The legal regime for application of the precautionary principle in India: future directions for the GM regulatory regime

The precautionary principle is one of the most contentious principles in contemporary international legal developments. The very fact that it is a principle of international environmental law has been questioned by many legal scholars. However, this does not take away the fact that the precautionary principle continues to be applied widely across sectors both internationally and nationally. The nature and scope of its application has varied widely according to the context and sector within which it has been applied. The central issue which this article seeks to address is the regulatory and the policy making space that is available to the Government of India in the context of the obligations as undertaken under the Cartagena Protocol and under various other international treaties. The regulatory space would also be affected by the domestic legal developments across sectors in which the principle has been applied. India’s recent decision on the large-scale commercialisation of Bt-Cotton has already created much debate regarding its appropriateness given the realities of Indian farm practices. More specifically, it has also led to a rethinking of the role and application of the precautionary principle in addressing these realities. Considering that the Indian policy on biotechnology is currently being drafted, it is important to look into the scope of applying the precautionary principle in taking any decision on genetically modified organisms (GMO) in terms of their distribution of risks, incorporating the social and equity impacts of such decisions.

A very short guide to an awful lot

Harmonised Trade Mark Law in Europe By Ulrich Hildebrandt 2005,Cologne: Carl Heymanns Verlag Price: 48, Hardback, ISBN: 3-452-25922-6. pp.150   Dr Ulrich Hildebrandt, a lawyer in private practice in Berlinand a lecturer at the Heinrich-Heine-University in Düsseldorf,has had an interesting and useful idea. In this book he hasproduced a compilation of the case law of the European Courtof Justice interpreting the Council Directive 89/104 to approximatethe laws of the Member States relating to trade marks (includingdecisions     

Coexistence in Community trade mark disputes: conditions and implications

Legal context. A defence based on coexistence has no legal basisin the Trade Mark Directive or in the Community Trade Mark Regulation.Still, a practical approach to Community trade mark conflictsrequires attention to the situation in the marketplace whereconflicting marks may be shown to coexist without any currentconfusion or dilution being reported. Key points. Trade mark coexistence may sometimes be persuasive,the strict requirements being laid down by the Community courts.Through a detailed review of the case-law of the Community courtsand OHIM's Boards of Appeal, this article explains the conditionsfor and the consequences of proving the coexistence of the conflictingmarks in cases based on likelihood of confusion or dilution. Practical significance. Consideration must also be given tothe effects of third parties' neighbouring marks which may diminishan earlier mark's distinctive character. Accordingly, this articlefurther addresses the issue of whether the scope of protectionof a mark may be damaged by the use of later marks in the lightof the ECJ Judgment in the preliminary ruling Case C-145/05Levi Strauss v Casucci Spa.     

Is it really just a game? Copyright and online role-playing games

Legal context. Massively multiplayer online role-playing games(MMORPGs) are a craze that has swept the globe. Online gamershave been reported to spend 22 hours per week online playingtheir favourite games while there have been reports of playersspending up to 55 hours at a time playing. Not all gamers arehobby gamers, nor are they just teenagers having fun. A markethas grown around MMORPGs and a lucrative online market has emergedoutside the games for the sale of game characters and items.The value of this market has been estimated at US$880 million.At the heart of disputes concerning the sale of game charactersand items is the question of copyright ownership. Game providersclaim that the End User Licence Agreements (EULAs) give themintellectual property ownership and rights over any dealingswith the game characters and items. Many gamers on the otherhand are abhorrent at the assertion that they have no claimto characters and items that they have spent many hours developing. Key points. The first issue that needs to be considered is whethercopyright subsists at all in the game characters and items.The next question to be considered is who owns the copyrightin in-game characters and items. To answer the question, onemust look to the EULAs, but the EULAs do not provide all theanswers because issues such as moral rights cannot be governedby EULAs. Further, the practice of farming by companies runningdigital sweatshops complicates the relationship between gamersand game providers. Practical significance. There have been numerous disputes concerningthe game characters and items between game developers, gamers,and farming companies. This article examines the key copyrightissues at stake.     

