Case Judgments Research Articles

VAT and Holding Companies: Position Finally Clear

With the joint cases Larentia + Minerva and Marenave Schifffahrt the CJEU once again delivered a judgment in a landmark case on VAT and holding companies. The author questions whether this will be the last case on holding companies or that we can expect more cases in the future, because some issues still remain unsolved.

An Exploration of the Modes of Graduation Theses for Law Undergraduates in Local Colleges and Universities—Case Judgment Mode

This article mainly analyzes the shortcomings of graduation thesis of law undergraduates in local universities in our country, analyzes the thesis mode of law students in local colleges and universities. This article analyzes and interprets the connotation of the dissertation model of law undergraduate and explores its true origin.

ZAŠTITA GEOGRAFSKIH OZNAKA JAKIH ALKOHOLNIH PIĆA

The Court of Justice of the European Union (CJEU) published an interesting judgement in Case C-44/17. Following the action initiated in Germany by the Scotch Whisky Association (SWA), the Court of Hamburg had asked the CJEU to interpret EU legislation on GIs spirit drinks (Regulation (EC) No 110/2008), in particular with respect to the depth of "evocation". The case opposes the SWA and a distillery located in Germany, which produces and markets whisky under the designation "Glen Buchenbach". The product’s label also indicates “German product”. The SWA considers that the use of the term "Glen", in connection with whisky, infringes the GI "Scotch Whisky" as it is liable to cause consumers to make an inappropriate connection to the GI. “Glen” in fact is widely used in Scotland to refer to “valley” and is an element of the trade mark of Scotch Whisky producers. With respect to the concept of evocation, which is a powerful tool to protect GIs against the exploitation of their reputation and other practices which aim at establishing a connection between the products sold and GIs, the main elements of the judgement are: The “conceptual” proximity between a GI and the contested name can result in an evocation. This has to be evaluated by national courts, taking into account the fact that an average European consumer, who is reasonably well informed and observant and circumspect, when confronted with the name at issue, the image triggered in his mind is that of the product whose indication is protected. This is the first case which puts it beyond doubt that evocation can exist even where the name at issue is not similar phonetically or visually to the GI. The indication of the true origin of the good at issue does not exclude automatically the evocation of a GI. As a result, in the present case, the German court will have to determine whether an average European consumer thinks directly about the GI “Scotch Whisky” when he is confronted with a comparable product bearing the name “Glen” (“Glen Buchenbach” whisky).

Tie-Breaking the Highest Median: Alternatives to the Majority Judgment

The paper deals with voting rules that require voters to rate the candidates on a finite evaluation scale and then elect a candidate whose median grade is maxi- mum. These rules differ by the way they choose among candidates with the same median grade. Call proponents (resp. opponents) of a candidate the voters who rate this candidate strictly above (resp. strictly below) her median grade. A simple rule, called the typical judgment, orders tied candidates by the difference between their share of proponents and opponents. An appealing rule, called the usual judgment, divides this difference by the share of median votes. An alternative rule, called the central judgment, compares the relative shares of proponents and opponents. The usual judgment is continuous with respect to these shares. The majority judgment of Balinski & Laraki (2007) considers the largest of these shares and loses continuity. A result in Balinski & Laraki (2014) aims to characterize the majority judgment and states that only a certain class of functions share some valuable characteristics, like monotonicity. We relativize this result, by emphasizing that it only holds true for continuous scales of grades. Properties remaining specific to the majority judgment in the discrete case are idiosyncratic features rather than universally sought criteria, and other median-based rules exist that are both monotonic and continuous.

Legal certainty and taxation: The problem of retroactive interpretation

This article shows that the principle of legality of a tax norm is not exhausted in its 'source' component (i.e. that the norm is enacted by parliament) but also encompasses the 'content' element - a set of requirements for it to be deemed as good law. It is not just retroactivity of a law that is an issue, but legal certainty is also jeopardized by retroactive interpretation implying changes in interpretation of the same norm by authorities who understood it for a long period in a different sense. A threat to legal certainty also exists when a provision that was dormant for years is suddenly applied. A case study shows that the Serbian Parliament issued an authentic interpretation of a tax norm to assert essentially a different interpretation compared to the one well-established in the past, in order to solve a particular case, while a court used that interpretation to pass judgment in a pending case. Within the EU we find notable cases where not only are norms attributed a certain meaning from their inception, even though 60 years may have passed from their initial introduction to the possibility of the existence of a 'new meaning' being suggested for the first time, but taxpayers are made to suffer the consequences of the new interpretation. Had the legislator been able to pay more attention to the content of the bills and apply a more comprehensive approach to current issues, the legal certainty, in terms of avoiding 'innovative' retroactive interpretations, could be preserved.

