scholarly journals EU Law and the Discretion of Private National Decision-Makers in Light of the Court's Judgement in Case C-22/18 TopFit and Biffi

2020 ◽  
Vol 3 (2) ◽  
pp. 82-94
Author(s):  
Angelica Ericsson
Keyword(s):  
Decision Makers ◽  
The Other ◽  
Eu Law ◽  
Private Regulation ◽  
Prior Authorisation ◽  
Court Of Justice ◽  
Regulatory Bodies ◽  
Scope Of Application ◽  
The One ◽  
Movement Rules

This contribution aims to introduce the reader to a judgement from the Court of Justice which seems to broaden the scope of application of EU free movement rules to private regulatory bodies in two ways. One the one hand, this judgment expands our understanding of what type of private regulation can fall within this scope. On the other hand, it shows that EU law requires a private prior authorisation scheme to be infused with the same objectivity safeguards as those that have been required for public ones.

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 interpretation complying with EU law manifested in the case law unifying judgment No. 15/2013 of the Portuguese Supreme Court of Justice

2016 ◽  
Vol 2 ◽  
pp. 82-96
Author(s):  
Carla Machado
Keyword(s):  
European Union ◽  
Supreme Court ◽  
Case Law ◽  
Legal Order ◽  
The Other ◽  
Eu Law ◽  
The European Union ◽  
The Public ◽  
Court Of Justice ◽  
The One

This article aims to address the interpretation that has been made by Portuguese courts in relation to the concept of “communication of the work to the public” enshrined in Article 3 (1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001, duly transposed into the Portuguese legal order by Law No. 50/2006 of 24 August, which culminated in the drafting of the case law unifying judgment No. 15/2013. By verifying its content and analysing the case law of the Court of Justice of the European Union (hereinafter CJEU), concerning the interpretation of that concept, we conclude that the said case law unifying judgment does not comply with EU law. Therefore, we will list, on the one hand, the inherent consequences regarding the upkeep of the interpretation that has been held by the Portuguese judicial authorities and, on the other, we will suggest solutions for the resolution of similar cases by appealing to the principle of conforming interpretation.

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.

scholarly journals Human autonomy, technological automation (and reverse)

AI & Society ◽  
2021 ◽  
Author(s):  
Simona Chiodo
Keyword(s):  
Autonomous Vehicles ◽  
Decision Makers ◽  
The Other ◽  
Individual Responsibility ◽  
Individual Autonomy ◽  
Moral Decision ◽  
Philosophical Perspective ◽  
Other Hand ◽  
Human Autonomy ◽  
The One

AbstractWe continuously talk about autonomous technologies. But how can words qualifying technologies be the very same words chosen by Kant to define what is essentially human, i.e. being autonomous? The article focuses on a possible answer by reflecting upon both etymological and philosophical issues, as well as upon the case of autonomous vehicles. Most interestingly, on the one hand, we have the notion of (human) “autonomy”, meaning that there is a “law” that is “self-given”, and, on the other hand, we have the notion of (technological) “automation”, meaning that there is something “offhand” that is “self-given”. Yet, we are experiencing a kind of twofold shift: on the one hand, the shift from defining technologies in terms of automation to defining technologies in terms of autonomy and, on the other hand, the shift from defining humans in terms of autonomy to defining humans in terms of automation. From a philosophical perspective, the shift may mean that we are trying to escape precisely from what autonomy founds, i.e. individual responsibility of humans that, in the Western culture, have been defined for millennia as rational and moral decision-makers, even when their decisions have been the toughest. More precisely, the shift may mean that we are using technologies, and in particular emerging algorithmic technologies, as scapegoats that bear responsibility for us by making decisions for us. Moreover, if we consider the kind of emerging algorithmic technologies that increasingly surround us, starting from autonomous vehicles, then we may argue that we also seem to create a kind of technological divine that, by being always with us through its immanent omnipresence, omniscience, omnipotence and inscrutability, can always be our technological scapegoat freeing us from the most unbearable burden of individual responsibility resulting from individual autonomy.

