The primacy of EU law continues to be challenged by domestic courts relying on the notion of constitutional identity. These challenges are no longer limited to the Solange case law of the German Bu...Show moreThe primacy of EU law continues to be challenged by domestic courts relying on the notion of constitutional identity. These challenges are no longer limited to the Solange case law of the German Bundesverfassungsgericht (BVerfG) and the controlimiti doctrine of the Italian Corte Costituzionale. More recently, the Hungarian Constitutional Court introduced the notion of ‘historical constitutional identity’ – at a time when the rule of law and independence of the judiciary are in retreat in several parts of the EU. Against this backdrop, this article argues that the Court of Justice of the EU (CJEU) missed a formidable opportunity to clarify the outer limits of constitutional identity under Article 4(2) of the Treaty on European Union in Taricco II. Given prudential considerations as well as parallel legislative developments, it can be explained why the CJEU chose to side-step the issue. However, in the Corte Costituzionale, the CJEU found a cooperative and EU law friendly interlocutor which would have allowed it to clarify these limits on its own terms. The CJEU cannot and should not hide from this issue forever. The next domestic court to raise this issue may be less interested in judicial dialogue and more in undermining the primacy of EU law in ever more extensive ways. Show less
Over the course of fifteen years, the Court of Justice of the European Union (CJEU) has developed a considerable body of jurisprudence on age discrimination. Approximately thirty cases is indeed... Show moreOver the course of fifteen years, the Court of Justice of the European Union (CJEU) has developed a considerable body of jurisprudence on age discrimination. Approximately thirty cases is indeed notable, especially when compared with other discrimination grounds enlisted in Article 1 FED. The vast majority of these cases deal with measures affecting older workers, particularly regarding the retirement age or pension schemes. A significantly smaller number of cases – only five – concern measures affecting younger workers. Research analysing these cases indicate that the CJEU has been rather lenient in accepting measures regarding older workers and more strict in accepting measures targeting younger workers.However, this approach potentially puts EU Youth Policy under pressure. Moreover, it raises the question of whether the Framework Equality Directive is not in fact hampering measures to improve the situation of young people. In other words, it should be determined whether the FED is a curse or a blessing for EU Youth Policy. Show less
It seems that the time of the employment contract as the standard legal device of employment is over and that a variety of employment relationships have emerged. Many forms raise questions and... Show moreIt seems that the time of the employment contract as the standard legal device of employment is over and that a variety of employment relationships have emerged. Many forms raise questions and uncertainties about social protection. One of these forms are false or quasi self-employed workers. In the case of FNV KIEM the European Court of Justice (ECJ) ruled on this. In this contribution we assess to what extent the ruling of the ECJ has contributed to clarifying some of the qualification issues involved with these type of workers. Thereto, we describe how the case was raised in the Netherlands; we elaborate on the arguments raised in the subsequent national court decisions and the ECJ; we reflect on the notion of (false) self-employed from the perspective of the notion of undertaking/entrepreneur and that of employee in order to determine what the ECJ considers to be decisive requirements for each category; and we reflect on the meaning of the ruling of the ECJ in the FNV KIEM case for the Netherlands. Show less
This paper argues that the ECJ in its seminal Kadi judgment made the right decision and foreshadowed numerous reforms in the EU’s external action introduced by the Lisbon Treaty. It rightly... Show moreThis paper argues that the ECJ in its seminal Kadi judgment made the right decision and foreshadowed numerous reforms in the EU’s external action introduced by the Lisbon Treaty. It rightly rejected the approach presented by the Court of First Instance, which ultimately turned out to be a false friend of international law. By largely following the Advocate General’s Opinion, the Court maintained the superior human rights standard of the EU legal order. Without, however, jeopardizing the compliance of the Member States with their UN obligations right away, it sent a clear warning signal to the UN Security Council to exhaust the potential for reform of the targeted sanction regime. The Court showed that in the face of such global threats as terrorism as well as the undermining of basic human rights, we are all in the same boat together after all. Show less
The European Database Directive introduced a new protection regime for database producers in 1996. This was to complement the already existing copyright protection for collections. This new sui... Show moreThe European Database Directive introduced a new protection regime for database producers in 1996. This was to complement the already existing copyright protection for collections. This new sui generis right offers protection to producers who undertake a substantial investment in the production of a database. Even though it was presented as a unique right without precedent, its scope closely resembles an intellectual property right, while its rationale __ preventing misappropriation of another__s investment __ is related to the tenet of unfair competition. The sui generis right is the main focus of this book. Its most important concepts are extensively discussed, such as the criterion of the substantial investment, the definition of the producer, and the scope of the sui generis right. For this, a comparative study is made of the literature and case law of the Netherlands, France and the United Kingdom. Particular attention is paid to the important judgments which the European Court of Justice delivered on the sui generis right in November 2004. Furthermore, consideration is given to the (re)introduction of a compulsory licensing regime to ward off information monopolies. The book ends with a conclusion which contains proposals for a review of the Database Directive. Show less
