Previous Case Law Research Articles

Data retention in the light of copyright infringements: Protecting the status quo or seeking a third way? (Case C-470/21 La Quadrature du Net II)

In La Quadrature du Net II, the EU Court of Justice addressed – once again – the issue of the application of national retention legislation providing for the generalized retention of telecommunications data. This time, unlike in the previous cases, the problem was examined not in relation to measures used in the areas of combating serious crime or pursuing national security objectives, but in relation to counteracting online copyright infringements. Hence the case, decided by the CJEU sitting as the Full Court, concerned an important and topical issue, namely the possibility of countering mass copyright infringements in a situation where, according to a strict reading of the previous case law, the permissibility of imposing an obligation on telecommunications operators to collect information on users’ IP addresses was questioned. The LQDN II judgment – commented on by some as diverging from previous case law – is an important and necessary complement to the Court's earlier interpretation and, at the same time, a guideline on how to design retention laws to be applied not only in the area of countering copyright infringements, but also in other important areas, such as the fight against hate speech.

Glosa krytyczna do wyroku Wojewódzkiego Sądu Administracyjnego w Warszawie z dnia 11 kwietnia 2023 r. (VII SA/Wa 2467/22)

The commentary concerns the judgment of the Voivodeship Administrative Court in Warsaw of 11 April 2023, in which the Court referred to the interpretation of the concept of a railway area. The Court’s position deviates from the standards of linguistic interpretation and the accepted practice of administrative authorities. Due to its significant relevance to the process of agreements made by the President of the Office of Rail Transport, the discussed judgment is important for the practice of administrative bodies involved in spatial planning and development. The commentary is critical in nature and considers that the Court, by applying inappropriate interpretive tools, deviated from a linguistic interpretation that was unjustified in the context of the previous case law and doctrinal views.

Challenges of Monitoring Obligations in the European Union’s Digital Services Act

The article argues that the Digital Services Act, as part of the EU’s broader attempt to regulate intermediary services providers in a constantly growing and challenging technological, social and political environment, does not provide a final and comprehensive solution to the issue. The Digital Services Act appears inconsistent with the previous case law of European supranational judiciary forums regarding the prohibitionofgeneralmonitoringbyintermediary services providers.Infact,itprovides the Member States with vaguely worded regulatory exceptions in the event of a ban on general monitoring. However, the Digital Services Act can be seen as a legitimate and necessary attempt to enforce the regulation at the European level through Member States while at the same time giving a unique regulatory position in specific cases to the European Commission or pan-European legal bodies in general. Finally, the Digital Services Act also turns initial enforced self-regulatory attempts to regulate social harms, possibly caused by intermediary services providers, into co-regulation.

Proof of Specific Intent in the Crime of Genocide

Abstract The current dispute between South Africa and Israel before the International Court of Justice has many aspects of great legal interest. This article focuses on the identification and proof of the specific intent of a state in the crime of genocide. On this point, the arguments put forward by the two states in the preliminary phase of the proceedings are very different and raise several issues. The article addresses them especially in light of the International Court of Justice’s previous case law on genocide. The following questions are addressed: Is the genocidal intent of individuals and that of states distinct and separate? Does the finding of individual criminal responsibility for genocide affect, and if so to what extent, state responsibility? What elements/factors are relevant for proving a specific intent? What organs express such an intent? What are the standards of evidence required? The International Court of Justice gave so far unclear answers to these questions. This article seeks to offer some solutions in this regard.

Exploring the Ne Bis in Idem principle: Material scope and application in EU law

This article examines and analyses the application of the ne bis in idem principle based on a final verdict of acquittal or conviction by a competent court where the cases have already been concluded by a final decision. It examines the principle concerning Article 4 of Protocol No. 7 of the European Convention on Human Rights (Article 4P7 ECHR), Article 50 of the Charter of Fundamental Rights of the European Union and its implication under Articles 54 to 58 of the Convention Implementing the Schengen Agreement (CISA). By reviewing previous literature, case law and fact sheets of the Court of Justice on the Ne bis in idem principle, the paper analyses the material scope of application of the principle and highlights the multifaceted significance of the Ne Bis in idem principle in criminal proceedings and the harmonisation of legal practices within the European Union. It reaffirms the principle's foundational importance in fostering fairness, legal certainty, and the protection of fundamental rights across a wide array of legal contexts. It elaborates and provides an interpretative analysis of the principle on the associated jurisprudence of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). The paper also shows that the ne bis in idem principle serves as a common ground for judicial cooperation in criminal matters and mutual recognition of the Council Framework Decision 2002/584/JHA concerning the European Arrest Warrant (‘EAW FD’) and Directive 2014/41/EU regarding the European Investigation Order in criminal matters.

