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Journal articles on the topic 'Article 207 TFEU'
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1
Puig, Ramón Vidal. "The Scope of the New Exclusive Competence of the European Union with Regard to Foreign Direct Investment." Legal Issues of Economic Integration 40, Issue 2 (May 1, 2013): 133–62. http://dx.doi.org/10.54648/leie2013008.
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Article 207 TFEU confers upon the European Union exclusive competence with regard to 'foreign direct investment'. This article argues that this competence may be broad enough to cover most, if not all, the matters usually addressed in a Bilateral Investment Treaty. It covers both the initial 'admission' of investments and 'post-admission' matters, such as 'national treatment', 'most-favoured nation treatment' or 'equal and fair treatment'. Member States retain the right to expropriate the assets of foreign investors, but the Union may subject its exercise to certain conditions. Article 207 TFEU does not cover 'portfolio investments', but the Union may have implied exclusive competence by virtue of the common rules on capital movements (Articles 63-66 TFEU). Competence in the 'field of transport' remains, in principle, 'shared'. Member States may maintain the restrictions 'grandfathered' by Article 64(1) TFEU. It is arguable, but more doubtful, that Article 65(1)TFEU also provides an exception.
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Rizzo, Alfredo. "LEGAL FOUNDATIONS OF THE COMPETENCE OF THE EUROPEAN UNION ON FOREIGN DIRECT INVESTMENTS." Italian Yearbook of International Law Online 23, no. 1 (November 17, 2014): 131–46. http://dx.doi.org/10.1163/22116133-90230041.
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This article provides a summary of the main legal questions pertaining to the current wording of Articles 206 and 207 of the Treaty on the Functioning of the European Union (TFEU), which deal with the inclusion of Foreign Direct Investments (FDI) within the scope of the EU Common Commercial policy (CCP). It firstly investigates the concept of capital movement as enshrined in the treaties and relevant EU legislation. Next, the article examines how the new reference to FDI within the scopes of the CCP affects the competence of the EU to conclude new Bilateral Investment Treaties (BITs) with third countries. Finally, the article briefly illustrates a recent proposal for a model EU BIT which would make certain areas of investment protection dependent on sustainable development, social and environmental protection and standards of Corporate Social Responsibility (CSR).
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Rodríguez, Ana Lopéz. "Robbing Peter to Pay Paul? isds and ics from an eu Law Perspective." Nordic Journal of International Law 86, no. 4 (November 8, 2017): 470–98. http://dx.doi.org/10.1163/15718107-08604005.
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In 2009 the Treaty of Lisbon conferred upon the European Union the exclusive competence on foreign direct investments (Article 207 tfeu). Following from this new competence the eu has carried out a comprehensive regulation of trade and investment issues and reforms which include the creation of an International Investment Court, as proposed by the European Commission in both ceta and ttip negotiations. This article analyses some of the core legal issues of the proposed Court from a European perspective and comes to the conclusion that the same eu constitutional obstacles allegedly posed by isds are present in the ics. As a result, the Commission’s proposal weakens the perception of isds as a fair and legitimate mechanism to deal with investment-state disputes, whereas it perpetuates the existence of an external and parallel mechanism of dispute resolution outside the European court system.
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Hainbach, Philip. "The CJEUs Opinion 2/15 and the Future of EU Investment Policy and Law-Making." Legal Issues of Economic Integration 45, Issue 2 (May 1, 2018): 199–209. http://dx.doi.org/10.54648/leie2018010.
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On 16 May 2017, the Court of Justice of the European Union (CJEU) issued its Opinion 2/15 on the requisite competence of the European Union to conclude the EU-Singapore Free Trade Agreement (EUSFTA) without additional ratification by the Member States’ parliaments. The decision produced implications that extend beyond the specific EU-Singapore relation by defining generally how far the exclusive EU competence of the Common Commercial Policy (CCP) under Article 207(1) TFEU stretches post-Lisbon. By ruling that all EUSFTA subjectmatters except non-direct forms of investments and investor-state dispute settlement (ISDS) fall within the scope of the CCP, the Court adopted a broad view that grants much leeway to EU institutions in exercising treaty-making powers exclusively.While this was clearly meant to simplify the internal division of competences and strengthen the EU’s role as a credible, reliable and unitary actor in external economic relations, the Case Review will highlight two negative side effects for the future of EU investment policy and law-making. It will argue that the Opinion negatively impacts the EU’s ability to use its unitary political weight to continue shaping the reformation of international investment law and incentivizes a discontinuation of concluding contemporary trade and investment issues jointly together in one comprehensive economic agreement.
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Luts, Joris, and Caroline Kempeneers. "Case C-648/15 Austria v. Germany: Jurisdiction and Powers of the CJ to Settle Tax Treaty Disputes Under Article 273 TFEU Article." EC Tax Review 27, Issue 1 (January 1, 2018): 5–18. http://dx.doi.org/10.54648/ecta2018002.
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On 12 September 2017, the Court of Justice ruled in Case C-648/15 Austria v. Germany on the interpretation and application of the double taxation convention between Austria and Germany on the basis of Article 273 TFEU; a provision which allows the Member States to submit to the Court of Justice (CJ) a dispute between them concerning a matter related to the EU Treaties. In this contribution, the authors focus on some selected (EU law) aspects of the judgment of the CJ under Article 273 TFEU, i.e. (1) the scope of the CJ’s jurisdiction under Article 273 TFEU, (2) the effects of a CJ ruling under such provision as regards the Member States and within the EU as a whole, (3) the application of the rules of interpretation proper to international law (i.e. the Vienna Convention on the Law of Treaties) by the CJ in the context of an Article 273 TFEU-based procedure and (4) issues of overlap with the recently adopted Directive on Tax Dispute Resolution Mechanisms in the European Union.
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Ghicăjanu, Daniela-Olivia. "Competition Law Provisions Applied in Sports. Articles 101 and 102 TFEU (Part I)." Studia Universitatis Babeş-Bolyai Iurisprudentia 62(2017), no. 1 (March 15, 2017): 91–116. http://dx.doi.org/10.24193/subbiur.62(2017).1.5.
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Immonen, Hanna-Mari. "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." Helsinki Law Review 13, no. 2 (February 6, 2020): 64–75. http://dx.doi.org/10.33344/vol13iss2pp64-75.
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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.
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De Gasperi, G. C. "Making State Aid Control “Greener”: The EU Emissions Trading System and its Compatibility with Article 107 TFEU." European State Aid Law Quarterly 9, no. 4 (2010): 785–806. http://dx.doi.org/10.21552/estal/2010/4/204.
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Ferge, Zsigmond. "Comments to the interpretation of the term “medical devices”." Orvosi Hetilap 154, no. 10 (March 2013): 391–93. http://dx.doi.org/10.1556/oh.2013.29559.
