Maastricht Journal of European and Comparative Law

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

ISBN:: 1023-263X

Issue Number

No. 31-4, August 2024

Latest documents

Data retention in the light of copyright infringements: Protecting the status quo or seeking a third way? (Case C-470/21 La Quadrature du Net II)
In La Quadrature du Net II, the EU Court of Justice addressed – once again – the issue of the application of national retention legislation providing for the generalized retention of telecommunications data. This time, unlike in the previous cases, the problem was examined not in relation to measures used in the areas of combating serious crime or pursuing national security objectives, but in relation to counteracting online copyright infringements. Hence the case, decided by the CJEU sitting as the Full Court, concerned an important and topical issue, namely the possibility of countering mass copyright infringements in a situation where, according to a strict reading of the previous case law, the permissibility of imposing an obligation on telecommunications operators to collect information on users’ IP addresses was questioned. The LQDN II judgment – commented on by some as diverging from previous case law – is an important and necessary complement to the Court's earlier interpretation and, at the same time, a guideline on how to design retention laws to be applied not only in the area of countering copyright infringements, but also in other important areas, such as the fight against hate speech.
International human rights commitments to protect victims of domestic violence: Refugee recognition as the first step for an integrated approach under EU law in Case C-621/21, Intervyuirasht organ na DAB pri MS (women victims of domestic violence)
The judgment by the Grand Chamber of the Court of in Case C-621/21 Intervyuirasht organ na DAB pri MS case has already attracted significant attention for the finding of the Court that women victims of domestic violence can be considered as members of particular social group for the purposes of recognition of refugee status. This case note presents the facts of the case and analyses reasoning of the Court. It highlights the importance of the case both for its outcome, which has already guided subsequent findings of the Court on the refugee status of women of Iraqi origin identifying with the values of the EU, but also for placing the international human rights commitments of both the EU and its Member States at the core of the reasoning. At the same time, some contentious points of the judgment are also raised. These relate to the ‘hiding’ of the ECtHR case law in the reasoning of the Court and to the fragmented way in which international human rights obligations towards victims of domestic violence appear in other areas of EU law and case law.
European Arrest Warrants, the rule of law and communication: What future for mutual recognition?
This contribution addresses the insistence of the Court of Justice of the European Union on the two-step test in the context of European Arrest Warrants (EAWs) and focuses on the advantages this approach offers whilst acknowledging its downsides. Crucially, the Court's approach keeps the vertical and horizontal channels of communication open and is flanked by a subtle broadening of the criteria, which the requested judicial authority can take into consideration when assessing the second limb of the test. This shift provides national judicial authorities with tools to respond to rule of law violations by refusing the execution of an EAW. This move to judicial subsidiarity creates pitfalls, but the Court's focus on communication has the potential to transform the Court's initial top-down approach to mutual trust into a bottom-up approach, which could foster the emergence of, and strengthen, real trust between national judicial authorities.
Head office taxation: Why yellow cards sometimes need a VAR
The Court of Justice in Staatsanwaltschaft Berlin v. M.N. (EncroChat): From cross-border, data-driven police investigations to evidence admissibility
The ruling of the Grand Chamber of the Court of Justice of the EU (CJEU) in Case C-670/22 Staatsanwaltschaft Berlin v. M.N. addresses the realities of data-driven police investigations in the light of the Directive 2014/41/EU on the European Investigation Order (EIO Directive). In particular, it examines the cross-border, digital investigation of the encrypted communication network EncroChat and the use and sharing of intercepted telecommunication data in criminal proceedings. In doing so, the CJEU offers clarifications as to the interpretation of the term ‘issuing authority’ under the EIO Directive and the proportionality requirements for issuing an EIO, taking into account its prior jurisprudence on the implications of access to traffic and location data for the private life of the persons concerned. More importantly, this CJEU ruling takes a stand on admissibility of intercepted data as evidence in criminal proceedings, considering the technical complexity of contemporary investigation measures and the secrecy of said police methods. Overall, although this judgment seems to hold no great surprises regarding the interpretation of the EIO Directive's provisions, it underscores the important role of the national legislator and national courts in striking the right balance between rearing the rewards of data-driven policing and safeguarding defence rights.
The role of sustainability and SDGs in patent valuation
