scholarly journals Wightman and the Perils of Britain’s Withdrawal

2020 ◽  
Vol 21 (5) ◽  
pp. 799-814
Author(s):  
Giuseppe Martinico ◽  
Marta Simoncini
Keyword(s):  
The Political ◽  
Preliminary Ruling ◽  
Advocate General ◽  
Political Risks ◽  
Eu Membership ◽  
Court Of Justice ◽  
Legal Questions ◽  
The One ◽  
The Eu ◽  
Critical Aspects

AbstractOn 10 December 2018, the Court of Justice (CJEU) delivered the Wightman judgment and recognized the unilateral revocability of the notification ex Art. 50 Treaty on European Union (TEU). This article offers a critical analysis of the decision by insisting above all on the national background of the ruling and the political risks stemming from the decision. The article is structured as follows. Firstly, it analyses the legal questions of the Scottish case, which constituted the ground for the admissibility of the preliminary ruling and showed the perils for the exercise of national sovereign rights embedded in the lack of clarity on revocation options. It thus reconstructs the critical aspects of the preliminary ruling of the CJEU. Subsequently, the article examines the implications of the ruling for the EU legal order. On the one hand, the analysis considers the conception of the EU membership by comparing the approach of the CJEU and that of Advocate General Campos Sánchez Bordona in Wightman.

The “Polemical” Spirit of European Constitutional Law: On the Importance of Conflicts in EU Law

2015 ◽  
Vol 16 (6) ◽  
pp. 1343-1374 ◽  
Author(s):  
Giuseppe Martinico
Keyword(s):  
Constitutional Law ◽  
The Other ◽  
Preliminary Ruling ◽  
Eu Law ◽  
Constitutional Courts ◽  
Cautious Approach ◽  
Court Of Justice ◽  
The One ◽  
The Eu

Recently, scholars have argued of the necessity of going beyond “judicial dialogues” and “conflict-and-power” approaches to the analysis of the role of national Constitutional Courts in the Union. On the one hand, there are risks connected to a “too welcoming an approach by national constitutional courts to EU law”; on the other hand, it is possible to criticize both the Court of Justice of the EU (CJEU) and some national Constitutional Courts for other, less cooperative, decisions. I share this cautious approach for many reasons, and primarily because the preliminary ruling mechanism does not exhaust all the possible means of communication between constitutional courts and the CJEU. For instance, what Komárek calls “parallel references” can serve, in some circumstances, as a technique of alternative (or hidden) dialogue, that has favored a sort of “remote dialogue” over the years. My sole point of disagreement with this scholarly position is over the role of conflicts in this scenario. Whilst Komárek seems to confine conflicts to phenomena of mere resistance or to “‘cold’ strategic considerations,” in this work I am going to adopt a much broader idea of conflict, which goes beyond mere “conflicts and power games.”

scholarly journals The Boundaries of EU Copyright Law: Cheese, Jeans and a Military Report in the Court of Justice

2019 ◽  
Vol 3 (1) ◽  
pp. 133-156
Author(s):  
Nuno Sousa e Silva
Keyword(s):  
Copyright Protection ◽  
Case Law ◽  
Copyright Law ◽  
Preliminary Ruling ◽  
Main Criterion ◽  
Court Of Justice ◽  
Eu Copyright Law ◽  
The One ◽  
Definition Of ◽  
The Eu

Copyright is a centrepiece in the ongoing construction of the digital single market. Evidently, copyright only applies to works. Thus, the definition of its scope lies in knowing what a work is. Although that was not envisioned nor intended by the lawmaker, the Court of Justice has adopted a European notion of work in its controversial decision C-5/08, Infopaq, conflating it with the one of originality. Such an approach has been confirmed and expanded by subsequent case law. The Court has already fleshed out the main criterion for a creation to enjoy copyright – it must be original in the sense of being the author’s own creation – and seems to reject any additional criteria. However, the boundaries of the European notion of work are still unknown. Some recent preliminary ruling requests will allow some clarification. One asks about the possibility of copyright protection for the taste of a specific cheese (C-310/17, Levola Hengelo). Another one deals with the protection of a fashion design for jeans (C-683/17, Cofemel) and yet another concerns a military report (C-469/17, Funke Medien). After describing the evolution of the law on the EU notion of copyright, this article frames and critically analyses the questions surrounding these cases, proposes answers thereto and makes a prediction of the outcome, i.e. the Court’s decision, in each of them.

