Looking for Coherence within the European Community*

Abstract: This paper discusses the relationship between the idea of coherence and the legal order set up by the European Community. It focuses on a specific dimension of this relationship and shows how the appeals to coherence made by the European Court of Justice have shaped a particular branch of the European legal order, namely, the judicial review of Community acts. The analysis of the Court of Justice's case law in this field shows that in its extensive use of coherence the Court of Justice explored and brought into play different types of coherence and, while it failed to distinguish between them, it made use of sorts of coherence that thus far legal theorists have disregarded. The article concludes that a closer collaboration between legal theory and legal practice would be profitable for both legal theorists and Community law specialists.     

Chinese pre-publication precludes European Community unregistered design right

The Hamburg Higher Regional Court denied protection for a biscuit-makeras an unregistered Community design since the design had beenpublished in China before the product was introduced in theEuropean Community.     

Judicial Review of European Anti-Terrorism Measures—The Yusuf and Kadi Judgments of the Court of First Instance

Abstract:  In the Yusuf and Kadi judgments of 21 September 2005, the Court of First Instance endorsed the Community practice of sanctioning individuals blacklisted by the United Nations (UN). It accepted that the Community uses its competence to adopt state sanctions in combination with Article 308 EC to freeze the assets of civil persons, including European citizens. The court also reduced its jurisdiction to a basic scrutiny of whether jus cogens was violated. The Court of First Instance's decisions can be criticised on various grounds. First, the application of these Articles is contrary to the wording of the Treaty and the case-law of the European Court of Justice (ECJ). Further, as a consequence of the Court of First Instance's judgments, decisions of the UN Sanctions Committee become the supreme law within the EU, provided they meet the requirements of jus cogens as defined by the Court of First Instance. In addition, the individual is deprived of all fundamental rights guaranteed under European law.     

Common sense prevails in trade mark transfer dispute

The High Court of Justice has interpreted Article 17(2) of theCommunity Trade Mark Regulation, which provides that ‘[a]transfer of the whole of the undertaking shall include the transferof the Community trade mark’, in a commonsense mannerthat provides that the Community trade mark shall follow thetransferred business. The Court gave great weight to facts andcircumstances of the relevant transactions in giving effectto the transfer of the trade mark rights.     

Effective Sanctions in EC Law: A Moving Boundary in the Division of Competence

Abstract: This article details and analyses the development of European Court of Justice guidelines regarding sanctions provided by Member States to correct infractions of EC law. It will be shown that the contemporary policy of the Court significantly retreats from an early practice of non-interference with the discretion of national judges to attach domestic remedies for breach of substantive Community measures. Preliminary comments will be made on the possible impact of these developments on the constitutional structure of the Community, and in particular their potential effect on the continuing debate concerning the legitimacy of EC rules.     

Employee Rights on Transfer of Undertakings: Italian Legislation and EC Law

Abstract:  The authors examine the conformity with Community law of the recent regulatory changes introduced to the Italian legal system regarding the safeguarding of employees' rights during transfers of undertakings. The investigation takes place on the assumption that the principle of primacy of Community law applies, which first and foremost means that it must be verified whether the domestic legislation in question complies with the interpretation given to the relative provisions of Community law. According to the authors' opinion, domestic law could be judged as non-conforming to the interpretation that has been given by the Court of Justice, so that the question may be brought before the Court of Justice ex Article 226 EC or by recourse to the preliminary ruling procedure under Article 234 EC, which reveal cases of incorrect implementation of the Directive.     

Immediate Effect of Community Law in the New Member States: Is there a Place for a Consistent Doctrine?

Abstract: Extension of the acquis to the new Member States raises a number of questions relating to the temporal reach of Community rules. This paper examines a general doctrine underlying the solutions. It presents a classic intertemporal doctrine, which has influenced early jurisprudence of the European Court of Justice. Then, it comments upon the cases brought before the Court in the context of the 1995 enlargement, the entry into force of the EEA Agreement and also the Europe Agreements. These cases evidence substantial differences in the attitudes taken by the national courts, the Advocates General and the Court. One reason for divergence is that the line of reasoning adopted by the Court carries several interpretative difficulties characteristic of the classic doctrine. Secondly, controversies arise in the instances where the Court takes a proactive attitude, which is difficult to reconcile with the traditional scheme. It is argued that greater attention to the structure underlying the reasoning would help to strengthen justification of the Court's solutions and enhance their predictability. This is the more important, as the forthcoming accessions are likely to bring new disputes relating to the effects of Community law in time.     

The decision of the Italian Constitutional Court on numerus clausus: A matter for Community law

This article discusses the recent decision of the Italian Constitutional Court on the numerus clausus issue, containing the first relevant pronouncement by the highest jurisdiction on the constitutional legality of the measures adopted so far by the Ministry. The Constitutional Court considers these measures in conformity with the Constitution to the extent that they implement Community law, and especially certain directives on the recognition of qualifications. Thus, Community law is deemed to provide the proper legal framework to adopt certain regulations, amongst which restrictions to access. This article argues that, in the context of litigation on access to university, Community law has been used improperly and that, in any event, a convenient solution to the issue could have been found in national law. This revised version was published online in July 2006 with corrections to the Cover Date.     

