scholarly journals Mercado único digital: medidas contra el bloqueo geográfico injustificado, contratos de consumo concluidos por vía electrónica y normas de Derecho internacional privado= Eu digital single market: measures against unjustified geo-blocking, electronic consumer contracts and the conflict of laws

2019 ◽  
Vol 11 (2) ◽  
pp. 117
Author(s):  
Raúl Lafuente Sánchez
Keyword(s):  
Member State ◽  
Case Law ◽  
Single Market ◽  
Habitual Residence ◽  
Place Of Residence ◽  
Conflict Of Laws ◽  
Court Of Justice ◽  
European Court ◽  
Consumer Contracts ◽  
Rome I

Resumen: El Reglamento sobre bloqueo geográfico injustificado tiene como finalidad eliminar la discriminación directa e indirecta basada en la nacionalidad, el lugar de residencia o el lugar de esta­blecimiento de los clientes. Para alcanzar este objetivo, prohíbe a los comerciantes el uso de medidas tecnológicas o de otro tipo con el fin de bloquear o limitar el acceso de los clientes a sus interfaces en línea. Por otra parte, dispone que del cumplimiento del Reglamento no se derivará que el comerciante dirige sus actividades al domicilio o residencia habitual del consumidor en el sentido de lo dispuesto en los Reglamentos Bruselas I bis y Roma I. De esta declaración puede derivarse una posible interferencia con los criterios ya definidos en la jurisprudencia del Tribunal de Justicia a la hora de delimitar cuando un comerciante ha dirigido sus actividades al Estado miembro del domicilio o residencia habitual del consumidor. En el presente trabajo estudio y analizo esta cuestión, así como sus posibles consecuencias en los contratos de consumo celebrados por vía electrónica.Palabras clave: mercado único digital, bloqueo geográfico injustificado, reglamento (UE) 2018/302, derecho internacional privado, contratos de consumo electrónicos, concepto de “actividades dirigidas”. Abstract: The unjustified geo-blocking Regulation aims to eliminate direct and indirect discrimi­nation based on customers’ nationality, place of residence or place of establishment. In order to achie­ve this goal, prohibits to traders the use of technological measures or otherwise, to block or limit a customer’s access to their online interfaces for reasons related to the customer’s nationality, place of residence or place of establishment. Moreover, the Regulation provides that compliance with its rules shall not be construed as implying that a trader directs activities to the Member State of the consumer’s habitual residence or domicile within the meaning of Brussels I Regulation and Rome I Regulation. This statement raises a possible interference with the criteria identified in the European Court of Justice case law, in order to delimit when a trader has directed his activities to the Member State of the consumer’s habitual residence or domicile. In this paper I analyze the aforementioned issue and its consequences for the electronic consumer contracts.Keywords: EU digital single market, unjustified geo-blocking, regulation (EU) 2018/302, conflict of laws, electronic consumer contracts, concept of “directing activities”.

Would chocolate by any other name taste as sweet?

2003 ◽  
Vol 4 (6) ◽  
pp. 571-587 ◽  
Author(s):  
Donald Slater
Keyword(s):  
Member State ◽  
Free Trade ◽  
European Community ◽  
Consumer Protection ◽  
Case Law ◽  
Generic Product ◽  
European Court Of Justice ◽  
Court Of Justice ◽  
Food Law ◽  
European Court

Food law in the European Community is a touchy subject. One of the big ongoing debates in this area centres on the question of what names we call our foodstuffs by. In an internal market where local supermarket shelves are stocked with products coming from all around the EC and beyond, how can we be sure that the contents of the packets conform to our connotations of the name on the label? For example, if it says “chocolate” on the label, how can we be sure that it really is “chocolate” within our understanding of the word? The question of what names can or should go on labels is, sadly, very complicated. This article therefore intends to look at only one aspect of this problem: when a Member State is allowed to insist that the name of an imported “generic” product be changed. We will begin by briefly looking at the case law and one of the major pieces of legislation in this area – the Labelling Directive – before going on to discuss application of the law to the recent Chocolate Cases, handed down by the European Court of Justice (hereafter the “Court”) at the beginning of this year. This discussion will give some (hopefully) interesting insights into the way in which primary law, as interpreted by the Court, and secondary legislation interact and into the balancing of consumer protection and free trade performed by the Court.

scholarly journals The European Court of Justice and the Policy Process

2018 ◽  
Author(s):  
Susanne K. Schmidt
Keyword(s):  
European Union ◽  
Member State ◽  
Case Law ◽  
European Court Of Justice ◽  
The European Union ◽  
Member States ◽  
Administrative Practices ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

The European Court of Justice is one of the most important actors in the process of European integration. Political science still struggles to understand its significance, with recent scholarship emphasizing how closely rulings reflect member states’ preferences. In this book, I argue that the implications of the supremacy and direct effect of the EU law have still been overlooked. As it constitutionalizes an intergovernmental treaty, the European Union has a detailed set of policies inscribed into its constitution that are extensively shaped by the Court’s case law. If rulings have constitutional status, their impact is considerable, even if the Court only occasionally diverts from member states’ preferences. By focusing on the four freedoms of goods, services, persons, and capital, as well as citizenship rights, the book analyses how the Court’s development of case law has ascribed a broad meaning to these freedoms. The constitutional status of this case law constrains policymaking at the European and member-state levels. Different case studies show how major pieces of EU legislation cannot move beyond case law but have to codify its principles. Judicialization is important in the EU. It also directly constrains member-state policies. Court rulings oriented towards individual disputes are difficult to translate into general policies, and into administrative practices. Policy options are thereby withdrawn from majoritarian decision-making. As the Court cannot be overruled, short of a Treaty change, its case law casts a long shadow over policymaking in the European Union and its member states, undermining the legitimacy of this political order.

