scholarly journals FUNKCJE ZNAKU TOWAROWEGO W ORZECZNICTWIE EUROPEJSKIEGO TRYBUNAŁU SPRAWIEDLIWOŚCI

2017 ◽  
Vol 7 (2) ◽  
pp. 105
Author(s):  
Monika Żuraw
Keyword(s):  
Trademark Law ◽  
Trademark Infringement ◽  
Court Of Justice ◽  
European Court ◽  
Before And After ◽  
Essential Function ◽  
Origin Function ◽  
The Right ◽  
Scope Of Protection

F u n c t io n s o f a T r a d e m a r k A c c o r d in g t o t h e J u r is d ic t io n o f t h e E u r o p e a n C o u r t o f J u s t ic eSummaryThe scope of protection of the functions fulfilled by trademarks determines most of the issues of the trademark law. The formulation of relevant provisions of the First Directive 89/104/EEC of the Council, of 21 December 1988, to Approximate the Laws of the Member States Relating to Trade Marks („Directive”) leave most of the issues open for interpretation. Therefore, it is the role of the European Court of Justice („ECJ”) to define to what extent the origin, quality and advertising functions should be protected. The article presents in chronological order all ECJ’s verdicts referring to the functions of a trademark issued both before and after entering into force of the Directive. The verdicts above all regard the issues of the trademark infringement, the distinguishing capability of a trademark, exhaustion and the limitations of the right to a trademark. It transpires from the review of the verdicts that ECJ refers most of the issues to the ‘essential function of a trademark’, which is distinguishing goods originating form different enterprises, the concept worked out long before the Directive was introduced. As a result, it is still the origin function that is protected vast more broadly than other functions, which - as it seems - does not meet the needs of the contemporary turnover. Nevertheless, the formulation of most of ECJ’s rulings is so general that it allows future modifications for the benefit of broadening the protection of the quality and advertising functions.

scholarly journals The Case Law of the European Court of Justice on Access to Justice in the Aarhus Convention and Its Implications for Switzerland

2014 ◽  
Vol 11 (4) ◽  
pp. 348-366
Author(s):  
Astrid Epiney ◽  
Benedikt Pirker
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Access To Justice ◽  
Present Contribution ◽  
Court Of Justice ◽  
European Court ◽  
Aarhus Convention ◽  
Scope Of Application ◽  
The Right

The present contribution assesses the case law of the European Court of Justice interpreting the provisions of the Aarhus Convention relating to access to justice. Cases have dealt with the temporal scope of application of provisions on access to justice, projects implemented by specific acts of national legislation and their exclusion from the obligations under the Convention, interim relief and the effet utile of provisions on access to justice, the range of possible pleas for judicial review, the role of procedural errors, permissible costs of proceedings, access to justice for environmental associations under different provisions of the Convention and the annulment of a permit and its relationship with the right to property. As is also shown, this case law is at the same time relevant – though not binding – for Switzerland as a non-eu Member State, but party to the Convention.

scholarly journals The Role of the European Court of Justice in the Protection of Human Rights and Freedoms

2019 ◽  
Vol 9 (3) ◽  
pp. 73-76
Author(s):  
I. S. Iksanov
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
European Court Of Justice ◽  
The European Union ◽  
Historical Aspect ◽  
Court Of Justice ◽  
European Court ◽  
Union Citizenship ◽  
The Right

The article discusses the role of the European Court of Justice, the specifics of its activities, and its goals. The author also touches upon the historical aspect of the development of the European Court. According to the author, the European Court of Justice has had a beneficial effect on the development of the rights granted by Union citizenship. The actions of the European Court of Justice have created new ground for persons with Union citizenship, increasing access to social benefits beyond the rights of economic migrants, for all those who exercise their European rights. The European Court of Justice sought to allow students to travel for their education, looking for new ways to ensure their free movement and learning with funding in the event of unforeseen events. It is essential that the court focuses on three core values so that citizenship does not become a limitation: nondiscrimination, the right to freedom of movement and the right to family life. The European court of human rights is an international judicial body; its jurisdiction extends to all member States of the Union. The main thing for the European Court of Justice is to ensure compliance with and enforcement of the Convention by the States parties. Also, when considering cases, the Court can point to gaps in legislation and issues concerning law enforcement practice, positively influencing law enforcement policy and legal proceedings, and, as a result, contribute to the improvement of the law enforcement system. This article reflects the activities of the European Court of Justice aimed at identifying the problematic aspects of the legislation of the European Union.

scholarly journals Abuse of Law Doctrine in Tax Law

2020 ◽  
Vol 7 (3) ◽  
pp. 156
Author(s):  
Viola Tanto
Keyword(s):  
Tax Evasion ◽  
General Principle ◽  
Tax Avoidance ◽  
Case Law ◽  
European Court Of Justice ◽  
Court Of Justice ◽  
European Court ◽  
The Right ◽  
Abuse Of Law

