Maastricht Journal of European and Comparative Law

Publisher:: Sage Publications, Inc.
Publication date:: 2021-09-06

ISBN:: 1023-263X

Issue Number

Latest documents

Judicial review of Common Foreign and Security Policy by the ECtHR and the (re)negotiation on the accession of the EU to the ECHR
The article addresses the issue of judicial control of the implementation of Common Foreign and Security Policy at international regional level within the framework of the relaunching of the negotiation in view of the accession of the EU to the ECHR. Considering the extent of jurisdiction of the CJEU in respect of Common Foreign and Security Policy field in the light of its case law (sections 1 and 2), it analyses the question of judicial review of Common Foreign and Security Policy within international regional justice by the ECtHR in the light of the ongoing negotiations (section 3), in the perspective of the relationship between non-national courts (section 3.A), having as background the (2013) Draft Agreement of accession (section 3.B.1). After addressing the relaunching of the negotiation procedure (section 3.B.2) and the issue of CFSP control by the ECtHR according to the recent (re)negotiation meetings (section 3.B.3), some concrete proposals, including for the redrafting of the accession agreement, will be put forward (section 3.B.4), as well as a conclusion (section 4).
May Member States’ courts act as catalysts of normalization of the European Union’s Common Foreign and Security Policy?
This article considers whether national courts may act as catalyst of normalization of Common Foreign and Security Policy, in cases on the merits of which prima facie the Court of Justice of the European Union (CJEU) does not have jurisdiction. First, regardless of the exact scope of the CJEU’s jurisdiction, this contribution surveys arguments in favour (the principle of conferral and of effective judicial protection, expression of the value of the rule of law) and against (the notion of autonomy and consistency of EU law) the jurisdiction of national courts. It concludes in favour of the former option. Second, it considers whether national courts may act as agents of ‘normalization’ of CFSP, where this word means the application of general rules of EU law to this policy even in the absence of express literal provision in the Treaty. It argues that national courts may act as catalyst for the normalization of this policy in so far as they can, through the preliminary ruling procedure, give an opportunity to the CJEU to rule on (at least some) CFSP acts.
Regressing into the right direction: Non-contractual claims in proceedings between contracting parties under Article 7 of the Brussels Ia Regulation
This case comment addresses the interpretation of ‘matters relating to a contract’ in the EU law of civil jurisdiction, contained in the Brussels Ia Regulation. Recently, this topic received renewed attention in the Wikingerhofv.Booking.com judgment of the CJEU. More particularly, the judgment addressed whether non-contractual claims in proceedings between contracting parties can be characterized as a ‘matter relating to a contract’. This seemingly trivial question has been a recurring source of trouble in the case law of the CJEU as well as national courts. The annotation will side with the approach taken in this judgment, but criticize it for taking a long way round to settling the issue.
Editorial: Discrimination in Online Advertising
Member State nationality under EU law – To be or not to be a Union Citizen?
The question of who ought to be regarded as Union citizen is a central but not an easily answered question. Drawing on an analysis of the ECJ’s case-law and the underlying constitutional set up of Union citizenship, this article argues that the notion of nationality in EU law is based on a jurisdictional conception that builds on the idea of a genuine link and a territorial link with the EU. Relying on this understanding the article assesses the peculiar cases of Germany, the UK and Denmark, establishing not only if and how Member States can reconfigure the meaning of their nationality under EU law but also highlighting that the notion of nationality as a peremptory marker for Union citizenship is defined within the constitutional realm of EU law. The understanding that Member States are free to define their nationality within EU law, hence, is a misplaced overstatement of sovereignty. Against this backdrop the last part of the article turns to the case of Latvian non-citizens, arguing that Latvian non-citizens, who are generally not regarded as Union citizens, have been Union citizens all along.
Ships, sovereign immunity and the subtleties of the Brussels I regulation: Case C-641/18 LG and others v. Rina SpA, Ente Registro Italiano Navale: Ships, sovereign immunity and the subtleties of Brussels I: Rina