European criminal law and European identity

This contribution aims to explain how European Criminal Law can be understood as constitutive of European identity. Instead of starting from European identity as a given, it provides a philosophical analysis of the construction of self-identity in relation to criminal law and legal tradition. The argument will be that the self-identity of those that share jurisdiction depends on and nourishes the legal tradition they adhere to and develop, while criminal jurisdiction is of crucial importance in this process of mutual constitution. This analysis will be complemented with a discussion of the integration of the first and the third pillar as aimed for by the Constitutional Treaty (TE), which would bring criminal law under majority rule and European democratic control. Attention will be paid to two ground breaking judgements of the European Court of Justice (ECJ) that seem to boil down to the fact that the Court actually manages to achieve some of the objectives of the CT even if this is not in force. This gives rise to a discussion of how the CT (and related judgements of the ECJ) may transform European criminal law in the Union to EU criminal law of the Union, thus producing an identity of the Union next to the identities prevalent in the Union. The contribution concludes with some normative questions about the kind of European identity we should aim to establish, given the fact that such identity will arise with further integration of criminal law into the first pillar.

Database rights' subsistence: under starter's orders

Legal context. The criteria for database rights' subsistenceset out in the Directive on the Legal Protection of Databasesare largely undefined. Guidance on their interpretation hasbeen provided by the ECJ and its guidance on qualifying investmentactivities was applied by the Court of Appeal in the BHB case. Key points. The article comments upon the guidance on the subsistencecriteria for database rights provided by the Advocate Generaland the ECJ in the BHB and Fixtures Marketing cases and analysesthe Court of Appeal's application of the production-processingdichotomy in the BHB case. It offers thoughts on thorny issuessuch as the avoidance of a double benefit for database developersin copyright and database right, the role of investments intechnology, and the effect of the production-processing dichotomyon the risk of monopolies over facts. Practical significance. Database developers seeking databaserights' protection should keep the subsistence criteria in mindwhen devising their processing arrangements, designing theirdatabases, and recording their investment activities associatedwith database development.     

Significant 2005 case law on the Community trade mark from the Court of First Instance, the European Court of Justice and OHIM

Legal context. Each year the ECJ and CFI gives numerous judgmentsin trade mark matters that are of interest to trade mark practitionersthroughout Europe. This article identifies the most importantcases decided in 2005 relating to the major issues in trademark law. Key points. Issues covered relating to procedural questionsinclude the language regime, the duty of Boards of Appeal togive reasons for their decisions, the right of a party to beheard, etc. Numerous substantive issues are covered, relatingto both absolute and relative grounds. The article also containssome helpful annexes that set out some actual comparisons ofsigns and of goods & services that have been carried outby the Luxembourg courts.     

The rise and fall of cross-border jurisdiction and remedies in IP disputes

Legal context. Companies which have seen their IP rights infringedacross Europe have, in recent years, been keen to obtain cross-borderrelief from infringement through bringing a single action inthe court of just one EU Member State. This approach has time,cost and tactical advantages for claimants, but raises complexjurisdictional questions. Key points. This article provides an in-depth explanation ofthe framework for litigating IP rights in the European Union.It describes the various interpretations to which the BrusselsRegulation on Jurisdiction has been subjected and how they affectthe availability of cross-border relief. This explanation providesa foundation for analysing the recent ECJ decisions in Gat vLuk and Roche v Primus. Practical significance. Cross-border jurisdiction and reliefis, in practice, no longer available in respect of registeredrights.     

Constitutionalising an Overlapping Consensus: The ECJ and the Emergence of a Coordinate Constitutional Order