Luxury Goods and Third-Party Online Platforms: The ECJ’s Judgment in the Coty Case

Luxury Goods and Third-Party Online Platforms: The ECJ’s Judgment in the Coty Case

Orzecznictwo austriackiego Sądu Najwyższego w sprawie reprezentacji wyznaniowych osób prawnych Kościoła Katolickiego

Austriacki Sąd Najwyższy opowiada się za, występującą również w Polsce, recepcją w państwowym porządku prawnym majątkowego prawa kanonicznego w zakresie reprezentacji wyznaniowych osób prawnych Kościoła Katolickiego. Stąd poglądy i argumentacja zawarta w uzasadnieniach jego orzeczeń zapadłych w stanach faktycznych dotyczących zarządu majątkiem kościelnym ma znaczenie także dla polskiej praktyki.
 W latach 1959-2013 zapadło kilkanaście orzeczeń na tle najróżniejszych stanów faktycznych, poczynając od sprzedaży nieruchomości, poprzez oddanie jej w najem lub dzierżawę, po zbycie prawa do łowiska rybnego i zawarcie umowy o pracę. Na kanwie tych zdarzeń, wypowiedziano szereg istotnych poglądów prawnych. Przedmiotem orzeczeń austriackiego Sąd Najwyższego było m.in. znaczenie terminu alienacji (sensu stricto i sensu largo), obowiązek badania przez sąd norm prawa kanonicznego z urzędu, głębokość recepcji norm prawa kanonicznego, możliwość wyrażenia zgody wymaganej prawem kanonicznym per facta concludentia czy samodzielność pełnomocnika uprawnionego do zarządu majątkiem kościelnym. Poruszona została także kwestia autonomiczności kanonicznoprawnej regulacji umowy dzierżawy i najmu względem norm o alienacji.
 Prezentowane orzecznictwo zwraca uwagę na liczne problemy związane ze stosowaniem majątkowego prawa kanonicznego w praktyce obrotu. Zarazem wskazuje ono na niebezpieczeństwa z nimi związane i dostarcza szeregu argumentów stronom w ewentualnych postępowaniach sądowych.

Cybersecurity Insurance and New EU Cybersecurity and Data Protection Rules

In today’s marketplace where businesses are constantly being threatened by data breaches and cyberattacks, it is imperative that a global company obtain cybersecurity insurance. This article highlights the importance of cybersecurity insurance in light of the forthcoming security obligations imposed by the General Data Protection Regulation (GDPR) and the Network and Information Security Directive (NIS Directive). In particular, it mentions some cases showing that even wellknown multi-billion dollar companies are vulnerable to cyberattacks and data breach incidents. Also, it describes the types of damage that may be caused by such cyber events and the reasons why many companies have not yet considered cybersecurity insurance to be part of their overall strategy to mitigate cyber risk. Further, it examines the new cybersecurity and data protection requirements established by the GDPR and the NIS Directive. Finally, it evaluates the role that insurance can play as an effective risk mitigation tool, taking into consideration some recent US courts’ judgments in cyber insurance cases.

Bank loans denominated and indexed to foreign currency ‒ a Polish, Ukrainian or Europe-Wide problem?