scholarly journals Territoriality Beyond the State: The EU’s Territorial Claims and the Search for Their Legitimacy

2021 ◽  
Vol 22 (4) ◽  
pp. 650-672
Author(s):  
Josef Weinzierl
Keyword(s):  
The State ◽  
Political Community ◽  
The Other ◽  
Main Question ◽  
Eu Law ◽  
European Level ◽  
Territorial Claims ◽  
The One ◽  
The Individual ◽  
The Eu

AbstractQuite a few recent ECJ judgments touch on various elements of territorial rule. Thereby, they raise the profile of the main question this Article asks: Which territorial claims does the EU make? To provide an answer, the present Article discusses and categorizes the individual elements of territoriality in the EU’s architecture. The influence of EU law on national territorial rule on the one hand and the emergence of territorial governance elements at the European level on the other provide the main pillars of the inquiry. Once combined, these features not only help to improve our understanding of the EU’s distinctly supranational conception of territoriality. What is more, the discussion raises several important legitimacy questions. As a consequence, the Article calls for the development of a theoretical model to evaluate and justify territoriality in a political community beyond the state.

scholarly journals The Rise and Expressions of Consistency in EU Law: Legal and Strategic Implications for European Integration

2013 ◽  
Vol 15 ◽  
pp. 139-167
Author(s):  
Ester Herlin-Karnell ◽  
Theodore Konstadinides
Keyword(s):  
European Union ◽  
European Integration ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
Treaty Of Lisbon ◽  
Legal Principles ◽  
Division Of Powers ◽  
Court Of Justice ◽  
Scope Of Application

Abstract The principle of consistency has a prominent place in EU law. In the Treaty of Lisbon, it constitutes an umbrella under which a number of legal principles of EU law follow as corollaries. Consistency manifests itself within both horizontal and vertical levels of governance. This chapter will unpack this principle and will focus on the broader implications of consistency for the division of powers in EU law. In doing so, the authors aim to discuss the rise of consistency in EU law and decrypt its various constitutional expressions in order to determine its scope of application. Two notions of consistency are presented: a formal one that appears in the Treaty of Lisbon and a strategic one, prominent in the case law of the Court of Justice of the European Union (CJEU). It is argued that consistency is relevant to both traditional (integrationist) and alternative (differentiated) routes to European integration. The chapter concludes by discussing whether the undefined nature of ‘consistency’ puts it at risk of becoming an empty vessel.

scholarly journals Enhanced Cooperation and Free Movement. Territorial Aspects of ‘Harmonisation’

2017 ◽  
Vol 7 ◽  
pp. 249-267
Author(s):  
Miłosz Malaga ◽  
Anna Wilińska-Zelek
Keyword(s):  
Intellectual Property Rights ◽  
Patent Protection ◽  
The Other ◽  
Free Movement ◽  
Eu Law ◽  
European Union Law ◽  
Free Movement Of Goods ◽  
The One ◽  
The Relationship ◽  
Unitary Patent

In this article we examine the notion of ‘harmonisation’ in its interplay with the application of provisions on the free movement of goods. Due to the introduction of the European unitary patent protection system, we are witnessing the first cases of adopting enhanced cooperation in the internal market. This fact raises new, systemic questions concerning the concept of ‘harmonisation’ in European Union law. Are only legal, substantive aspects covered by its definition or should the territorial range of a legal act be taken into account? If yes – to what extent? Since the adoption of enhanced cooperation covers the field of intellectual property rights, the above questions concern the relationship between exercising those rights on the one hand and the principle of free movement on the other. A closer look at this matter leads to the conclusion that the unitary patent might not provide the solution to one of the problems that created for. More generally, in this article we conclude that when defining the concept of ‘harmonisation’, one should take its territorial scope into account narrowly, so as not to infringe the principles of EU law.

