Union Courts Research Articles

Norm dynamics and international organisations: South Africa in the African Union and International Criminal Court

Over the past two decades, South Africa has sought to perform several roles on the world stage, such as the economic dynamo of Southern Africa, a diplomatic heavyweight representing the African continent, and a norm leader on the world stage as a so-called ‘middle-power’. Although South Africa's evolution and rise as an important player in global affairs has generated a welcome body of critical scholarly literature, comparatively little analysis has been allocated to understanding how norm dynamics and the country's ever-evolving international identities have enabled it to construct and reconstruct its ‘interests’. Social constructivism is best suited for such an analysis because it can operationalise norms, commitments, identities, and interests, and it provides the epistemological tools to map the increasingly multilateral connections between global, regional, and domestic forums. By employing a rationalist approach to constructivism, this paper remedies the aforementioned gap in the literature by illustrating how South Africa constructs and reconstructs its identities and interests in relation to membership in international organisations (IOs). To that end, the paper examines the evolution of South Africa's participation in the African Union (especially ‘peacekeeping’ contributions) and the International Criminal Court. The paper concludes by assessing the theoretical implications and practical ramifications of the norm dynamics involved in South Africa's commitment to these two IOs.

The Luxembourg ‘Double Look’

The interpretation given by the Court of Justice of the European Union (Court of Justice) in the Gauweiler case is mostly in line with the proposal submitted by Advocate General Cruz Villalón in his Opinion. However, the difference in the Court and the Advocate General's perspectives, and the silence of the Court on some matters in contrast with the vocal position of the Advocate General, prove that the Gauweiler case could have been ruled quite differently. This paper will analyse how the Opinion and the judgment of the Court of Justice undergo parallel levels of analysis, and how, despite their apparent differences, each document plays a similar but autonomous role.

Accepting the Judgments of the Court of Justice of the EU as Authoritative

This article discusses the contrasting constitutional models as between Ireland and Germany of accession to the European Union. Sovereign states are entitled to share a currency pursuant to treaty. Whether that potential has been lost under the European Treaties by reason of the transfer of sovereignty is the subject of decisions of the Court of justice of the European Union (Court of Justice) and the Supreme Court of Ireland. By transferring some aspect of sovereignty pursuant to international treaty, certainty of law and the principle of sovereign state equality require adherence to rulings of tribunals set up under those arrangements. In the case of the European Union, that is the Court of Justice.

The commercial functions of a trade mark, unconventional trade marks and modern technology

The paper analyses the current legislation within the UK and Europe with respect to trade mark law. A number of legal journals and case reports provide the bulk of research material, with use of direct judicial quotes and key opinions of journal authors providing the framework for research into the state of current trade mark law. The historical functions of trade marks dating back nearly a century are still relevant today, with concepts recognised and enshrined by both domestic UK and European Union courts. Trade marks work as a badge of origin and, by extension, allow similar products to be differentiated. They act as a guarantee of quality and an ambassador for the generation and preservation of goodwill that has been generated within a given trade mark. Gaining a trade mark confers a near monopoly on its use and the legislation provides mechanisms to protect and recognise this. A trade mark allows businesses to build identity, quality and reputation into the core essence and branding of their products. A diverse quantity of ideas and concepts are capable of representation graphically, in both conventional and abstract forms, allowing them to be trade marked. The resulting monopoly granted by the trade mark is of exceptional importance to businesses of all sizes, allowing them to benefit from the breadth of commercial functions that a trade mark can fulfil. Despite the law regularly playing catch-up to new technological advances, the courts are applying flexible and practical solutions to accommodate the developing needs of modern informational technology.

The Question of the Reform of the European Union Court of Justice

The Question of the Reform of the European Union Court of Justice

Ограничительные меры против третьих стран в практике Суда Европейского Союза

Ограничительные меры против третьих стран в практике Суда Европейского Союза

Прецедент в практике Суда Европейского Союза

Прецедент в практике Суда Европейского Союза

Rola pytań prawnych w pośrednim dostępie obywateli Unii Europejskiej do Trybunału Sprawiedliwości w Luksemburgu

The case-law of the European Union Court of Justice can contribute to the empowerment of individuals in the preliminary ruling proceedings by stricter rules of obligatory submission of initial appeal by the national court, and clarification of the rules of state liability for breach of the obligation to initiate such a procedure. An analysis carried out in the article focuses on issues related to indirect access of citizens of the European Union to the EU Court, the impact of the proceedings on the legal position of the entity.