The institution of a bank mortgage denominated/indexed to foreign currency (referred to generally and not very precisely as “foreign currency loan” or “loan adjusted to foreign currency”) is an instrument commonly used by a broad group of citizens of European states for acquiring capital with a view to purchasing a housing unit. Until recently, such loans were popular not only in Poland and other countries belonging to the so-called “New Union” (those whose accession took place within the last decade or so: Czech Republic, Slovakia, Romania, Hungary and Croatia), Austria, Spain, Italy, Portugal, but also outside of the borders of the Union: in Russia, Serbia and Ukraine (however, one difference was the currency in which obligations were evaluated – whilst loans in EU countries were dominated by the Swiss Franc, Ukrainian lendees more frequently relied upon loans “adjusted” to the U.S. dollar). Regardless of differences persisting in legislative regimes, peculiarities of national legal systems and local economic and social conditions, in all those countries doubts have arisen whether a drastic change in currency rate (which results in an obligation to pay off a loan on conditions much less attractive than beforehand) constitutes a legally relevant circumstance that could permit one to release oneself from having to perform one’s contractual duties or, at least, facilitate granting some relief in fulfilling increasingly more onerous obligations towards banks. To discuss the permissibility and legal aspects of foreign currency loan contracts is complicated not only from the juridical point of view, but is also of interest to society, politics and economics. Still, the problem attracts strong emotions, particularly among lendees who took out a foreign currency loan and now feel deceived due to a change of the currency rate. The lendees and their organizations often expect involvement, particularly from EU bodies, where, in their estimation, domestic authorities have failed or “succumbed to the banking lobby”. Unfortunately, having observed the course of events over the last several years, one may surmise that the low number of judgments in cases concerning denominated bank loans, and especially the sceptical approach of the Court of Justice, have generated a lot of disappointment.

Congregación De Escuelas Pías Provincia Betania: Tax Exemption for Education Services by Religious Congregation Not Sacrosanct from State Aid Perspective

On 27 June 2017, the Court of Justice handed down a judgment in another fiscal State aid case concerning a tax exemption granted by Spain to a religious congregation performing educational services (Case C-74/16 Congregación de Escuelas Pías Provincia Betania). The Court of Justice’s judgment is interesting – and relevant for future fiscal state aid cases – for a number of reasons, which are discussed in the present article. Firstly, the case adds to the growing body of case law regarding the interpretation of the selectivity requirement in tax matters. Secondly and more importantly, the case provides insight into what constitutes an ‘economic activity’ and an ‘undertaking’ for state aid purposes, and specifically deals with the role played by the receipt of remuneration in this respect. Finally, the case may shed light on an issue of growing importance, i.e. the interaction between an instrument of public international law (a treaty) and various aspects of EU state aid law.

Internet Intermediaries and Article 10 of the European Convention on Human Rights: The New Subjects of Media Freedom

How the principles of freedom of expression, developed over the centuries, can be preserved and passed on, and how the activities of these powerful intermediaries can be aligned with the legal doctrines of fundamental rights are massive issues for the legal regulation and thus for the practice of the ECtHR in the case law related to Article 10 of the Convention – and seem certain to remain so in the coming decades. Although the ECtHR has dealt with relatively few cases on the above subject matter to date, reviewing these will be illuminating, as they seem to outline (albeit inconsistently) a theoretical base that is adapting the traditional questions of freedom of expression to the new media landscape, and on which the ECtHR can rely when delivering judgments in future cases. As such, the ECtHR can in turn influence the regulation of the European public sphere as a whole through its decisions.

Gutiirrez Naranjo On Limits in Law and Limits of Law

While private law defines limits to the effects of contracts, there also are limits to what the law can achieve. This article reflects on the implications of the CJEU’s judgment in the Spanish case of Gutierrez Naranjo, concerning the temporal effects of nullity of unfair ‘floor clauses’ in mortgage contracts. To what extent can the powers of national highest courts be restricted by the CJEU in fields that are governed by a combination of national rules of private law and EU law? And to what extent should socio-economic factors be taken into account in adjudication? In particular, attention is paid to questions of Kompetenz-Kompetenz, the importance of the socio-economic context of the case, the ideas of justice underlying the interaction of national private law and EU law and the added value of transnational judicial dialogues for handling complex legal questions on the interface of different legal orders.

Factors Influencing the Application of a Biopsychosocial Perspective in Clinical Judgement of Chronic Pain: Interactive Management with Medical Students