The European Court of Justice's (ECJ's) jurisprudence of fundamental rights in cases such as Schmidberger and Omega extends the court's jurisdiction in ways that compete with that of Member States in matters of visceral concern. And just as the Member States require a guarantee that the ECJ respect fundamental rights rooted in national tradition, so the ECJ insists that international organisations respect rights constitutive of the EU. The demand of such guarantees reproduces between the ECJ and the international order the kinds of conflicting jurisdictional claims that have shadowed the relation between the ECJ and the courts of the Member States. This article argues that the clash of jurisdiction is being resolved by the formation of a novel order of coordinate constitutionalism in which Member States, the ECJ, the European Court of Human Rights and other international tribunals or organisations agree to defer to one another's decisions, provided those decisions respect mutually agreed essentials. This coordinate order extends constitutionalism beyond its home territory in the nation state through a jurisprudence of mutual monitoring and peer review that carefully builds on national constitutional traditions, but does not create a new, encompassing sovereign entity. The doctrinal instruments by which the plural constitutional orders are, in this way, profoundly linked without being integrated are variants of the familiar Solange principles of the German Constitutional Court, by which each legal order accepts the decisions of the others, even if another decision would have been more consistent with the national constitution tradition, ‘so long as’ those decisions do not systematically violate its own understanding of constitutional essentials. The article presents the coordinate constitutional order being created by this broad application of the Solange doctrine as an instance, and practical development, of what Rawls called an overlapping consensus: agreement on fundamental commitments of principle—those essentials which each order requires the others to respect—does not rest on mutual agreement on any single, comprehensive moral doctrine embracing ideas of human dignity, individuality or the like. It is precisely because the actors of each order acknowledge these persistent differences, and their continuing influence on the interpretation of shared commitments in particular conflicts, that they reserve the right to interpret essential principles, within broad and shared limits, and accord this right to others. The embrace of variants of the Solange principles by many coordinate courts, in obligating each to monitor the others' respect for essentials, creates an institutional mechanism for articulating and adjusting the practical meaning of the overlapping consensus.     

Entrapment between Two Pillars: The European Court of Justice Rulings in Criminal Law

Abstract:  This article deals with the possibility of adopting criminal law provisions on a first pillar legal basis. The analysis focuses on two decisions of the European Court of Justice (ECJ) dealing with the matter, with specific emphasis on the second one. The main problems debated are the legality principle, the implicit competence of the Community legislator, the criteria for establishing when there is a need for adopting criminal law provisions on an EC legal basis and the scope and depth of this competence. Comparing the arguments of the Advocate General with the ECJ's approach to the matter, the author tries to establish whether the right decision has been adopted and what the solutions for the future are.     

Trade mark use in transit: EU-phony or cacophony?

Legal context The present article discusses the opinion of Advocate-GeneralJacobs in Case C-405/05 Class International BV v Unilever NVand others, according to which trade mark owners cannot opposethe entry into the European Union of grey market non-Communitygoods placed in external transit, on the grounds of Article5(1) of the Trade Mark Directive, or any equivalent provision,as such entry does not constitute trade mark use. Key points We examine the consistency of this approach withprior case law of the European Court of Justice, namely in theCommission v France, Rioglass, The Polo/Lauren and Rolex casesand draw a parallelism with Council Regulation (EC) 1383/2003. Practical significance We conclude that trade mark owners shouldbe allowed to prohibit the placing in transit of goods whichwould infringe an intellectual property right under the lawof the transit country, unless the owner or consignor of thelitigious goods can undeniably prove that the goods are notdestined for the internal market. Stop press. At the end of the article the authors provide abrief analysis of the European Court of Justice's decision of18th October 2005 in this case.     

'Trade mark use' in Europe: revisiting Arsenal in the light of Opel and Picasso

Legal context: The European Court of Justice (ECJ) decision in the case ofArsenal Football Club v. Reed led to uncertainty regarding thepractical scope of a trade mark proprietor's property rights. Key points: The uncertainty resulted from a failure of the ECJ to addressclearly the issue of what constitutes infringing trade markuse. The ECJ ignored the question of the High Court as to whetheruse of a trade mark as an indication of origin is necessaryfor establishing infringement. They instead established an ambiguousstandard for what constitutes infringing trade mark use, suggestingthat only use that jeopardises the essential function of a trademark is an infringing use. This ambiguity has had problematicimplications for subsequent interpretations of trade mark law,particularly in the Court of Appeal in Arsenal and the Houseof Lords in R v Johnstone. Two relatively new ECJ cases may help clarify the issue. InOPEL, the ECJ suggested that infringing use of a trade markmust be use that is perceived by the relevant public as a designationof origin. The Picasso decision limits the effect of the Arsenaldecision on the relevance of confusion in non-sale situationsto the facts of Arsenal. In particular, it stresses the pointthat when assessing likelihood of confusion in the context ofan opposition to an application for registration the court shouldfocus on the perception of the relevant public at the pointof sale. Practical significance: The benefit of these two cases is that they create some clarityfor legal practitioners and the Courts when addressing the questionof what constitutes infringing trade mark use.     

