This article analyses the judgments of the Court of Justice of the EU (CJEU) concerning Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. In total, thirty judgments the CJEU delivered between 2010 and 2019 in the field of consumer loan and borrowing agreements (mainly loans in Swiss francs or loans indexed in this currency) were selected for analysis. In the given period, the Tribunal significantly expanded its case law on unfair terms in consumer contracts. In the article the author analyses the position of the CJEU with respect to the following issues: the durability of a loan agreement, the scope of possible ex officio powers, the scope of an admissible intervention of national courts in the content of a consumer agreement, the conditions for admissibility of replacing unfair contractual clauses with national provisions and the importance of pre-contractual information in the case of credit agreements. The manner in which the CJEU interpreted the concept of the main subject of the contract was examined as well. In the summary, the author commended the CJEU’s care for the uniformity of case-law and drew attention to the main public-law purpose of the Court’s activity, which is to ensure that the use of unfair contractual clauses in commercial transactions is abandoned. Further, the author noted that the limited knowledge of domestic legal orders constitutes a significant barrier to the efficient communication of the Court of Justice with national courts. This, in turn, imposes increased requirements on the referring courts as regards reliable and loyal cooperation with the Court.
The article focuses on the recent jurisprudence of the Court of Justice of the European Union in the context of the national criminal laws of the Member States, concerning the scope of application of the Charter. Drawing conclusions from this jurisprudence the Author answers the question when the Member State is 'implementing Union law' in the meaning of Article 51(1) of the Charter in the criminal law context. It is considered that Member States implement Union law when interpreting framework decisions (Lanigan, JZ, Vilkas), when assessing the conformity of the national measures with framework decisions (Jeremy F., Radu), when executing judgements in the framework of the mutual recognition (Aranyosi and Caldararu) and when assuring the effectiveness of EU law by enacting criminal sanctions (Tarrico). In addition, in some situations Member States may be considered to be implementing Union law while enacting national measures which may affect the rights derived from Union law (Delvigne). It is assumed in the article that CJEU is often called to strike the fair balance between the different (and sometimes diverging) interests of three categories of actors: interests of individuals (to have their fundamental rights protected), interests of Member States (to exercise ius puniendi) and interests of the European Union as a whole (to ensure effectivess of EU law).
The author of the article refers to two judgements of the Court of Justice of the European Union, which relate to the principle of the reversal of the burden of proof in anti-discrimination cases. She focuses on the facts, from which it may be presumed that there has been discrimination. It cannot be ruled out that a defendant’s refusal to grant any access to information may be one of the factors to take into account in the context of establishing facts from which it may be presumed that there has been direct or indirect discrimination (C-415/10). Public statements ruling out the recruitment of a footballer presented as being homosexual are considered to be “the facts from which it may be presumed that there has been discrimination, even though they come from a personpresenting himself and being perceived in the media and among the general public as playing a leading role in that club without, however, necessarily having legal capacity to bind it or to represent it in recruitment matters (C-81/12).
EN
The author of the article refers to two judgements of the Court of Justice of the European Union, which relate to the principle of the reversal of the burden of proof in anti-discrimination cases. She focuses on the facts, from which it may be presumed that there has been discrimination. It cannot be ruled out that a defendant’s refusal to grant any access to information may be one of the factors to take into account in the context of establishing facts from which it may be presumed that there has been direct or indirect discrimination (C-415/10). Public statements ruling out the recruitment of a footballer presented as being homosexual are considered to be “the facts from which it may be presumed that there has been discrimination, even though they come from a person presenting himself and being perceived in the media and among the general public as playing a leading role in that club without, however, necessarily having legal capacity to bind it or to represent it in recruitment matters (C-81/12).
The main item of the visit of the NIK President to Luxembourg was a meeting with President of the European Court of Auditors Vítor da Silva Caldeira. The heads of the two institutions discussed possibilities to extend cooperation between NIK and the European Court of Auditors (ECA). President Kwiatkowski had also a meeting with Polish people employed at the ECA and with representatives of the Court of Justice of the European Union.