Memory Hole or Right to Delist?

This article studies the possible impact of the “right to be forgotten” (RTBF) on the preservation of native digital heritage. It analyses the extent to which archival practices may be affected by the new right, and whether the web may become impossible to preserve for future generations, risking to disappear from memories and history since no version would be available in public or private archives. Collective rights to remember and to memory, free access to information and freedom of expression, seem to clash with private individuals’ right to privacy. After a presentation of core legal concepts of privacy, data protection and freedom of expression, we analyse the case of the European Union Court of Justice vs. Google concerning the right to be forgotten, and look deeper into the controversies generated by the decision. We conclude that there is no room for concern for archives and for the right to remember given the restricted application of RTBF.

The European Union Court of Justice after the Treaty of Lisbon

Created by the Treaty of Paris as a judicial authority which ensures respect for the law when interpreting and applying this treaty, the European Court of Justice has so far been repeatedly reformed. The latest reform of the judicial system of the European Union, put into effect by the Lisbon Treaty, largely relies on solutions contained in the unaccepted Treaty on the Constitution for Europe. Novelties that this treaty brings could be grosso modo divided into several basic categories. First, there are organizational changes related to the different name and composition of the courts, appointment of judges and advocates-general and the formation of specialized courts. The new terminology and organization aims to provide a clear distinction between the Court of Justice of the EU, which is an aggregate term or generic designation for the entire judicial system of the Union, and special judicial bodies that enter into its composition. These are the Court of Justice as the highest authority, the General Court which is actually the renamed Court of First Instance, and specialized courts that replaced the judicial panels. The second category includes changes that expand the jurisdiction of the Court to certain new areas owing to the abolition of the former EU pillar structure and the dissolution of the European Community. On such a basis, an integration of court jurisdiction regarding the first and third pillar ensued, as the Court of Justice was vested with general and compulsory jurisdiction over the entire law created in the newly established area of freedom, security and justice. The exception is the area of common foreign and security policy, in which the Court's jurisdiction still remains excluded. The third type of amendment extends the scope of judicial reviews of the validity of acts adopted by EU institutions and enables authorized subjects an easier access to the Court. Their aim is to strengthen the rule of law within the legal system of the Union, given that the action for annulment is the basic means to exercise judicial review of the institutions' activities. The last set of changes introduced by the Lisbon Treaty refers to faster proceedings in deciding on preliminary rulings in certain areas when the interested person, whose position depends on the interpretation of EU law, is in custody. In addition, it allows for more effective judicial control in cases of default judgment or failure to fulfill commitments by Member States through the acceleration and simplification of the procedure for imposing financial sanctions.

Case Law of the European Union Courts

Case Law of the European Union Courts

Rebates and Article 102 TFEU: The European Commission's Duty to Apply the Guidance Paper

This paper shows that the European Union (EU) courts' case-law and general principles of EU law place the European Commission (“Commission”) under a duty to apply the Guidance Communication on Enforcement Priorities (“Guidance Paper”) in abuse of dominance cases started after its adoption. This duty includes the obligation to test Article 102 TFEU cases under the As Efficient Competitor (“AEC”) framework, as set out in the 2009 Guidance Paper. The judgments handed down by the Union courts in Intel v Commission and Post Danmark II do not alter in any way the Commission’s “self binding” duty to apply the Guidance Paper. If the Commission wishes to depart from the AEC framework, it must officially withdraw its Guidance Paper.

Legitimacy and Multi‐Level Governance in European Union Competition Law: A Deliberative Discursive Approach

AbstractUnion competition law protects ‘consumer welfare’, but what role do consumers play in competition policy‐making? This is the question that this article seeks to answer. In the search for an answer, the article investigates the moral (output) and procedural (input) legitimacy of the recent competition law reforms. Following a discursive approach, the article looks into the roles played by institutions deliberating for citizens (consumer organizations, European Parliament and the Union Courts) in the reform process. This inquiry results in the questioning of the reforms’ legitimacy, and it also leads to broader conclusions regarding the legitimacy of multi‐level governance: expert discourses overshadow potential deliberative qualities of networks, which exacerbates networks’ legitimacy problems. Also, the input/output legitimacy dichotomy appears problematic, as expert policy‐making in the absence of citizen participation does not guarantee policies resonating with public interest.

