{"title":"Playing by its own rules? A quantitative empirical analysis of justificatory reasoning in the registered trade mark case law of the European Court of Justice - dataset","authors":"Jane Cornwell","doi":"10.7488/DS/2968","DOIUrl":"https://doi.org/10.7488/DS/2968","url":null,"abstract":"","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2020-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43823463","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-08-01DOI: 10.13140/RG.2.2.23221.42721
K. Purnhagen, J. Zeben, C. Ahlborn, P. Oosterveer
In Organisation juive europeenne, Vignoble Psagot Ltd v Ministre de l’Economie et des Finances (Organisation juive europeenne) (C-363/18), the Court of Justice of the European Union (CJEU or Court) was tasked with deciding what information on its country of origin or place of provenance is mandatory for business according to existing European legislation. This case note summarises the interpretative decisions taken by the AG Hogan (Advocate General or AG) and the Court in their opinion and judgment, respectively. It then considers the broader implications of this case from several perspectives: first, from the perspective of political consumerism and its (potential) role in EU internal market law; second, from the perspective of the enforcement of international law; and third, from the perspective of the coherence of EU food and consumer law including its behavioural dimension.
{"title":"Beyond Food Safety: EU Food Information Standards as a Facilitator of Political Consumerism and International Law Enforcement Mechanism","authors":"K. Purnhagen, J. Zeben, C. Ahlborn, P. Oosterveer","doi":"10.13140/RG.2.2.23221.42721","DOIUrl":"https://doi.org/10.13140/RG.2.2.23221.42721","url":null,"abstract":"In Organisation juive europeenne, Vignoble Psagot Ltd v Ministre de l’Economie et des Finances (Organisation juive europeenne) (C-363/18), the Court of Justice of the European Union (CJEU or Court) was tasked with deciding what information on its country of origin or place of provenance is mandatory for business according to existing European legislation. This case note summarises the interpretative decisions taken by the AG Hogan (Advocate General or AG) and the Court in their opinion and judgment, respectively. It then considers the broader implications of this case from several perspectives: first, from the perspective of political consumerism and its (potential) role in EU internal market law; second, from the perspective of the enforcement of international law; and third, from the perspective of the coherence of EU food and consumer law including its behavioural dimension.","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2020-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47735363","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article analyses CJEU case law on the notion of ‘new public’ in the context of the right of communication to the public in EU copyright law, with a focus on Article 3(1) of the InfoSoc Directive. It investigates its origin, use and development, as well as the justifications given for such use. By identifying for the first time four distinct groups of case law, the analysis shows how the role of the ‘new public’ has changed over time. If intended as a requirement, the ‘new public’ creates undue complexity in the reasoning of the CJEU in most instances. While others have suggested that the CJEU should disregard this notion altogether, this article proposes a less radical way for the CJEU to ‘escape’ the difficulties inherent to its own jurisprudence.
{"title":"When Does a Communication to the Public Under EU Copyright Law Need to Be to a ‘New Public’?","authors":"Eleonora Rosati","doi":"10.2139/ssrn.3640493","DOIUrl":"https://doi.org/10.2139/ssrn.3640493","url":null,"abstract":"This article analyses CJEU case law on the notion of ‘new public’ in the context of the right of communication to the public in EU copyright law, with a focus on Article 3(1) of the InfoSoc Directive. It investigates its origin, use and development, as well as the justifications given for such use. By identifying for the first time four distinct groups of case law, the analysis shows how the role of the ‘new public’ has changed over time. If intended as a requirement, the ‘new public’ creates undue complexity in the reasoning of the CJEU in most instances. While others have suggested that the CJEU should disregard this notion altogether, this article proposes a less radical way for the CJEU to ‘escape’ the difficulties inherent to its own jurisprudence.","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2020-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44279495","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The United Kingdom withdrew from the European Union on 31 January 2020 and immediately entered into a period of “transition”. With the EU acquis continuing to apply to the UK during this period, regulatory alignment with the EU is maintained until transition ends. However, this “shadow membership” is not an intimation of the desire of the UK to maintain alignment following transition. Indeed, the UK has stipulated that continuing alignment is incompatible with its direction of travel out of the EU. Rather, in its desire to protect and enhance its “regulatory autonomy”, the UK is set to ditch the discipline on its autonomy experienced during membership—a “free movement” discipline—in favour of a looser “free trade” discipline. In response, the EU has asserted the need to protect its own autonomy by demanding that the UK commit to “level playing-field” requirements aimed at preventing the EU’s balance of market liberalism and regulation and regulatory competition and neutrality from being eroded. The aim of this article is to evaluate whether the ambition to agree a comprehensive economic partnership is compatible with EU and UK attempts to protect their regulatory autonomy.