Anonymous Gamete Donation: a Case for Balancing Under Article 8 ECHR.

Anonymous gamete donation creates a specific conflict between human rights and public interests under Article 8 of the ECHR. This was first assessed in the ECtHR's landmark decision in Gauvin-Fournis and Silliau v. France of 7 September 2023. This article critically analyses this judgment, taking into account the European legal framework for anonymous gamete donation, the recommendations of the competent authorities and the previous case law of the ECtHR on the right to know one's biological origin as an integral part of one's identity that is protected under the right to private and family life.

Quantum Antitrust – A Unified Exclusionary Abuse Theory

Now that the judgments in Servizio Elettrico Nazionale and Unilever have made sense of previous case-law, a unified analytical framework can be predicated for all exclusionary abuses. It is made up of two limbs (artificiality/conduct deviating from competition on the merits and potential exclusionary effect/capability of foreclosing). The two limbs are two sides of the same coin, which consists of ascertaining whether the plausible rationale (in the sense of nature and economy) behind a dominant company’s conduct is to derive an advantage that equally efficient competitors cannot either derive by doing the same (first limb–artificiality) or offset by other means (second limb–potential effect). This exclusionary rationale, which is a cognitive state in the dominant company’s mind rather than an ontological reality, is objectivised by holistically judging the dominant company’s conduct against the backdrop of the relative efficiency of its competitors, which is the link between both limbs: if the inherent features of the company’s conduct and all the relevant circumstances surrounding it allow equally efficient competitors to either derive a similar advantage or to defeat its exclusionary effect by some other means, the conduct does not make anticompetitive sense (exclusion is not its plausible rationale). Owing to the very Darwinian nature of competition law, relative efficiency is the common “quantum” and, therefore, a useful yardstick for abuse from the historical, legal, teleological and practical perspectives, as well as from the points of view of causality and reality. Finally, plausibility would be the single standard of proof that could be rebutted by disproving either of the two limbs (in an Intel II-like fashion), either by providing an alternative non-exclusionary explanation that breaks the casual link or by putting forward an objective justification. All other tests and standards merely reflect the extent to which either the artificiality or the potential effects of the conduct can be presumed based on economic judgement or experience (as happened in merger control following CK Telecoms)–thus reconciling per se rules, consisting of an Art. 101-like cursory analysis, with a more economic approach.

Cross-checking the recitals: the exclusion of ‘the mere provision of physical facilities’ from the right of communication to the public in recent CJEU case law

Abstract In its two recent decisions in Blue Air Aviation and Ocilion IPTV, the Court of Justice of the European Union has considered the exclusion of ‘the mere provision of physical facilities’ from the scope of the right of communication to the public under Article 3 of Directive 2001/29 (InfoSoc Directive). This article explores whether the understanding applied by the Court in these decisions is consistent with the international origins of the exclusion and previous case law of the Court. The article explains why the decision in Blue Air Aviation seems to diverge from previous case law, while this does not appear to be the case in Ocilion IPTV. Further, the article argues that the uncertainties regarding the scope of the concept of ‘act of communication’ is caused by the Court’s extensive understanding of indispensability, rather than its interpretation of ‘the mere provision of physical facilities’.

The Compatibility of the ISDS Mechanism under the Energy Charter Treaty With the Autonomy of the EU Legal Order

The article scrutinizes the ex-post constitutional compatibility with the autonomy of the EU legal order of the Investor to State Dispute Settlement (ISDS) mechanism established in Article 26 of the Energy Charter Treaty (ECT). Whereas the compatibility of intra-EU aspects of ECT arbitration is examined primarily in the light of the EU Court of Justice’s (CJEU) Achmea and Komstroy judgments, the compatibility of its extra-EU aspects is examined primarily in the light of its Opinion 1/17. Since those Court decisions are indeed in line with the previous case-law, the article does not need to delve into earlier case-law. Although the issue is analysed from the standpoint of EU law, awards of the arbitral tribunals before which the ECT is invoked have been taken into consideration especially to ascertain whether the CJEU’s concerns for preserving the autonomy of the EU legal order against any possible legal effects of these awards were justified. The article also analyses the principal options to remedy the incompatibility of the ISDS mechanism under the ECT with the autonomy of the EU legal order. Autonomy of the EU Legal Order, Investor to State Dispute Settlement, the Energy Charter Treaty, Intra-EU Arbitration, Extra-EU Arbitration

Challenging EU Sanctions against Russia: The Role of the Court, Judicial Protection, and Common Foreign and Security Policy

AbstractThis Article deals with selected issues of judicial protection that arise in the context of the sanctions adopted by the EU against Russia and Belarus after the 2022 invasion of Ukraine. As most cases challenging the sanctions are pending, this Article draws lessons from the previous case law on EU restrictive measures. It explores what aspects of the sanctions escape judicial review, then profiles of external (or formal) legality of the sanctions, of internal (or substantive) legality, and concludes by assessing the overall role of the Court in EU foreign affairs. The discussion shows that the case law in this area of EU administrative law converges to a great extent with other areas of EU competence, but tensions remain in how the Court may impose substantial constraints to executive discretion in the field of Common Foreign and Security Policy.

