Preliminary References Research Articles

Is the Commission levelling the playing field? Rights enforcement in the European Union

ABSTRACTThis article investigates important shifts in the way that rights are enforced in the EU. On the one hand, the Commission is increasingly withdrawing from centralised rights enforcement, initiating less and less infringement proceedings and shifting the bulk of its work towards more informal compliance management tools. At the same time, private, de-centralised rights enforcement is becoming more prominent, at least as measured by the amount of preliminary references submitted to the CJEU. The Commission actively supports this trend, and in effect outsources its own enforcement work to private actors, both individual and collective. The article outlines Commission efforts to facilitate private enforcement and discusses whether private enforcement can substitute for centralised enforcement. It concludes that all channels of rights enforcement have a role to play, and the loss of any single channel cannot easily be compensated.

Nintendo v BigBen and Acacia v Audi; Acacia v Porsche: design exceptions at the CJEU

... In late 2017, the Second Chamber of the Court of Justice of the European Union (CJEU) decided two important preliminary references affecting the scope of design protection under the European Union (EU) design regime. The first, in joined cases Nintendo v BigBen Interactive GmbH, BigBen Interactive SA, concerned the ‘citation’ defence at Article 20(1)(c) CDR.1 The second, in joined cases Acacia v Audi and Acacia v Porsche, concerned the ‘repair clause’ at Article 110(1) CDR.2 The CJEU has not heard many design cases, and Nintendo and Acacia are among the first to address genuinely substantive questions over what EU design law does, or does not, protect. In both cases, however, the CJEU has adopted interpretations of the CDR which make significant and somewhat unexpected inroads into the design rightholder’s exclusive rights. How did the CJEU reach these conclusions? Despite applying a range of interpretative techniques, the reasoning in both judgments is significantly flawed. The aim of this article is to assess what may lie behind these difficulties and consider the implications for future design case law. Section II will summarize the two rulings. Section III will analyse and critique the CJEU’s reasoning across the two cases. Section IV will discuss the issues arising. It will be argued that Nintendo and Acacia involve significant judicial reworking of the disputed provisions of the CDR, apparently motivated by unstated pro-competitor policy preferences.

Agency Costs in a Team: The Effect of Negative Feedback on Inter-Judicial Cooperation in Referral Regimes

We exploit the institutional setting of the EU preliminary ruling mechanism to separate out team and agency motives for inter-court cooperation. Nonhierarchical referral regimes, we argue, reflect a pure team model. However, agency problems may occasionally arise when the work of the referring courts fail to meet the referral court's quality standards. To address these agency costs, the referral court may use formal dismissals. We demonstrate that, depending on the strength of the referring court's team motive, prior beliefs and reputational and learning costs, the negative feedback conveyed by the referral court's dismissal can either produce (1) a chilling effect inhibiting subsequent cooperation, or (2) a learning effect. Using data on preliminary references in the EU legal system, we design separate tests for the two hypotheses and implement these in multilevel models. We specifically model learning as a function of lagged exposure to formal dismissal using a Delayed Lagged Model (DLM). We reject the chilling hypothesis but find support for the learning hypothesis and the team model.

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.

Purely Internal Situations and the Limits of EU Law: A Consolidated Case Law or a Notion to be Abandoned?

Purely internal situations – Fundamental freedoms – Attribution of powers –Ullens de Schooten– Reverse discrimination – Non-discriminatory obstacles – EU citizenship – Preliminary rulings – Jurisdiction of the Court of Justice – Conditions of admissibility of preliminary references

Who Is Steering the Jurisprudence of the European Court of Justice? The Influence of Member State Submissions on Copyright Law

The juridification of the European policy process is increasingly fragile, and little understood. This study develops a novel methodology to investigate the influence of Member States on the rulings of the Court of Justice of the European Union (CJEU). The focus is on the domain of copyright law which has seen a dramatic escalation of preliminary references to the Court, indicating a normative void. Examining 170 documents relating to 42 cases registered between 1998 and 2015, we measure empirically the impact of submissions by Member States and the European Commission on the interpretation of copyright concepts. We show that France is the most influential country by some distance, both in terms of the number of interventions (an ‘investment’ in policy) and in terms of persuasive power (arguments adopted by the Court). The evidence also suggests that the departure of the UK from EU litigation will disturb the delicate balance of CJEU jurisprudence.

