14 References

The objective of this article is to present the most significant recent case law of the Court of Justice of the European Union (CJEU) related to the competition law. Firstly, focus is given to some recent CJEU case law in the antitrust area, i.e. the judgments dealing with the application of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). A special attention is paid to the most recent CJEU case law analyzing the distinction between the object and effect of the prevention, restriction or distortion of competition. Secondly, some significant State aid cases are dealt with, i.e. the cases related to the application of Article 107 TFEU. Although the CJEU case law has not recently undergone major changes in the competition law field, the article reflects the main trends towards the current jurisprudence and what challenges may be expected in the future.

Democracy and equality of citizens are the fundamental values of the European social and economic order. This axiological assumption is generally reflected in extensive legal regulations organizing the social and economic life in the European Union (EU). For the purposes of this chapter, a detailed analysis of those foundations intend to be limited to the manifestations of the democratic values in the Court of Justice of the European Union (CJEU) adjudication in the selected issues of the European antitrust law where, under private enforcement against practices violating the prohibitions of the European antitrust law, equal participation and citizen's access to the proceedings before the courts, based on the principle of freedom of choice of all concerned, are ensured.

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).

This article considers the implications of the European Commission, as primary administrative enforcer of competition law in the Union, using its own ‘preliminary reference procedure’, through observations in national court proceedings under Council Regulation 1/2003, to minimise the risks of divergent application of EU anti‐trust rules under the decentralised system of enforcement ushered in by that Regulation. It sets the scene with the relationship between the European Commission and national courts in competition law, before describing the relevant provisions of the Regulation and its accompanying Courts Notice. It then discusses the legal nature of the Commission opinion as a Union instrument. Identifying cases where the Commission has offered observations, it assesses the implications of administrative intervention in judicial decision making. It finds that greater transparency is crucial for legitimacy, legal certainty and maximum impact on consistent application.

This article explores the role which Member State-led infringement proceedings can play in overcoming the EU’s rule of law crisis, and hypothesizes that it can prove helpful in breaking the current impasse. It begins by understanding why the EU’s “traditional” rule of law enforcement mechanisms—such as Article 7 of the Treaty on European Union (TEU) and the recent rule of law conditionality regulation—have failed (Section 2), before exploring how infringement proceedings operate, what their shortcomings are, and why Scheppele’s proposed “systemic infringement proceedings” are important (Section 3). It then seeks to apply said findings to the rule of law crisis, using two recent developments as an example: The oral proceedings of Commission v. Poland (Régime disciplinaire des juges) and a recent vote by the Dutch Parliament compelling its government to take Poland before the Court of Justice of the European Union (CJEU) (Section 4). Finally, it explores the broader constitutional implications of relying on Article 259 Treaty on the Functioning of the European Union (TFEU) to overcome the rule of law crisis: It discusses Kochenov’s notion of “biting intergovernmentalism”, what Article 259 illustrates about the European Union’s (EU) hybrid constitution, and how intergovernmental legal instruments can facilitate further European integration (Section 5). It concludes by restating and summing up article’s hypothesis.

The Italian State-owned maritime concessions regulatory framework testifies the seminal impact of Title IV of the Treaty of the Functioning of the European Union (TFEU) and of the Services Directive (Directive 2006/123/EC) on national administrative procedures. Recently, the Plenary Assembly of the Council of State (following the reasoning of the Court of Justice of the European Union (CJEU) in joined cases C-458/14 and C-67/15 Promoimpresa and Mr. Melis), has confirmed the illegitimacy of the automatic extension of State-owned maritime concessions provided by the Italian law until 2033, as contrary to both Article 49 TFEU and Article 12 of the Services Directive. It has modulated the effects of the unlawfulness of the ongoing extension calling on the Italian legislator to reform the sector's regulations by the end of 2023. Therefore, both the legislator and the national administrations will have to find a balance between all relevant interests at stake in a transformed service market of bath tourism, since the beginning of the implementation of the Services Directive. Moreover, also in a case-by-case analysis of the 'scarcity of available natural resources', they both will have to consider the cross-border interest of these concessions as necessarily existing in re ipsa, whilst balancing this aspect with some peculiar features of the Italian bathing sector. Firstly, it is clear how the national legislator has to implement the EU law taking into account the concrete facts and context at stake. Secondly, the protection of private operators and of recipients is a basic condition not only for a general equitable and solidarity-based reform, but also for each selection procedure.

