US and EU legal and regulatory update

2006 ◽  
Vol 12 (3) ◽  
Author(s):  
John Wilkinson
Keyword(s):  
European Court Of Justice ◽  
Massachusetts Institute Of Technology ◽  
The European Union ◽  
Advocate General ◽  
Court Of Justice ◽  
European Court ◽  
Institute Of Technology ◽  
Broad Interpretation ◽  
Definition Of ◽  
Regulatory Update

The Advocate-General of the European Court of Justice (ECJ) has delivered an important opinion that, if adopted by the judges of the court, would mean an extension in the availability of Supplementary Protection Certificates (SPCs) throughout the European Union (EU). In Case C-431/04 Massachusetts Institute of Technology (unreported opinion of 24th November, 2005), 1 the Advocate-General proposed a broad interpretation of the definition of the products for which an SPC could be obtained, arguing that a `combination medicinal product' comprising an active ingredient and an excipient could be considered as a product attracting SPC protection.

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 Notion of “Employee” in the IDD: A Harmonized Interpretation Based on the EU Law

2020 ◽  
pp. 139-159
Author(s):  
Anna Tarasiuk ◽  
Bartosz Wojno
Keyword(s):  
Point Of View ◽  
European Court Of Justice ◽  
Eu Law ◽  
The European Union ◽  
Eu Directive ◽  
Legal Relationship ◽  
Court Of Justice ◽  
European Court ◽  
Eu Directives ◽  
Definition Of

AbstractThe issue of the interpretation of the concept of an “employee of insurance undertaking”, which was used in the Directive on insurance distribution may cause issues from the point of view of the definition of the “employee” in terms of the type of legal relationship and the scope of activities that are allowed to be performed only by such employees. The authors demonstrate that, in accordance with the previous case law of the European Court of Justice/Court of Justice of the European Union, the concepts contained in EU directives should be interpreted in accordance with EU law, taking into account its autonomy and its aim (harmonization of legal systems of Member States). This should be applied even if a simple translation of a particular term used in an EU directive into the language of a Member State may give rise to an incentive for that term to be interpreted in the context of a local legal system.

Fighting for Authority: Strategic Actions of National High Courts in the European Union

2019 ◽  
Vol 12 (2-2019) ◽  
pp. 419-433
Author(s):  
Stefanie Vedder
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
Eu Law ◽  
The European Union ◽  
Principal Agent Theory ◽  
Strategic Actions ◽  
High Courts ◽  
Court Of Justice ◽  
European Court ◽  
Lower Courts

National high courts in the European Union (EU) are constantly challenged: the European Court of Justice (ECJ) claims the authority to declare national standing interpretations invalid should it find them incompatible with its views on EU law. This principle noticeably impairs the formerly undisputed sovereignty of national high courts. In addition, preliminary references empower lower courts to question interpretations established by their national ‘superiors’. Assuming that courts want to protect their own interests, the article presumes that national high courts develop strategies to elude the breach of their standing interpretations. Building on principal-agent theory, the article proposes that national high courts can use the level of (im-) precision in the wording of the ECJ’s judgements to continue applying their own interpretations. The article develops theoretical strategies for national high courts in their struggle for authority.

A Constitutional Court for Europe?

2004 ◽  
Vol 6 ◽  
pp. 1-34
Author(s):  
Anthony Arnull
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
European Council ◽  
Constitutional Court ◽  
The European Union ◽  
Constitutional Order ◽  
Court Of Justice ◽  
European Court ◽  
The Future ◽  
Draft Constitution

The purpose of this article is to consider the effect of the draft Treaty establishing a Constitution for Europe on the European Court of Justice (ECJ). At the time of writing, the future of the draft Constitution is somewhat uncertain. Having been finalised by the Convention on the Future of Europe in the summer of 2003 and submitted to the then President of the European Council, it formed the basis for discussion at an intergovernmental conference (IGC) which opened in October 2003. Hopes that the text might be finalised by the end of the year were dashed when a meeting of the IGC in Brussels in December 2003 ended prematurely amid disagreement over the weighting of votes in the Council. However, it seems likely that a treaty equipping the European Union with a Constitution based on the Convention’s draft will in due course be adopted and that the provisions of the draft dealing with the ECJ will not be changed significantly. Even if either assumption proves misplaced, those provisions will remain of interest as reflecting one view of the position the ECJ might occupy in a constitutional order of the Union.

scholarly journals Some changes in the field of civil law

2006 ◽  
Vol 78 (9) ◽  
pp. 395-412
Author(s):  
Dušan Nikolić
Keyword(s):  
Separation Of Powers ◽  
Civil Law ◽  
Social Value ◽  
European Court Of Justice ◽  
The Other ◽  
The European Union ◽  
The Public ◽  
Public Benefit ◽  
Court Of Justice ◽  
European Court

In the first part of the paper, the author has outlined some changes that have happened in the field of civil law during the history, and in the second part of the paper, the author has paid attention to the modern trends, produced by the process of globalization. By analyzing certain sectors, the author has come to the conclusion that ownership title and public office are being slightly shifted from state to non-state authorities. On the other hand, this trend of the global (re)privatization has contributed to the change of attitude toward the title. The owner is expected to ewoy his title both for his own and for the public benefit. One of the most recent judgments of the European Court of Justice speaks in favor of this and it has been mentioned in this paper. This judgment supports the view that the property is not absolute and that it has a social value. The special attention is paid to the so called new institutionalism and need to question the concept of separation of powers within the European Union.

scholarly journals Selective Fiscal Measures and the Definition of the Relevant Reference Framework in the Light of Cases C‑106/09 P, Commission v Gibraltar and C‑203/16 P, Heitkamp BauHolding v Commission

2020 ◽  
Vol 13 (2) ◽  
pp. 64-75
Author(s):  
Hanna-Mari Immonen
Keyword(s):  
Reference System ◽  
European Court Of Justice ◽  
Tax System ◽  
Reference Framework ◽  
Court Of Justice ◽  
European Court ◽  
Relevant Reference ◽  
Definition Of ◽  
State Aids

This article examines fiscal State aids and the selectivity condition. Assessing the selectivity is relatively complex in tax matters since it involves the analysis of the general tax system in which the regime under review applies. The focus of this article is on the selectivity analysis and the analysis of the general tax system i.e. the determination of the relevant reference framework. The definition of the relevant reference framework is still open to various interpretations despite the fact that the European Court of Justice has examined selectivity issues in several cases in the 2000s. The Gibraltar judgement has materially broadened the interpretation of the selectivity condition and the application of Article 107(1) TFEU. The Heitkamp BauHolding judgment confirms the interpretation adopted in the Gibraltar judgement, but also defines the scope of Article 107(1) TFEU in more detail. Yet the offset of the selectivity assessment i.e. the determination of the relevant reference system is still receptive to various interpretations.

6. The preliminary ruling (Article 267 TFEU)

2018 ◽  
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Reference Procedure ◽  
Procedural Law ◽  
Court Of Justice ◽  
European Court

This chapter examines the procedural law of the European Union (EU), focusing on Article 267 of the Treaty on the Functioning of the European Union (TFEU). It explains that Article 267 is the reference procedure by which courts in member states can endorse questions concerning EU law to the European Court of Justice (CoJ). Under this Article, the Court of Justice of the European Union (CJEU) has the jurisdiction to provide preliminary rulings on the validity and interpretation of acts of the institutions, bodies, offices, or agencies of the Union and on the interpretation of the Treaties.

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