Private international law continues to play an important role in legal relations between entities from EU Member States. In a situation of progressive integration, where substantive and procedural private laws of the Member States are not unified, private international law is necessary to the functioning of an area without internal borders. Without doubt, contemporary private international law is subject to enormous transformations under the influence of EU law. First of all, this branch of law, which is traditionally the domain of national law, becomes EU law, so autonomous national regulations become less important, and the Member States transfer their competence to regulate private international law to EU institutions. As it is in other areas of law, including those where Member States retain their authority to autonomously regulate private international law, EU law affects such regulations by introducing new solutions that Member States subsequently incorporate in their internal regulations.
Free movement of workers is one of the most important fundamental right, which results from the membership in the European Union. This right includes in particular : the right to apply for the offers of employment in the other EU states; the right of free movement for the purposes of seeking work; the right of residence; the right to stay in the other EU state after the termination of labour contract. According to European Union law, mention rights belongs not just to employees, who are the citizens of the European Union, but in limited range also to their family members. The exemptions to the right of free movement are rather limited. The aim of the presented contribution is to describe the essence of the right of free movement of workers in the European Union mainly in the light of the relevant judicial decisions of the Court of Justice of the European Union.
The paper is focused on discussing grounds for restricting the freedom of establishment as settled by the CJEU in C-55/94, Gebhard. The analysis shows that the possibility of imposing restrictions on economic activity should be carefully examined at the stage of adoption of national law, as it falls to the Member State to prove that national provisions meet conditions laid down in the EU legislation and the CJEU case law.
The opinion supports the Court’s decision that a different treatment of digital books supplied electronically and books supplied in tangible media is sufficiently justified and does not infringe the rule of neutrality and the rule of equal treatment. The judgement argues that to allow the Member States to apply for a diminished VAT rate to electronically supplied digital books would hamper the consistency of the Union’s aim to exclude all electronic services from the category which is subject to a diminished VAT rate. According to the author of the opinion, in the current state of matters, states are not legally allowed to engage in legislative activities with an aim to modify the way of taxation of e-publications
In this article, the author provides an analysis of judicial practice of constitutional courts in EU Member States in relation to their use of preliminary questions. She declares that, in the context of taking position concerning their own status under Article 267(3) TFEU, constitutional courts of Member States may be divided into four categories. The first category is composed of those courts which have made at least one reference for a preliminary ruling, thereby recognizing themselves as courts within the meaning of Article 267. The second category consists of courts which, initially, explicitly considered that they didn’t match the definition of a court under Article 267, established by the Luxembourg Case Law and, then, changed their position . The third category is made up of courts which, even if recognizing themselves as courts within the meaning of Article 267(3) TFEU, do not adopt the procedure for preliminary ruling in practice. The fourth group are those constitutional court which have not taken clear position on this issue. In the article, a narrow definition of a counstitutional court is used. According to this definition a constitutional court is a separate and independent State authority whose main function is to review the constiutionality of laws. This means that, in that sense, only courts and tribunals functioning within the system of centralized review of the constitutionality of laws may be considered as constitutional courts. The author argues that differences in the positions of individual constitutional courts on making reference for preliminary ruling result not only from their attitude to the relation between the constitutional court and the Court of Justice, which means the defence of law to the "last word" or a strongly co-operative attitude to the Court of Justice. They are also a consequence of the diversity of the systems for review of the constitutionality of laws in different Member States. The latter reason is especially important when considering the individual elements of the definition adopted in the Court of Justice case-law. The question of whether the constitutional courts of the Member States are courts within the meaning of Article 267(3) TFEU, has a significant impact on shaping current and future relationship between the national constitutional legal system and the Court of Justice. When formulating the criteria for the definition of the court under Article 267 TFEU, the Luxembourg Court does not state that any constitutional court, regardless of its location within the system of State bodies of the