{"title":"Regulatory Autonomy after EU Membership - Alignment, Divergence and the Discipline of Law","authors":"Kenneth A. Armstrong","doi":"10.2139/ssrn.3593482","DOIUrl":"https://doi.org/10.2139/ssrn.3593482","url":null,"abstract":"The United Kingdom withdrew from the European Union on 31 January 2020 and immediately entered into a period of “transition”. With the EU acquis continuing to apply to the UK during this period, regulatory alignment with the EU is maintained until transition ends. However, this “shadow membership” is not an intimation of the desire of the UK to maintain alignment following transition. Indeed, the UK has stipulated that continuing alignment is incompatible with its direction of travel out of the EU. Rather, in its desire to protect and enhance its “regulatory autonomy”, the UK is set to ditch the discipline on its autonomy experienced during membership—a “free movement” discipline—in favour of a looser “free trade” discipline. In response, the EU has asserted the need to protect its own autonomy by demanding that the UK commit to “level playing-field” requirements aimed at preventing the EU’s balance of market liberalism and regulation and regulatory competition and neutrality from being eroded. The aim of this article is to evaluate whether the ambition to agree a comprehensive economic partnership is compatible with EU and UK attempts to protect their regulatory autonomy.","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2020-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42648836","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The United Kingdom withdrew from the European Union on 31 January 2020 and immediately entered into a period of “transition”. With the EU acquis continuing to apply to the UK during this period, regulatory alignment with the EU is maintained until transition ends. However, this “shadow membership” is not an intimation of the desire of the UK to maintain alignment following transition. Indeed, the UK has stipulated that continuing alignment is incompatible with its direction of travel out of the EU. Rather, in its desire to protect and enhance its “regulatory autonomy”, the UK is set to ditch the discipline on its autonomy experienced during membership—a “free movement” discipline—in favour of a looser “free trade” discipline. In response, the EU has asserted the need to protect its own autonomy by demanding that the UK commit to “level playing-field” requirements aimed at preventing the EU’s balance of market liberalism and regulation and regulatory competition and neutrality from being eroded. The aim of this article is to evaluate whether the ambition to agree a comprehensive economic partnership is compatible with EU and UK attempts to protect their regulatory autonomy.
{"title":"Regulatory Autonomy after EU Membership: Alignment, Divergence and the Discipline of Law","authors":"Kenneth A. Armstrong","doi":"10.17863/CAM.51700","DOIUrl":"https://doi.org/10.17863/CAM.51700","url":null,"abstract":"The United Kingdom withdrew from the European Union on 31 January 2020 and immediately entered into a period of “transition”. With the EU acquis continuing to apply to the UK during this period, regulatory alignment with the EU is maintained until transition ends. However, this “shadow membership” is not an intimation of the desire of the UK to maintain alignment following transition. Indeed, the UK has stipulated that continuing alignment is incompatible with its direction of travel out of the EU. Rather, in its desire to protect and enhance its “regulatory autonomy”, the UK is set to ditch the discipline on its autonomy experienced during membership—a “free movement” discipline—in favour of a looser “free trade” discipline. In response, the EU has asserted the need to protect its own autonomy by demanding that the UK commit to “level playing-field” requirements aimed at preventing the EU’s balance of market liberalism and regulation and regulatory competition and neutrality from being eroded. The aim of this article is to evaluate whether the ambition to agree a comprehensive economic partnership is compatible with EU and UK attempts to protect their regulatory autonomy.","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2020-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49493341","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Are our legal systems, and in particular that of private law, prepared to deal with crypto-assets in a way that ensures legal protection for the rights and obligations of citizens and private firms, without hindering innovation? After defining the new phenomenon of crypto-assets and its complex relationship with established legal concepts, this article deals with how the courts have characterised crypto-assets and the rights they are considered to confer; how these rights can be enforced; and the actions the judiciary and especially the legislator could undertake, among prohibition, benign neglect, regulation or extensive interpretation, and compulsory insurance, to allow our legal systems to adapt and ensure that crypto-assets prosper without shifting risk on society. Given the global nature of the crypto-assets phenomenon, only an international approach will be able to tackle this challenge.
