Law, Fact, and Discretion

Now more than ever, it appears that both societal and political factors are supporting and stimulating student mobility in all its shapes and forms, most notably through various initiatives on the European level. The Bologna Process, the European Qualifications Framework and the Lisbon Recognition Convention are all examples of this commitment undertaken by the Member States of the EU as well as other European nations. However, upon taking a closer look at the practical reality, we see that many obstacles remain to exist. As EU law currently stands after the Forster and Morgan and Bucher judgments, mobile students do not have a right to maintenance grants, neither from their host state or their home state. Furthermore, the European Court of Justice has – albeit reluctantly – allowed an exception to the principle of equal treatment on grounds of nationality with regards to access to higher education in the Bressol case. Although the recent, somewhat more restrictive attitude of the European Court can be defended and perhaps even welcomed, it does illustrate the need for a discussion and potential action on the European level by the political institutions. This contribution includes a discussion of the recent ECJ case law on student mobility and some reflections on the desirability, feasibility and potential form and content of such future action.

This case list offers a guide to the European Court of Human Rights (ECtHR) case law pertaining to migration. While the case list does not cite every ECtHR decision related to migration, it offers a comprehensive overview of important instances of case law indicative of the ECtHR’s jurisprudence on migration. These are, for example, Grand Chamber decisions, or cases cited by the Court in its more recent case law. In addition to including key cases cited in the preceding chapters of this book, this list also includes cases identified in thematic case law guides of the ECHR and recent jurisprudence in the area of migration, notified by the ECHR in monthly updates. The cases are organised in thematic blocks, which in turn appear in the order in which they pertain to the different temporal stages of migration, from entering the destination country to the right to remain and the cultural and religious rights of long-term migrants.

Over 50 years ago, at the time when Hanns Ullrich had just graduated from Tübingen University, EU law was born out of a drastic rupture of international law doctrine by the Court of Justice in its early case law. That new legal order was subsequently deepened and broadened, gradually assimilating its features to those of classic national law. The landmark judgments for shaping the supranational character of EU law mostly date from the 1960s to the early 1990s, while much of the Court’s later case law essentially applied pre-established principles. Today, however, the Court seems to have again opened a new chapter in terms of defining the scope and effects of supranational EU law. A series of recent judgments on issues such as horizontal direct effect, primacy and the rule of law take the invasive effect of the EU legal order vis-à-vis national law to an unprecedented level. Those judgments might well constitute the most intense single advancements of the supranational character of EU law since the Van Gend and Costa judgments. The present article explains and examines this hypothesis.

The chapter analyses the case law of the CJEU on national security and essential interests of member states security. It answers the following questions: what do the national security and essential security interests clauses in EU law actually mean, what is their content? What role do they play? What is the extent of discretion of the member states when applying those clauses? What are the requirements concerning an effective review of measures undertaken to protect security? The analysis leads to the conclusion that recent case law could be seen as the beginning of differentiation or stratification between clauses of public and national security. This case law is, however, contradicted to some extent by the interpretation of the ‘public security’ clause by the Court. Instead of demoting the public security to less crucial threats to ‘make room’ above for national security, the Court seems to continue to attribute to it fundamental importance (notably a threat to the survival of the population, as well as the risk of a serious disturbance to foreign relations or the peaceful coexistence of nations). Also, as concerns the role of the national security clause, the difference between national and public clauses seems to be only quantitative, not qualitative. For the Court, the national security clause does not seem to be about the question of delimitation of competencies between the EU and the member states.

In this section authors from various European countries report the recent case law in their jurisdiction in the field of private patrimonial law, that is decisions on the law of property, juridical acts, the law of obligations, contract law and prescription. The ERPL started this section in 2003. The section aims to give readers an overview of what is happening in the most recent European case law. We have asked the national reporters to report the juridical essence of the decisions given by the highest courts in their country. These national reports are integrated in one general report that arranges the decisions by subject, so that readers can easily find out whether decisions on their special interest were given in any European jurisdiction or whether decisions on one subject have been taken in various European jurisdictions. In principle, this section does not relate the facts of the decision, nor the personal opinion of the reporter. One can find discussions on the most important decisions of European courts in ERPL?s case note section. The recent case law section gives overviews of decisions published in periods of four months. The period of January-April is published in the fourth issue, the period from May to August is published in the sixth issue, the period from September to December is published in the second issue of the next year. In this issue, we publish decisions of high courts taken from January to April 2005. As yet, some decisions can only be found on the internet. Therefore, at the end of this section we have listed web sites where one can find European high court decisions.