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.     

I wonder if this is a Wunderbaum

The Court of First Instance, dismissing a Community trade markapplicant's appeal against the decision to allow an oppositionin part, affirms that the public's recognition of the opponent'searlier Community trade mark may be assessed in relation tothe degree of recognition achieved by that mark through itsclose similarity to an earlier national registered trade markbelonging to the opponent.     

The Many Meanings of Equality and Positive Action in Favour of Women under European Community Law - A Conceptual Analysis

Abstract: The principle of equality of men and women as understood by Community institutions covers four distinguishable aspects. The first is equal treatment, defined in Community texts as the absence of legal gender discrimination. This concept focuses on individual rights and does not take into account the social context in which rules function. Second, the Community seeks to realise equal opportunities, understood as factual equality of chances. Third, Community law displays a concern for factually equal outcomes. The institutions accept legally different treatment that seeks to equalise unequal living conditions and inversely admit that facially neutral rules can have discriminatory effects. Finally, various documents conceive of gender equality as equal representation of the sexes in professional and public life. In the Kalanke decision of October 1995, the Court for the first time dealt with quotas in favour of women. It held that a national provision granting female candidates an automatic preference is incompatible with the right to equal treatment. The Court failed to acknowledge the tensions that arise from the coexistence of paradigms. An awareness of the multiplicity of concepts of equality, exhibited in Community law and rooted in the common constitutional heritage of the Member States, is however a prerequisite for a more sophisticated discussion of the issue of positive action.     

The European Court of Justice and the Annulment of the Tobacco Advertisement Directive: Friend of National Sovereignty or Foe of Public Health?

In Case C-376/98 Germany v Council the European Court of Justice annulled a Directive which banned the advertisement and sponsorship of tobacco. The judgment sanctions regulatory policy-making at the national rather than the Community level. The paper examines the legal basis of the annulment, its effect on economic efficiency and the implied role of the Court in the formulation of public policy in Europe. Within the institutional limits of the judicial power to determine policy, the Court focused on whether or not disparate national laws restrict free movement and distort competition and affirmed the primacy of the nation state to regulate economic activity.     

All Bark and No Bite: Notes on the Federal Constitutional Court's 'Banana Decision'

The Federal Constitutional Court's banana decision of 7 June 2000 continues the complex theme of national fundamental‐rights control over Community law. Whereas in the ‘Solange II’ decision (BVerfGE 73, 339) the Federal Constitutional Court had lowered its standard of review to the general guarantee of the constitutionally mandatorily required minimum, the Maastricht judgment (BVerfGE 89, 155) had raised doubts as to the continued validity of this case law. In the banana decision, which was based on the submission of the EC banana market regulation by the Frankfurt‐am‐Main administrative court for constitutional review, the Federal Constitutional Court has now confirmed the ‘Solange II’decision and restrictively specified the admissibility conditions for constitutional review of Community law as follows. Constitutional complaints and judicial applications for review of European legislation alleging fundamental‐rights infringements are inadmissible unless they show that the development of European law including Court of Justice case law has since the ‘Solange II’ decision generally fallen below the mandatorily required fundamental‐rights standard of the Basic Law in a given field. This would require a comprehensive comparison of European and national fundamental‐rights protection. This paper criticises this formula as being logically problematic and scarcely compatible with the Basic Law. Starting from the position that national constitutional courts active even in European matters should be among the essential vertical ‘checks and balances’ in the European multi‐level system, a practical alternative to the Federal Constitutional Court's retreat is developed. This involves at the first stage a submission by the Federal Constitutional Court to the Court of Justice, something that in the banana case might have taken up questions on the method of fundamental‐rights review and the internal Community effect of WTO dispute settlement decisions. Should national constitutional identity not be upheld even by this, then at a second stage, as ultima ratio taking recourse to general international law, the call is made for the decision of constitutional conflicts by an independent mediating body.     

Enforcement through eBay's VeRO scheme may be a groundless threat

On an interim injunction application to restrain an allegedthreat of infringement proceedings, the High Court held thatthe submission of an enforcement request through eBay's VerifiedRights Owner (VeRO) Program could constitute a groundless threatof infringement proceedings of a registered Community Design;the Court was concerned at the ability of a rights owner touse the VeRO program to ‘snuff out an avenue of the claimant'sbusiness’ where the proprietor of the designs in questionhad no intention of commencing proceedings in which the issuesof infringement and validity would be determined.     

