When Internet protocols and legal provisions collide: Unauthorised access and Sierra v. Ritz

This case note article examines the unreported decision of a U.S. court in Sierra Corporate Design Inc. v. David Ritz (2007) District Court, County of Cass, State of North Dakota (File No. op-05-C-01660) which deals with the unauthorised use of a domain name system zone transfer. The court ruled that access was unauthorized given the defendant's intention to obtain and divulge information found in the zone transfer.     

The Patients’ Rights Directive (2011/24/EU) – Providing (some) rights to EU residents seeking healthcare in other Member States

This article presents the main elements of Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare, commonly known as the Patient’s Rights Directive. It is the latest EU initiative with regard to European Health Care and the Single Market. The main elements of the Directive contain provisions related to the prior authorisation of health care in another Member State, the reimbursement of such health care and the removal of unjustified obstacles to achieving these aims.These provisions largely reflect the recent case law of the European Court of the Justice (ECJ). Amongst these are provisions involving the use of personal data. Such provisions will engage data protection issues and will have to be carried out according to the data protection directives. Alongside this primary aim of codifying ECJ case law the Patient’s Rights Directive also introduces novel initiatives aimed at fostering cross border cooperation between various elements of national healthcare systems.Part 1 of this contribution will describe the legal basis and the aims of the PRD, Part 2 will describe the principle obligations placed on the Member States with regard to reimbursement, Parts 3 and 4 will describe other informational and procedural requirements placed upon the Member States of Treatment and Affiliation. Finally Part 5 will outline some of the novel initiatives that have been included in the PRD.The increases in the frequency of cross border-treatment that this directive attempts to facilitate are likely to see a concurrent increase in cross-border patient information flows. Such data flows will be subject to the Union’s provisions on Data Protection. It remains uncertain whether the EU’s Data Protection regime will act as inhibitor to cross-border medical treatment or rather represent a gold standard that allows patients to engage in such activities with peace of mind. The Patient’s Rights Directive will form part of the EU’s future e-Health strategy which envisages a large increase in the fluidity of patient data. A discussion of this directive is therefore merited in this journal.     

The European Court of Justice in Bolagsupplysningen: The Brussels I Recast Regulation's jurisdictional rules for online infringement of personality rights further clarified

In the European Union the Brussels Ibis Regulation governs the jurisdiction of Member State courts in civil and commercial matters. The reference for a preliminary ruling coming from the Estonian Supreme Court in the Bolagsupplysningen case offered the European Court of Justice another opportunity to develop its interpretation of the special ground for non-contractual obligations (article 7.2). The European Court of Justice's Grand Chamber ruled that legal persons, like natural persons, have the option of bringing a claim based on the infringement of personality rights by an online publication before the courts of the Member State where their centre of interests is located. It laid down that the centre of interests of a legal person pursuing an economic activity is determined by reference to the place where the company carries out the main part of its economic activities. The victim of a tortious internet publication can only seek an order for rectification and removal of the incorrect information in the courts that have jurisdiction over the entirety of the harm sustained and not before the courts that only enjoy jurisdiction with regard to the damage suffered in their territory.     

The rule of law online: Treating data like the sale of goods: Lessons for the internet from OECD and CISG and sacking Google as the regulator

The decision of the Court of Justice of the European Union (“CJEU”) in the case of Google Spain SL v Agencia Española de Protección de Datos (AEPD) ² [“the Google decision”] to require Google to enforce a right to be forgotten has caused a furore and sets a dangerous precedent in internet regulation. ³ It is setting up the search engine as a form of Internet Government and fracturing the balance between privacy and freedom of information in the connected world. In a world where we have become attuned to full exposure by routinely signing over access to information, privacy is no longer the issue – the real concern is control. This paper seeks to address the issues of whether we have a right to privacy anymore, who should be making decisions about what is available and where and how a global convention on access to information might be achieved.     

How to enforce European law? A new history of the battle over the direct effect of Directives, 1958–1987

This article explores the well‐known saga of the European Court of Justice's introduction of direct effect of Council Directives on the basis of new comprehensive archival research. The expansion of the doctrine of direct effect to include Directives was part of a drive of the Legal Service of the European Commission and the ECJ to strengthen the enforcement of European law. This threatened the deeper balance of competences between the European Community and its Member States and consequently led to a sharp response from the national parliaments and courts. The force of these responses and the deep crisis that had evolved in the late 1970s between France and the ECJ, led to a change in the EC's case law that limited the direct effect of Directives to the vertical relation between citizens and the respective Member State and excluded any horizontal effect. The story is an example of how the activist ECJ of the 1970s ran into resistance from the Member States and had to modify its doctrinal advances. It also suggests that the successful acceptance of the constitutionalisation of the Treaties of Rome pursued by the ECJ was by no means secure by the late 1970s.     