Member State concerned, is the court of last resort within the meaning of art. 267 TFEU. However, accepting references for preliminary ruling from all national constitutional courts that have decided to make such reference, the Court not only approves, but also encourages other constitutional courts to take action to this aim. The concept, well established in the jurisprudence of the ECJ (Court of Justice), of state liability for failure by the national court of last instance to make reference for a preliminary ruling, pose a warning to those constitutional courts that explicitly deny the possibility of using Article 267 TFEU, or , even if recognizing themselves as a court within the meaning of Article 267(3), do not make reference for preliminary ruling when the opportunity to do so arises. The author notes that a diverse practice of constitutional courts of Member States in the use of the preliminary ruling procedure should not necessarily be judged negatively. Certainly, the Court of Justice will strive - as much as possible - to standardize this practice. Consistent application of Article 267 TFEU is part of a broadly defined concept of homogeneity in the application of European law by national courts. However, differences in attitudes of individual constitutional courts do not merely result from a fear of procedural submission to the Cour of Justice, but is deeply rooted in the constitutional traditions of the country concerned, the role of the Constitutional Court in the system of government, the scope of its cognition and modes for initiating proceedings before that body, should be allowed. For since there is no single model of constitutional justice within the EU legal space, differences in defining by individual constitutional courts of their role in creating procedural dialogue with the Court of Justice are its natural consequence.
The paper is devoted to the methodological aspects of research on the impact of the case law of the Court of Justice of the European Union (CJEU) on the passing of Polish tax law. The text indicates that rulings of the CJEU can have a direct influence on the national legal system when the ruling concerns a given provision of national law, or an indirect influence when the ruling concerns a similar provision in the national law or in the law of other states. The conducted research is based on the assumption that although the effects of CJEU rulings in principle affect the sphere of law application, they also have a significant impact on the passing of Polish tax law. Therefore, the rulings of the CJEU relating to the provisions of Polish tax laws are examined. As a result of the analysis, judgments which have a direct impact on Polish tax law are selected. The research described in the text shows that these judgments were issued after the proceedings initiated by the Commission and following requests submitted to the CJEU by a national court to give a preliminary ruling.
PL
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.
The Copyright and Related Rights Act introduced the possibility of demanding double and triple of the license fee in case of copyright infringement. This solution has aroused many reservations in doctrine and case-law, because it raised doubts whether it is a punishment or just compensation for the violation. This article presents the views of the Constitutional Court and the Court of Justice of the European Union, in order to try to resolve the doubts as to the nature of the institution of lump-sum compensation in copyright law. On the basis of two fundamental judgments authors try to show that the current legal regulations are inappropriate and should be changed.
Creation of the European Public Prosecutor’s Office was from its very beginning accompanied by a wide-ranging debate regarding the most challenging issues, one of them being judicial review of its acts. This article deliberates on several groups of these acts and their review by either national courts or Court of Justice of the European Union. Where appropriate, in analyses their review in relation to the Slovak Republic. As a conclusion, it offers several considerations as to the Member States’ obligation to provide for effective judicial protection.
The aim of this article is to present the basis of the implication of powers of international organizations. This topic is not only of great interest and import from the point of view of the theory of international organizaizations, but also from that of the practice of international organizations, particularly important institutions of international cooperation. The author discusses the nature of the basis for such implication before then examining the implication of powers within the context of international organizations’ expressly granted powers.
The Treaty of Lisbon has introduced some major structural changes within the European Union, one of which was the abolition of its traditional legal architecture: the three-pillar structure. In the first part of the article, the author presents the issue of the Court of Justice’s jurisdiction in the former third pillar and highlights its significant limitations. In this context, the provisions of the Treaty of Amsterdam on the Area of Freedom, Security and Justice (AFSJ) are analyzed. Secondly, the author emphasizes that, in the light of the Treaty of Lisbon, the AFSJ is realized through a variety of European Union instruments. As the jurisdiction of the Court of Justice covers all EU law, cooperation within the AFSJ falls under its competence. Finally, the author underlines some exceptions to this rule.
