctrine to Losses from Financing of Personal Dwelling

In the November 2007 issue of European Taxation, an article considered the decision of the Netherlands Supreme Court of 22 December 2006 to request a preliminary ruling from the European Court of Justice (ECJ) in the case of Mr Renneberg. The author of the current article now critically examines the ECJ's decision of 16 October 2008 in Renneberg. Although the ECJ's decision is understandable in the light of previous decisions, the author disagrees with it in this case.

Legal and regulatory update The Roanne case: Implications for the procurement of regeneration projects

This legal update looks at the European Court of Justice decision in the Roanne case, which considers the scope of a contracting authority's obligation to procure regeneration projects under Directive 2004/18/EC of the European Parliament and of the Council (concerning the coordination of procedures for the award of public works contracts, public supply contracts and public services contracts) (which is enacted into UK law under the Public Contracts Regulations 2006).

Judicial Behavior under Political Constraints: Evidence from the European Court of Justice

The actual impact of judicial decisions often depends on the behavior of executive and legislative bodies that implement the rulings. Consequently, when a court hears a case involving the interests of those controlling the executive and legislative institutions, those interests can threaten to obstruct the court's intended outcome. In this paper, we evaluate whether and to what extent such constraints shape judicial rulings. Specifically, we examine how threats of noncompliance and legislative override influence decisions by the European Court of Justice (ECJ). Based on a statistical analysis of a novel dataset of ECJ rulings, we find that the preferences of member-state governments—whose interests are central to threats of noncompliance and override—have a systematic and substantively important impact on ECJ decisions.

Internet gambling: Community flop or the Texas Hold'em poker rules1

Transformed by technology, the virtualisation of gambling has prompted administrations around the world to respond swiftly to the challenges posed by the new way of carrying out an age-old practice. However, approaches to regulation differ. Within the USA online gambling is prohibited by the Unlawful Internet Gambling Enforcement Act 31 U.S.C. 5361-5367 (enacted in the USA in October 2006). This has been played out by the threats of extradition and arrests of senior executives in Texas and ultimately imprisonment for criminal infringements in among other places Las Vegas. By contrast the UK has implemented a regulatory regime through the Gambling Act 2005. The European Community has provided a regime somewhere between the two following recent European Court of Justice decisions (Plancanica 2 CMLR 25) finding against Member States operating state monopolies preventing the establishment of private providers in this specific sphere of commercial activity, contrary to Article 43TEC (right of establishment) and Article 49TEC (the right to provide services, this will of course also have the corollary of the right to receive services). The appropriateness of these responses leads the commentators back towards embryonic Internet governance discussions on cyber-paternalism and cyber-liberalism with online gambling as the case study.

Vaxholm/Laval case: its implementations for trade unions

PurposeThe purpose of this editorial is to examine the implementations of the European Court of Justice (ECJ) ruling in December 2007 on the Laval case in Sweden for trade unions.Design/methodology/approachThe editorial outlines the ECJ decision and then examines the response of the European Trade Union Confederation and the social partners and governments in Sweden and Denmark.FindingsThe ECJ upholds in European Union (EU) law the right to strike as a fundamental right and the right of a union to undertake industrial action against wage dumping. The judgement, however, restraints these rights to ensuring that foreign service providers are complying with the minimum employment standards as laid down in the host country legislation. Trade unions in the host county cannot undertake industrial action to force a foreign service provider to provide better terms and conditions of employment than that provided by the laws of the host country. The judgement implies that trade unions cannot in host countries by means of collective action, demand more than the legal minimum rate of pay from a company coming from a different EU member state.Originality/valueThe editorial offers insights into EU law and its implementations for preventing wage dumping between EU member states.