1968 Brussels Convention and EU Council Regulation No 44/2001: Jurisdiction in Consumer Contracts Concluded Online

Abstract: This paper addresses the issues on jurisdiction over consumer contracts concluded online in the Member States of the European Union through analysis of the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, which has been transformed into the Regulation recently. The changes brought by the Regulation to the régime of jurisdiction over consumer contracts in the European Union include the concept of the company ‘directing its activities towards particular Member State or States’ as a ground for a consumer to sue such a company in the country of his domicile. Since the list of criteria that could define the activity as directed to the particular Member State does not exist so far, the future effect of the Regulation remains unclear.     

Case comment: BSkyB v. EDS [2010] EWHC 86 (TCC) case no: HT-06-311 26.01.2010

The Technology and Construction Court has issued its long-awaited decision in the epic court battle between BSkyB and EDS. Mr Justice Ramsey found that EDS had fraudulently induced Sky into a £54 million contract for a new customer relationship management (CRM) system. Since judgment was given, EDS has been ordered to pay Sky £270 million in damages and interest.     

既判力相对性原则:根据、例外与制度化

既判力相对性原则是既判力制度中的一项基本原则,是指判决的既判力在一般情形下仅发生于当事人之间.这一原则不仅有助于纠纷的终局解决,保障法律关系的稳定,同时能够为没有参加诉讼的案外第三人的民事权益提供程序保障.作为既判力相对性原则的例外,确定判决对于诉讼系属后的承继人及为当事人或其承继人占有请求之标的物者,亦有效力.为他人之利益而作为原告或被告者之确定判决,对于该他人也有效力.我国现行民事诉讼法尚未明确规定既判力相对性原则.这一原则的缺失导致了民事诉讼法在第三人权益的程序保障方面存有重大缺陷,也造成了实践中第三人撤销之诉适用的混乱局面.应当完善既判力制度,确立既判力相对性原则,将第三人撤销之诉的适用限制在确定判决既判力相对性的例外情形.     

ECJ rules on acts of “Extraction” that infringe database right

Four years from the European Court of Justice's seminal rulings on database right in the British Horseracing Board and Fixtures Marketing cases, the Court has once again looked at the extent of protection this right affords. The earlier decisions had suggested the right was weak, with many databases not qualifying for protection and the extent of infringement required being difficult to meet. However, the ECJ's recent ruling in the Directmedia case (C-304/07) handed down in late-2008 is more positive for database owners. Adopting the reasoning of the Advocate General, the ECJ has clarified the types of acts which can constitute infringement of database right and confirmed they are broad in scope. The outcome and implications of the ruling are discussed below.     

The Islamic Headscarf: An Example of Surmountable Conflict between Sharî'a and the Fundamental Principles of Europe1

Abstract: The demand by certain Muslims living in Europe to wear the Islamic headscarf has led to important cases, before the courts of the Member States of the Union as much as before the European Court of Human Rights, above all with regard to public education. The Court of Human Rights and the Member States have taken different positions concerning the licitness of wearing the headscarf. The solutions adopted are, in fact, strongly influenced by the classical concept of relations between Church and State. In schools in Germany, where a relationship of cooperation exists between Church and State, the wearing of the veil is allowed, but only for the pupils, not for their teachers. In France, which has a model of strict separation between Church and State, neither teachers nor pupils are allowed to wear the veil. The tensions linked to wearing of the headscarf are but one example of conflict between sharî'a and the fundamental principles of Europe. These conflicts are not insurmountable. However, they do require efforts from both sides. The EU and the Member States must break with discriminatory practices against Muslims. The Muslims of Europe must construct a ‘European Islam’, re‐reading sacred texts in light of the characteristics and the values of the European societies in which they live.     