The preliminary ruling procedure at the court of justice of the European Union and transformation of European anti-discrimination law

2020 ◽  
Vol 2020 (3) ◽  
pp. 66-72
Author(s):  
Elena Sorokina
Keyword(s):  
Legal System ◽  
Essential Feature ◽  
Preliminary Ruling ◽  
The European Union ◽  
Judicial Cooperation ◽  
Member States ◽  
National Courts ◽  
Court Of Justice ◽  
Protection Of Human Rights ◽  
The Eu

The preliminary ruling procedure is an essential feature of the EU legal system, which is a unique cooperation tool as part of the dialogue between the Court of Justice of the EU and national courts of the Member States. Its main purpose is to ensure uniform interpretation and application of the provisions of EU law with all Member States and to preserve the uniformity of the European legal system. The continuous use by national courts of the Member States of the mechanism of preliminary ruling and constructive inter-judicial cooperation, the Court of Justice has developed an extremely extensive case law on the prohibition of discrimination and with the result to introduce substantial changes in European anti-discrimination law.The preliminary rulings of the Court of Justice have shown its inclination to expand notions of what constitutes discrimination and in most cases the Court prompt by the desire to interpret the provisions of European law so as to ensure the full effectiveness of the law, as well as a willingness to promote and strengthen protection against discrimination in Europe. While the protection against discrimination on some grounds is stronger than others, however, the preliminary rulings of the Court of Justice are important contribution to the transformation of anti-discrimination law, promote change in the national legislation of the Member States and provide the more effective protection of human rights in general.

ESMA as a Residual Lawmaker: The Political Economy and Constitutionality of ESMA’s Product Intervention Measures on Complex Financial Products

2021 ◽  
Author(s):  
Pablo Iglesias-Rodríguez
Keyword(s):  
Political Economy ◽  
Investor Protection ◽  
The Political ◽  
Regulatory Arbitrage ◽  
Financial Products ◽  
Intervention Measures ◽  
Binary Options ◽  
The One ◽  
National Competent Authorities ◽  
The Eu

AbstractThis article proposes that product intervention constitutes a form of residual lawmaking by ESMA that allows it to tackle aspects of investor protection not addressed by EU incomplete financial laws. Whilst product intervention may bring about certain advantages and may contribute to mitigating regulatory arbitrage problems, it constitutes a highly intrusive regulatory mechanism that raises important questions concerning: (a) ESMA’s rationale and motivations for its use; (b) its compliance with the EU constitutional framework; and (c) its adequacy for the regulation of complex financial products. This article addresses these questions through an analysis of the rationale and consequences of ESMA’s product intervention measures on binary options and contracts for differences of May 2018–July 2019, and of recent reforms of ESMA’s powers. It offers three main contributions to the existing literature. First, it contributes to the literature on administrative discretion and agencies’ rulemaking through an analysis of the political economy of ESMA’s deployment of product intervention powers and, also, of what this reveals about the relationships between ESMA and the EU Institutions, on the one side, and ESMA and National Competent Authorities, on the other. Second, it contributes to the literature on the constitutionality of EU agencies through an examination of the compliance of ESMA’s product intervention measures with EU constitutional law and requirements. Third, it examines whether product intervention constitutes an adequate mechanism to address problems pertaining to investor protection in complex financial products markets and, in doing so, it contributes to the scholarly discussion on complex financial products’ regulation.

Eliminating ‘Aesthetics’ from Copyright Law: The Aftermath of Cofemel

2021 ◽  
Author(s):  
Koray Güven
Keyword(s):  
Copyright Protection ◽  
Copyright Law ◽  
The European Union ◽  
Court Of Justice ◽  
Applied Art ◽  
Copyright Laws ◽  
The One ◽  
Works Of Applied Art ◽  
Functionality Doctrine ◽  
The Eu

Abstract The recent Cofemel judgment of the Court of Justice of the European Union extended the European Union’s (EU) originality criterion (i.e. the author’s own intellectual creation) to the realm of works of applied art. The Court excluded ‘aesthetically significant visual effect’ as a condition of copyright protection. It was condemned as subjective and incompatible with the EU originality criterion. The decision may signal a shift in several national copyright laws, under which requirements relating to ‘aesthetics’ are laid down as a condition to acquire protection. This article will demonstrate that the ‘aesthetics criterion’, as it emerged historically and has been employed in national copyright laws, is associated with a different meaning than it conveys at first glance. The aesthetics criterion designates the elbow room remaining to the author after functional constraints have been taken into account, and thus represents a form of the functionality doctrine in the domain of copyright law. However, to some extent it also excludes – though not uniformly – commonplace designs from the scope of copyright protection. Against this background, this article suggests that the aesthetics criterion can arguably be reconciled with the EU originality criterion. The aesthetics criterion represents a balance struck between the need for copyright protection in the field of applied arts, on the one hand, and competition, on the other. In order not to upset this careful balance, a robust application of the EU originality criterion is advocated, precluding protection not only to functionality, but also to commonplace creations.

scholarly journals Support Schemes in Renewable Energy: Commentary to Judgment of the Court (Fifth Chamber) of 13 September 2017, ENEA S.A. v. Prezes Urzędu Regulacji Energetyki

2018 ◽  
Vol 2 (1) ◽  
pp. 171-183
Author(s):  
Nevin Alija
Keyword(s):  
European Union ◽  
Renewable Energy ◽  
European Commission ◽  
Environmentally Friendly ◽  
Preliminary Ruling ◽  
The European Union ◽  
Court Of Justice ◽  
The Supreme Court ◽  
Financial Penalty ◽  
The Eu