One Step Forward, Two Steps Back? The Viking and Laval Cases in the ECJ

This article analyses the judgements of the European Court of Justice (ECJ) in Case C-438/05 International Transport Workers' Federation and Finnish Seamen's Union v Viking Line (Judgement 11 December 2007) and Case C-341/05 Laval v Svenska Byggnadsarbetareforbundet (Judgement 18 December 2007). In these cases, the ECJ held that where industrial action infringes an employer's free movement rights under Article 43 EC (freedom of establishment) and Article 49 EC (freedom to provide services), respectively, these Treaty provisions can have horizontal direct effect against the unions organizing the action. Unions may defend themselves against these claims by asserting a right to strike (which the Court recognized as a fundamental right within Community law) but only where they are acting proportionately in the exercise of that right. The article explores the key elements of the ECJ's decisions on direct effect, fundamental rights and proportionality, and draws out some of the implications of these cases for English law. © 2008 Industrial Law Society; all rights reserved.

ECJ rules on ISP disclosure of subscribers' personal data in civil copyright cases – Productores de Música de España (Promusicae) v Telefónica de España SAU (Case C-275/06)

In recent years, the music industry has pursued high-volume individual copyright infringement lawsuits. EU legislators have enacted strict copyright laws imposing criminal liability on copyright infringers. File sharers, who download music, have been handed down hefty fines, as much as €2000 per music, for violating copyright laws. However, catching individual file sharers demanded cooperation from the ISPs. The music industry has put greater efforts to increase Internet intermediary liability. In some countries, the governments have sought to impose stricter rules before requiring ISP providers to monitor suspected file shareholders and maintain the data for not more than a year, while in other countries, a court order is not even necessary. Can a rights holder force an ISP to hand over a subscriber's identity in a civil copyright infringement lawsuit? In Europe, this issue has been dealt by the landmark European Court of Justice decision in Productores de Música de España (Promusicae) v Telefónica de España SAU (Case C-275/06), which ruled that EU law does not oblige Member States to publicize personal details in order to guarantee an effective protection of the author's rights.

Cross-Border Mergers in Europe – Company Law is catching up! – Commentary on the ECJ's Decision in SEVIC Systems AG

In the much-anticipated decision of the Grand Chamber of the European Court of Justice (ECJ) in the SEVIC case, given 13 December 2005, the German rules governing (national) mergers were held incompatible with the fundamental freedoms. Some weeks earlier the European legislator adopted the 10th company law directive on cross-border mergers. Whereas the Regulation on the European Company (SE) provides for cross-border mergers of public limited liability companies since late 2004, the 10th directive extends this privilege to private limited liability companies. Until the national implementation of the latter, however, the fundamental freedoms might grant such right to private limited liability companies. Similar questions come up as regards to the outbound scenario, since the SEVIC case dealt with an inbound merger.

Compensation for Damage Caused by Defective Drugs: European Private Law between Safety Requirements and Free‐Market Values

Abstract: Within the European Union, the success of private law harmonisation is based upon the fragile balance between legal integration and protection of national traditions. In this respect, a transversal analysis of the obligation of safety established by the Directive 374/85/CEE shows that harmonisation sometimes prevails over the potential protections granted to the victims of a damage caused by defective products. On the one hand, this reduction arises from the balance between objective and subjective criteria used in evaluating the defect as defined in the harmonised text. On the other hand, it results from problems of coordination between national laws and EC law remedies. This latter difficulty is illustrated by the 25 April 2002 European Court of Justice decisions on the French experience. The paradigmatic example of the pharmaceutical sector is a clear illustration of these tensions, since it heightens free‐market values at the same time as seeking to ensure compensation for breach of health and safety of consumers.