Data protection: The future of privacy

The Art. 29 Working Party (hereinafter “Art. 29 WP”) is an influential body comprised of representatives from the Member State Data Protection Authorities² established under the Data Protection Directive 95/46/EC, has recently issued an opinion with the Working Party on Police and Justice. This is quite significant, since the opinion sets out some of the issues that will need to be addressed in the lead up to the revision of the Data Protection Directive 95/46/EC.³ This comes at a time, when there have been discussions on the current application of the European Data Protection Directive to the internet,⁴ (such as social networking) and the recent European Commission’s consultation on the legal framework for the fundamental right to protection of personal data. Not least, there have been a number of cases brought before the European Court of Justice dealing with the partial implementation of the Data Protection Directive 95/46/EC.⁵The aim of this paper is to consider in detail the issues set out by the Art. 29 WP and the likely challenges in revising the Data Protection Directive 95/46/EC.     

对作品保护平等待遇原则的研究——欧盟法院第五法庭第C-360/00号初步裁定评析

欧盟成员国意大利著作权规定,对于作品的保护期限一直持续到作者死亡后的56年.但是,另一成员国德国规定对于作品的保护期限一直持续到作者死亡后的70年.意大利籍作者的作品在德国的保护期限究竟应当为多长时间?对此,欧盟法院作出了初步裁决:如果一个成员国对其他成员国作者的著作权保护的期限少于对本国作者的著作权保护期限,则是为《欧洲联盟条约》所禁止的.换言之,欧盟成员国国民的著作权应当受到同等的保护.     

The European Community and the Member States in the Dispute Settlement Understanding of the WTO: United or Divided?

Opinion 1/94 of the European Court of Justice determined the competence of the European Community and the Member States to conclude and implement WTO Agreements. Whilst the European Community enjoys exclusive competence to implement the Multilateral Agreements on Trade in Goods, it shares joint competence with the Member States in respect of the General Agreement on Trade in Services and the Agreement on Trade-Related Aspects of Intellectual Property Rights. However, the Court’s recognition of a division of competences between the Community and the Member States in WTO agreements has given rise to many fears that such a division would greatly complicate Community and Member State participation in WTO Agreements, would create many problems for them in doing so and, as a result, would greatly impede their successful participation in the WTO. Given the benefit of a number of years’ experience in the WTO, this paper focuses on the Dispute Settlement Understanding (DSU) of the WTO and addresses the extent to which the division of competences between the Community and the Member States has affected their participation in the DSU. Primarily, it aims to examine the extent to which the provisions of the DSU affect Community and Member State participation in dispute settlement within the WTO. It then analyses the duty of co-operation imposed on the Community and on Member States by the Court of Justice in Opinion 1/94 in the implementation of the WTO Agreements and the degree to which this duty influences their pursuit of dispute settlement. Finally, the paper examines the manner in which Community and Member State dispute settlement proceedings have evolved in practice, the extent to which the division of powers has penetrated dispute settlement proceedings and the manner in which the Community, the Member States and other WTO members have addressed it. In essence, the paper attempts both to highlight some of the more obvious consequences and effects that the internal division of powers between the Community and the Member States has for their participation in the DSU and to suggest some ways in which these consequences may be manipulated for their mutual and successful settlement of disputes.     

Rules for Rights: European Law,Health Care and Social Citizenship

Social citizenship is about equality. The obvious problem for European social citizenship in a very diverse Union is that Member States will not be able or willing to bear the cost of establishing equal rights to health care and similar aspects of social citizenship. Health care is a particularly good case of this tension between EU citizenship and Member State diversity. The European Court of Justice (ECJ) strengthened the right to health care in other Member States, but this cannot create an equal right to health care when Member States are so different. In its efforts to balance a European right, the Court has formulated ‘rules for rights’—not so much European social citizenship rights, as a set of legal principles by which it judges the decisions of the Member States.     

The two judgments of the European Court of Justice in the four cases of Privacy International,La Quadrature du Net and Others,French Data Network and Others and Ordre des Barreaux francophones et germanophone and Others: The Grand Chamber is trying hard to square the circle of data retention

On 6 October 2020, the Grand Chamber of the European Court of Justice rendered two landmark judgments in Privacy International, La Quadrature du Net and Others, French Data Network and Others as well as Ordre des barreaux francophones et germanophone and Others. The Grand Chamber confirmed that EU law precludes national legislation which requires a provider of electronic communications services to carry out the general and indiscriminate transmission or retention of traffic data and location data for the purpose of combating crime in general or of safeguarding national security.In situations where a Member State is facing a serious threat to national security which proves to be genuine and present or foreseeable, such State may however derogate from the obligation to ensure the confidentiality of data relating to electronic communications by requiring, by way of legislative measures, the general and indiscriminate retention of this data for a period which is limited in time to what is strictly necessary but which may be extended if the threat persists.¹ In respect of combating serious crime and preventing serious threats to public security, a Member State may also provide for the targeted retention of this data and its expedited retention. Such an interference with fundamental rights must be accompanied by effective safeguards and be reviewed by a court or by an independent administrative authority. It is likewise open to a Member State to carry out a general and indiscriminate retention of IP addresses assigned to the source of a communication where the retention period is limited to what is strictly necessary or even to carry out a general and indiscriminate retention of data relating to the civil identity of users of means of electronic communication. In the latter case, the retention is not subject to a specific time limit.     