This paper was written in order of the reforming of the tax system’s framework. Analysing phenomena such as tax evasion, tax avoidance, the use of legal loopholes to reduce tax liability in Italy was very challenged. The purpose of this paper is to verify, in the light of most interventions the latest case law of the European Court of Justice, if it exists in the field of direct and indirect taxes, a general principle of abuse of law. The existence of this provision will be analyzed in the context of the principle of legal certainty. We should analyse the concept of abuse of law as a normative problem and historical-evolutionary phenomenon. In this paper a special place is taken by the genesis of the concept of abuse of Community law and the general principle of prohibition of abuse of the right in function of a general anti-avoidance norm, its meaning, effects and role as a corrector of the system. We have addressed the role of jurisprudence of the European Court of Justice, dividing it into two parts: Abuse in field of harmonized taxation- Halifax Doctrine and Abuse in the field of disharmonized taxation -The leading case-Cadbury Schweppes.

Centros Ltd—A Complete U-Turn in the Right of Establishment for Companies?

2000 ◽  
Vol 49 (3) ◽  
pp. 621-642 ◽  
Author(s):  
Anne Looijestijn-Clearie
Keyword(s):  
United Kingdom ◽  
Member State ◽  
European Court Of Justice ◽  
The United Kingdom ◽  
Court Of Justice ◽  
European Court ◽  
Registered Office ◽  
Set Up ◽  
The Right ◽  
A Company

InCentros Ltd and Erhvers-og Selskabsstyrelesen (hereinafter Centros),1 the European Court of Justice ruled that it is contrary to Article 52 (now Article 432) and Article 58 (now Article 48) of the EC Treaty for the authorities of a member State (in casu Denmark) to refuse to register a branch of a company formed under the law of another member State (in casu the United Kingdom) in which it has its registered office, even if the company concerned has never conducted any business in the latter State and intends to carry out its entire business in the State in which the branch is to be set up. By avoiding the need to form a company there it would thus evade the application of the rules governing the provision for and the paying-up of a minimum share capital in force in that State. According to the Court, this does not, however, prevent the authorities of the member State in which the branch is to be set up from adopting appropriate measures for preventing or penalising fraud, either with regard to the company itself, if need be in co-operation with the member State in which it was formed, or with regard to its members, where it has been determined that they are in fact attempting, by means of the formation of a company, to evade their obligations towards creditors established in the territory of the member State of the branch.

scholarly journals GUARANTEE OF THE RIGHT TO SILENCE AND OF THE RIGHT NOT TO CONTRIBUTE TO ONE’S OWN INCRIMINATION IN ROMANIAN CRIMINAL PROCEDURE LAW

2018 ◽  
Vol 2 (83) ◽  
pp. 25
Author(s):  
Carmen Adriana Domocos
Keyword(s):  
Freedom Of Expression ◽  
Case Law ◽  
Fair Trial ◽  
European Court Of Justice ◽  
European Convention ◽  
Criminal Offence ◽  
Court Of Justice ◽  
European Court ◽  
Right To Silence ◽  
The Right

The Romanian legislation establishes in the new penal procedure law the right to silence and the right of non-incrimination of the defendant in the criminal trial.The right to silence (to remain silent) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention on Human Rights, according to which judicial authorities cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect or a defendant to make statements, while having, however, a limited power to draw conclusions against them, from their refusal to make statements.Therefore, the right to silence involves not only the right not to testify against oneself, but also the right of the suspect or defendant not to incriminate oneself. The suspect or defendant cannot be compelled to assist in the production of evidence and cannot be sanctioned for failing to provide certain documents or other evidence. Obligation to testify against personal will, under the constraint of a fine or any other form of coercion constitutes an interference with the negative aspect of the right to freedom of expression which must be necessary in a democratic Romanian society.The right not to contribute to one’s own incrimination (the privilege against self-incrimination) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention, according to which judicial bodies or any other state authority cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect, a defendant or a witness to cooperate by providing evidence which might incriminate him or which could constitute the basis for a new criminal charge. It is essential to clarify certain issues as far as this right is concerned.