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The Court of Justice of the European Union made a decision on medical devices as non-medicinal products for intended use in interpreting the concept of free movement of goods, such as operating principles concerning the subject matter of the interpretation of Directive 93/42/ EEC – in preliminary ruling according to article 267 of TFEU – on 22 November 2012. With its decision, given assigned explained the concept of the scope of medical devices. The decision of the Court is binding not only for the national court initiating a request for the preliminary ruling, but also for all courts of the Member States. Official reference: Dated judgement 22 November 2012 of the Court of Justice of the European Union to C-219/ Case no. 11 – in preliminary ruling according to article 267 of TFEU. Interpreted provisions: Directive 2007/47/EC of The Europen Parliament and of the Council of 5 September 2007 as amended by the Council Directive 93/42/EEC of 14 June 1993 concerning medical devices 1st (2) a) first, second and third indent. Orv. Hetil., 2013, 154, 391–393.
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Botta, Marco. "Book Review: The More Economic Approach under Article 102 TFEU, by Marta Zalewska-Glogowska. (Baden-Baden: Nomos, 2017)." Common Market Law Review 55, Issue 3 (June 1, 2018): 975–77. http://dx.doi.org/10.54648/cola2018087.
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Rammeloo, Stephan. "Cross-border company migration in the EU: Transfer of registered office (conversion) – the last piece of the puzzle? Case C-106/16 Polbud, EU:C:2017:804." Maastricht Journal of European and Comparative Law 25, no. 1 (February 2018): 87–107. http://dx.doi.org/10.1177/1023263x18761335.
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On 25 October 2017 the Court of Justice of the European Union (CJEU) provided for a preliminary ruling in its Polbud judgment concerning a cross-border company conversion. This conversion had to be accomplished by transferring the company’s registered office from one EU Member State to another. The Court’s ruling – first, that such a transfer, whether or not involving at the same time the company’s headquarters or economic conduct, falls within the ambit of Articles 49 and 54 of the Treaty of the Functioning of the European Union (TFEU) on freedom of establishment, and, second, that legislative measures imposed on the migrating company by the Member State of origin entailing the winding-up of the company on the conclusion of a liquidation procedure are precluded – deserves approval. The Polbud judgment not only provides for clarity but also further completes the options of cross-border migration operations for companies and firms. At the same time, however, the Court’s ruling demonstrates the need to establish uniform legislative standards at the EU level, safeguarding the interests of all company stakeholders under the reign of Article 52 subsection 2 litera (g) TFEU. Both the experience with Directive 2005/56/EC on cross-border mergers and, from the late eighties of last century onwards, various initiatives having resulted in consecutive ‘pre-drafts’ for a Cross-border Company Migration Directive, may serve as guideline for further harmonisation in the field related. It is now for the Commission to take action, seeking a proper balance between the potentially diverging interests of all company stakeholders.
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Maletic, Isidora. "A Very Specific and Exhaustive Harmonization of Energy from Renewable Sources: C-549/15, E.ON Biofor Sverige AB v. Statens Energimyndighet [2017] ECLI:EU:C:2017:490." Legal Issues of Economic Integration 45, Issue 3 (August 1, 2018): 299–310. http://dx.doi.org/10.54648/leie2018017.
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The European Union Court of Justice has ruled that Article 18(1) of Directive 2009/28/EC on the promotion of the use of energy from renewable sources does not oblige Member States to authorize imports, via their interconnected national gas networks, of biogas satisfying the sustainability criteria in that directive and intended for use as biofuel. The Court had been asked whether that provision, adopted on the basis of internal market harmonization (pursuant to what is now Article 114 TFEU), obliges Member States to accept sustainable biogas imported via the network of interconnected national gas pipelines and, in the negative, whether that provision breaches the EU free movement of goods rules. The judgment, implicitly exploring the contours of competence as well as ‘exhaustive’ harmonization (in this case, in the economically sensitive renewable energy context), is emphatic of the characteristic symbiosis of ‘positive’ and ‘negative’ integration in the internal market.
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Friend, Mark. "LOYALTY REBATES AND ABUSE OF DOMINANCE." Cambridge Law Journal 77, no. 1 (March 2018): 25–28. http://dx.doi.org/10.1017/s0008197318000193.
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THE recent judgment of the Court of Justice in Intel v Commission (Case C-413/14 P, EU:C:2017:632) deserves a cautious welcome for signalling a move to a more economics-based approach to the assessment of loyalty rebates under Article 102 TFEU, and for modulating the rigid legal presumptions that have characterised nearly four decades of case law. Yet it also represents a missed opportunity to provide a comprehensive analytical framework for one of the more unsatisfactory areas of EU competition law.
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Schütze, Robert. "EU Development Policy: Constitutional and Legislative Foundation(s)." Cambridge Yearbook of European Legal Studies 15 (2013): 699–717. http://dx.doi.org/10.5235/152888713809813530.
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AbstractThe Union’s constitutional regime for development policy has traditionally progressed alongside two parallel tracks. In addition to a general regime for all developing countries, there exists a special regime for African, Caribbean and Pacific Countries (ACP countries). The Union’s general development policy originated as a flanking policy within the Common Commercial Policy. This trade-centricity was only relativised by the insertion of an express development aid competence in 1992. The Union’s development cooperation competence can today be found in Article 209 of the Treaty on the Functioning of the European Union (TFEU) and allows the Union to adopt legislative acts or conclude international agreements to reduce poverty within developing countries. By contrast, the Union’s special development regime has had a very different constitutional source. It stemmed from the ‘colonial’ association to the Union (qua its Member States) of certain dependent ‘oversees countries and territories’ for which the 1957 Treaty of Rome had provided a limited development competence. Once these countries gained independence in the 1960s, however, the Union had to transfer this special regime to its contractual association competence under Article 217 TFEU. The association regime for ACP countries has itself undergone a number of significant changes with the transition from the Lomé Convention(s) to the Cotonou Agreement.
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Bonelli, Matteo. "The Taricco saga and the consolidation of judicial dialogue in the European Union." Maastricht Journal of European and Comparative Law 25, no. 3 (June 2018): 357–73. http://dx.doi.org/10.1177/1023263x18773046.