{"title":"Crypto-assets: Legal Characterisation and Challenges under Private Law","authors":"C. Zilioli","doi":"10.2139/ssrn.3532316","DOIUrl":"https://doi.org/10.2139/ssrn.3532316","url":null,"abstract":"Are our legal systems, and in particular that of private law, prepared to deal with crypto-assets in a way that ensures legal protection for the rights and obligations of citizens and private firms, without hindering innovation? After defining the new phenomenon of crypto-assets and its complex relationship with established legal concepts, this article deals with how the courts have characterised crypto-assets and the rights they are considered to confer; how these rights can be enforced; and the actions the judiciary and especially the legislator could undertake, among prohibition, benign neglect, regulation or extensive interpretation, and compulsory insurance, to allow our legal systems to adapt and ensure that crypto-assets prosper without shifting risk on society. Given the global nature of the crypto-assets phenomenon, only an international approach will be able to tackle this challenge.","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2020-02-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46492172","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On 29 March 2017, the UK notified its intention of leaving the EU. This activated the two-year disconnection period foreseen in art.50 TEU, thus resulting in a default Brexit at the end of March 2019. The firming up of a draft agreement on a transition period to run until 31 December 2020 could provide a longer timescale for the Brexit disconnection, as well as some clarity on the process of disentanglement of the UK’s and EU’s legal systems. The draft transition agreement of 19 March 2018, updated on 19 June 2018 and still under negotiation at the time of writing, provides explicit rules on public procurement bound to regulate “internal” procurement trade between the UK and the EU for a period of over 15 months. However, the uncertainty concerning the future EU–UK relationship remains, and the draft agreement does not provide any indication on the likely legal architecture for future EU–UK trade, including through public procurement. The draft agreement has thus not suppressed the risk of a “cliffedge” disconnection post-Brexit, but rather only deferred it. The transition is currently not into an alternative system of procurement regulation, but rather into the void. There have also been very limited developments concerning the UK’s and EU’s repositioning within the World Trade Organization Government Procurement Agreement (WTO GPA), which creates additional legal uncertainty from the perspective of “external” trade in procurement markets due to the absence of a “WTO rules” default applicable to public procurement. Against the backdrop of this legal uncertainty, this article critically assesses the implications of the 2018 draft transition agreement, both for the re-regulation of “internal” EU–UK procurement, and for the repositioning of both the EU and the UK within the WTO GPA, as the basis for their “external” procurement trade with third countries. The article concludes that it is in both the UK’s and the EU’s interest to reach a future EU–UK FTA that ensures continued collaboration and crystallises current compliance with EU rules, and to build on it to reach a jointly negotiated solution vis-a-vis the rest of WTO GPA parties. The article constitutes a detailed case study that provides insights applicable to other areas of Brexit-related trade reregulation.
{"title":"Brexit and Public Procurement: Transitioning into the Void?","authors":"P. Telles, Albert Sánchez Graells","doi":"10.2139/SSRN.3166056","DOIUrl":"https://doi.org/10.2139/SSRN.3166056","url":null,"abstract":"On 29 March 2017, the UK notified its intention of leaving the EU. This activated the two-year disconnection period foreseen in art.50 TEU, thus resulting in a default Brexit at the end of March 2019. The firming up of a draft agreement on a transition period to run until 31 December 2020 could provide a longer timescale for the Brexit disconnection, as well as some clarity on the process of disentanglement of the UK’s and EU’s legal systems. The draft transition agreement of 19 March 2018, updated on 19 June 2018 and still under negotiation at the time of writing, provides explicit rules on public procurement bound to regulate “internal” procurement trade between the UK and the EU for a period of over 15 months. However, the uncertainty concerning the future EU–UK relationship remains, and the draft agreement does not provide any indication on the likely legal architecture for future EU–UK trade, including through public procurement. The draft agreement has thus not suppressed the risk of a “cliffedge” disconnection post-Brexit, but rather only deferred it. The transition is currently not into an alternative system of procurement regulation, but rather into the void. There have also been very limited developments concerning the UK’s and EU’s repositioning within the World Trade Organization Government Procurement Agreement (WTO GPA), which creates additional legal uncertainty from the perspective of “external” trade in procurement markets due to the absence of a “WTO rules” default applicable to public procurement. Against the backdrop of this legal uncertainty, this article critically assesses the implications of the 2018 draft transition agreement, both for the re-regulation of “internal” EU–UK procurement, and for the repositioning of both the EU and the UK within the WTO GPA, as the basis for their “external” procurement trade with third countries. The article concludes that it is in both the UK’s and the EU’s interest to reach a future EU–UK FTA that ensures continued collaboration and crystallises current compliance with EU rules, and to build on it to reach a jointly negotiated solution vis-a-vis the rest of WTO GPA parties. The article constitutes a detailed case study that provides insights applicable to other areas of Brexit-related trade reregulation.","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2019-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46070516","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-06-19DOI: 10.5040/9781509903382.ch-005
Jacob Öberg
Article 83(2) TFEU, introduced by the Treaty of Lisbon, confers a power on the EU to harmonise Member States’ legislation to define criminal offences and criminal sanctions. Nonetheless, uncertainty persists as to whether this provision exhaustively determines the EU’s power to adopt criminal law to enforce its policies. The article outlines the core case for viewing art.83(2) TFEU as a lex specialis. It argues that the post-Lisbon constitutional design, alongside principled and teleological considerations, support a Member State centred approach for criminal law competence. This is particularly the case with regard to the adoption of harmonisation measures.