The preliminary reference procedure is often credited as the engine behind European integration. Until very recently however, the role of lawyers in this parable of law-led political unification has remained relatively unexplored. As a result, we still lack empirical insight into the day-to-day on-the-ground practice of “doing EU law” by legal professionals that represent parties before the European Court of Justice. Without an exclusive focus on highly transformative, salient, or “landmark” cases, and opting instead for a bottom-up approach, this Article looks at the everyday practice of references to the European Court of Justice from the perspective of the legal practitioners that litigate these cases. This Article draws on interviews with lawyers that have assisted individual litigants in preliminary reference procedures and presents an empirical exploration into the everyday context in which legal practitioners work on preliminary references cases. The central question this Article aims to answer is: How do lawyers deal with the challenges of representing individual parties in preliminary references cases? The findings underscore how the effective use of the preliminary reference procedure is reserved largely for organisations and “strategy entrepreneurs” with the necessary credentials, means, and expertise. On the one hand, it provides possibilities for “trumping” the domestic legal system whenever supranational legislation provides opportunities against national policy or legislation; on the other hand, in terms of access to justice and as a form of remedy, the preliminary reference procedure remains a difficult “sword” to yield.

Injunctive Relief in Disputes Related to Standard-Essential Patents: Time for the CJEU to Set Fair and Reasonable Presumptions

In Visnapuu the Court of Justice held, inter alia, that a Finnish measure governing the exceptions to the monopolist’s exclusive rights was separable from the operation of the monopoly. Therefore, the Court assessed it in the light of Article 34 Treaty on the Functioning of the European Union (TFEU) instead of Article 37 TFEU. It is worth noticing the remarkably narrow interpretation of Article 37 TFEU and its consequences on the application of Article 34 TFEU where a monopoly is at stake. In particular, in such circumstances, some concerns arise with respect to the suitability of the paragraph 16 proviso of Keck.

The analysis presented in this article concerns the impact of Court of Justice of the European Union (CJEU) jurisprudence on the legal situation of Supreme Court and Supreme Administrative Court judges in Poland. The main assumption of the presented considerations is that the CJEU, in providing answers to preliminary questions submitted to it by Polish courts adjudicating cases related to judicial appointments and retirements, strengthens the independence of the courts and the independence of the judiciary, assuming that these are systemic elements of a functioning judiciary subject to EU law. For this reason, the CJEU considers itself competent to shape these systemic values under Polish law. At the same time, this body does not notice the problem of jurisdiction of Polish courts posing legal questions, which becomes an important theoretical and practical issue, because it may affect the legality and effectiveness of judgements passed on the basis of answers given by the CJEU. Detailed considerations focus on two types of judgements of the CJEU, which were made in connection with the retirement of judges, as a result of questions submitted to the Court by the Supreme Court and Supreme Administrative Court. The subject of the questions related to the compatibility with EU law of the scope of legal protection granted in Polish law to a judge against resolutions adopted in such cases by the National Council of the Judiciary. The considerations presented conclude that in the case of a CJEU judgement issued as a result of a question posed by the Supreme Court, the jurisdiction of the authority posing the question was infringed, and this should have consequences for the scope of binding the court adjudicating on the answer provided by the CJEU.

The personal scope of the Charter of Fundamental Rights of the European Union (the Charter) is an area that still needs to be defined by the Court of Justice of the European Union (CJEU). The issue surrounding the personal scope entails the question of who can claim the protection of fundamental rights. A particularly controversial matter has proved to be the question whether, and if so under what circumstances, private legal entities and public authorities can invoke fundamental rights. This article aims to provide a detailed examination of the ‘landscape’ the CJEU must take into account when dealing with the personal scope of the Charter in the future. Firstly, this landscape is made up of the background and objectives of the EU and the European Convention on Human Rights (ECHR) legal systems. Secondly, it is shaped by the personal scope application of the Charter as interpreted by the CJEU so far, and the personal scope application of the ECHR as interpreted by the European Court of Human Rights (ECtHR). Finally, the application by Member State courts of fundamental rights, via the Charter, ECHR and constitutional rights, forms an element in this landscape. An examination of these aspects will provide answers to the question of how the three main players on the European fundamental rights stage – the CJEU, the ECtHR and the national courts – have applied the personal scope of their fundamental rights up to now. This also encompasses answers to the question of how these applications relate to the different background and objectives of the ECHR and the EU legal systems. These answers will provide the CJEU with tools to deliver well-informed rulings on the personal scope of Charter provisions in the future.