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In December 2017, the Court of Justice of the European Union delivered its awaited decision on the Taricco II case, responding to a preliminary reference from the Italian Corte Costituzionale. The latter, unhappy with the outcome of the earlier Taricco I decision, asked for a re-interpretation of Article 325 TFEU and threatened the Court of Justice with the possible activation of its controlimiti doctrine. The CJEU partially ‘corrected’ its previous ruling and prevented an open conflict between EU law and Italian constitutional law. This case note discusses the saga and its three episodes against the background of the growing constitutional conversation between top European courts. It argues that Taricco is a positive episode of judicial dialogue and may further contribute to its consolidation: on one hand, constitutional courts are increasingly willing to ‘play the game’ and refer to the CJEU under Article 267 TFEU; on the other, the Court of Justice seems more reactive than in the past to constitutional courts’ claims and now considers them with increasing attention and detail. Finally, the case note reflects on the partially diverging languages for constitutional dialogue: national courts use the language of constitutional identity, while the CJEU prefers to refer to the ‘common constitutional principles of the EU’.
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Schütze, Robert. "EU Development Policy: Constitutional and Legislative Foundation(s)." Cambridge Yearbook of European Legal Studies 15 (2013): 699–717. http://dx.doi.org/10.1017/s1528887000003219.
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Abstract The Union’s constitutional regime for development policy has traditionally progressed alongside two parallel tracks. In addition to a general regime for all developing countries, there exists a special regime for African, Caribbean and Pacific Countries (ACP countries). The Union’s general development policy originated as a flanking policy within the Common Commercial Policy. This trade-centricity was only relativised by the insertion of an express development aid competence in 1992. The Union’s development cooperation competence can today be found in Article 209 of the Treaty on the Functioning of the European Union (TFEU) and allows the Union to adopt legislative acts or conclude international agreements to reduce poverty within developing countries. By contrast, the Union’s special development regime has had a very different constitutional source. It stemmed from the ‘colonial’ association to the Union (qua its Member States) of certain dependent ‘oversees countries and territories’ for which the 1957 Treaty of Rome had provided a limited development competence. Once these countries gained independence in the 1960s, however, the Union had to transfer this special regime to its contractual association competence under Article 217 TFEU. The association regime for ACP countries has itself undergone a number of significant changes with the transition from the Lomé Convention(s) to the Cotonou Agreement.
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Robertson, Viktoria H. S. E. "Rebates under EU Competition Law after the 2017 Intel Judgment: The Good, the Bad and the Ugly." Market and Competition Law Review 2, no. 1 (April 1, 2018): 15–45. http://dx.doi.org/10.7559/mclawreview.2018.331.
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On 6 September 2017, the Court of Justice of the European Union delivered its long-awaited Intel judgment. The European Commission had accused Intel of inducing customer loyalty and thus foreclosing the relevant market for its competitors through (i) a rebate scheme and (ii) direct payments, both of which the Commission qualified as abuses of dominance under Article 102 TFEU. The General Court upheld the Commission decision in its entirety in June 2014. Before the Grand Chamber of the Court of Justice, however, the General Court’s Intel judgment was set aside and the case was referred back to that Court. The Court of Justice held that where the Commission, as in its Intel decision of 2009, also relies on an as-efficient-competitor (AEC) test in order to assess the capability of a rebate scheme to restrict competition contrary to Article 102 TFEU, the General Court must review a party’s counterarguments pertaining to this economic analysis. The General Court was instructed to further examine the factual and economic evidence in this respect. With a view to illuminating the legal questions that posed themselves in Intel, the present contribution reviews the leading European case law on rebate schemes – Hoffmann-La Roche, Michelin I and II, British Airways, Tomra and Post Danmark II – as well as the Commission’s approach to conditional rebates in its 2009 Guidance Paper. After briefly recalling the different stages of the Intel case, the contribution then offers a commentary on and an analysis of the Court of Justice’s Intel judgment and the way in which the Court attempted to reconcile its formalistic case law on rebate schemes with the effects-based economic tests carried out by the Commission.
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Moisejevas, Raimundas. "Predatory Pricing: A Framework for Analysis." Baltic Journal of Law & Politics 10, no. 1 (June 1, 2017): 124–55. http://dx.doi.org/10.1515/bjlp-2017-0005.
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Abstract One of the key principles of EU Competition law is a prohibition of the abuse of a dominant position established in the Article 102 of the TFEU. Predatory pricing is one of the forms of the abuse of dominant position. To decide whether the dominant undertaking has referred to predatory pricing it is necessary to check several elements: costs and prices of the dominant undertaking; the possibility to recoup losses; intent; and objective justifications. The Court of Justice, the European Commission and competition institutions in most member states perform extensive analysis of a relationship between costs and prices of a dominant undertaking while dealing with cases on predatory pricing. However, we believe that competition authorities should pay more attention to evaluation and to whether pricing will cause elimination of competitors and damage to consumers. This article critically reviews the framework of the analysis of predatory pricing in the practice of the Court of Justice and the European Commission.
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Suri, Noémi. "Registration Procedures “Reloaded”, or a Progress Report about the Effective Regulation on the Registration of Civil Society Organizations." Erdélyi Jogélet 2, no. 4 (March 8, 2022): 133–39. http://dx.doi.org/10.47745/erjog.2021.04.08.
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Since June 2017, the Hungarian regulation on the registration of NGOs has become one of the instruments of the “rule of law duel” between the European Commission and Hungary. In July 2017, the Commission opened infringement proceedings against Hungary under Article 63 TFEU and articles 7, 8, and 12 of the Charter of Fundamental Rights. Moreover, in its 2020 Rule of Law Report, the Commission expressed serious criticisms about constructive engagement with civil society organizations in Hungary. The new Civil Code harmonized the general rules on the operation, management, and supervision of civil society organizations with the provisions applicable to companies.1 In recent years, several (mostly critical) comments have been made in the legal literature on the promotion of dispositive regulation. Based on the above, the aim of the present study is to explore the existing legislation on the registration of NGOs, in the framework of which the legal status of NGOs will be clarified, and the related regulations of recent years – namely, Act CLXXXI of 2011 on the court registration of NGOs and the related procedural rules and Act CLXXV of 2011 on the freedom of association, non-profit status, and the operation and support of civil organizations – will be analysed.
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Seifert, Achim. "The case of Konrad Erzberger v TUI AG. Comment to Court of Justice of the European Union (Grand Chamber), judgment of 18 July 2017, Case C-566/15." European Labour Law Journal 8, no. 4 (December 2017): 333–43. http://dx.doi.org/10.1177/2031952517743863.
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Article 45 TFEU must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, under which the workers employed in the establishments of a group located in the territory of that Member State are deprived of the right to vote and to stand as a candidate in elections of workers’ representatives to the supervisory board of the parent company of that group, which is established in that Member State, and as the case may be, of the right to act or to continue to act as representative on that board, where those workers leave their employment in such an establishment and are employed by a subsidiary belonging to the same group established in another Member State.
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Grötsch, Florian. "The Mobilization of Religion in the EU (1976–2007): From "Blindness to Religion" to the Anchoring of Religious Norms in the EU." Journal of Religion in Europe 2, no. 3 (2009): 231–56. http://dx.doi.org/10.1163/187489109x12463420694903.