After several years under harsh criticism, the Court of Justice of the European Union has finally accepted to review its case law on the idem condition in the ne bis in idem doctrine. In bpost and Nordzucker & others, the ECJ has adjudicated that the idem condition must be understood as idem factum in every field under EU Law, including competition law. The grounds for this decision remain unclear. This paper suggests that a clear distinction between a procedural and a substantive concept of non bis in idem and, specially, the acknowledgment of the ECJ’s endorsement of the latter, may help to understand its most recent case law.

As a part of its specific policies, the EU creates and implements numerous restrictive measures against different subjects. In recent years, the most interesting ones, especially from the perspective of the Court of Justice of the European Union (CJEU), have been the autonomous restrictive measures against natural and legal persons and other non-state entities within the Union`s Common Foreign and Security Policy (CFSP). After years of legal wandering in this regard, the Lisbon Treaty finally offered an explicit legal basis for this kind of measures, envisaging, as well, for the first time, the CJEU`s jurisdiction in the field of CFSP in some cases, including the one related to reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council of the EU on the basis of Chapter 2 of Title V of the Treaty of the European Union. In this regard, the subject matter of this paper are the activities of the EU courts related to the autonomous restrictive measures against individual subjects, analyzed at several relevant although inseparable levels. The first one considers the intention of the CJEU to "use" the situation regarding the autonomous restrictive measures in order to strengthen its position and competences within the CFSP. The second one is oriented to the efforts of the courts to secure the balance between the effectiveness of the CFSP instruments, on the one hand, and the protection of some of the major principles and values of the EU legal order, on the other hand, such as the rule of law, legal certainty, effective judicial protection or the protection of human rights as guaranteed by the EU Law in general. Thirdly, a very important step in this context has been the jurisprudential identification of the key procedural requirements that the Council`s decisions providing for restrictive measures must fulfill as well (aka the designation criteria, statements of reasons criteria and supporting evidence criteria). By constantly insisting on the fulfillment of these criteria, the EU courts exerted a pressure on the Council to improve its decisions providing restrictive measures in a qualitative manner. Recent jurisprudence, such as the Rosneft or Bank Refah Kargaran cases, shows that there is still enough space for the Court`s interventions in this field, and that some interesting Court`s decisions, related to its position within the CFSP or the general relation between the CFSP and other forms of Union`s external activities, could be expected in the years to come.

The article looks at the definition of State aid, in the light of recent case law of the EU Courts. There are claims that this case law shows serious shortcomings, is too complex, and reveals a rift between the General Court and the ECJ. In particular the interpretation of the substantive elements forming the notion of aid such 'granted by the state or through state resources' and 'selectivity' is far from clear. The question arises whether State aid control is then possible at all, given the underlying political objectives. Despite some shortcomings the Courts are somehow still managing to maintain a formal approach, in order to meet predictability requirements and legal certainty and at the same allowing a certain degree of flexibility. The case law reaffirms that the interpretation of the notion of aid still aims to preserve free movement and fair competition between States, and to ensure that Member States comply with EU law in terms of transparent economic governance. The efforts by the Courts and the European Institutions, in particular the Commission, in developing consensual rules on policy may still be the best we have so far.