Air Passenger Data Transfer to the USA: the Decision of the ECJ and latest developments

How much of European air passengers' personal data should beshared with U.S. border control authorities, and under whatconditions should this take place? This article examines a judgementof the European Court of Justice annulling acts of the EuropeanCommission and the Council that had allowed the transfer ofpersonal information across the Atlantic. After an account ofEC-USA negotiations and the relevant legislative procedure,it considers the findings of the Court as to the formal validityof the above measures, as well as the question of their conformitywith substantive provisions of the European Community Data ProtectionDirective. Finally, it addresses pleas of the European Parliamentnot dealt with by the Court. The article concludes by supportingthe Court's decision, and pointing out the unlawfulness of formerand current data transfers of this type.     

Appointment and Term of Office of Judges of International Courts: Innovations from Africa?

Non‐nationals of the Member States of the Common Market for Eastern and Southern Africa (Comesa) were in the past appointed to the Comesa Court of Justice (the Comesa Court) on the basis of their domicile rather than nationality. This article examines the relevant legal provision in this regard and points out that it is capable of far‐reaching interpretation, possibly beyond the intention of the parties to the Treaty establishing Comesa. Further, while the Treaty allows persons who are Judges or are qualified to be Judges in their home countries to be appointed, it also permits the appointment of distinguished lawyers. The article examines the emerging practice in terms of preferences between the two categories and assesses its desirability. In addition, the manner of appointing the President of the Court is mentioned and commented on in relation to its ability to promote or impair judicial independence. Finally, for a two‐year period ending in June 2005, there were no Judges in office on the Comesa Court. The stipulation that led to this hiatus is briefly noted and discussed. During the discourse, comparisons are made with the European Court of Justice and the Court of Justice of the East African Community.     

Sisters in Arms: European Community Law and Sex Equality in the Armed Forces

Abstract: Recently the European Court of Justice has been shedding a new light on the limits of Community competence for defence. This article analyses the rulings in Sirdar, Kreil, and Dory with regards to two interrelated issues. First it discusses the effect of Community law on the equality of men and women in the armed forces of the Member States. Second, it deals with the impact of these decisions on the constitutional order of the European Union. The article argues that Community law has a considerable impact on defence‐related national law. Therefore the analysis ultimately contributes to a narrow aspect of the constitutional debate: the demarcation of competencies between the Member States and the Community in matters related to defence.>     

The Last Bite of the BITs—Supremacy of EU Law versus Investment Treaty Arbitration

According to Article 267 TFEU, national courts of the EU Member States can (and sometimes must) ask for a preliminary ruling from the Court of Justice on the interpretation and application of Community law, including international treaties and recommendations, and on the validity of Community secondary legislation. In this way, it is ensured that EU citizens are treated equally throughout the Union. However, this is not applicable when it comes to arbitral proceedings, be they commercial or investment arbitrations. The Court does not accept references for preliminary rulings from arbitral tribunals. For this reason, respondent states in international arbitral proceedings have argued that arbitration and EU law are utterly incompatible. In their submissions as respondents in arbitral proceedings, EU Member States have argued that, as a result of EU accession, bilateral investment treaties (BITs) have been automatically terminated. In subsidiary, they sometimes claim that, due to their incompatibility with EU law, BITs cannot apply. But if BITs are not applicable anymore, there are few remedies left for investors within the EU.     

Inter Partes Proceedings and the Reform of the Community Trade Mark Implementing Regulation

Legal and practical context. Commission Regulation 1041/2005of 29 June 2005, which amends the Community Trade Mark ImplementingRegulation, entered into force on 25 July 2005. Substantialamendments are brought to inter partes proceedings, that isoppositions and applications in revocation or in invalidity,and appeal procedures. Key points. The rules governing the substantiation of the earlierrights and time limits are now stricter. Also, the new regimeaims at circumscribing the consequences of the rather broadinterpretation which the Court of First Instance gave over thelast two years to the notion of functional continuity betweenthe opposition division and the Boards of Appeal. Practical significance. The authors analyse the new provisionscontained in the Community Trade Mark Implementing Regulationin the light of the latest case law of the Court of First Instance,in order to provide practitioners with a simplified guide.     

Towards a liberalisation of standing conditions for individuals seeking judicial review of Community acts: Jégo-Quéré et Cie SA v Commission and Unión de Pequeños Agricultores v Council

The concept of ‘individual concern’, the main admissibility requirement for actions brought by individual applicants for the annulment of Community acts not addressed to them under Article 130 EC, has traditionally been interpreted restrictively by the Community courts, thereby constituting a nearly insurmountable obstacle for individual seeking judicial review of Community acts of general application. In a recent decision, the CFI, referring to the newly adopted EU Charter of Fundamental Rights (Article 47 on the right to an effective judicial remedy), proposed a new and more liberal interpretation of that requirement, thereby widening access to judicial review for individual, companies and representative groups. The Court of Justice has not followed up, but seems to leave the door open for further developments towards a liberalisation of standing conditions.