Maastricht Journal of European and Comparative Law

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• 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.

• 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.

• 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.

• 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.

• 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.

• OP v. Commune d’Ans: When equality, intersectionality and state neutrality collide

  In OP v. Commune d’Ans, the Court of Justice of the European Union (CJEU) held that exclusive neutrality policies in public administrations do not constitute indirect religious discrimination provided that the policies are appropriate, necessary and proportionate in light of the context and interests at stake. This is the first headscarf case concerning a public administration. Consequently, the state neutrality principle was of importance in this judgment. Additionally, OP v. Commune d’Ans reawakened the urgent question of intersectional discrimination as the CJEU was asked whether exclusive neutrality policies constitute indirect gender discrimination, seeing as they disproportionately affect women. In Parris, the CJEU rejected the possibility of acknowledging intersectional discrimination. Though headscarf cases raise the intersectionality question, the CJEU has not revisited it. This case note discusses how while the CJEU managed to accommodate different iterations of the state neutrality principle by introducing a margin of discretion for diverse neutrality policies in OP v. Commune d’Ans, it fell short in safeguarding the general framework for equal treatment by disregarding how the conceptualization of state neutrality also impacts gender equality. A different reading of Directive 2000/78 that foregrounds this instrument's connection to the EU's gender equality directives would have enabled such an intersectional approach.

• 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.

• 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.

• Grand confusion after Sanchez v. France: Seven reasons for concern about Strasbourg jurisprudence on intermediaries

  The latest Grand Chamber decision of the European Court of Human Rights in Sanchez v. France makes the previous Delfi test absolutely unpredictable. This article explains why the uncertainty now concerns almost every single aspect of this test, and why case law hardly offers any guidance on the most basic questions. It is argued that with Sanchez, the Strasbourg case law on liability for the speech of others online officially descended into chaos without a proper sense of direction. Grand confusion about Sanchez now has the potential to threaten legal certainty introduced by EU law, as illustrated by its application in Zöchling v. Austria. Despite the Court's proclaimed deference to national law and increased use of the subsidiarity principle, it is striking that democratically adopted European legislation about digital services has been ignored for so long in Strasbourg. Sanchez now raises a serious prospect that the ECtHR is on a collision course with the EU's newly adopted legislation, the Digital Services Act, that builds on the last 20 years of rules.

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