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AbstractThis article argues that in the European Union (EU) we can observe a process of changing attention for religion and a change in the mobilization of religion. In focusing the analysis on how religion appears in legislation texts, religion is understood in these texts as a resource that can be mobilized by different actors and in different notions. In order to understand the process of mobilization, in a first step the article illustrates the historical frameworks that are formed by national and international laws on religion, as well as their legacy. In a second step the paper discusses the process of mobilization of religion in the EU in three episodes: the first episode (1976) is marked by a lawsuit based on religious freedom and the non-discrimination concerning religion with regard to public servants. The subsequent phase is framed by the so-called "Declaration on the status of churches" (1997) and the Charter of Fundamental Rights of the EU (2000). Finally, the third episode is marked by the Treaty of Lisbon (2008), of which article 6 (TEU) and article 17 (TFEU) will be reviewed. It is shown that the attention on and the mobilization of religion has changed in the EU from an individually based mobilization to a political involvement.
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Richli, Paul. "On legal income targets for agriculture in Switzerland and in the European Union." Przegląd Prawa Rolnego, no. 1(30) (June 8, 2022): 235–54. http://dx.doi.org/10.14746/ppr.2022.30.1.14.
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This article deals with the legislation regulating income from agriculture in Switzerland and in the EU. The provision of Article 5(1) of the Swiss Agriculture Act treats agricultural income similarly to incomes from other branches of economy This regulation, however, does not ensure farmers any income guarantee and is not enforceable in courts. The Common Agricultural Policy provisions are more general and also unenforceable. Article 39(1)(b) of the TFEU refers to a “fair standard of living for the agricultural community.” While the average agricultural income in Switzerland in the period 1997–1999 was only 52% of the comparative income, this percentage was already 66% by the period 2017–2019. The agricultural policy 22+ seeks to reduce this income gap even more. In the EU, the average income from agricultural activity increased from 32% in 2009 to 49% in 2017 of the comparative income from other branches and the new CAP policy 2022–2025 also seeks to reduce this income gap further. As can be seen, when compared to income in the economy as a whole, farmers’ income in Switzerland is substantially higher than in the EU. However, both Switzerland and the EU must undertake further efforts to comply with the current legal requirements to support legal income targets in agriculture.
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Jan, Benjamin. "Mutual Recognitions Failure in the Light of Free Movement of Food Supplements: Judgment of the CJEU, 27 April 2017, Noria Distribution SARL (Case C-672/15)." Legal Issues of Economic Integration 45, Issue 3 (August 1, 2018): 311–21. http://dx.doi.org/10.54648/leie2018018.
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The ECJ had to define the Member States’ room of manoeuvre on the delicate matter of non-harmonised technical rules, in the case at hand the maximum amounts of vitamins and minerals present in food supplements. Even though the EU legislator has developed a mutual recognition framework to avoid technical barriers to trade, businesses like Noria still faced them. In order to tackle the negative consequences of the different perceptions of appropriate standards and safety level between the Member States, the ECJ retained its well-established case law on administrative due process and human health derogation under Article 36 TFEU. Oddly, the Court did not exploit a useful legal tool – the Mutual Recognition Regulation – for disciplining Member States in their recourse of the ‘genuine risk to public health’ derogation. Is the omission of the Regulation unintentional or is it the proof of mutual recognition framework’s failure?
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Erimia, Cristina Luiza, Rodica Sîrbu, Radu George Cazacincu, Emin Cadar, Aneta Tomescu, and Stelian Paris. "European Patients' Rights to Be Protected Against Counterfeit Medicines." European Journal of Interdisciplinary Studies 2, no. 1 (April 30, 2016): 34. http://dx.doi.org/10.26417/ejis.v2i1.p34-39.
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Because the falsification of medicines is a global problem, requires increased and effective international coordination and cooperation to ensure the effectiveness of the strategies to combat counterfeiting, especially in relation to the sale of such products on the Internet. In the context of people’s health and life rank foremost among the values and interests protected by the TFEU, this article examines the evolution of the legislative process regulating the internal market for medicinal products in order to ensure a high level of protection of public health against falsified medicines and to present the legislative initiatives that have been taken at EU level taking account of new risk profiles, measures meant to ensure, at the same time, the functioning of the internal market of medicinal products. However, this article aims to address consumers’ right to have access to safe, effective, quality and innovative medicinal products as a right of the European patient. Ensuring the free movement of medicinal products on the EU market must not violate or restrict this fundamental right of thepatient.The threat that falsified medicines pose to public health is also recognized by the World Health Organization (WHO), which has established the International Medical Products Anti-Counterfeiting Taskforce ("IMPACT").IMPACT has developed the Principles and Elements for National Legislation against Counterfeit Medical Products, which were endorsed by the IMPACT General Meeting in Lisbon on 12 December 2007.
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Erimia, Cristina Luiza, Rodica Sîrbu, Radu George Cazacincu, Emin Cadar, Aneta Tomescu, and Stelian Paris. "European Patients' Rights to Be Protected Against Counterfeit Medicines." European Journal of Interdisciplinary Studies 4, no. 1 (April 30, 2016): 34. http://dx.doi.org/10.26417/ejis.v4i1.p34-39.
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Because the falsification of medicines is a global problem, requires increased and effective international coordination and cooperation to ensure the effectiveness of the strategies to combat counterfeiting, especially in relation to the sale of such products on the Internet. In the context of people’s health and life rank foremost among the values and interests protected by the TFEU, this article examines the evolution of the legislative process regulating the internal market for medicinal products in order to ensure a high level of protection of public health against falsified medicines and to present the legislative initiatives that have been taken at EU level taking account of new risk profiles, measures meant to ensure, at the same time, the functioning of the internal market of medicinal products. However, this article aims to address consumers’ right to have access to safe, effective, quality and innovative medicinal products as a right of the European patient. Ensuring the free movement of medicinal products on the EU market must not violate or restrict this fundamental right of thepatient.The threat that falsified medicines pose to public health is also recognized by the World Health Organization (WHO), which has established the International Medical Products Anti-Counterfeiting Taskforce ("IMPACT").IMPACT has developed the Principles and Elements for National Legislation against Counterfeit Medical Products, which were endorsed by the IMPACT General Meeting in Lisbon on 12 December 2007.
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Erimia, Cristina Luiza, Rodica Sîrbu, Radu George Cazacincu, Emin Cadar, Aneta Tomescu, and Stelian Paris. "European Patients' Rights to Be Protected Against Counterfeit Medicines." European Journal of Natural Sciences and Medicine 2, no. 1 (May 15, 2019): 8. http://dx.doi.org/10.26417/770tyt30x.