Homosexuals and blood donation: a delicate issue for the European Union Court of Justice.

On 29 April, 2015, the European Union (EU) Court of Justice in Luxembourg had to rule a delicate issue: to decide on a French bylaw, banning homosexuals from eligibility to donate blood on a permanent basis as their sexual behaviour may cause a high risk of acquiring severe infectious diseases, transmitted by blood1. The issue was delicate since such a ban categorically excludes a category of citizens from donating blood, which might be contrary to fundamental human rights such as the equal treatment and non-discrimination principle, recognised by EU law. Secondly, as the Court was requested to rule on an issue that concerns the exclusive competence of individual member states: the organisation and delivery of health services and medical care. Despite the member states’ exclusive competences, the EU has some limited role in terms of blood donation by setting standards of quality and safety of human blood and blood components, as established by the so-called Blood Donation Directive2,3. This short report explains the Court’s reasoning, reviewing the conformity of member states’ legislation on blood donation with EU law. Secondly, the Author addresses the relevance to other EU member states.

Transatlantic Perspective on Judicial Deference in Administrative Law

The United States (US) concept of judicial deference in administrative law limits the scope of judicial review of administrative agencies’ actions in light of agencies’ superior expertise and separation of powers arguments. It may serve as an interesting point of reference for the European discussion about adequate institutional balance between administration and courts.The Article analyses whether there are grounds for the validity of the concept of judicial deference in Continental Europe and in what areas (law, facts, or both). As a starting point, it remains generally accepted in Europe that it is the role of courts (and not administrative agencies) to interpret the law. Against this background, standards stemming from Article 6 of the European Convention on Human Rights (ECHR) are analyzed in order to determine whether a deferential standard of review is permissible under the ECHR principle of full judicial review. The analysis of the jurisprudence of the European Court of Human Rights (ECtHR) leads to the conclusion that there is space for US-like judicial deference under the European fundamental rights framework when it comes to questions of fact. On the other hand, the ECtHR’s jurisprudence does not offer much guidance as to whether any deference can be accorded to administrative statutory interpretation. Further study of the review by European Union (EU) courts of the European Commission’s decisions in the sphere of competition law shows that judicial deference is accorded in Europe in practice. Importantly, EU Courts declare deference to the Commission’s complex economic assessment and defer to the Commission’s interpretation of its own soft law. When it comes to facts, the standard of review seems to correspond with the US courts’ substantial evidence test. On the other hand, legal questions concerning the Commission’s own soft law are reviewed in a way similar to the Skidmore standard. Further similarities between Europe and the US are observed in the US Courts of Appeals’ practice of reviewing the Federal Trade Commission’s decisions in the field of antitrust. The actual intensity of review exercised by US courts remains close to the EU Courts’ review of the European Commission’s decisions.This Article shows that differences between the US and Europe — especially if one takes into account US courts’ often non-application of Chevron — are not so significant as one would intuitively think. In conclusion, this Article proposes three variables that may be identified in both the US and European approaches to decide whether judicial deference to administrative agency decisions should be accorded or not.

Case Law of the European Union Courts

Case Law of the European Union Courts

Case Law of the European Union Courts

Case Law of the European Union Courts

Ubi Ius, Ibi Remedium: Do the Union Courts have the “Latin for Judging”

The common law has long recognised the need for an effective remedy.11 This article is derived from a paper given to the Bar European Group annual conference in Iceland, May 2015. That is reflected...

Case Law of the European Union Courts

Case Law of the European Union Courts

The e-commerce international consumer contract in the European Union

Article 6 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) adapts the rule laid down in the Rome Convention regarding international consumer contracts, to take into account the requirements of the consumer protection in an international contract, as the weaker party, and the demands of electronic commerce. Article 6 determines the types of international contract protected and establishes the mechanisms to protect the consumer. However, the legal provision in question is not free from complications and requires an effort of interpretation to adjust the rule to the diffuse nature of the internet and to the characteristics of electronic commerce. This paper identifies the difficulties of application of the provision to e-commerce and discusses the interpretative options of the European Union Court of Justice (ECJ).