The Splendors and Miseries of Constitutional Reasoning in Times of Global Crisis: A Critical Look from the Realist Perspectives of Semiotics

The European Stability Mechanism (ESM) is the rescue fund that may grant loans to struggling euro zone governments by issuing bonds, collectively by the euro zone members. The implementation of the ESM spawned a lot of legal challenges brought to higher judicial authority in Ireland, Austria, Estonia, Germany and Poland. In the fall of 2012 the ESM was subject to legal analysis in the Estonian National Court, the German Constitutional Court, and in the European Court of Justice. Delivering much anticipated rulings in legal challenges to the legal provisions establishing the ESM, courts avoided upsetting the complex arrangements in question by producing legal decision of direct political import and letting EU bailout measures go forward. In looking over different critical responses, we have seen an argument raised by media and legal scholars, according to which courts’ capitulation before the power of financial markets in the EMS rulings represents “a sign of judicial crisis” that marks the weakness of modern European jurisprudence. In light of their importance, we undertake a preliminary semiotic analysis of the ESM rulings of the Estonian National Court, the German Constitutional Court, and in the European Court of Justice. Our analysis aims at discerning the crucial aspects of those rulings is performed on the basis of different semiotic methodologies combined with the refined ideas of the Scandinavian analytical school of the doctrinal study of law. In traditional legal studies there seems to be a taken for granted assumption that there is one analytical way to dissect judicial reasoning of the supreme courts. This paper argues that the manner of analyzing the constitutional reasoning needs to be congruent with the particular research methodology.     

Between Procedural Impermeability and Constitutional Openness: The Italian Constitutional Court and Preliminary References to the European Court of Justice

On 15 April 2008, the Italian Constitutional Court (ICC) raised for the first time a preliminary question to the European Court of Justice (ECJ). This decision (see judgment No 102/2008 and order No 103/2008) represented a turning point in the ICC's case‐law, and calls for a careful assessment of the motives backing such revirement as well as of the legal reasoning that the Italian judges used to wrap it up without repudiating their previous case‐law. In addition to this preliminary analysis, the aim of this essay is to explore two themes: i) the developments of the ICC's case‐law as regards the role of Community Law and the ECJ, and ii) the appraisal of the interplay between the ICC and the ECJ in the light of the notion of ‘interpretive competition’.     

Dilution in the US, Europe, and beyond: international obligations and basic definitions

Legal context. The efficacy of trade mark dilution as a causeof action has been cast into doubt by the Supreme Court's actualdilution standard. However, Congress is currently consideringthe Trademark Dilution Revision Act 2005, removing the actualdilution standard and resolving other difficulties under thepresent Lanham Act 43(c). This should breathe new life intoblurring and tarnishment. It should also be recalled that theEU already has strong laws against dilution and unfair advantage. Key points. This article identifies international dilution obligationsin order to determine (in Part II) whether the US and EU arecompliant. It identifies problems under the present US dilutionlaw and the solutions offered by the Revision Act. It comparesthe US proposals with EU dilution protection to determiningwhat the two jurisdictions have to learn from each other. Thistheme will be continued in the next part of this article, whichfocuses specifically on blurring/detriment to distinctive character. Practical significance. The introduction of new US legislationwill make successful dilution claims easier and will increasethe frequency of actions under 43(c). It is vital that trademark lawyers are familiar with the changes. At the same time,it should be remembered that many of the same outcomes can beachieved under the current European legislative provisions.To the extent that the jurisdictions do not live up to theirinternational dilution obligations, there is scope for proprietorsto lobby for even stronger protection.     