There is an urgent demand for developing and adopting environmentally sound technologies (ESTs). This article studies the existing methodologies for incorporating sustainability considerations into the complex field of patent valuation, focusing on start-ups and growth companies. Due to the agility and innovative potential, growth companies play a pivotal role in advancing ESTs, and patents serve as crucial instruments in facilitating technology transfer, provided that effective patent valuation processes are in place. The article shows the diversity of guidelines and standards available for patent valuation, highlighting that they provide valuable non-binding frameworks. However, the study reveals that most existing patent valuation standards do not explicitly address sustainability concerns, except for the World Intellectual Capital Initiative (WICI), which is actively engaged in the sustainability discourse. Overall, the challenge is how companies observe sustainability in the valuation process. The United Nations Sustainable Development Goals (SDGs) emerge as a global framework that can guide patent valuation practices. The article highlights the need for patent valuation guidelines to embrace sustainability as an integral component, ensuring that sustainability and ESTs are integrated throughout every phase of the patent life cycle. Acknowledging that start-ups and growing companies often face financial constraints and need guidance in their valuation practices is crucial.
The publicity of EU law and the privatization of EU digital regulation
The publicity of the law is a fundamental principle of EU law, but recently it has come under discussion in the case law of the Court of Justice of the EU (CJEU). This Editorial reflects on the constitutional foundations of the principle of publicity of the law in EU law, giving account of the recent controversies arisen before the CJEU in relation to soft law and harmonized standards, and of the growing tension between this principle and the rights of private regulators in the field of digital technologies.
Why the algorithmic recruiter discriminates: The causal challenges of data-driven discrimination
Automated decision-making systems are commonly used by human resources to automate recruitment decisions. Most automated decision-making systems utilize machine learning to screen, assess, and give recommendations on candidates. Algorithmic bias and prejudice are common side-effects of these technologies that result in data-driven discrimination. However, proof of this is often unavailable due to the statistical complexities and operational opacities of machine learning, which interferes with the abilities of complainants to meet the requisite causal requirements of the EU equality directives. In direct discrimination, the use of machine learning prevents complainants from demonstrating a prima facie case. In indirect discrimination, the problems mainly manifest once the burden has shifted to the respondent, and causation operates as a quasi-defence by reference to objectively justified factors unrelated to the discrimination. This paper argues that causation must be understood as an informational challenge that can be addressed in three ways. First, through the fundamental rights lens of the EU Charter of Fundamental Rights. Second, through data protection measures such as the General Data Protection Regulation. Third, the article also considers the future liabilities that may arise under incoming legislation such as the Artificial Intelligence Act and the Artificial Intelligence Liability Directive proposal.
User accounts: How technological concepts permeate public law through the EU's AI Act
This article argues that through the EU's technology regulation, technological concepts permeate legal language. Such concepts may function as transplants, even irritants, causing tensions and uncertainties. As technology regulation is increasingly horizontal, i.e. obligating private and public actors alike, these newfound legal concepts remain disconnected from established public law vocabulary and the power constellations it represents and embeds. We approach this evolution of legal language from public law perspective and concentrate on the concepts of ‘user’ and ‘deployer’ in the EU's upcoming Artificial Intelligence Act. We discuss these emerging legal concepts in relation to the rich theorizing on the concepts in human–computer interaction research. Our analysis demonstrates a discrepancy between legal and technology-oriented conceptualizations of the ‘user-deployer’. We draw three conclusions. First, the digital revolution is taking place in conceptual-linguistic practices of law, and not only when translating law into code. Second, when external concepts are appropriated into law, they are uprooted from their established habitat, which may result in unpredictability in future legal interpretation. Third, in public law, adopting the ‘user-deployer’ may have some additional challenges, as it introduces a new agent into the relationship between public authority and private entities. Simultaneously, citizens seem to be mainly excluded from the legal conceptualizing, which risks blurring traditional power constellations.
National constitutional courts’ use of the ECJ's precedents: The case study of Czechia
This article interrogates how Member States’ constitutional courts make use of the case-law of the European Court of Justice. Instead of focusing on the extreme instances of open backlash, we put forward a data-driven methodological approach to the study of Europeanization of national constitutional courts. Drawing on the use of automatic text analysis, we suggest that searching for the formal citations of the rulings of the European Court of Justice in the constitutional courts’ case-law contributes to nuanced understanding of their role within the EU. By means of a case study of the Czech Constitutional Court's case-law (more than 71 000 decisions issued between the years 2004 and 2022), we demonstrate a way to explore the so far under-researched area of EU law adjudication where the majority of strategic behaviour might be taking place.