In Pharmon v Hoechst [1985] ECR 2281; [1985] 3 CMLR 775 a licence of right to make the products in question in the UK was granted, but with a ban on exports written into it. Pharmon nevertheless exported the product to the Netherlands and Hoechst sought an injunction to stop the sale of the drug in that country. The European Court of Justice held that Hoechst had not consented to the manufacture of the product by the compulsory licensee. The exclusive right of first marketing must be protected, therefore the patentee could prevent the marketing of parallel imports in such circumstances. The Advocate General added a proviso which was not adopted by the court that this would be different if the patent holder had expressly or impliedly consented to the grant of a compulsory licence. This might, for example, be the case where there were links between the patent holder and the compulsory licensee such as where they were parent and subsidiary.

1997 ◽  
pp. 118-123
Keyword(s):  
The Netherlands ◽  
European Court Of Justice ◽  
Parallel Imports ◽  
Patent Holder ◽  
Advocate General ◽  
Compulsory Licence ◽  
Court Of Justice ◽  
European Court ◽  
The Uk ◽  
Exclusive Right

Standards for Independent Oversight

2017 ◽  
Author(s):  
Nico van Eijk
Keyword(s):  
The Netherlands ◽  
European Court Of Justice ◽  
Data Retention ◽  
Digital Rights ◽  
National Courts ◽  
Court Of Justice ◽  
Intelligence Services ◽  
European Court ◽  
The Uk ◽  
Point Of Departure

The point of departure for this chapter is the decision of the European Court of Justice in the Digital Rights Ireland case, which annulled the European Data Retention Directive, in part because the use of retained data was not made subject to independent oversight. Next, it examines judgments from the national courts of the Netherlands and the UK, also focusing on the independent oversight issue, declaring invalid the data retention laws of those two countries. From the Digital Rights Ireland case and others, seven standards for oversight of intelligence services can be drawn: the oversight should be complete; it should encompass all stages of the intelligence cycle; it should be independent; it should take place prior to the imposition of a measure; it should be able to declare a measure unlawful and to provide redress; it should incorporate the adversary principle; and it should have sufficient resources.

After Kalanke and Marschall: Affirming Affirmative Action

1998 ◽  
Vol 1 ◽  
pp. 199-215 ◽  
Author(s):  
Sandra Fredman
Keyword(s):  
Affirmative Action ◽  
European Court Of Justice ◽  
Reverse Discrimination ◽  
The European Union ◽  
Advocate General ◽  
Affirmative Action Policy ◽  
Court Of Justice ◽  
European Court ◽  
Near Future ◽  
Action Case

Is it legitimate to use discriminatory policies to achieve equality? As official support for reverse discrimination or affirmative action policies becomes more common among member states of the European Union, so does the potential for legal challenge. Yet no clear answer has yet been given by the European Court of Justice. The controversial European Court of Justice decision in Kalanke, striking down an affirmative action policy, was followed only two years later by that in Marschall, which signalled a significant change in approach to affirmative action policies. This change of attitude is likely to be tested in a variety of different ways in the near future. The next affirmative action case, Badeck, is now awaiting the opinion of the Advocate General, and a Swedish case is waiting in the wings. Both these cases are likely to take the Court into far stormier waters than those already traversed in Kalanke and Marschall.

10 After Kalanke and Marschall: Affirming Affirmative Action

1998 ◽  
Vol 1 ◽  
pp. 199-215
Author(s):  
Sandra Fredman
Keyword(s):  
Affirmative Action ◽  
European Court Of Justice ◽  
Reverse Discrimination ◽  
The European Union ◽  
Advocate General ◽  
Affirmative Action Policy ◽  
Court Of Justice ◽  
European Court ◽  
Near Future ◽  
Action Case

Is it legitimate to use discriminatory policies to achieve equality? As official support for reverse discrimination or affirmative action policies becomes more common among member states of the European Union, so does the potential for legal challenge. Yet no clear answer has yet been given by the European Court of Justice. The controversial European Court of Justice decision in Kalanke, striking down an affirmative action policy, was followed only two years later by that in Marschall, which signalled a significant change in approach to affirmative action policies. This change of attitude is likely to be tested in a variety of different ways in the near future. The next affirmative action case, Badeck, is now awaiting the opinion of the Advocate General, and a Swedish case is waiting in the wings. Both these cases are likely to take the Court into far stormier waters than those already traversed in Kalanke and Marschall.

scholarly journals The myth of associative discrimination and the Court of Justice’s great vanishing act: part 2

2021 ◽  
Vol 72 (3) ◽  
pp. 510-541
Author(s):  
Michael Connolly
Keyword(s):  
European Court Of Justice ◽  
The Other ◽  
General Will ◽  
Traditional Form ◽  
Court Of Justice ◽  
European Court ◽  
Indirect Discrimination ◽  
The Uk ◽  
Extended Notion

This article complements an article (part 1) recently published in this journal (72(1) NILQ 29–60) contending that the notion of associative discrimination as a term of art renders it so vulnerable to manipulation that it can be used to narrow the scope of the legislation. That argument was rooted in the UK Supreme Court’s reasoning in Lee v Ashers Bakery [2018] UKSC 49. Part 2 continues the theme, but this time to show that the vulnerability can work the other way, producing, first, an ‘extended’ notion of associative discrimination and, second, radically broad notions of direct and indirect discrimination. This limb of the thesis also argues that a case heralded as one of associative discrimination, CHEZ [2016] CMLR 14, was no such thing. It concludes that the ambitious approach of the European Court of Justice and its Advocates General will blur the traditional form-based distinction between direct and indirect discrimination.

