Is There a Defect in the European Court's Defect Test? Musings about Acceptable Risk

2015 ◽  
Vol 6 (2) ◽  
pp. 309-322 ◽  
Author(s):  
Lucas Bergkamp
Keyword(s):  
Strict Liability ◽  
Product Liability ◽  
Preliminary Ruling ◽  
Acceptable Risk ◽  
Court Of Justice ◽  
European Court ◽  
Wide Range ◽  
Key Issues ◽  
Further Development ◽  
The Eu

Judgment of the Court (Fourth Chamber) of 5 March 2015 In Joined Cases C-503/13 and C-504/13, preliminary ruling in the proceedings Boston ScientificMedizintechnik GmbH v AOK Sachsen-Anhalt — Die Gesundheitskasse (C-503/13), Betriebskrankenkasse RWE (C-504/13)On 5 March 2015, the European Court of Justice issued a preliminary ruling on two issues arising under the EU Product Liability Directive, which imposes objective, no-fault or strict liability, but not absolute liability, for defective products. Despite the wide range of issues arising under this directive, the Court has had only a few occasions to construe its ambiguous terms. This case, however, provided an opportunity to the Court to settle key issues relating to the defect test and the scope of damages compensable under the directive. As in other civil law cases, the question arises whether the Court's light treatment will provide a sound basis for the further development of product liability in Europe. The Court did not answer the questions posed by the referring court, but in some respects went beyond these questions and in other respects avoided the difficult issues raised thereby. As discussed in this note, the Court paints with a broad brush, and the test set forth in its judgment to determine whether a product is defective, may itself be defective.

Ensuring Effective Judicial Review of EU Soft Law via the Action for Annulment before the EU Courts: a Plea for a Liberal-Constitutional Approach

2020 ◽  
Vol 16 (3) ◽  
pp. 466-492
Author(s):  
Giulia Gentile
Keyword(s):  
Judicial Review ◽  
European Court Of Justice ◽  
Soft Law ◽  
Preliminary Ruling ◽  
Court Of Justice ◽  
European Court ◽  
Liberal Constitutionalism ◽  
Judicial Protection ◽  
Constitutional Jurisprudence ◽  
The Eu

Judicial review of EU soft law – Liberal-constitutionalism – Principle of effective judicial protection – The liberal-constitutional jurisprudence of the European Court of Justice – Action for annulment – Formalistic understanding of the concept of ‘legally binding effects’ – Preliminary ruling procedure – Limitations of the preliminary ruling procedure in granting effective judicial protection in relation to EU soft law – A plea for a liberal-constitutional reading of Articles 263 and 288 TFEU in relation to direct review of EU soft law

scholarly journals “After Thunder Comes Rain”: The ECJ Finally Rules on the Boundaries of the EUMR Standstill Obligation

2019 ◽  
Vol 3 (1) ◽  
pp. 187-208
Author(s):  
Luca Villani
Keyword(s):  
Control System ◽  
European Court Of Justice ◽  
Preliminary Ruling ◽  
Eu Merger Control ◽  
Court Of Justice ◽  
First Case ◽  
European Court ◽  
Council Regulation ◽  
The Eu ◽  
Broad Overview

In its judgment of 31 May 2018, case C-633/16, the European Court of Justice ruled on the preliminary questions referred by the Danish Maritime and Commercial Court in the context of a merger notified to the Danish Competition and Consumer Authority by KPMG DK and EY DK. The referring court asked the ECJ to clarify on the scope of the so-called standstill obligation imposed on the parties of a notifiable transaction by article 7 of the Council Regulation (EC) No. 139/2004 (EUMR). The decision was long awaited, since after having imposed several fines for gun jumping practices in recent times, it is the first case ever in which the Court has been asked to take position on the matter through a preliminary ruling. As for substance, the European Court of Justice stated that article 7, paragraph 1 of the EUMR must be interpreted as meaning that a concentration is implemented only by a transaction which contributes to the change in control of the target undertaking. In doing so, the Court gives a broad overview of the EU merger control system, recalling the fundamental concepts of concentration, control and standstill in order to give a systematic interpretation of the provisions at stake.

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.

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 PUBLIC OVERSIGHT OF UKRAINE’S EUROPEAN INTEGRATION COURSE

2021 ◽  
pp. 183-198
Author(s):  
Anatoliy Krugashov ◽  
Andriana Kostenko
Keyword(s):  
Civil Society ◽  
European Integration ◽  
Institutional Development ◽  
Government Agencies ◽  
Association Agreement ◽  
International Agencies ◽  
Wide Range ◽  
Key Issues ◽  
Public Oversight ◽  
The Eu

Abstract. The article deals with the wide range of mechanisms in support of civil society institutions–government interaction in the context of developing and implementing European integration reforms in Ukraine. The authors identified 6 strategic documents and 20 areas of reform related to the process of European integration, as well as the key issues concerning implementation of the Association Agreement between Ukraine and the EU. The authors conclude that positive trends are visible in recent decades in the institutional development of Ukrainian civil society, which has become a driving force of the country’s European integration aspirations. In this setting, civil society institutions (CSIs) work with government agencies, engage in informal advocacy, conduct monitoring policies, perform and publish policy analysis and recommendations, and work with and lobby international agencies and other actors.

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.

Das PSPP-Urteil des Bundesverfassungsgerichts: Umfang der Übertragung von Souveränität und Überprüfung von Ermessensgebrauch

IG ◽  
2021 ◽  
Vol 44 (3) ◽  
pp. 220-226
Author(s):  
Achim-Rüdiger Börner
Keyword(s):  
Member State ◽  
Constitutional Court ◽  
The Public ◽  
Court Of Justice ◽  
European Court ◽  
Federal Constitutional ◽  
National Constitution ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional ◽  
The Eu

In its judgment of 5 May 2020, the German Federal Constitutional Court (FCC) has held that the Public Sector Purchase Programme (PSPP) of the European Central Bank (ECB), which started in 2015, and the relevant decision of the European Court of Justice (ECJ) of 11 December 2018, holding that the programme is compatible with European Union (EU) law, are ultra vires acts. Indeed, this decision is based on a French understanding of discretion which has previously been adopted in the European Treaties and according to which discretion is controlled only for undue, illegal influence. Today, the Treaties have adopted a review of discretion under the aspects of suitability, necessity, and appropriateness. Moreover, criticism at the decision of the FCC neglects that the accession to and the membership in the EU have to observe the thresholds of the respective national constitution, as its violation is not and may not be expected by the Union or any other Member State. Ultra vires acts of the Union, which remain uncorrected by the Union itself, are subject to disapproval and rejection by the constitutional court of any Member State.

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