The Treaty of Lisbon has introduced some major structural changes within the European Union, one of which was the abolition of its traditional legal architecture: the three-pillar structure. In the first part of the article, the author presents the issue of the Court of Justice’s jurisdiction in the former third pillar and highlights its significant limitations. In this context, the provisions of the Treaty of Amsterdam on the Area of Freedom, Security and Justice (AFSJ) are analyzed. Secondly, the author emphasizes that, in the light of the Treaty of Lisbon, the AFSJ is realized through a variety of European Union instruments. As the jurisdiction of the Court of Justice covers all EU law, cooperation within the AFSJ falls under its competence. Finally, the author underlines some exceptions to this rule.
The Supreme Court ruled on the legal consequences of the judgment of the Court of Justice of the European Union in Case C-502/19 concerning Mr Oriol Junqueras – the supporter of the independence of Catalonia convicted of sedition and misappropriation of public funds. Mr O. Junqueras was elected Member of the European Parliament while he was in provisional detention, but after the trial stage of the criminal proceedings brought against him had been opened. The CJEU judgment concerned the scope of the immunity enjoyed by MEPs. The Supreme Court ruled, in accordance with the CJEU interpretation, that Mr Junqueras enjoyed the immunity. However, the prison sentence passed on him deprived him of his MEP status and therefore a request to waive the immunity in this particular case was not applicable.
The aim of this article is to present the main aspects of limitations to the implied powers of international organizations. The author discusses the most important case law and the position on this topic presented, in particular, by the International Court of Justice. He points to the most salient categories in the catalogue of the limits of implied powers of international organizations.
This article seeks to explore whether the EU system of fundamental rights protection allows room for constitutional pluralism. By looking at recent developments in the case law of the Court of Justice of the European Union (the Court of Justice), it is submitted that the Court has answered that question in the affirmative, thereby respecting the diversity of the cultures and traditions of the peoples of Europe as well as their national identities. The application of the Charter does not rule out a cumulative application of fundamental rights. That being said, pluralism is not absolute, but must be weighed against the indivisible and universal values on which the European Union is founded. Logically, the question that arises is how we order pluralism. In this regard, I shall argue that it is not for the Court of Justice to decide when an EU uniform standard of fundamental rights protection is to replace (or coexist with) national standards. That decision is for the EU political institutions to adopt, since they enjoy the necessary democratic legitimacy to determine the circumstances under which the exercise of a fundamental right is to be limited for reasons of public interest. However, this deference to the EU political branches does not mean that EU legislative decisions are immune from judicial review. On the contrary, cases such as Schwarz and Digital Rights demonstrate that the Court of Justice is firmly committed to examining whether those legislative choices comply with primary EU law, and notably with the Charter. In this regard, when interpreting the provisions of the Charter, the Court of Justice – in dialogue with national courts and, in particular, constitutional courts – operates as the guarantor of the rule of law within the EU, of which fundamental rights are part and parcel. It is thus for those courts to make sure that each and every EU citizen enjoys a sphere of individual liberty which must, as defined by the Charter, remain free from public interferences.
The paper analyses and evaluates the linguistic policy of the Court of Justice of the European Union against the background of other multilingual courts and in the light of theories of legal interpretation. Multilingualism has a direct impact upon legal interpretation at the Court, displacing traditional approaches (intentionalism, textualism) with a hermeneutic paradigm. It also creates challenges to the acceptance of the Court’s case-law in the Member States, which seem to have been adequately tackled by the Court’s idiosyncratic translation policy.
JavaScript is turned off in your web browser. Turn it on to take full advantage of this site, then refresh the page.