Harmony and Dissonance in Free Movement

2001 ◽  
Vol 4 ◽  
pp. 315-341
Author(s):  
Miguel Poiares Maduro
Keyword(s):  
Free Movement ◽  
Middle Ground ◽  
National Treatment ◽  
Court Of Justice ◽  
European Court ◽  
Scope Of Application ◽  
Free Movement Of Goods ◽  
Free Movement Of Persons ◽  
Movement Rules ◽  
Reversal Of Fortune

There is a generalised perception that the European Court of Justice has adopted different approaches to the different free movement rules included in the Treaties. In particular, the free movement of goods has ‘benefited’, until 1993, from a wider scope of application. Contrary to what has for long constituted the standard approach to the free movement of persons, the free movement of goods was constructed as requiring more than national treatment and non-discrimination in regard to goods from other Member States. Even non-discriminatory restrictions on trade in goods could constitute a violation of Community rules if not justified as necessary and proportional to the pursuit of a legitimate public interest. The freedom to provide services has somewhat occupied a middle ground between the interpretation given to the goods and persons provisions. Following the Court’s decision in Keck & Mithouard in 1993, a reversal of fortune appears to have taken place regarding the Court’s approach to the different free movement provisions, with the free movement of persons and the freedom to provide services now benefiting from a more ‘aggressive’ interpretation in comparison with the free movement of goods.

‘But the Last Word Is Ours’: The Monopoly of Jurisdiction of the Court of Justice of the European Union in Light of the Investment Court System

2019 ◽  
Vol 30 (4) ◽  
pp. 1187-1220
Author(s):  
Francisco de Abreu Duarte
Keyword(s):  
European Union ◽  
General Framework ◽  
External Action ◽  
The Other ◽  
Court System ◽  
The European Union ◽  
Court Of Justice ◽  
The One ◽  
The Eu

Abstract This article develops the concept of the monopoly of jurisdiction of the Court of Justice of the European Union (CJEU) through the analysis of the case study of the Investment Court System (ICS). By providing a general framework over the criteria that have been developed by the Court, the work sheds light on the controversial principle of autonomy of the European Union (EU) and its implications to the EU’s external action. The work intends to be both pragmatic and analytical. On the one hand, the criteria are extracted as operative tools from the jurisprudence of the CJEU and then used in the context of the validity of the ICS. This provides the reader with some definitive standards that can then be applied to future cases whenever a question concerning autonomy arises. On the other hand, the article questions the reasons behind the idea of the monopoly of jurisdiction of the CJEU, advancing a concept of autonomy of the EU as a claim for power and critiquing the legitimacy and coherence of its foundations. Both dimensions will hopefully help to provide some clarity over the meaning of autonomy and the monopoly of jurisdiction, while, at the same time, promoting a larger discussion on its impact on the external action of the EU.

Structural patterns in Swedish health policy: a 30-year perspective

2014 ◽  
Vol 10 (2) ◽  
pp. 195-215 ◽  
Author(s):  
Richard B. Saltman
Keyword(s):  
Health Sector ◽  
Decision Makers ◽  
The Other ◽  
Valuable Insight ◽  
Current Period ◽  
Northern European ◽  
Swedish Health Care ◽  
European Health ◽  
Organizational Patterns ◽  
The One

AbstractThis perspective reviews key institutional and organizational patterns in Swedish health care over the last 30 years, probing the roots of several complicated policy questions that concern present-day Swedish decision-makers. It explores in particular the ongoing structural tension between stability, on the one hand, and the necessary levels of innovation and dynamism demanded by the current period of major clinical, technological, economic, social and supranational (EU) change. Where useful, the article compares Swedish developments with those in the other three European Nordic countries as well as other northern European health systems. Sweden’s health sector evolution can provide valuable insight for other countries into the complexity involved in re-thinking tradeoffs between policies that emphasize stability as against those that encourage innovation in health sector governance and provision.

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