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Because the falsification of medicines is a global problem, requires increased and effective international coordination and cooperation to ensure the effectiveness of the strategies to combat counterfeiting, especially in relation to the sale of such products on the Internet. In the context of people’s health and life rank foremost among the values and interests protected by the TFEU, this article examines the evolution of the legislative process regulating the internal market for medicinal products in order to ensure a high level of protection of public health against falsified medicines and to present the legislative initiatives that have been taken at EU level taking account of new risk profiles, measures meant to ensure, at the same time, the functioning of the internal market of medicinal products. However, this article aims to address consumers’ right to have access to safe, effective, quality and innovative medicinal products as a right of the European patient. Ensuring the free movement of medicinal products on the EU market must not violate or restrict this fundamental right of thepatient.The threat that falsified medicines pose to public health is also recognized by the World Health Organization (WHO), which has established the International Medical Products Anti-Counterfeiting Taskforce ("IMPACT").IMPACT has developed the Principles and Elements for National Legislation against Counterfeit Medical Products, which were endorsed by the IMPACT General Meeting in Lisbon on 12 December 2007.
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Vese, Donato. "Judicial Review of the NCA’s Decisions: Some Problematic Aspects of the EU Damages Directive in the Context of Italian Law." European Public Law 26, Issue 4 (December 1, 2020): 961–86. http://dx.doi.org/10.54648/euro2020073.
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In the Italian legal system, the transposition of Directive 2014/104/EU into Legislative Decree No. 3 of 2017, with a view to improving the efficacy of both ‘follow-on’ and ‘stand-alone’ legal actions in private and public antitrust enforcement, has highlighted the problem of the judicial review of National Competition Authority (NCA) decisions. The Directive established its own ‘binding effect’ designed by the European Union order to increase the effectiveness and procedural efficiency of actions for damages in the Member States. According to the logic of the European Union, the binding effect seeks to ensure that an infringement of competition law, established by a final decision of the NCA or a court of judicial review, is deemed to be irrefutably acknowledged for the purpose of bringing an action for damages before the national courts under Article 101 or 102 Treaty on the Functioning of the European Union (TFEU) or under national competition law. However, in terms of accomplishing this objective, the prevision introduced into Italian law by Article 9(1) of the Directive becomes problematic when set against the current system of judicial review of NCA decisions in Italy, potentially undermining the effectiveness of the legal protection of the individual. The focus of the article is that the Italian system does not – in its current form – allow adequate judicial review of NCA decisions. Taking the interpretation of Articles 6(1) European Convention on Human Rights (ECHR) and 24 of the Italian Constitution as fundamental norms establishing the ‘right to a fair trial’ and the ‘right to a defence’ as its starting point, the article seeks to offer a solution to the problem arising in relation to full judicial review of NCA decisions within the Italian legal context based on the thesis that if there is no full revision of the facts and no full revision of the discretionary powers there can be no full judicial review. EU Damages Directive, Private and public antitrust enforcement systems, The binding effect of the NCA’s decisions, Administrative and technical discretion, Judicial review of the NCA’s fact findings and technical assessments; European Court of Human Rights (ECtHR) case law, Articles 6(1) ECHR and 24 of the Italian Constitution, Intensity of review in Italy, Full jurisdiction of the Italian administrative courts
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Giedrewicz-Niewińska, Aneta. "Bierne i czynne prawo wyborcze w wyborach przedstawicieli pracowników do rady nadzorczej spółki dominującej koncernu. Glosa do wyroku Trybunału Sprawiedliwości (Wielka Izba) z dnia 18 lipca 2017 r. w sprawie Konrad Erzberger przeciwko TUI AG (C-566/15)." Studia Iuridica Lublinensia 30, no. 2 (June 30, 2021): 401. http://dx.doi.org/10.17951/sil.2021.30.2.401-413.
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<p>The commentary is partially critical. Mr Konrad Erzberger is a shareholder of the TUI concern, based in Germany, operating worldwide. Half of the TUI supervisory board is made up of shareholder representatives and half of the representatives appointed by the employees. In the judgement, the Court of Justice of the European Union (CJEU) answered the question, whether it was compliant with Articles 18 and 45 of the Treaty on the Functioning of the European Union (TFEU) stating that a Member State should grant active and passive voting rights in the elections of employee representatives to the supervisory board of a company to those employees only who are employed at the company’s premises or in the group’s enterprises on the national territory. The analysis of the arguments presented by the CJEU conducted in the commentary, pointing to e.g. the lack of objective and clear criteria for restricting the freedoms of the European market, is partially critical. It has been postulated that employees employed in a group of companies should enjoy the same rights to participate in decision-making, regardless of where their workplace is located.</p>
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Bator-Bryła, Monika Patrycja. "Prohibition of Discrimination on Grounds of Nationality in the Freedom of Movement of Persons within the EU in the Light of Case Law of the Court of Justice of the European Union." Review of European and Comparative Law 46, no. 3 (August 21, 2021): 189–218. http://dx.doi.org/10.31743/recl.12340.
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The subject of this article is to analyze the meaning of the prohibition of discrimination on grounds of nationality in the light of the provisions of primary and secondary European Union law and the case law of the Court of Justice of the European Union, which is inherent to the functioning of the internal market and EU citizenship.
The prohibition of discrimination on grounds of nationality is undoubtedly one of the main goals of the European Union[1] in the social and economic context, which was reflected in the localization of the matter in question in the primary law of the European Union[2], in secondary law and in the jurisprudence of the Court of Justice of the European Union (CJEU). The Treaty on European Union (TEU)[3] and the Treaty on the Functioning of the European Union (TFEU)[4] indicate equality as one of the EU values (Article 2 TEU), require it to be promoted and combat all discrimination (Articles 8 and 10 TFEU) and prohibit discrimination due to the criteria indicated therein (Articles 18 and 19 TFEU). In secondary law, this principle was expressed primarily in the Regulation of the European Parliament and of the Council No. 492/2011 on the free movement of workers within the Union and in art. 24 of Directive 2004/38/EC 2004 on the right of citizens of the Union and their relatives to move freely[5].
A special role in this area is played by the case law of the Court of Justice of the European Union (CJEU), which stated that all authorities of the Member States are obliged to refuse to apply a provision of national law that is contrary to the prohibition of discrimination on the grounds of citizenship (Article 18 TFEU)[6]. Moreover, national measures may be examined in the light of art. 18 TFEU, but only to the extent that they apply to situations not covered by specific non-discrimination provisions included in the Treaty[7].