scholarly journals The Role of Subsidiarity and Proportionality Principles in the Development of a Future Digital Single Market and a Common European Contract Law

2020 ◽  
Vol 14 (1) ◽  
pp. 1178-1186
Author(s):  
Ovidiu Ioan Dumitru
Keyword(s):  
European Union ◽  
Member State ◽  
Contract Law ◽  
Single Market ◽  
European Court Of Justice ◽  
The European Union ◽  
European Contract ◽  
Court Of Justice ◽  
European Court ◽  
European Contract Law

AbstractFrom the far beginning of the European Communities, with broader objective of creating a perfect unique market for the member states, it must be underlined the importance of the results of the harmonisation process of the contract law and the single market and that, in time, the institutions struggled in their tumultuous work for fulfilling the indicated objectives to overcome the interventions from each Member State, interested, also, in shaping a great and prosperous common market, but trying, subsequently, to reason with their traditions, culture, ideological and political choices. The legislation on single market and European contract law is a subjected to the three guiding principles of the European Union: the principle of conferral, which empowers the European Union in terms of competence, the principle of subsidiarity, which underlines the European Union’s competence in a certain field that is shared with a Member State and the principle of proportionality, which applies if the first two principles are validated, dealing with the how the European Union should legislate. However, there are some critics who express their worries in that there are insufficient empirical proofs for redefining the harmonisation process. Taking into account the criticism, the European Court of Justice has ruled in numerous occasions that the authorisation to harmonise laws, with the scope of safeguarding the proper functioning of the European internal market does not grant the European Union a carte blanche in order to interfere with the sake of harmonisation any law it wishes. The way the above indicated principles maintained their roles provided by the treaties or they were subject of modification, by enrichment or limitation, by the caselaw provided by the European Court of Justice, we must investigate in order to picture a possible “finale” of our Single Market and this paper will concentrate of the influence of subsidiarity and proportionality on the fields most dynamic in the past years, the Digital Single Market and its contract law. This paper wishes to clarify how the two fundamental principles, of subsidiarity and proportionality, provided in time by the modifying treaties and consolidated by the European Court of Justice, influenced the evolution of the legislation regarding the Single Market and how those two may help or block the future evolution in the context of a continuous pressure coming from the development of the digital framework and online contracts.

The European Court of Justice as a Political Actor

2018 ◽  
Author(s):  
Susanne K. Schmidt
Keyword(s):  
Member State ◽  
Case Law ◽  
European Court Of Justice ◽  
State Courts ◽  
State Control ◽  
Political Actor ◽  
Court Of Justice ◽  
European Court ◽  
Long Time ◽  
Private Actors

Chapter 2 summarizes research in political science on the ECJ as a political actor. Discussions about the Court have for a long time focused on the question of ‘judicial activism’ versus member-state control of the Court. The support of the EU’s legal community, the Commission, the litigation of private actors, and member-state courts has been important for the Court’s development of case law. It is argued that current analyses have overlooked the importance of ‘over-constitutionalization’, in light of the Treaty’s detailed policy aims. Case law shares the Treaty’s constitutional status. Its detailed policy prescriptions cannot be overruled. In addition, a Court that pays attention to member states’ preferences will have a significant impact on policy if its rulings establish policy requirements derived from the constitution.

scholarly journals The Unfair Contract Terms Directive

2020 ◽  
Vol 3 (2) ◽  
pp. 24-38
Author(s):  
Ola Svensson
Keyword(s):  
Case Law ◽  
Short Term ◽  
Consumer Law ◽  
Court Of Justice ◽  
European Court ◽  
Full Harmonisation ◽  
Consumer Contracts ◽  
High Level ◽  
Important Objective ◽  
The Eu

The harmonisation of consumer law in Europe has been an important objective within the EU. Efforts have focused not only on improving the functioning of the internal market, but also on securing a high level of consumer protection in the Member States. With regard to consumer contracts, the Unfair Contract Terms Directive has come to play a key role, not least due to the case law of the European Court of Justice in this area in recent years. This article examines the need for an unfairness test of standard contracts and argues that the directive can be expanded to also include individually negotiated contract terms, and terms that relate to the main subject matter of the contract, the adequacy of the price, and changed circumstances. Such amendments would result in a greater correspondence between EU law and Swedish and Nordic law. Although full harmonisation is not possible in the short term, I will argue that a revision should point in this direction.  However, I will begin my account with a presentation of the directive and how it has been implemented in Swedish law.  

scholarly journals Characteristics of Precedent: The Case Law of the European Court of Justice in Three Dimensions

2015 ◽  
Vol 16 (5) ◽  
pp. 1073-1098 ◽  
Author(s):  
Mattias Derlén ◽  
Johan Lindholm
Keyword(s):  
European Union ◽  
Case Law ◽  
Three Dimensions ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Court ◽  
Number Of Factors ◽  
The One

AbstractThe case law of the Court of Justice of the European Union (CJEU) is one of the most important sources of European Union law. However, case law's role in EU law is not uniform. By empirically studying how the Court uses its own case law as a source of law, we explore the correlation between, on the one hand, the characteristics of a CJEU case—type of action, actors involved, and area of law—and, on the other hand, the judgment's “embeddedness” in previous case law and value as a precedent in subsequent cases. Using this approach, we test, confirm, and debunk existing scholarship concerning the role of CJEU case law as a source of EU law. We offer the following conclusions: that CJEU case law cannot be treated as a single entity; that only a limited number of factors reliably affect a judgment's persuasive or precedential power; that the Court's use of its own case law as a source of law is particularly limited in successful infringement proceedings; that case law is particularly important in preliminary references—especially those concerning fundamental freedoms and competition law; and that initiating Member State and the number of observations affects the behavior of the Court.

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