The Coming of Age of the Court’s Jurisdiction in the Common Foreign and Security Policy

EU external relations law – Court of Justice of the European Union – Common Foreign and Security Policy – Judicial actors – International courts – Jurisdiction – EU law – Primacy – Damages – Infringements – Direct actions – Preliminary references – the Opinion procedure – Staffing – Future scenarios

The decentralized enforcement of European law: national court decisions on EU directives with and without preliminary reference submissions

ABSTRACTThis article contributes to the study of the preliminary reference procedure and the literature on the decentralized enforcement of European Union (EU) law through national courts. Drawing on the ‘compliance pull’ explanation for why national courts submit preliminary references to the Court of Justice of the European Union (ECJ), it suggests that a greater need to clarify ‘the validity and interpretation’ of one act compared to another is associated with variation in Article 267 submissions. Drawing on a sample of 1,300 national court decisions on EU directives with variation in Article 267 Treaty on the Functioning of the European Union (TFEU) submissions, this article finds that disputes relating to directives leaving more room for manoeuvre in implementation (‘delegation’) and relating to more complex regulatory issues (‘information intensity’) are more likely to be referred to the ECJ for interpretation. It argues that neglecting the ‘compliance pull’ explanations has consequences for how we conceptualize ‘decentralized enforcement’.

Website Blocking, Injunctions and Beyond: View on the Harmonization from the Netherlands

Very few provisions of the European Union intellectual property enforcement framework are subject to so many preliminary references as orders against intermediaries. The website blocking case law is also an interesting case study from the perspective of the European harmonization. It shows how harmonisation by a halo effect can work. The widely-publicized use of a particular enforcement measure is replicated country-by-country, by a homogeneous group of stakeholders, thereby testing the local implementations and bringing its elements to the public scrutiny. The resulting picture painted by the domestic website blocking cases then reflects the state of Union harmonization. This piece contributes to the growing scholarship mapping the national post-implementation phase. It proceeds as follows. Part 1 gives a primer on Union law regarding injunctions against intermediaries. Part 2 explores the situation under the Dutch ‘localization’ of Union law, focusing particularly on injunctions, including against intermediaries, right to information and reimbursement of the costs. Part 3 explains the recent Dutch litigation chain concerning the website blocking and puts it in the broader context of discussions. Part 4 contrasts these findings with the situation under European Union law and practice in the other Member States. Part 5 concludes by evaluating the existing state of the harmonization in the area.

Case study on adoption of new technology for innovation

PurposeThis paper aims at investigating the role of institutional entrepreneurship and corporate entrepreneurship to cope with firm’ impasses by adoption of the new technology ahead of other firms. Also, this paper elucidates the importance of own specific institutional and corporate entrepreneurship created from firm’s norm.Design/methodology/approachThe utilized research frame is as follows: first, perspective of studies on institutional and corporate entrepreneurship are performed using prior literature and preliminary references; second, analytical research frame was proposed; finally, phase-based cases are conducted so as to identify research objective.FindingsKumho Tire was the first tire manufacturer in the world to exploit the utilization of radio-frequency identification for passenger carâ’s tire. Kumho Tire takes great satisfaction in lots of failures to develop the cutting edge technology using advanced information and communication technology cultivated by heterogeneous institution and corporate entrepreneurship.Originality/valueThe firm concentrated its resources into building the organization’s communication process and enhancing the quality of its human resources from the early stages of their birth so as to create distinguishable corporate entrepreneurship.

The Reform of the General Court: An Exercise in Minimalist (but Radical) Institutional Reform

AbstractIn this article, I scrutinise the impact of the reform that will double the number of judges at the General Court. I examine the consequences of a wider use of a five-judge chamber, the continuation of generalist chambers, and the possible departure from the General Court’s minimal standard of review of legality. But greater efficiency at the General Court will have important consequences for the Court of Justice too. The Court of Justice must anticipate more appeals following the General Court’s increase in productivity; the transfer of jurisdiction to the General Court to hear preliminary references is considered. Profound changes at the General Court will lead to the Court of Justice becoming a very different institution to the one we know.

Judicial Dialogue Unpacked: Twenty Years of Preliminary References on Environmental Matters Initiated by the Swedish Judiciary

Judicial Dialogue Unpacked: Twenty Years of Preliminary References on Environmental Matters Initiated by the Swedish Judiciary

Эффективность применения права ЕС национальными судами Словацкой Республики на примере преюдициальных запросов. Часть вторая

Эффективность применения права ЕС национальными судами Словацкой Республики на примере преюдициальных запросов. Часть вторая

Can the UK stay in the UPC system after Brexit?