In its September 13th 2017 decision,1 the Court of Justice of the European Union (CJEU) decided on a request for a preliminary ruling by the Supreme Court of Poland (Sąd Najwyższy) in proceedings between ENEA S.A. (ENEA) and the president of the Urzędu Regulacji Energetyki (Office for the regulation of energy, URE) on the imposition by the latter of a financial penalty on ENEA for breach of its obligation to supply electricity produced by cogeneration. The judgment of the Court of Justice follows many decisions of the European Commission and judgments of the EU courts assessing the involvement of State resources in support schemes in energy, particularly with the aim of switching towards more environmentally friendly sources. This case reaffirms that support schemes may, in certain circumstances, fall outside the scope of the EU State aid rules.

scholarly journals The Legal Aspects of Artificial Intelligence based on the EU Experience

Law and World ◽  
2021 ◽  
Vol 7 (5) ◽  
pp. 8-13
Keyword(s):  
Artificial Intelligence ◽  
Legal Framework ◽  
Legal Aspects ◽  
Public And Private ◽  
Legal Questions ◽  
Technological Advances ◽  
Clear Vision ◽  
Routine Tasks ◽  
The One ◽  
The Eu

In the digital era, technological advances have brought innovative opportunities. Artificial intelligence is a real instrument to provide automatic routine tasks in different fields (healthcare, education, the justice system, foreign and security policies, etc.). AI is evolving very fast. More precisely, robots as re-programmable multi-purpose devices designed for the handling of materials and tools for the processing of parts or specialized devices utilizing varying programmed movements to complete a variety of tasks.1 Regardless of opportunities, artificial intelligence may pose some risks and challenges for us. Because of the nature of AI ethical and legal questions can be pondered especially in terms of protecting human rights. The power of artificial intelligence means using it more effectively in the process of analyzing big data than a human being. On the one hand, it causes loss of traditional jobs and, on the other hand, it promotes the creation of digital equivalents of workers with automatic routine task capabilities. “Artificial intelligence must serve people, and therefore artificial intelligence must always comply with people’s rights,” said Ursula von der Leyen, President of the European Commission.2 The EU has a clear vision of the development of the legal framework for AI. In the light of the above, the article aims to explore the legal aspects of artificial intelligence based on the European experience. Furthermore, it is essential in the context of Georgia’s European integration. Analyzing legal approaches of the EU will promote an approximation of the Georgian legislation to the EU standards in this field. Also, it will facilitate to define AI’s role in the effective digital transformation of public and private sectors in Georgia.

Case Report on Kadzoev, 30 November 2009

2010 ◽  
Vol 12 (3) ◽  
pp. 361-371 ◽  
Author(s):  
Elitsa Mincheva
Keyword(s):  
Case Report ◽  
Fundamental Rights ◽  
Preliminary Ruling ◽  
Irregular Migrants ◽  
National Courts ◽  
Court Of Justice ◽  
Broad Interpretation ◽  
The Eu

AbstractThe detention periods authorized by Directive 2008/115 sparked significant criticism both within and without the EU. In its preliminary ruling of 30 November 2009, the Court of Justice countered concerns that a further erosion of the fundamental rights of irregular migrants might occur due to a broad interpretation of the directive by national courts.

scholarly journals Fact or Fiction? Case C-616/17 and the Compatibility of the EU Authorisation Procedure for Pesticides with the Precautionary Principle

2020 ◽  
Vol 11 (3) ◽  
pp. 481-497
Author(s):  
Sophia PAULINI
Keyword(s):  
European Union ◽  
Precautionary Principle ◽  
Criminal Court ◽  
Sufficient Information ◽  
Preliminary Ruling ◽  
The European Union ◽  
The Precautionary Principle ◽  
Legal Standard ◽  
Court Of Justice ◽  
The Eu

This contribution analyses whether the Court of Justice of the European Union (CJEU) provides clarifications on the normative implications that the precautionary principle entails in the context of Regulation 1107/2009, laying out the EU authorisation procedure for pesticides, in its recent judgement in Case C-616/17. In this judgement, which is a response to a request for a preliminary ruling by a French criminal court on the compatibility of certain aspects of Regulation 1107/2009 with the precautionary principle, the CJEU concludes that the questions of the referring court reveal nothing capable of affecting the validity of the regulation. According to the CJEU, to ensure conformity with the precautionary principle, the EU legislature must establish a normative framework that makes available to competent authorities sufficient information to adequately assess the risks to health resulting from the pesticide in question. However, the CJEU’s substantive analysis of the compatibility of the different aspects of Regulation 1107/2009 with the precautionary principle is not conducted concretely in light of this legal standard, but constitutes a mere testing of the general adequacy of Regulation 1107/2009. Furthermore, the CJEU’s judgement examines Regulation 1107/2009 in a vacuum without considering problems that have occurred in its implementation or application.

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