The principle of primacy of the EU law has been in force for almost 50 years and belongs to the fundamental principles of EU law. It signifies that in case of a conflict between EU law and the law of the Member States, the EU law prevails. Its fundamental goal is to assure a unified and effective application of EU law in all Member States. The principle of primacy has been established by the case law of the Court of Justice of the European Union. This article discusses the principle of primacy, as developed by the Court of Justice of the European Union, and focuses on its importance for the Member States. The legal theory divides Member States into three groups with regard to what their position on the primacy of EU law in relation to the national constitution is: Member States that acknowledge full primacy, Member States that acknowledge limited primacy of EU law in relation to the national constitution, and Member States that principally assume primacy of the national constitution over EU law. Within the context of the European hierarchy, the constitutional courts of the Member States are left with the central role and power of review of constitutionality, but it remains to be seen whether in future more constitutional courts will enter a dialogue with the Court of Justice of the European Union in the form of a preliminary ruling procedure.

This article presents an overview of the current practice and case law of the Swiss Supreme Court in relation to the implementation of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. More specifically, this article examines the decisions rendered by the Swiss Supreme Court over the period 2000-2016. Decisions are discussed in relation to the relevant provision of the Convention on an article-by-article basis. For each provision of the Convention, a short commentary is included highlighting the relevant requirements and thresholds that need to be met in light of the recent case law of the Swiss Supreme Court in order for a party to obtain or to successfully resist the recognition and enforcement of a foreign award in Switzerland. The decisions of the Swiss Supreme Court rendered during the period under review are of particular interest as the Supreme Court has examined several Convention provisions for the first time, whilst confirming, clarifying and even overturning its earlier case law. These decisions confirm that Swiss courts continue to take a liberal, pragmatic and pro-enforcement approach to the New York Convention in practice.

Strategic deference is used by the European Court of Human Rights (Court) to keep the United Kingdom on board. This can be explained as a means to address autocratic strategies, but is harder to justify where it differentiates between consolidated democracies. To preserve authority and credibility, the Court must maintain an appearance of consistency. To this end, the ‘procedural turn’ in the Court’s case law has been presented as a development of the subsidiarity principle, consistent with earlier case law. In this paper, however, the case is made that procedural arguments are used (or avoided) in fundamentally different ways, reflecting very different mindsets. The paper distinguishes six approaches to so-called ‘general measures’ and explains in each case the underlying attitude towards national member states. By lumping them all together, strategic deference is concealed, allowing for a more favourable treatment of the UK while keeping up appearances that all contracting parties are treated alike.

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.

Company Valuation: A Comparison of Economic and Legal Perspectives

Administrative law, and more specifically administrative justice, is becoming increasingly important in the context of environmental law. The enforcement of environmental law depends to a large extent on administrative decision-making by environmental authorities. A developer who whishes to undertake a development activity that may have a detrimental effect on the environment, will require an environmental authorization that must be granted by the relevant environmental authority. There may be certain instance where the application for such an authorization is unduly delayed, or where there are mala fides on the part of the relevant authority. This may inevitably infringe the right of the developer to, inter alia, administrative justice. It is argued in this article that the developer has certain constitutional rights which can be invoked when dealing with environmental authorities. Hence, the discussion in this article focuses on the relationship between administrative justice and environmental governance; the constitutional rights of the developer; and recent case law that supports the proposal that the developer has legal recourse when her right to administrative justice has been infringed. 

Notwithstanding assertions of greater harmonization and convergence between U.S. and EU competition law, recent case law has identified significant differences in those jurisdictions' approaches to the regulation of a price or margin squeeze. In the United States after linkLine, the likelihood of a successful claim has been significantly diminished, particularly if there has been no prior course of voluntary dealing and no downstream predatory pricing. In contrast, in a series of decisions in liberalized telecommunications markets, the EU courts, in applying an “as efficient competitor test,” have focused on the preservation of competitive rivalry as “equality of opportunity.” This significantly broadens the potential liability for a margin squeeze in the European Union and reconstitutes EU competition law as a form of de facto regulation in liberalized markets. Faced with the uncertainty of this standard, the dominant firm has an incentive to avoid liability by raising its retail prices to the detriment of consumers. This article evaluates this divergence in the approach to the regulation of a price or margin squeeze in the United States and the European Union and traces these approaches to differing conceptions of dominant firm regulation, which in turn have informed different understandings of the regulation of a refusal to supply and the intersection of competition law with sector-specific regulation.