National Support for Film Production in the EU: An Analysis of the Commission Decision‐Making Practice

This article deals with the cultural welfare concerning cinema, a medium capable of both painting and shaping society. It aims to investigate the impact of the European integration on national film promotional law, by studying the European Commission decision‐making practice in the field of State aid to cinematographic works. The analysis shows that this practice can be understood in two main phases that are delineated by the adoption of specific criteria. These criteria are explored by highlighting the most elucidating cases. Furthermore, this analysis discloses two relevant conflicts: within the Commission itself and between the Commission and the Member States. Particular emphasis is placed on the latter, which is explored with regard to: the European national film agencies' polarisation of the conflict, the main form of dispute settlement adopted by the Commission, and the legal obligations imposed by Member States upon TV broadcasters to invest in audiovisual 1 production. The analysis ends with an evaluation of the above‐mentioned impact and a few remarks on some unresolved issues related to the conflict between the Commission and the Member States.     

The ‘right to be forgotten’ or the ‘principle that has been remembered’

The Court of Justice of the European Union (CJEU) has ruled on questions referred by a Spanish court relating to interpretation of the Data Protection Directive and its application to search engine activities. In a controversial judgment, the CJEU found that search engines are data controllers in respect of their search results; that European data protection law applies to their processing of the data of EU citizens, even where they process the relevant data outside the EU; and that a ‘right to be forgotten’ online applies to outdated and irrelevant data in search results unless there is a public interest in the data remaining available and even where the search results link to lawfully published content.     

欧共体竞争法与成员国竞争法关系初探

由于均对各自适用范围做扩张性解释,因而欧共体竞争法与成员国竞争法在适用范围上不可避免地产生了重叠, 二者构成了一利双重控制体系。但这种双重控制体系又是有条件的双重控制体系,即当二者之间有冲突时,应以共同体竞争法的效力为优先。随着统一大市场的形成以及从属原则被确立为欧盟法的基本原则,这种双重控制体系面临瓦解的可能,在未来有必要对两套法律体系的适用范围进行重新划定,从而使其各行其是,互不干涉,而且预计成员国竞争法的地位会得到相应提升,并发挥其应有的作用。     

Variations in Member States’ Preliminary References to the Court of Justice—Are Structural Factors (Part of) the Explanation?

The preliminary reference procedure in Article 267 of the Treaty on the Functioning of the European Union (TFEU), which enables national courts to request the Court of Justice to provide a ruling on the interpretation or validity of an EU legal act, is widely considered to be the jewel in the crown of EU law. When considering the number of references from different Member States, it will become immediately apparent that there are considerable variations. This article examines to what extent these variations may be explained by three structural factors, namely (1) population size, (2) willingness to litigate and (3) Member State compliance with EU law. It is concluded that some—but not all—of the variations in number of references from Member State judiciaries may be attributed to structural factors rather than being merely a reflection of different Member State courts’ willingness to make use of Article 267 TFEU on such references (the so‐called behavioural factors).     

The Fight Against Organised Crime in Europe: A Comparative Perspective

This article provides an overview of the measures and actions taken by the Member States of the European Union in their fight against organised crime and transborder crime. The Action Plan to Combat Organized Crime adopted by the Ministers for Justice and Home Affairs during the Dutch EU Presidency, submitted some 30 recommendations with respect to greater harmonisation regarding the fight against organised crime in the EU Member States. The author gives a concise summary of the most relevant changes and the structural characteristics per Member State, paying attention to developments in the specific countries and the organisations involved. One of the conclusions reached is that few or no reforms within national investigative and prosecution authorities may be directly traced back to the regulatory impulses of the EU. Although the EU Action Plan has not yet realised a convergence of the systems, the European process of integration has increased the mutual transparency and knowledge of one another's systems.