Migration Policy is Heading Down a Beaten Track. Comment on the Judgment of the European Court of Human Rights in the R.R. and others v. Hungary Case of 5 July 2021

In July 2021, the Grand Chamber of the European Court of Human Rights (ECHR) delivered a judgment in the R.R. v. Hungary case which perpetuates previous case law on obligations in providing migrants with international protection. The judgment is also of critical importance in view of the Common European Asylum System. 
 The ECHR has confirmed that Hungary had failed to full its obligations in providing migrants with international protection especially when it comes to the length of time applicants were deprived of their liberty and the extent of the protection afforded to the pregnant applicant and her minors.

‘Just more surveillance’: The ECtHR and workplace monitoring

This contribution analyses the European Court of Human Rights’ (ECtHR) decision on workplace surveillance, Florindo De Almeida Vasconcelos Gramaxo v Portugal (2022) App no 26968/16 (ECtHR 13 December 2022). This is a case of interest as it introduces a new surveillance technology into the Strasbourg jurisprudence: the Global Positioning System (GPS). The movements of Mr. Florindo's company car were constantly monitored by GPS for three years, during and outside working hours. We criticise the stance taken by the majority of the judges, which we summarise as a ‘just more surveillance’ approach. This approach led them to value the GPS’ efficiency in pursuing a legitimate employer aim, and failed to engage in a critical analysis of this tool and of the alternative (less invasive) means available. We argue that the Court did not effectively protect the employee's right to privacy (Art. 8 European Convention on Human Rights) through a proper ‘least intrusive mean test’, which can be found in previous ECtHR case law on the subject.

Fluvius Antwerpen: Supplies Hidden in a Theft?

In its judgment of 27 April 2023 in Fluvius Antwerpen v. MX (Case C-677/21), the ECJ decided that the supply of electricity by a distribution network operator, even if involuntary and the result of unlawful conduct on the part of a third party, constitutes a supply of goods for consideration entailing the transfer of the right to dispose of tangible property. In this article, the author analyses the judgment as well as the opinion of AG Kokott of 12 January 2023 – in their parts regarding the understanding of the supply of goods – and reaches the conclusion that this judgment contradicts previous case law, or must be understood very narrowly taking into account peculiar legal background of the case in Belgian domestic rules on energy distribution.

C-61/21 Ministre de la Transition Écologique: Putting the Individual-centered CJEU Case Law on Air Quality on Hold

In its judgment in C-61/21 Ministre de la Transition écologique rendered on 22 December 2022, the Grand Chamber of the CJEU decided, against the Opinion of Advocate General Kokott, that Articles 13(1) and 23(1) of Directive 2008/50/EC on air quality did not give rise to individual rights. This decision implies that these articles cannot be invoked to request compensation for health damage suffered as a result of a breach of obligations by Member States. The CJEU came to this conclusion by arguing that the Directive only serves a general purpose of protection of human health and the environment, which does not satisfy the conditions for State liability established in Francovich. This judgment seems to put a stop to the trend observed in earlier case law on air quality, rather focusing on individuals. This case note aims at reflecting upon this judgment in light of previous case law, and in the context of the revision of the Directive on air quality.

<p>RESTRICTIONS ON IMPLEMENTATION OF FREEDOM OF MOVEMENT IN TIMES OF COVID-19 PANDEMIC BEFORE THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA: CONSTANT OR EVOLVING?</p>

In democratic societies requirements on restrictions of implementation of freedom of movement remain a significant area challenged in different constitutional courts due to so-called the lockdown measures in times of COVID-19 pandemic. The question arises whether in Lithuania the standard of scrutiny on the level of protection of freedom of movement stays constant or evolves? Aiming to reveal these requirements, comprehensive analysis and comparison of them in the official constitutional doctrine of the Constitutional Court of the Republic of Lithuania is made. The author uses the holistic approach by evaluating the case law until the COVID-19 pandemic and during this pandemic, as well as after it. As the previous case law does not change, it also suggests position for the future providing some additional requirements for assesing constitutionality of legal regulation restricting implementation of non-absolute rights comprising the right of movement. These requirements are: constitutionally justifiable basis of restrictions, their necessity, temporal character, proportionality, equality, as well as possibilities for persons to implement other constitutional rights.