More than 1000 passengers on a Panamanian-registered ferry drowned in the Red Sea. Some survivors and relatives of some of the victims sued the classification and certification ship society which had surveyed the ferry. Relying on the Brussels I Regulation, the plaintiffs sued the defendants in the latter’s seat (in Italy). The defendants claimed sovereign immunity as they were acting on behalf of Panama (that is, the flag state). The CJEU ruled that, generally, Article 1(1) of the Regulation means that an action for damages, brought against private-law corporations engaged in the classification and certification of ships on behalf of, and upon delegation from, a non-EU Member State, falls within the concept of ‘civil and commercial matters’ in the Regulation. The defendants were therefore not immune. The CJEU qualified its ruling by saying that this is conditional on the activity being not exercised under ‘public powers’ (within the meaning of EU law) because then it would then be a sovereign and not a commercial activity. The CJEU thereby ruled that the customary public international law principle that foreign states have immunity from jurisdiction does not preclude an EU Member State court seised of a dispute from exercising jurisdiction under the Regulation in these circumstances.
Can Kosovo be considered as a ‘third country’ in the meaning of EU law? Case note to Spain v. Commission
The question of the recognition of the independence of Kosovo has been a dividing factor among Member States for more than a decade. Never before, however, had it led to an action for annulment before European courts. In Spain v. Commission, the Kingdom of Spain challenged the validity of a Commission decision providing for the participation of Kosovo’s national regulation authority in the Body of European Regulators for Electronic Communications (BEREC). The General Court ruled that the Commission could consider Kosovo as a third country in order to provide for the participation of its national regulation authority in BEREC. The Commission could also rely on the Stabilisation and Association Agreement concluded between the EU and Kosovo in order to enhance such cooperation. This judgment is of particular importance in terms of both EU-Kosovo relations and participation of third countries in EU agencies.
Legal constants and the ‘constant’ outside of the law: Mobile payments in comparative perspective under European Union law
This article aims to determine whether mobile payments can be characterized by a legal constant, or common legal meaning. Indeed, mobile payments are a new form of payment system that is shaping the new economy of financial markets. Generally, they are part of the Fintech phenomenon, and they are specifically regulated in Europe, inter alia, under the Payment System Directive and the Regulation on Multilateral Interchange Fees. Nonetheless, those secondary hard law acts do not include any compulsory legal definition for mobile payments, which remain undefined and conventionally identified as means of proximity or remote payments. With that in mind, the article introduces for the first time in comparative law a new concept that aims at discovering meanings rather than similarities and differences that are irremediably limited to a merely descriptive function. To this end, the article argues that each time the constant outside of the law is subsequently recognized as ‘legal’, it becomes a legal constant, which is in turn capable of effectively revolutionizing the same study of mobile payments as well as of comparative law tout court.
Comparative law, literature and imagination: Transplanting law into works of fiction
This paper discusses comparative law and literature as an approach to studying law culturally, addressing how the study of literature from the standpoint of comparative law identifies one way of coding legal cultural knowledge in literature. The interaction between the worlds of law and culture is addressed through imaginary legal transplants. By transplanting legal ideas from the real world to literature, authors imagine worlds as they construct legal meanings in their storytelling. Whereas a legal transplant is a notion filled with problems and paradoxes, in literature it is far less problematic. Imaginary legal transplants are different from real-world transplants because in the real world legal diffusion takes place in mutant form, transforming transplants into irritants. The legislator never controls the world completely, whereas in fictional literature the creator of a written work controls the created world. In this sense, it is argued, imaginary legal transplants are perfect transplants.
Sale of goods made to the consumer’s specifications at a trade fair: ab initio no right of withdrawal: Case C-529/19 Möbel Kraft, EU:C:2020:846
Within the European Union, consumers concluding contracts with traders either at a distance or outside the traders’ premises are generally entitled to withdraw from the contract. However, in certain cases, enumerated in article 16 of the Consumer Rights Directive, the right of withdrawal does not apply. One of the exceptions to the right of withdrawal concerns contracts relating to the supply of goods that are made to the consumer’s specifications or that are clearly personalized. In Möbel Kraft, the ECJ decided that a trader may rely on this exception from the outset and not only after he has begun to produce the goods.