The author puts forward the thesis that the analysis of CJEU jurisprudence reveals a visible dissonance between the application of national regulations of the Member States and the provisions of EU law in this matter, which significantly hinders the implementation of the principle of non-discrimination in practice. Discrepancies mainly occur in domestic legal acts due to the improper drafting of national legal provisions and / or their misinterpretation by national judicial or administrative authorities. It should be emphasized that the Member States are obliged to comply with EU law, which is not tantamount only to the obligation of state authorities to respect directly applicable acts, or to implement required regulations into internal law, but also the obligation to interpret and apply internal law in a manner that does not violate the requirement resulting from EU law[8]. Judicial and administrative authorities of the Member States should therefore interpret national law as far as possible, in line with EU law, because the limits of the pro-EU interpretation will be determined by the powers conferred by domestic law[9].
The study uses the legal-comparative method, consisting in a comparative analysis of the legal systems of the Member States and the European Union in the field of non-discrimination on the basis of nationality, rights and restrictions on the freedom of movement of authorized entities. Comparative verification of EU acts with the internal standards of individual EU Member States allows to reveal the degree of advancement of the implementation process of EU law provisions under the free movement of EU citizens and their family members in the discussed area in the legal systems of European Union Member States. The purpose of this analysis is to, inter alia, diagnose areas in which these countries have not implemented or improperly implemented EU regulations, or have misinterpreted them.
The second method used is the method of analyzing the jurisprudence of the Court of Justice of the European Union - the rulings of the CJEU constitute a significant part of the study. The case law in question covers the period from the establishment of the Treaties of Rome to the present day. The use of the latter obligated the author to apply the comparative method of judgments based on same or similar legal bases in similar circumstances from different stages of the evolution of the free movement of citizens of the European Union and their family members under the prohibition of discrimination on the basis of nationality.
[1] Cf. Olivier De Schutter, Links between migration and discrimination. A legal analysis of the situation in EU Member States (Brussels: European Commission, 2016), 102 and next; See also Brita Sundberg-Weitman, Discrimination on Grounds of Nationality. Free Movement of Workers and Freedom of Establishment under the EEC Treaty (Amsterdam, New York, Oxford: North-Holland Publishing Co., 1977).
[2] Erica Szyszczak, “Antidiscrimination Law in the European Union,” Fordham International Law Journal, no. 32 (2008): 635.
[3] The Treaty on European Union (consolidated version) OJ of the EU 2012, No. C 326/01.
[4] The Treaty on the Functioning of the European Union (consolidated version) OJ of the EU 2012, No. C 326/01.
[5] Directive of the European Parliament and of the Council No. 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (O.J.E.C. L 158, 30 April 2004).
[6] CJEU Judgement of 7 May 1998, Clean Car Autoservice GmbH p. Landeshauptmann von Wien, Case C-350/96, ECLI:EU:C:1998:205.
[7] CJEU Judgement of 18 June 2019, Republic of Austria v Federal Republic of Germany, Case C-591/17, ECLI:EU:C:2019:504, pt 41.
[8] Marek Górski, “Wpływ orzecznictwa Europejskiego Trybunału Sprawiedliwości na interpretację i stosowanie przepisów o ochronie środowiska,” in Wspólnotowe prawo ochrony środowiska i jego implementacja w Polsce trzy lata po akcesji, ed. Jerzy Jendrośka and Magdalena Bar (Wrocław: Centrum Prawa Ekologicznego Press, 2008), 31.
[9] Monika Niedźwiedź, “Stosowanie prawa wspólnotowego przez organy administracyjne,” Casus, no. 32 (October 2004): 6.
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Ferri, Delia, and Katie Donnellan. "The Implementation of the Marrakesh Treaty in the European Union: An Important Piece in the Accessibility Jigsaw?" Legal Issues of Economic Integration 49, Issue 3 (July 1, 2022): 269–92. http://dx.doi.org/10.54648/leie2022013.
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The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (Marrakesh Treaty) aims to enable the creation and cross-border exchange of copyrighted works in formats that are accessible to individuals with disabilities. To that end, it requires Contracting Parties to introduce a set of limitations and exceptions to existing copyright rules. Following Opinion 3/15 of the Court of Justice, the Marrakesh Treaty was concluded by the European Union (EU) on behalf of its Member States. It was implemented by means of a Directive governing the substantive rights of reproduction, distribution and making available of published works in accessible formats, and a Regulation governing the cross-border exchange of accessible format works with Third Countries, both based on Article 114 of the Treaty on the Functioning of the European Union (TFEU). This article examines the role of the Marrakesh Directive and Regulation in enhancing access to printed material to persons with disabilities. In that connection, it discusses common trends and perceptions of such a Marrakesh framework on the basis of empirical research consisting of a set of semi-structured interviews conducted with key stakeholders across twelve Member States. It locates the Directive and Regulation within the growing body of EU legislation that aims to ensure accessibility of an array of materials, products and services for persons with disabilities, while driving forward economic integration. In doing so, it conceives of the Marrakesh Directive and Regulation as part of the broader remit of EU disability law, which is an emerging cross-cutting area of EU action. On the whole, this article argues that the Marrakesh Treaty and its implementing legislation contribute to the protection of the rights of persons with disabilities within the internal market, but form just one piece – albeit an important one – of the accessibility ‘jigsaw’. Marrakesh Treaty, Directive 2017/1564/EU (Marrakesh Directive), Disability, Copyright exceptions, Accessibility, European Accessibility Act, European Union Law, Implementation, Empirical Research
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Łacny, Justyna. "The Rule of Law Conditionality Under Regulation No 2092/2020—Is it all About the Money?" Hague Journal on the Rule of Law 13, no. 1 (April 2021): 79–105. http://dx.doi.org/10.1007/s40803-021-00154-6.