The Philosophical Background and the Adventures of Religious Studies:

The teaching of Religious Studies in Greece has always been the subject of intense debate and controversy. The case law of the Council of State mandates a denominational course, allowing exemption only on the grounds of religious conscience. The Supreme Administrative Court even considered the introduction of a compulsory Religious Studies course for all students to be unconstitutional. In this sense, the Religious Studies course in Greece is seen as outdated, and an increasing number of students are seeking to be exempt from it. In a recent case, the Council of State, in an attempt to depart from its previous case law on the exemption, essentially referred the decision on the matter in question to the Greek Data Protection Authority, which was requested to give its opinion on the status of the currently applicable exemption. In the context of this contribution, we argue that: a) The Council of State erred in its approach of shifting the burden of this decision to the Data Protection Authority. b) These issues should not be decided by the courts or independent authorities but by the democratically legitimized legislature. c) Religious knowledge is an indispensable element of education and, as such, the Religious Studies course should have an encyclopedic, rather than a narrowly developed denominational character and remain compulsory for all pupils.

La construcción jurisprudencial del principio de responsabilidad del Estado desde la autonomía procesal y sus límites (equivalencia y efectividad)

Spain’s infringement of the principle of effectiveness, motivated by the legal regime applicable to the liability of the State-legislator, does not precisely strike out as surprising. The judgment Commission v Spain contains, however, a novel and worrying development with regard to the principle of equivalence – a principle that, according to the judgment, has not been infringed by national legislation, which mandates that the Brasserie conditions be applied to claims for damages based on EU law, whereas such conditions are not applicable to claims for damages caused by laws declared unconstitutional. On this point, the judgment presents important challenges that cast doubt on its coherence with previous case law and with the very raison d’être of the principle of equivalence. The ruling leaves open key questions on the true legal nature of effectiveness and equivalence and their relationship with the principles of equality and effective judicial protection. Are these genuine autonomous general principles? Should their scope of application be determined following the same rules as the Charter? And ultimately, are the conclusions on the scope of application of the principle of equivalence defined in this ruling applicable to the scope of application of the Charter itself?

GLOSA KRYTYCZNA DO WYROKU SĄDU NAJWYŻSZEGO Z DNIA 24 MAJA 2019 R., I CSK 218/18

The Supreme Court in its judgment of 24 May 2019, I CSK 218/18, ruled that the purpose of increase in a lump sum remuneration under Article 632 § 2 of the Polish Civil Code is only to reduce the loss. The purpose of increasing the lump sum remuneration is not to compensate for the entire imminent loss. Such increase should cover that part of the loss which exceeds the normal contractual risk. The aim of this paper is to comment on the above judgment of the Supreme Court. The author compares the Supreme Court judgment with the views of legal scholars and commentators on the Polish judicial law, and with the previous case law.

The Battle of Ideas under LOSC Dispute Settlement Procedures

Abstract Dispute settlement procedures under the United Nations Convention on the Law of the Sea (LOSC) can be a great laboratory for observing judicial processes of exploring and testing the acceptability of multiple solutions to issues of interpretation through a battle of ideas among LOSC adjudicators. The analysis observes that LOSC tribunals tend towards two jurisprudential patterns when battling their ideas: (1) the International Tribunal for the Law of the Sea (ITLOS) takes an implicit approach of deviating from previous case law of other LOSC tribunals; and (2) Annex VII arbitral tribunals have been quite straightforward when facing a diverging interpretative discourse. This article explains the institutional dynamics underpinning these two jurisprudential patterns. Calibrating judicial reasoning of the ITLOS is proposed, which would hopefully stimulate a vibrant battle of ideas facilitating coherent development of international law.

The Freikirche case: Is the Court of Justice reinforcing or eroding the European Wall of Separation?

The purpose of this Case Note is to analyse the latest judgment of the Court of Justice related to Article 17(1) TFEU – the Freikirche case. After providing the key facts and the reasoning of the Court, the note outlines the common features and differences of the case with the previous case law related to this provision. The author claims that while the Court in the Freikirche case recognizes the protective effect of Article 17(1) TFEU, it implicitly creates potential to examine other national recognition systems of churches. In the author’s view, in cases of a more restrictive national systems than the Austrian one, this provision should be used as a part of the proportionality analysis to balance the restrictions against the potential impact on the status of churches under national law and their autonomy. In the author’s view, this would be the consequence of the protective effect of this provision, which may be perceived as the European Wall of Separation between the EU on one hand, and the status of churches under national law and the autonomy of churches on the other hand.