ABSTRACTThis article contributes to the study of the preliminary reference procedure and the literature on the decentralized enforcement of European Union (EU) law through national courts. Drawing on the ‘compliance pull’ explanation for why national courts submit preliminary references to the Court of Justice of the European Union (ECJ), it suggests that a greater need to clarify ‘the validity and interpretation’ of one act compared to another is associated with variation in Article 267 submissions. Drawing on a sample of 1,300 national court decisions on EU directives with variation in Article 267 Treaty on the Functioning of the European Union (TFEU) submissions, this article finds that disputes relating to directives leaving more room for manoeuvre in implementation (‘delegation’) and relating to more complex regulatory issues (‘information intensity’) are more likely to be referred to the ECJ for interpretation. It argues that neglecting the ‘compliance pull’ explanations has consequences for how we conceptualize ‘decentralized enforcement’.

The chapter on democratic legitimacy and the Court of Justice of the European Union (CJEU) focuses on whether the CJEU through judicial activism may be claimed to have established its jurisprudence beyond the bounds of democratic legitimacy. Judicial activism has to a large extent been found in cases concerning the prerogatives of the CJEU, while in relation to other issues, such as the application of fundamental rights, the CJEU has demonstrated political awareness in its use of judicial activism, which however has diminished legal certainty. In general the CJEU has acted within the bounds of democratic legitimacy, but further clarification of its jurisprudence in controversial areas may be required, as any amendment of the EU treaties in the near future would seem unlikely.

Artykuł został poświęcony metodologicznym aspektom badań prowadzonych nad wpływem orzecznictwa Trybunału Sprawiedliwości Unii Europejskiej (TSUE) na stanowienie polskiego prawa podatkowego. W tekście wskazano, że wpływ orzeczeń TSUE na krajowy system prawny może mieć charakter bezpośredni, gdy orzeczenie dotyczy danego przepisu prawa krajowego lub pośredni, gdy orzeczenie dotyczy podobnego przepisu tego samego państwa lub innych państw. Prowadzone badania zostały oparte na założeniu, że chociaż zasadniczo skutki orzeczeń TSUE dotyczą sfery stosowania prawa, to mają one jednak istotny wpływ także na stanowienie polskiego prawa podatkowego. W rezultacie przebadane zostały orzeczenia TSUE odnoszące się do przepisów polskich ustaw podatkowych. W wyniku przeprowadzonej analizy wyselekcjonowane zostały te orzeczenia, które wywierają bezpośredni wpływ na polskie prawo podatkowego. Z opisanych w tekście badań wynika, że orzeczenia te zostały wydane po przeprowadzeniu postępowań zainicjowanych skargą Komisji oraz z odesłania prejudycjalnego sądów krajowych.

This chapter examines Article 101 TFEU (Treaty on the Functioning of the European Union). All modern competition law regimes outlaw the coordination of independent undertakings where it leads to a restriction of competition. In the European Union, a prohibition system is enshrined in Article 101 TFEU, which holds that ‘agreements between undertakings’ which restrict competition are ‘incompatible’ with the Treaty. Article 101 TFEU is a three-pronged provision. First, Article 101(1) TFEU establishes a prohibition rule, which provides that agreements between undertakings which may affect trade between Member States and which restrict competition are incompatible with the internal market. Second, Article 101(2) TFEU declares that agreements deemed incompatible pursuant to Article 101(1) TFEU are null and void. Third, Article 101(3) TFEU embodies an exception rule which defuses the application of Article 101(1) to agreements that bring a positive net contribution to consumer welfare.