Justice contained: law and politics in the European Union

In this probing analysis of the European Union's transnational legal system, Lisa Conant explores the interaction between law and politics. In particular, she challenges the widely held view that the European Court of Justice (ECJ) has, through bold judicial activism, brought about profound policy and institutional changes within the EU's member states. She argues convincingly that this court, like its domestic counterparts, depends on the support of powerful organized interests to gain compliance with its rulings. What, Conant asks, are the policy implications of the ECJ's decisions? How are its rulings applied in practice? Drawing on the rich scholarship on the U.S. Supreme Court, Conant depicts the limits that the ECJ and other tribunals have to face. To illuminate these constraints, she traces the impact of ECJ decisions in four instances concerning market competition and national discrimination. She also proposes ways of anticipating which of this court's legal interpretations are likely to inspire major reforms.Justice Contained closes with a comparative analysis of judicial power, identifying the ECJ as an institution with greater similarities to domestic courts than to international organizations. The book advances a deeper understanding both of the court's contributions to European integration and of the political economy of litigation and reform.

The End of the Real Seat Theory (Sitztheorie): the European Court of Justice Decision inUeberseeringof 5 November 2002 and its Impact on German and European Company Law

In a long awaited judgement delivered on 5 November 2002, the European Court of Justice (ECJ) has ruled that it isincompatiblewith the freedom of establishment guaranteed in Arts. 43 and 48 EC for a member state to deny a company formed in a member state which moves its central place of administration to another member states, legal capacity (and standing to sue or be sued in courts). Against the expectations of many German legal commentators and the recommendation of the Advocate General, the ECJ also held that where a company incorporated in another member state exercises its freedom of establishment in another member state, that other member state isrequired to recognisethe company's legal capacity (and capacity to be a party to legal proceedings) which it enjoys under the laws of its state of incorporation.

On Parallel Importation, Trips and European Court of Justice Decisions

On Parallel Importation, T<scp>rips</scp> and European Court of Justice Decisions

How Adaptable is the European Commission? The Case of State Aid Regulation

With the institutionalization of Europe's single market during the past decade, the Commission of the European Communities has faced dramatic changes in its policy environment. These include the intensified mobilization of firms and business associations that make new demands on Community regulatory regimes, and the accumulation of European Court of Justice decisions that alter the Commission's regulatory latitude. This essay examines developments in Community regulation of government aid to industry to assess how well the Commission has adapted to emerging constraints on its regulatory capacities. The essay finds that the Commission invited representatives of the national governments of EU countries to legislate conditions for applying regulations on government aid to industry in the mid-to-late 1990s - in a policy area in which the Commission in the past guarded its autonomy closely - not due to pressures from national governments, but as a response by the Commission's state aid policy unit to potential constraints on its regulatory capacities.

10 After Kalanke and Marschall: Affirming Affirmative Action

Is it legitimate to use discriminatory policies to achieve equality? As official support for reverse discrimination or affirmative action policies becomes more common among member states of the European Union, so does the potential for legal challenge. Yet no clear answer has yet been given by the European Court of Justice. The controversial European Court of Justice decision in Kalanke, striking down an affirmative action policy, was followed only two years later by that in Marschall, which signalled a significant change in approach to affirmative action policies. This change of attitude is likely to be tested in a variety of different ways in the near future. The next affirmative action case, Badeck, is now awaiting the opinion of the Advocate General, and a Swedish case is waiting in the wings. Both these cases are likely to take the Court into far stormier waters than those already traversed in Kalanke and Marschall.

After Kalanke and Marschall: Affirming Affirmative Action

Is it legitimate to use discriminatory policies to achieve equality? As official support for reverse discrimination or affirmative action policies becomes more common among member states of the European Union, so does the potential for legal challenge. Yet no clear answer has yet been given by the European Court of Justice. The controversial European Court of Justice decision in Kalanke, striking down an affirmative action policy, was followed only two years later by that in Marschall, which signalled a significant change in approach to affirmative action policies. This change of attitude is likely to be tested in a variety of different ways in the near future. The next affirmative action case, Badeck, is now awaiting the opinion of the Advocate General, and a Swedish case is waiting in the wings. Both these cases are likely to take the Court into far stormier waters than those already traversed in Kalanke and Marschall.

European Communities: European Court of Justice Decision in Continental Can Company V. Commission of the European Communities

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European Communities: European Court of Justice Decision in Imperial Chemical Industries v. Commission of the European Communities

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