Innate Cosmopolitan Dialectics at the ICJ: Changing Perceptions of International Community, the Role of the Court, and the Legacy of Judge Álvarez

2014 ◽  
Vol 27 (2) ◽  
pp. 309-330
Author(s):  
GEOFFREY GORDON
Keyword(s):  
International Law ◽  
International Community ◽  
Public Order ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Dialectical Process ◽  
The Right

AbstractTraditional conceptions of the international community have come under stress in a time of expanding international public order. Various initiatives purport to observe a reconceived international community from a variety of perspectives: transnational, administrative, pluralist, constitutional, etc. The perspectives on this changing dynamic evidenced by the International Court of Justice, however, have been largely neglected. But as the principal judicial institution tasked with representing the diversity of legal perspectives in the world, the Court represents an important forum by which to understand the changing appreciation of international community. While decisions of the Court have been restrained, an active discourse has been carried forward among individual judges. I look at part of that discourse, organized around one perspective, which I refer to as innate cosmopolitanism, introduced to the forum of the ICJ by the opinions of Judge Álvarez. The innate cosmopolitan perspective reflects an idea of the international community as an autonomous collectivity, enjoying a will, interests, or ends of its own, independent of constituent states. The application of that perspective under international law is put most to test in matters of international security, in particular where the interest in a discrete, global public order runs up against the right to self-defence vested in states. The innate cosmopolitan perspective has not, in these cases, achieved a controlling position – but, over time, it has been part of a dialectical process showing a change in the appreciation of international community before the Court, and a changing perception from the bench of the role of the Court in that community.

Re-Conceptualizing the Right to Seek and Obtain Asylum in International Law

2015 ◽  
Vol 4 (2) ◽  
pp. 303-332
Author(s):  
Salvatore Fabio Nicolosi
Keyword(s):  
Human Rights ◽  
International Law ◽  
Asylum Seekers ◽  
International Human Rights ◽  
The Past ◽  
European Court ◽  
Triggering Factor ◽  
The Right ◽  
Human Rights Standards

Over the past few years the issue of asylum has progressively become interrelated with human rights. Asylum-related stresses, including refugee flows and mass displacements, have mitigated the traditional idea of asylum as an absolute state right, in so far as international human rights standards of protection require that states may have the responsibility to provide asylum seekers with protection. Following this premise, the article argues that the triggering factor of such overturning is significantly represented by the judicial approach to the institution of asylum by regional human rights courts. After setting the background on the interrelation of asylum with human rights, this article conceptualises the right to asylum as derived from the principle of non-refoulement and to this extent it delves into the role of the two regional human rights courts, notably the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR), in order to explore whether an emerging judicial cross-fertilisation may contribute to re-conceptualisation of the right to asylum from a human rights perspective.

Taricco principles beyond Taricco

2018 ◽  
Vol 9 (1) ◽  
pp. 31-37
Author(s):  
Fabio Giuffrida
Keyword(s):  
The European Union ◽  
Legal Certainty ◽  
Court Of Justice ◽  
European Court ◽  
Form Part ◽  
The Right ◽  
Criminal Matters ◽  
Principle Of Legality ◽  
Alleged Incompatibility ◽  
The Eu

This contribution examines whether the principles laid down in M.A.S., M.B. (‘ Taricco II’) may play a role in some forthcoming decisions of the Court of Justice of the European Union (CJEU). In Scialdone, the Court will be asked to strike a balance between the effectiveness of national legislation on VAT offences and the principle of lex mitior. The key difference between Taricco and Scialdone lies in the fact that the lex mitior principle, unlike the regulation of the statute of limitation, falls within the scope of the principle of legality at the European level. Kolev concerns instead an alleged incompatibility between Article 325 TFEU and the Bulgarian Code of Criminal Procedure. Unlike Taricco, therefore, the CJEU will have to deal with national rules that form part of procedural criminal law. Nevertheless, it cannot be excluded that the Court may reach a Taricco II-like conclusion (i.e. disapplication in theory, exception to the disapplication in practice), especially if the reasoning of the CJEU will rely on the importance of foreseeability and legal certainty in criminal matters. These same principles could lead the CJEU, in Menci, not to endorse the partial revirement of the European Court of Human Rights in the A. and B v. Norway ruling and, as a consequence, not to lower the EU standard of protection of the right not to be tried or punished twice for the same offence.

The Effect of WTO Dispute Settlement Rulings in the EC Legal Order: Reviewing Van Parys v Belgische Interventie- en Restitutiebureau (C-377/02)

2005 ◽  
Vol 6 (6) ◽  
pp. 1025-1032
Author(s):  
Delphine De Mey
Keyword(s):  
Dispute Settlement ◽  
National Court ◽  
Legal Order ◽  
European Court Of Justice ◽  
Court Of Justice ◽  
Wto Dispute Settlement ◽  
European Court ◽  
The Right ◽  
Community Legal Order

On 1 March 2005, the European Court of Justice (hereinafter ‘ECJ’ or ‘the Court’) got another opportunity to rule on the effect of recommendations and decisions of the WTO Dispute Settlement Body (hereinafter ‘DSB’) in the Community legal order. The ECJ concluded that an individual does not have the right to challenge, before a national court, the incompatibility of Community measures with WTO rules, even if the DSB had previously declared the Community legislation to be incompatible with those rules.

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