Background: Though there is wide support for the application of biopsychosocial perspectives in clinical judgement of chronic pain cases, such perspectives are often overlooked due to either inadequate training or attitudes favoring a biomedical approach. Recent research has indicated that despite such explanations, both established general practitioners (GP) and medical students account for some psychosocial factors when making clinical judgements regarding chronic pain cases, but report not being likely to apply these in real-world, clinical settings due to numerous factors, including available time with patients. Thus, it is evident that a greater understanding of clinical judgement-making processes and the factors that affect application of these processes is required, particularly regarding chronic pain. Objectives: The aims of the current study were to investigate medical students’ conceptualizations of the factors that influence application of a biopsychosocial approach to clinical judgement-making in cases of chronic pain using interactive management (IM), model the relationships among these factors, and make recommendations to chronic pain treatment policy in light of the findings. Study Design: The current study used IM to identify and model factors that influence the application of a biopsychosocial approach to clinical judgement-making in cases of chronic pain, based on medical students’ conceptualizations of these factors. Setting: Two university classrooms. Methods: IM is a systems thinking and action mapping strategy used to aid groups in developing outcomes regarding complex issues, through integrating contributions from individuals with diverse views, backgrounds, and perspectives. IM commonly utilizes the nominal group technique and interpretive structural modeling, which in this context were employed to help medical students identify, clarify, and model influences on the application of biopsychosocial perspectives in treating chronic pain patients. Results: Results of IM group work revealed 7 core biopsychosocial approach application categories: GP attitudes, cost, GP knowledge, time, patient-doctor relationship, biomedical factors. and patient perception. GP attitudes was the most critical driver of all other competencies in the system, with cost and GP knowledge revealed as secondary drivers. Limitations: Potential differences in level of prior biopsychosocial perspective knowledge across participants and a potentially small sample size (though consistent with past research and appropriate for an exploratory study of this nature – for purposes of achieving the depth and richness of the deliberation and qualitative insights revealed by participants using the IM methodology). Conclusions: Results from this study may be used to both recommend further research on the identified factors influencing application of biopsychosocial perspectives in treatment of chronic pain and support amendment to extant health care policy, particularly with respect to cost, GP attitudes, and knowledge. Though this research claims neither that the influences identified are the only influences on biopsychosocial application, nor the order of their importance, the research does contribute to an ongoing effort to better understand the factors that influence doctors in their treatment of chronic pain.

SOME THOUGHTS ON THE MEANING AND APPLICATION OF COMMERCIAL INSOLVENCY IN WINDING-UP PROCEEDINGS INVOLVING CONTINGENT CREDITORS Absa Bank v Hammerle Group 2015 (5) SA 215 (SCA)

The winding up of companies is dually governed by the Companies Act (71 of 2008, hereinafter “the Companies Act 2008”) and the relevant provisions of the repealed Companies Act (61 of 1973, hereinafter “the Companies Act 1973”). Thus, the winding up of solvent companies is dealt with under the Companies Act 2008 while insolvent companies are still wound up under the Companies Act 1973. Accordingly, the Companies Act 2008 does not have specific provisions that deal with the winding up of insolvent companies. Nonetheless, the Companies Act 2008 has made transitional measures that enable chapter 14 of the Companies Act 1973 to continue to govern the winding up of insolvent companies. Despite these transitional measures, most provisions of chapter 14 of the Companies Act 1973 are only applicable to the winding up of solvent companies where it is necessary to give full meaning and/or effect to the provisions that govern the winding up of solvent companies under the Companies Act 2008. This dual approach has at times given rise to the inconsistent application of the relevant provisions that deal with the winding up of both solvent and insolvent companies by the courts. Such inconsistencies are exacerbated by the different approaches that are confusingly employed by the courts, especially, in winding-up proceedings involving contingent creditors of persons that are commercially and/or factually insolvent. To this end, the recent decision in Absa Bank v Hammerle Group (2015 (5) SA 215 (SCA), hereinafter the “Hammerle Group case”) has usefully exposed some of the challenges encountered by the courts when enforcing winding-up proceedings involving contingent creditors and commercially insolvent persons in South Africa. This judgment is crucial because it has satisfactorily addressed the following concerns: (a) whether contingent creditors have locus standi to apply for the winding up of their insolvent debtors; (b) whether mere subordination of a contingent creditor’s owed debt to the debts of other creditors of the same debtor could render it undue and not payable in winding-up proceedings; (c) whether contingent creditors are entitled to institute winding-up proceedings on the basis of the debtor’s commercial insolvency; (d) whether statements made without prejudice during bona fide negotiations for the settlement of disputes are inadmissible in winding-up proceedings; (e) whether the debtor’s unequivocal acknowledgement of its indebtedness to the creditor could interrupt the running of prescription in respect of the debt owed to that creditor; and (f) whether a debtor’s debt restructure could constitute an act of insolvency. Accordingly, the article discusses these concerns in light of the Hammerle Group case judgment. This is done to explore whether contingent creditors’ rights with regard to commercial insolvency winding-up proceedings are consistently recognised by the relevant courts in South Africa. The article also examines whether such rights are adequately protected under chapter 14 of the Companies Act 1973.

