RECENT CJEU CASE LAW TRENDS IN COMPETITION LAW

On June 21, 2022, the Court of Justice of the European Union (CJEU), sitting as a Grand Chamber, rendered its decision in the preliminary ruling procedure C-817/19, Ligue des Droits Humains v. Council of Ministers. In its ruling, the CJEU held that the surveillance regime established by the Passenger Name Record Directive 2016/681 (PNR Directive) was compatible with the Charter of Fundamental Rights of the European Union (CFREU/EU Charter). Nevertheless, the CJEU strictly circumscribed the Directive's transposition within EU member states' domestic laws. While restricting permissible interpretations of the PNR Directive's provisions and imposing strict limitations on its scope to ensure its conformity with the EU Charter, for the first time the Court upheld an instrument of indiscriminate surveillance as compatible with EU primary law. This represents a significant development in the CJEU's case law on privacy rights, which is likely to affect the negotiation and development of future PNR agreements with third countries, as well as the development of the ePrivacy Regulation, discussions surrounding the regulation of AI, and negotiations for international instruments aiming to address serious crimes. Further, the ruling confirms the CJEU's increasing convergence with the European Court of Human Rights' (ECtHR) case law on the matter, thus inscribing national security as a legitimate exception to the general prohibition of indiscriminate bulk data collection and retention in Europe.

"There is a broad consensus amongst tax scholars that the tax sovereignty of EU Member States represents a core principle underpinning the functioning of the European Union, a notion emphasised in both doctrine and practice. It is important to note that Member States have not explicitly transferred tax competence, i.e. the right to regulate these matters at EU level, to the European Union. However, the exercise of tax sovereignty is subject to the constraints imposed by EU law and CJEU jurisprudence. This paper examines the concept of tax sovereignty in the EU, analyses its limitations, and delves into the judicial role of the Court of Justice of the European Union (CJEU) revealing the balance that must be maintained between national tax autonomy and EU legal frameworks."

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.

Recent case law from the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) has declared practices involving the pushback of individuals, including those seeking asylum, to be illegal. This is a significant and positive development. This article examines the approaches taken in key cases before these two courts, comparing and reflecting on how they have framed pushbacks as a violation of fundamental rights and the procedural obligations that States have under international and European law. While both courts have ruled these practices to be in breach of applicable laws, their framing of the violations has differed. The ECtHR has focused on the fundamental rights that are threatened when individuals are pushed back across borders. In contrast, the CJEU has previously concentrated on the violations of procedural rules that occur during the forcible return of individuals. However, in the recent case of MA, the CJEU acknowledged that the breach of procedural rules inherent in pushbacks undermines access to effective protection, resulting in a denial of access to asylum. This situation constitutes a breach of Article 18 of the Charter of Fundamental Rights. This important development indicates a convergence in the approaches of the two courts, both condemning pushbacks as violations of individual rights and highlighting the necessity of the right to enter as an integral part of the effective right to asylum.

This chapter examines the key legal issues arising from the preliminary reference procedure in competition law. It first considers references to the Court of Justice of the European Union (CJEU), focusing on Article 267 of the Treaty on the Functioning of the European Union (TFEU) giving the Court jurisdiction to render preliminary rulings concerning the interpretation of the Treaty, and the validity and interpretation of acts of the institutions, bodies, offices, or agencies of the European Union. It then explains the role of a ‘court or tribunal’ in making a reference, as well as the issue of inadmissible references and mandatory references. Finally, it discusses the preliminary reference procedure, including the procedure before the referring court, and the order for reference, special requests, interventions, submission of written and oral observations, and the effect of a ruling.

This chapter discusses the specific features of the EU-Swiss model of sectoral bilateralism. It proceeds from an analysis of the relevant case law of the Court of Justice of the European Union (CJEU). In the absence of an institutional agreement providing for the homogenous interpretation of shared legal rules, the CJEU proceeds from the so-called Polydor logic, which implies that there is no automatic interpretation by analogy of identically worded provisions included in a bilateral agreement with Switzerland and the EU Treaties unless there are express provisions to that effect in the agreement itself. The consequences of this approach are illustrated with respect to the CJEU case law regarding the interpretation and application of the Agreement on Free Movement of Persons (AFMP) and the agreements associating Switzerland to the EU’s Schengen and Dublin acquis. The former entails a ‘static’ approach to the incorporation of new EU legislation, implying that there is no obligation to incorporate new EU acquis, whereas the latter agreements are ‘dynamic’ in nature, including a procedure for the incorporation of new EU legislation. In comparing both sets of agreements and the relevant case law of the CJEU, this chapter illustrates the law and practice of sectoral bilateralism and the specific challenges of Switzerland’s unique model of cooperation with the EU.