scholarly journals The myth of associative discrimination and the Court of Justice’s great vanishing act: part 2

2021 ◽  
Vol 72 (AD1) ◽  
pp. 1-32
Author(s):  
Michael Connolly
Keyword(s):  
European Court Of Justice ◽  
The Other ◽  
General Will ◽  
Traditional Form ◽  
Court Of Justice ◽  
European Court ◽  
Indirect Discrimination ◽  
The Uk ◽  
Extended Notion

This article complements an article (part 1) recently published in this journal (72(1) NILQ 29–60) contending that the notion of associative discrimination as a term of art renders it so vulnerable to manipulation that it can be used to narrow the scope of the legislation. That argument was rooted in the UK Supreme Court’s reasoning in Lee v Ashers Bakery [2018] UKSC 49. Part 2 continues the theme, but this time to show that the vulnerability can work the other way, producing, first, an ‘extended’ notion of associative discrimination and, second, radically broad notions of direct and indirect discrimination. This limb of the thesis also argues that a case heralded as one of associative discrimination, CHEZ [2016] CMLR 14, was no such thing. It concludes that the ambitious approach of the European Court of Justice and its Advocates General will blur the traditional form-based distinction between direct and indirect discrimination.

scholarly journals Compulsory membership of pension schemes and the free movement of services in the EU

2017 ◽  
Vol 19 (2) ◽  
pp. 118-140 ◽  
Author(s):  
Hans van Meerten ◽  
Elmar Schmidt
Keyword(s):  
The Netherlands ◽  
Competition Law ◽  
Pension Funds ◽  
European Court Of Justice ◽  
Court Of Justice ◽  
Pension Schemes ◽  
European Court ◽  
Indirect Discrimination ◽  
Mandatory Participation ◽  
The Eu

Mandatory pension participation in the Netherlands is currently under review. This article examines the manner in which the system of mandatory participation in sectoral pension funds is presently organised as well as future proposals from the perspective of the freedom to provide services. It also briefly reviews mandatory participation in Belgium, Denmark, Germany, France and Sweden and asks whether it constitutes a barrier to the freedom enshrined in Article 56 TFEU. Restrictions of this freedom in the field of mandatory participation are too easily excused in the Netherlands by pointing to decisions by the European Court of Justice (ECJ) in which it judged the system to be permissible. These decisions, however, were made from the perspective of competition law, and not on the basis of Article 56 TFEU. Grounds for justifying restrictions to this freedom exist, although different justifications are available for direct and indirect discrimination. The article questions how mandatory participation in the Member States considered in this article fare from this perspective?

10. The Relationship Between EU Law and National Law: Supremacy

EU Law ◽  
2020 ◽  
pp. 303-352
Author(s):  
Paul Craig ◽  
Gráinne de Búrca
Keyword(s):  
Legal Order ◽  
Common Market ◽  
European Court Of Justice ◽  
Eu Law ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
The Uk ◽  
The Relationship ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter discusses the doctrine of supremacy of EU law, which was developed by the European Court of Justice (ECJ) based on its conception of the ‘new legal order’. The ECJ ruled that the aim of creating a uniform common market between different states would be undermined if EU law could be made subordinate to national law of the various states. The validity of EU law can therefore, according to the ECJ, never be assessed by reference to national law. National courts are required to give immediate effect to EU law, of whatever rank, in cases that arise before them, and to ignore or to set aside any national law, of whatever rank, which could impede the application of EU law. Thus, according to the ECJ, any norm of EU law takes precedence over any provision of national law, including the national constitutions. This broad assertion of the supremacy of EU law has not however been accepted without qualification by national courts, and the chapter examines the nature of the qualifications that have been imposed by some national courts. The UK version contains a further section analysing the relevance of the supremacy of EU law in relation to the UK post-Brexit.

scholarly journals Law and Politics in River Basin Management; The Implementation of the Water Framework Directive in the Netherlands

2020 ◽  
Author(s):  
Erik Mostert
Keyword(s):  
The Netherlands ◽  
Water Framework Directive ◽  
River Basin ◽  
River Basin Management ◽  
European Court Of Justice ◽  
Basin Management ◽  
Law And Politics ◽  
Court Of Justice ◽  
Environmental Objectives ◽  
European Court

This article discusses the implementation of the Water Framework Directive (WFD) in the Netherlands and intends to show how law and politics combine in river basin management. Initially, the implementation of the WFD in the Netherlands was approached as a technical and administrative issue, handled by water quality and ecology experts, but in 2003 this approach was broken open by the agricultural sector, who were worried about stricter regulation. Subsequently, the environmental objectives of the WFD were set as low as possible and they are not used in authorising individual projects. Yet, in 2015 of the European Court of Justice determined that the environmental objectives have binding effect and that Member States have to refuse authorisation for projects that endanger the achievement of these objectives. In the future, the European Court of Justice and national courts may force the Dutch government to change its approach. They may only do so because and as long as they enjoy sufficient social and political support and function relatively independently. The article concludes that, to understand river basin management fully, one has to open up the black box of water law and become a kind of water lawyer.

Sign in / Sign up

Export Citation Format

Share Document