Attitudes, anger, and nullification instructions influence jurors’ verdicts in euthanasia cases

ABSTRACTCourts have historically avoided informing jurors about their nullification power (i.e. the power to return a not-guilty verdict when their conscience demands it but the law directs otherwise), fearing that such knowledge would prompt disregard for the law and reliance on attitudes and emotions rather than evidence. We investigated jurors’ inclination to nullify the law in a morally ambiguous case of physician-assisted suicide, testing the impact of euthanasia attitudes on case judgments as well as moderators and mediators of that effect. Mock jurors with pro-euthanasia attitudes were overall less likely to vote guilty than anti-euthanasia jurors, especially when they were given jury instructions informing them of jurors’ power to nullify. Nullification instructions also exacerbated the effect of jurors’ attitudes on anger, disgust, and moral outrage toward the defendant – emotions that mediated the effect of attitudes on verdicts. We also tested the impact of incidentally induced anger on jurors’ reliance on their attitudes rather than the law, given anger’s propensity to increase certainty and heuristic processing. Anger enhanced mock jurors’ reliance on their attitudes under certain conditions. Theoretical and practical implications for understanding juror decision-making are discussed.

Politics and Constitutional Adjudication: A response to Prof F Venter

In order to respond appropriately to Prof Venter’s paper on politics and constitutional adjudication I have already had sight of it. My comments therefore may be seen not only as a response but a reaction as well, to some of the opinions expressed by the Constitutional Court judges in the judgements cited therein.
 Prof Venter posits certain considerations of how judicial officers should deal with personal convictions when required to adjudicate in matters that have political implications; these are:
 Not to be politically motivated when producing judgements in cases having political consequences
 That since this would require great effort and since it may well be impossible for a judge to divorce her/himself from ingrained predispositions and premises, a solution may be found in standards of justice with which decisions must comply rather than a preoccupation of what goes on in the mind of a judge.
 I believe that there is more to it than in just attempting to establish standards of justice which in any event would be established by judges themselves.
 

Judgment and Agency

<i>Judgment and Agency</i>

Some Legal Aspects of Abbreviated Trial in Albania

The Criminal Procedure Code of the Republic of Albania, as amended, came as an expression of the society's need for a more effective fight against criminality, a process that should go hand in hand with respect of the human rights and fundamental freedoms. This code, among other things, brought a new concept with regard to the possibility of applying special proceedings, as alternatives to the ordinary proceedings of investigation and judgment in the criminal cases. Thus, after nearly half a century, is reinstated in the Criminal Procedure Code, the special proceedings institute and for the first time in the history of the Albanian procedural law, an abbreviated trial, is foreseen as an alternative judgment. In this context, this paper gives an overview of the abbreviated trial, its legal meaning and the advantages it brings to the parties in particular and to the criminal process in general. The paper also contains a synthesized review of the abbreviated trial, under Albanian legislation and addresses some of the issues of judicial practice, as well as a brief presentation at a practical point of view of the abbreviated trialcases, answering some of the problems arising from the practice.

Stereotypes influence beliefs about transfer and sentencing of juvenile offenders

ABSTRACTDespite sharp drops in juvenile crime since the mid-1980s, punitive policies regarding juveniles who commit serious offenses still exist. We assessed beliefs about two such practices: transferring offenders from the juvenile justice to the criminal justice system, and subjecting them to sentences of life without parole (LWOP). We examined whether stereotypes about juvenile offenders – the extent to which people believe they are dispositionally violent superpredators versus economically and socially impoverished wayward youth – influence support for these policies. We measured 321 participants’ beliefs about the causes of juvenile crime and juveniles’ potential for recidivism and rehabilitation. Using vignette methodology and actual case facts, we described a 13-, 17-, or 21-year-old offender who murdered a stranger or abusive parent, and asked whether he should be transferred to criminal court and sentenced to LWOP. As endorsement of the superpredator stereotype increased, so did support for these practices. Offenders who murdered an abusive parent were shown more leniency. Older offenders were generally treated harsher, except by people with strong superpredator stereotypes who, on the issue of LWOP appropriateness, did not distinguish among juveniles of different ages. Findings suggest that stereotypes can influence judgments in cases involving juveniles and indirectly affect policy-making about juvenile offending.

The dispute that wasn't there: judgments in the Nuclear Disarmament cases at the International Court of Justice

The dispute that wasn't there: judgments in the Nuclear Disarmament cases at the International Court of Justice