The paper examines the development of the case law of the Court of Justice of the European Union (CJEU) on the consequences of (non-)transparency claims in consumer contracts in the case of the supply of intellectual (legal) services. In its recent decision (Case C-395/21, D V), the CJEU was confronted with the consequences of the unfairness of the remuneration term contained in a legal services contract. The Court’s analysis of the non-transparency (and unfairness) of core terms under Articles 4 para 2 and 5 UCTD and its consequences under Article 6 UCDT raises a variety of questions. Specifically, the D V case illustrates the difficulties of the CJEU in striking an adequate and effective balance between consumer protection on the one hand and the right of the business party (lawyer) to her/his counter-performance (the remuneration) for the legal services on the other hand. This, in a nutshell, is because the unfairness of the term led—like most mortgage loan agreements denominated in foreign currency—to the invalidity of the whole price-setting mechanism, depriving the supplier of his/her remuneration in its entirety. Against this backdrop, the paper will address the troublesome relationship among the unfairness of core terms encompassed in consumer contracts providing intellectual services, restitutionary remedies and judicial revision of the unfair terms, alternatively leading to situations of consumer over-protection and under-protection. First, the paper will highlight why this case law poses new challenges for both consumer and national law and why it should be treated differently from – or, at least, in confrontation with – the recent CJEU’s case law concerning the mortgage loan agreements saga. Secondly, the paper395 will argue that the denial of remuneration of the supplier—even though complying with the aim to restore the legal and factual situation in which the consumer would have been in the absence of the unfair term—could entail consumer over-protection issues, since the performance could not be returned; this situation could potentially lead to clashes with overarching general principles (such as the principle of proportionality). Lastly, the exclusion of a judicial revision in the sense of a judicial estimate could be detrimental for the consumer if the quantification of the supplier’s remuneration would be impossible without such a judicial estimate. In that case, the invalidity of the unfair term and of the contract in its entirety could expose consumers to unjust enrichment claims, thus frustrating the CJEU’s aim of preventing judicial estimates of a fair charge and undermining the principle of legal certainty, as interpreted by the European Court. In this sense, such an orientation will trigger a situation of consumer under-protection. In the final analysis, the paper will address some of the possible systemic implications of the CJEU’s case examined. The paper will further suggest that, in order to prevent both situations of over-protection and under-protection of consumers, we should rethink the mechanisms of the transparency assessment under the UCTD – in particular, when essential terms are concerned and neither the restitution nor the remuneration of the services provided is possible or consistent with EU Consumer Law.

This article examines the evolving scope of professional privileges (PPs) in EU tax law and focuses on recent judgments by the Court of Justice of the European Union (CJEU), most notably C-623/22 Belgian Association of Tax Lawyers and C-432/23 F SCS, both rendered in 2024. These can be considered as a continuation of the C-694/20 C-694/20 Orde van Vlaamse case that was decided in 2022. The CJEU’s decisions address the tension between the state’s need for information disclosure – specifically in the context of preventing tax evasion and avoiding aggressive tax planning – and taxpayers’ fundamental rights, particularly the right to legal advice and legal professional privilege (LPP). This right is essential for the proper functioning of society as it allows individuals to seek professional advice without fear of disclosure. The article explores the balance that the CJEU had to find between these competing interests in light of EU legal instruments governing the exchange of information (EoI) and mandatory disclosure rules (MDR). Through a critical assessment of recent case law, the article highlights key lessons and provides insights into the scope of various PPs in the area of EU tax law shaped by the CJEU’s gavel.

ABSTRACTIt is broadly acknowledged that the Court of Justice of the European Union (CJEU) is an important engine of European integration. Although this role of the Court is well documented and analysed, there still is little research about the domestic effects of CJEU activism. This article contributes to the emerging literature on Europeanization through case law by analysing national responses to the CJEU adjudication on so called Golden Shares, a jurisdiction that limited member states’ influence on privatized companies. It is argued that the domestic reactions to these CJEU decisions were decisively conditioned by the presence of protective fallback options for the member states – and not by mobilization pressure or legal uncertainty costs, the two most important determinants of national responses to CJEU case law that have been identified so far in the literature.

The study highlights the correlation between freedom of movement of capital and freedom of establishment in the law of the European Union, taking into the account modern case law of the Court of Justice of the European Union (CJEU). The author analyses the case law of the CJEU in the context of determining the scope of application of freedom of movement of capital and freedom of establishment in certaincases, including decisions made in 2021 and 2022. The author identifies the factorswhich are taken into account by the CJEU when determining whether to give preference to the application of a particular freedom. The author also highlights the approaches which have developed in the international and European law science to address thisissue. The author establishes that, based on the analysed case law, the CJEU assesses the main purpose, objective and impact of a national measure on the exercise of freedom of movement of capital and/or freedom of establishment. The Court may favour one freedom over the other based on these factors or consider both freedoms equally when assessing the compatibility of the measure with EU law. It often turns out that restrictive national tax measures may violate one or both of these fundamental freedoms of the EU’s internal market.The author concludes that guided exclusively by the provisions of the EU founding treaties on freedom of movement of capital (Article 63 TFEU) and freedom of establishment (Article 49 TFEU), it is often impossible to establish for certain which freedom will be applied to a particular economic activity of individuals and legalentities. In accordance with the case law of the CJEU, when deciding on the applicationof a particular freedom, in particular, the following factors should be taken into account: the presence of a “definite influence” of an owner of capital share (investor);the type of restriction on the freedoms of the EU internal market imposed by the EUMember State on the activities of entities engaged in economic activity. However, according to the author, there appears to be a lack of consistency indetermining the application of the freedom of movement of capital and/or freedom of establishment, which may be eliminated with the adoption of more judgments by the CJEU in the future and their further scientifi c understanding Key words: EU law, international economic law, international treaties, freemovement of capital, freedom of establishment, investment, company law, Court of Justice of the European Union, European integration.

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.

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.

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.

p class="MsoNormal"In the world of European Union (EU) law and arbitration, the Court of Justice of the EU (CJEU) plays the ice-skating judge. The CJEU has taken the role of deciding whether arbitral awards should wear the crown of EU law conformity before they can move freely across Member States. Recent cases like London Steamship and International Skating Union (ISU) have shown the CJEU insisting on a routine where EU law may trump arbitral autonomy, especially in proceedings involving EU law. This approach could chill the atmosphere, making the warm embrace of the New York Convention 1958 (NYC 1958) for cross-border arbitral awards seem like a nostalgic memory.o:p/o:p