Charities and Political Campaigning: The Impact of Risk-Based Regulation

This article examines the effects of the Charity Commission’s implementation of risk-based regulation on the political campaigning activities of charities. In doing so, it draws on the findings of a recent empirical study which explored charity representatives’ awareness of relevant law and regulation and their perceptions of the obstacles they faced in their campaigning work. The article begins with a brief exploration of the emergence of risk-based approaches to regulation, followed by consideration of the legal and regulatory requirements for risk management by charities. Moving to its main focus of political campaigning, the article notes the unique legal issues faced by charities in campaigning work. It provides a comparative evaluation of the 2004 and 2008 versions of Charity Commission guidance CC9 on campaigning and political activity by charities (CC9) in terms of their approach to legal compliance, their formulation of the specific risks of campaigning and their approach to the process of risk management itself. In addition, the article considers the relevance to campaigning activity of the Commission’s current plans for an ‘enhanced approach’ to risk in its compliance work. The article concludes by considering the potential impacts on charitable campaigning of both the Commission’s overall approach to campaigning and its perceived risks, and of further entrenchment of risk principles in charity regulation.

Taking Language Seriously: An Analysis of Linguistic Reasoning and Its Implications in EU Law

This article discusses legal reasoning at the European Court of Justice (ECJ). The following questions are addressed. First, the authors look at the way linguistic arguments are used in ECJ case‐law. Second, they consider whether the requirements of legal certainty, and more specifically that of predictability, may be fulfilled by reference to linguistic arguments in a multilingual legal system. The theoretical starting‐point is that of open‐endedness of language: no means exists to definitely pin down the meaning of words. Defining the meaning of words in a legal context is necessarily a matter of choice involving evaluative considerations. Consequently, when the ECJ uses linguistic arguments to justify a decision, it is an active agent choosing the meaning of words in a specific case. Essentially, the authors argue that legal reasoning based on linguistic arguments is particularly problematic from the viewpoint of legal certainty and predictability. In this respect, the key importance of systemic and teleological argumentation is emphasised in assuring convincing, acceptable and transparent legal reasoning especially in the context of multilingual EU law.     

The European Court of Justice and the Rhetoric of Affirmative Action

The recent Marschall decision by the European Court of Justice (ECJ) to uphold a principle giving precedence to women for promotions in the workplace seems promising for the future of affirmative action. At first glance, this decision seems to indicate that the ECJ has taken a different path, moving away from its earlier Kalanke decision which had jeopardised further development of affirmative action in the European Union. On a closer examination, both Kalanke’s sweeping ban of preferential treatment based on gender and Marschall’s new interpretation appear as discursive replies to the same dilemma: should the Court deny the normative objective of equality contained in EC law to generate meaning, thus turning equality into a mere formal principle and rendering judicial review trivial? Or should it embrace a substantive reading of the fundamental principle of equality between men and women, thus substituting the Court judgment for that of the legislature, and subverting the limits of the ECJ’s powers? The aim of this article is to analyse the ECJ’s rhetorical response to the complexities contained in affirmative action judicial review.     

“Schrems II”: The return of the Privacy Shield

On 16 July 2020, the Grand Chamber of the European Court of Justice rendered its landmark judgment in Case C-311/18 Data Protection Commissioner v. Facebook Ireland Ltd and Maximillian Schrems (“Schrems II”). The Grand Chamber invalidated the Commission decision on the adequacy of the data protection provided by the EU-US Privacy Shield. It however considered that the decision of the Commission on standard contractual clauses (“SCCs”) issued by the Commission for the transfer of personal data to processors established in third states was legally valid.The legal effects of the judgment should first be clarified. In addition, it has far-reaching implications for companies which transfer personal data from the EU to the US. The judgment of the Grand Chamber has also far-reaching implications for transfers of personal data from the EU to other third states. Last, it has far-reaching implications for the UK in the context of Brexit.© 2020 Published by Elsevier Ltd. All rights reserved.     

The Function of the Proportionality Principle in EU Law

In this article the author assesses the proportionality principle in EU law from a legal theoretical and constitutional perspective with the aim of discovering the function of the principle. Having first discussed the implications of the proportionality principle being a general principle of law, and what function it has—namely to secure legitimacy for judicial decisions—the author suggests that there are several ways in which the principle can be interpreted. There is, nevertheless, a limit to this interpretation determined by the proposed function of the principle. In the third part of the article, the European Court of Justice's (ECJ's) interpretation of the principle is assessed. The assessment clearly shows that the ECJ is interpreting the principle in different distinguishable ways. The question could, however, be raised as to whether the ECJ in some areas is interpreting the principle in a way that undermines the very function of it.