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AbstractSome say that the Union is built by moving from crisis to crisis. Crises in the last decade which affected the Union and its citizens concerned, inter alia, public finance (the financial crisis, 2008), migration (2014), public health (the COVID-19 pandemic, 2020) and the rule of law crisis (2018). This paper focus on the latter. It has been noted that some Member States have been happy to receive the benefits of EU membership, specifically the financial ones, while their commitment to European values, including the rule of law (Article 2 TEU), has been lacking. Since many instruments applied by EU institutions to improve this situation have proved rather insufficient, halting transfers of EU funds to these recalcitrant Member States has been touted as the way that might solve this crisis. Accordingly, a draft regulation was put on the table that authorised the EU institutions to suspend EU funds if a Member State is found to be in breach of the rule of law. This draft aimed to make the transfer of EU funds to the Member States conditional upon their continuous respect for the rule of law (and therefore became known as ‘the rule of law conditionality’). This paper comments on this draft as first proposed by the Commission in 2018 (Proposal for a regulation of the European Parliament and of the Council on the protection of the Union budget in the event of generalized gaps in the rule of law in the Member States [COM (2018) 324 final).], amended in 2019 by the European Parliament [European Parliament legislative resolution of 4 April 2019 on the proposal for a regulation of the European Parliament and of the Council on the protection of the Union's budget in case of generalised deficiencies as regards the rule of law in the Member States (COM(2018)0324–C8-0178/2018–2018/0136(COD)); https://www.europarl.europa.eu/RegData/seance_pleniere/textes_adoptes/provisoire/2019/04-04/0349/P8_TA-PROV(2019)0349_EN.pdf. A draft version of these provisions was presented in von Bogdandy and Łacny (Suspension of EU funds for breaching the rule of law - µ a dose of tough love needed? European Policy Analysis 2020, No 2, p. 1–15, https://sieps.se/en/publications/2020/suspension-of-eu-funds/, 2020).], and finally adopted by the European Parliament and the Council as Regulation (EU, Euratom) 2020/2092 of 16 December 2020 on a general regime of conditionality for the protection of the Union budget [Hungary and Poland voted against it and it is expected that its validity will be challenged before the CJEU via an action for annulment (Article 263 TFEU).] (henceforth called ‘Regulation 2020/2092′). This Regulation, containing 29 recitals in the preamble and 10 articles, entered into force on 1 January 2021 (Article 10 Regulation 2020/2092.). In the conclusions of the European Council meeting in December 2020 it was however accepted that it will be applied only in relation to budgetary commitments starting under the new Multiannual Financial Framework (MFF) 2021–2027, including Next Generation EU [Conclusions of the European Council meeting, 10 and 11 December 2020, para I (2) (k) https://www.consilium.europa.eu/media/47296/1011-12-20-euco-conclusions-en.pdf.]. This paper provides the legal characteristics of rule of law conditionality established under Regulation 2020/2092 and aims to determine whether financial incentives can restore compliance with the rule of law in Member States. Or in other words, is it all about the money?
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Meinel, Florian. "Die Steuerung des Verwaltungshandelns durch Haushaltsrecht und Haushaltskontrolle in der Europäischen Union." Die Verwaltung 51, no. 2 (April 1, 2018): 153–86. http://dx.doi.org/10.3790/verw.51.2.153.
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Zusammenfassung Das europäische Haushaltsrecht zeichnet sich im Vergleich mit dem deutschen durch eine Reihe von Besonderheiten aus: Es ist in seiner heutigen Gestalt ein sehr junges, im Grunde erst im Zuge der Prodi-Kinnock-Reformen 1999–2002 entstandenes Recht. Es kennt die für das deutsche Haushaltsrecht charakteristische Trennung von Innenrecht und Außenrecht nicht und ist deswegen selbst materielles Verwaltungsrecht der Leistungsverwaltung der Union. Soweit es um die Verwendung von Unionsmitteln geht, erfüllt es zugleich Funktionen eines Aufsichtsrechts der Kommission außerhalb des Vertragsverletzungsverfahrens. Schließlich werden im europäischen Haushaltsrecht in exemplarischer Weise die ökonomischen, sozialen, territorialen und politischen Asymmetrien der Union verarbeitet, kurz: das Verhältnis von Zentrum und Peripherie im Verwaltungsverbund. Im Mittelpunkt des Beitrags steht die Frage nach der gegenwärtigen Leistungsfähigkeit und der Zukunft des Modells der Gemeinsamen Mittelverwaltung nach Art. 59 EHO und der VO 1303/2013, nach dessen Grundidee den Mitgliedstaaten die dezentrale Finanzierungskompetenz übertragen wird, die Kommission aber die politische Haushaltsverantwortung behält und dafür über eine Reihe von Kontroll-, Aufsichts-, Mitsteuerungs- und Sanktionsbefugnissen verfügt. Dieses Modell ist aber inzwischen in einer schweren institutionellen Krise: Dem Haushaltsrecht sind in den letzten anderthalb Jahrzehnten sowohl im Recht der Struktur- und Investitionsfonds als auch beispielsweise bei der Finanzierung der Migrations- und Grenzsicherungspolitik politische Aufgaben zugefallen, die das unpolitisch-administrative Vollzugsmodell grundsätzlich in Frage stellen. Eine deswegen an sich folgerichtige, stärkere direkte haushaltsrechtliche Steuerung durch die Kommission wird jedoch durch den gegenwärtigen Rechtszustand strukturell unterlaufen. Die immer stärkere Mobilisierung der Kontrollschiene führt zu nichtintendierten Effekten. Der Beitrag diskutiert schließlich Auswege aus der gegenwärtigen Situation und zeigt die politischen Perspektiven einer Reform des europäischen Haushaltsrechts auf. Summary EU budget law is different in many respects: Its present scope and structure are key achievements of the institutional reforms initiated by the Prodi Commission under Neil Kinnock after the fall of the Santer Commission in 1999. Moreover, EU budget law is not limited to the internal procedures of public revenues and expenditures. It provides the substantive law of the administration of EU funds itself and hence serves as a „a constitutional framework for Community administration of the kind that has not existed hitherto“ (Paul Craig). As the Commission has no hard powers of oversight other than infringement proceedings, budget law also is an instrument of controlling the implementation of EU law by the Member States. Not least, budget law is confronted with the economic, social, territorial, and political inequalities with the European Union like no other area of EU law. Against this backdrop, the Article discusses the institutional capacity of the model of „shared administration“ as stipulated by Article 59 of the Financial Regulation (No. 966/2012) and fleshed out by the Common Provisions Regulation (No. 1303/2013). This model is based on a separation of administrative powers and political responsibility: While the Member States control the disbursement of EU funds on the local level, the political responsibility stays with the Commission (Article 317 TFEU), who in exchange has a set of instruments to control, supervise, and coordinate national administrations—and to sanction violations of EU law by applying financial corrections. EU budget law, however, is dealing with a major institutional crisis of shared administration. Over the last decades, the budget is confronted with intense political conflicts both on the traditional field of the structural and investment funds and, for instance, in the area of migration and border control policies. Conflicts of this kind challenge the administrative model of implementing the EU budget. The excessive use of controlling instruments and financial sanctions by the Commission has resulted in unintended consequences. And yet, the present state of EU budget law does not allow for a more openly political spending power of the Commission. The Article also discusses various reform scenarios under the next Multiannual Financial Framework (2021–2027).
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Zivic, Andrijana, Timo Zandstra, Quintijn Pit, and Antonia Vegt-Schouten. "Who’s Afraid of EU Primary Law? Judicial Review of the EPPO’s Decision on Forum Choice." New Journal of European Criminal Law, November 18, 2022, 203228442211398. http://dx.doi.org/10.1177/20322844221139812.