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How EU Law Shapes Opportunities for Preliminary References on Fundamental Rights: Discrimination, Data Protection and Asylum

This publication explores the impact of procedural provisions inserted in EU fundamental rights legislation (in particular non-discrimination law) that are aimed at facilitating access to court in support or on behalf of victims. The papers investigate the interplay between: 1. ‘collective actors’ understood in the broad sense to cover civil society organisations and independent organisations such as equality bodies intended to represent individuals; 2. the actual litigation on EU fundamental rights law before domestic courts as it unfolds before the CJEU by way of preliminary references; and 3. the rules on access to domestic courts (shaped, to some extent, by EU legislation) as providing legal opportunity structures for preliminary references to the CJEU.

Can the UK Stay in the UPC System after Brexit?

Just when the European patent community finally expected the Agreement on the Unified Patent Court (UPCA) and the Unitary Patent Regulation (UPR) to enter into force soon, the UK electorate voted in favour of “Brexit”. Among a host of other issues this raises the question of whether the UK can remain a contracting state of the UPCA after the country’s withdrawal from the UK and whether the effect of the UPR can be extended to the UK. We argue that both questions should be answered in the affirmative. Once the UK has ratified the UPCA, it will not have to accept either the supremacy of EU law or the possibility of preliminary references from the UPC to the CJEU by separate agreement.

Trends and Patterns in Preliminary References in Courts of Romania. Issues Related to the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights

The case-law of the courts of Romania reveals significant disparities concerning interpretation and application of the two main European sources in the field of human rights - the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights. That is the reason that the present chapter deals with case-law of Romanian courts concerning the said issue raised in requests for a preliminary ruling, covering both references for a preliminary ruling and judgments rendered by courts of Romania in which those courts rejected such requests. The subject-matter is liable to trigger a heated debate about limits of powers and their exercise by courts in relation to references involving the application of different legal standards - national law, European Union law and the European Convention on Human Rights.

Improving new product development (NPD) process by analyzing failure cases

Purpose The purpose of this study is to develop an appropriate new product development (NPD) process of Company “T”, a medium-sized firm, by analyzing the existing NPD process and failure cases of the Company. Design/methodology/approach The proposed research framework is as follows: first, prospective studies of the NPD process are performed using the existing literature and preliminary references; second, comparative analysis between the current processes and a NPD process is performed; third, phase-based evaluations upon failed product cases are conducted with a NPD process so as to identify the abridged steps and root-causes of failures; finally, renewed priorities are set forth by utilizing the analytic hierarchy process analysis and questionnaire analysis upon the above identified causes of failures. Findings The resulting accomplishments include the establishment of NPD processes that resonates with the current states of Company “T”, which, in turn, ensures the increase of efficiency, the decrease in development duration and the strategy of capacity-concentration and priority-selection. Originality/value As Company “T”’s development process is outdated and products are developed without adequate market information research and feasibility analysis, the percentage of failed development project is as high as 87 per cent. Thus, this study aims to develop an appropriate NPD process of Company “T” by analyzing the existing NPD process and failure cases of the Company.

Austerity on the loose in Portugal: European judicial restraint in times of crisis

Abstract The international bailout granted to Portugal between 2011 and 2014 was conditional on the adoption by the Portuguese State of austerity measures included in a memorandum of understanding (MoU) signed by the European Commission on behalf of the European Union (EU) and the Member States. The MoU was never published in an official journal or even translated into the Portuguese language. Its implementation caused a significant decrease in the level of protection of social rights. The compatibility of the MoU with core principles of the rule of law and with the EU’s social Constitution was never tested in court. A systemic failure in the jurisdictional system of the EU immunized the MoU to any judicial challenge. At the apex of the system, the Court of Justice of the EU declined to answer preliminary references submitted by Portuguese lower courts that questioned the compatibility with the Charter of Fundamental Rights of the EU of national budgetary measures that implemented the MoU. At the bottom, Portuguese courts either failed to properly identify the EU law acts that were the source of national austerity measures or disregarded their role as common EU law courts of ordinary jurisdiction when they bypassed the opportunity to refer a question for a preliminary ruling of the Court of Justice challenging the validity of the MoU.

Эффективность применения права ЕС национальными судами Словацкой Республики на примере преюдициальных запросов. Часть первая

Эффективность применения права ЕС национальными судами Словацкой Республики на примере преюдициальных запросов. Часть первая