{"title":"The Legal Basis for EU Criminal Law Legislation","authors":"Jacob Öberg","doi":"10.5040/9781509903382.ch-005","DOIUrl":"https://doi.org/10.5040/9781509903382.ch-005","url":null,"abstract":"Article 83(2) TFEU, introduced by the Treaty of Lisbon, confers a power on the EU to harmonise Member States’ legislation to define criminal offences and criminal sanctions. Nonetheless, uncertainty persists as to whether this provision exhaustively determines the EU’s power to adopt criminal law to enforce its policies. The article outlines the core case for viewing art.83(2) TFEU as a lex specialis. It argues that the post-Lisbon constitutional design, alongside principled and teleological considerations, support a Member State centred approach for criminal law competence. This is particularly the case with regard to the adoption of harmonisation measures.","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2018-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.5040/9781509903382.ch-005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44088438","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abuse of law in the context of EU law has been a subject of some debate. In recent cases the European Court of Justice has shown a tendency towards mixing different approaches from earlier judgments. This article takes a critical view of this development. It points out that, relating to abuse in the context of EU law, two groups of cases can and should be distinguished: on the one hand, the inappropriate use of a provision of EU law, and, on the other hand, the inappropriate use of national law with the help of EU law. This differentiation has an impact on the handling of abuse cases. It is the decisive factor in deciding how to introduce the concept of abuse into the application of law. Furthermore, it affects the answer to the question if national law or a general principle of EU law is to be applied.
{"title":"Abuse of Law in the Context of EU Law","authors":"Sudabeh Kamanabrou","doi":"10.2139/ssrn.3434044","DOIUrl":"https://doi.org/10.2139/ssrn.3434044","url":null,"abstract":"Abuse of law in the context of EU law has been a subject of some debate. In recent cases the European Court of Justice has shown a tendency towards mixing different approaches from earlier judgments. This article takes a critical view of this development. It points out that, relating to abuse in the context of EU law, two groups of cases can and should be distinguished: on the one hand, the inappropriate use of a provision of EU law, and, on the other hand, the inappropriate use of national law with the help of EU law. This differentiation has an impact on the handling of abuse cases. It is the decisive factor in deciding how to introduce the concept of abuse into the application of law. Furthermore, it affects the answer to the question if national law or a general principle of EU law is to be applied.","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68592771","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The EU Fundamental Rights Charter should be understood as acknowledging that fundamental rights are the foundation of European democracies and thus underlying EU integration, and that the division of powers between the EU and its Member States is ultimately in the interest of people. This would leave room for the overprotection of rights as a matter of national or international law. Such a rights-based approach would respect international human rights law and fit into EU internal market, citizenship and private law. Respect for Member State powers would serve as a limiting factor to this approach by limiting the extent of judicial review by the Court of Justice of the EU.
{"title":"A Federal Question Doctrine for EU Fundamental Rights Law: Making Sense of Articles 51 and 53 of the Charter of Fundamental Rights","authors":"Konstanze von Papp","doi":"10.2139/ssrn.3502091","DOIUrl":"https://doi.org/10.2139/ssrn.3502091","url":null,"abstract":"The EU Fundamental Rights Charter should be understood as acknowledging that fundamental rights are the foundation of European democracies and thus underlying EU integration, and that the division of powers between the EU and its Member States is ultimately in the interest of people. This would leave room for the overprotection of rights as a matter of national or international law. Such a rights-based approach would respect international human rights law and fit into EU internal market, citizenship and private law. Respect for Member State powers would serve as a limiting factor to this approach by limiting the extent of judicial review by the Court of Justice of the EU.","PeriodicalId":45752,"journal":{"name":"European Law Review","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68599632","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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