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The proposal for Regulation 2017/1939 establishing the European Public Prosecutor’s Office (The EPPO Regulation) was criticized for completely excluding the Court of Justice of the European Union (CJEU) from judicial review of decisions on forum of prosecution by the EPPO, an EU body. The system of judicial review under the EPPO Regulation has improved significantly relative to its initial proposal, by enabling national courts to refer preliminary questions to the CJEU. Despite this, several issues remain. This article examines whether the limitations imposed by the EPPO Regulation on the use of the action for annulment procedure laid down in Article 263 TFEU comply with EU primary law. More specifically, whether it complies with effective judicial protection as protected under Article 47 CFR, and the legal basis for the EPPO’s system of judicial review, Article 86(3) TFEU. We argue that the preliminary reference procedure is not effective enough in remedying the limited access to the action for annulment procedure to reliably safeguard the defendants’ right to effective judicial protection. To the extent that the current system for judicial review under the EPPO Regulation is at odds with the Article 47 CFR, the EU legislator did not have the competence to enact it under Article 86(3) TFEU. This article proposes that in order to circumvent the unlawful restrictions imposed by the EPPO Regulation, defendants could and should make use of the action for annulment procedure to contest the EPPO’s choice of forum.
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Heliskoski, Joni. "Made in Luxembourg: The fabrication of the law on jurisdiction of the court of justice of the European Union in the field of the Common Foreign and Security Policy." Europe and the World: A law review, September 19, 2018. http://dx.doi.org/10.14324/111.444.ewlj.2018.03.
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The article provides an analysis of the case law of the Court of Justice of the European Union on the interpretation of Articles 24 TEU, first paragraph, second subparagraph, and 275 TFEU governing the question of the Court’s jurisdiction in the field of the Common Foreign and Security Policy (CFSP). The article first describes the background of those provisions as they resulted from the Convention on the Future of Europe and the 2003-4 and 2007 Intergovernmental Conferences and then compares the Court’s understanding of its jurisdiction to the drafting history of the provisions concerned. The main conclusion of the study of the case law suggests that the Court views its jurisdiction over the CFSP more broadly than the jurisdiction envisaged by the drafters of the Treaties. In particular, the Court both interprets the exclusion from its jurisdiction of acts based on the Treaty’s CFSP provisions in a narrow fashion and is prepared to review the legality of CFSP acts not only through direct actions but also through references for a preliminary ruling. However, the article argues that the provision of adequate legal protection in the field of the CFSP necessarily requires both the Court of Justice and domestic courts of the Member States to play their respective roles.
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"LEGAL NATURE OF THE WORKING ARRANGEMENTS OF THE EUROPEAN BORDER AND COAST GUARD AGENCY." Journal of V. N. Karazin Kharkiv National University, Series "Law", no. 29 (2020). http://dx.doi.org/10.26565/2075-1834-2020-29-39.
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The article analyzes the content and the procedure for concluding working arrangements of the European Border and Coast Guard Agency (FRONTEX). It is noted that, taking into account its legal personality, the Agency's partners may be third countries and international organizations with which it has the right to enter into the relevant arrangements on its own. The author draws attention to the fact that in FRONTEX’s enforcement practices there are different names of concluded agreements, but in form and content they are all working arrangements. The procedure for the negotiation and conclusion of working arrangements is analyzed and it is concluded that the EU pays serious attention to the legal instrument under consideration for cooperation with international partners. In particular, it is noted that the Commission and the Member States play a significant role in the harmonization of the text of the agreement. It is proposed to empower the European Parliament by granting it the right of prior approval of the final text of the document. The content of working arrangements concluded with third countries and international organizations is analyzed in detail and the following features are established: 1) since 2012, there is a trend to consolidate the principle of respect for human rights in agreements with third countries; 2) the agreements may contain provisions on the financial aspects of cooperation between the parties; 3) for the first time in the working arrangement with Kosovo, the provision on the exchange of personal data is enshrined; 4) certain working arrangements provide for the possibility of suspend of the agreement until the dispute is settled between the parties. It is concluded that the working arrangements are not international public treaties, because: 1) agreements with third countries directly establish that such documents do not create international obligations; 2) the agency is not endowed with the international legal personality to conclude agreements on behalf of the Union under the procedure provided for in Art. 218 TFEU; 3) the text of the document mainly contains non-binding wording. The author proposes to consider working arrangements as acts of soft law, the implementation of which leads to legal consequences. Cooperation between FRONTEX and third countries and international organizations is not limited by working arrangements and may be expanded by additional agreements.
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Pinto Nogueira, João Félix. "OS ECJ-TF 2/2017 on the ECJ Decision of 21 December 2016 in World Duty Free Group and Others (Joined Cases C-20/15 P and C-21/15 P), Concerning the Requirements of Selective Aid in the Sense of Article 107 of the TFEU." SSRN Electronic Journal, 2017. http://dx.doi.org/10.2139/ssrn.3644412.
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"Briefly Noted." International Legal Materials 61, no. 2 (March 22, 2022): 348–50. http://dx.doi.org/10.1017/ilm.2022.12.
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On October 26, 2021, the Court of Justice of the European Union (CJEU) issued its judgment in Case C-109/20 Poland v. PL Holdings. The case concerned an arbitral award issued in favor of PL Holdings against Poland. The arbitration clause which served as the basis for resolving the parties’ dispute is contained in a 2017 bilateral investment treaty between Poland and the Belgium-Luxembourg Economic Union (BLEU BIT). One year after the award was made, the CJEU ruled in Achmea that intra-EU investor-state arbitration clauses in treaties between EU member states are incompatible with EU law. The Court conversely held that commercial arbitration was compatible with EU law because it is an expression of the will of the parties, rather than a consequence of a treaty between states. Poland used Achmea to argue against the arbitral tribunal's jurisdiction, but the objection was considered by the Arbitration Institute of the Stockholm Chamber of Commerce to have been registered too late and Poland was ordered to pay damages to PL Holdings. Poland then brought an action before the Svea Court of Appeal (Svea hovrätt) to set aside the award, based on the invalidity under EU law of the arbitration clause in the BLEU BIT. Though the Swedish court accepted that, based on Achmea, the clause was invalid, it held that Poland's late objection to the jurisdiction of the tribunal and subsequent arbitration with PL Holdings meant that an ad hoc arbitration agreement had been established between the parties that was not precluded by Achmea and thus, the Court denied Poland's request to set aside the award. Poland appealed to the Supreme Court of Sweden (Högsta domstolen), which requested a preliminary ruling from the CJEU as to whether “Articles 267 and 344 TFEU precluded the conclusion of an ad hoc arbitration agreement between the parties to the dispute where the content of that agreement is identical to an arbitration clause that is set out in the BIT and is contrary to EU law.” The CJEU answered this question in the affirmative.