Croatian Yearbook of European Law & Policy最新文献

{"title":"The unified patent court","authors":"Hanns Ullrich","doi":"10.1093/yel/yead007","DOIUrl":"https://doi.org/10.1093/yel/yead007","url":null,"abstract":"Abstract On 1 June 2023, the Unified Patent Court (UPC) for the settlement of disputes relating to European patents and European patents with unitary effect opened its doors as a common court of those European Union (EU) Member States that, in 2012, had joined in an enhanced cooperation in the area of unitary patent protection, and then, in 2013, entered into an ‘Agreement on a Unified Patent Court’ (UPCA) that complements their cooperation and expands it to non-unitary European patents. Although the Court’s jurisdiction is strictly limited to the two main forms of actions that may be brought in the special field of patent protection—infringement and revocation—its establishment deserves an analytical evaluation from the perspective of general European Union law because it is the first time that Member States create a common court aside of the EU’s judicial system not only for the settlement of disputes arising under their own—national or internationally uniform—legal regimes, but also for a legal regime of Union law, the unitary protection of patents. In this regard, it is not so much the sheer size of the new court that attracts attention or the economic importance of the subject matter that comes under its exclusive jurisdiction, but the many fundamental issues and controversies that accompanied its creation and that are still extensively discussed in literature. Leaving aside doctrinal problems of a proper qualification of the UPC as a common court of Member States, the main concerns relate to (i) the need for and the risks of the (over-)specialization of the UPC as a technical expert court; (ii) the legitimacy and democratic deficits of the UPC as a jurisdiction the rules and operation of which are essentially determined through self-regulation by the patent law community; (iii) the difficulties of properly qualifying the nature of the rules of substantive law of both the EU’s Regulation on unitary patent protection and of the UPCA, the ambivalence of which seemingly allowing much room for interpretation and for curtailing the reach and primacy of Union law; (iv) the related problems of adequately defining the relationship between the UPC and the Court of Justice of the EU as regards safeguarding the autonomous and uniform interpretation of Union law; and (v), more generally, the structural imbalances within the EU’s judicial system that may result from the establishment of common courts of Member States the jurisdiction of which covers the very substance of a legal regime of the Union.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135087251","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Corporate tax reform in the European Union: are the stars finally aligned?","authors":"Christiana HJI Panayi","doi":"10.1093/yel/yead006","DOIUrl":"https://doi.org/10.1093/yel/yead006","url":null,"abstract":"Abstract Are the stars finally aligned as far as corporate tax reform in the European Union (EU) is concerned? Tax reform in the EU has always been a contentious issue, as taxation was always considered one of the last bastions of national sovereignty. This article examines whether this is still the case or whether, in light of recent initiatives and proposals in this area, conditions are now ripe for comprehensive reform. The article begins by reviewing the historical trajectory of EU corporate tax law. It is shown that whilst early harmonization proposals were very ambitious, the overall constitutional set-up and the fiscal veto were not conducive to comprehensive reform. What followed these early initiatives was an era of pragmatism and slow progress, which, nevertheless, laid the foundations for important developments. Apart from the ad hoc legislative tax instruments that were agreed upon in the last 30 years to further the internal market and remove obstacles to cross-border movement, this article focused on the Commission’s ongoing work on a common tax base and consolidation, as well as other recent legislative initiatives such as the now enacted Directive on a Minimum Effective Tax Rate and the Unshell proposal. In light of these crucial developments, with all their strengths and weaknesses, it is argued that what was once considered as far too ambitious a proposal indicative of a federal Europe, now has high chances of materializing in the context of the BEFIT initiative (Business in Europe: Framework for Income Taxation). This is to be welcomed, as it is the next organic step to take in the process of EU integration. Whilst the stars may not yet be fully aligned, it is argued that what is needed at this point in time, is a change of mindset and a realization that Member States’ tax sovereignty has long been eroded.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135193521","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rescuing transparency in the digital economy: in search of a common notion in EU consumer and data protection law","authors":"Agnieszka Jabłonowska, Giacomo Tagiuri","doi":"10.1093/yel/yead005","DOIUrl":"https://doi.org/10.1093/yel/yead005","url":null,"abstract":"Abstract Transparency remains a contested concept in European Union (EU) law and policy. All the main instruments of EU consumer and data protection law require that consumers be given access to and understand certain information about their relationships with traders. Improved transparency is also proposed as a response to a variety of problems associated with digital markets, including those experienced by consumers and data subjects. At the same time, transparency is increasingly challenged as ineffective and potentially even counterproductive from doctrinal and critical scholarship alike. First, transparency is seen as inherently unable to transform the economic reality on the ground and to address the power imbalances between consumers and traders. Secondly, it is argued that acts of representation involved in transparency suffer from complexity and are prone to exploitation by the actors who engage in it. This, in turn, casts doubt on the ability of transparency to steer the behaviour of businesses and transform markets to the benefit of consumers and society. This article builds upon prior critiques of transparency and connects them with a doctrinal analysis of EU consumer and data protection law and in particular the Unfair Contract Terms Directive, the Unfair Commercial Practices Directive, and the General Data Protection Regulation. Seven different notions of transparency are identified: (i) Transparency as access to the medium over time; (ii) Transparency as presentation of information that facilitates understanding; (iii) Transparency as formulations that facilitate understanding; (iv) Transparency as non-ambiguity and logical intelligibility; (v) Transparency as the absence of deception and confusion; (vi) Transparency as completeness and specificity; and (vii) Transparency as non-arbitrariness. The article submits that the acts of representation involved in transparency are already recognized in the three legal regimes and attempts are made to leverage the mediated nature of transparency to consumers’ advantage. Crucially, existing efforts to regulate mediation and improve its quality can, nowadays, be reinforced with the help of algorithmic systems geared toward supporting consumers. Moreover, some of the deployments of transparency identified—most notably transparency as non-arbitrariness—push its outer conceptual boundaries in ways that bring transparency very close to fairness. The article ultimately questions a vision of transparency as a necessarily softer-touch protective frame, which cannot alter business conduct. The conceptual richness of transparency offers opportunities for its deployment in more disruptive ways.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135581614","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The impact of the Digital Content Directive on online platforms’ Terms of Service","authors":"Katarzyna Wiśniewska, Przemysław Pałka","doi":"10.1093/yel/yead004","DOIUrl":"https://doi.org/10.1093/yel/yead004","url":null,"abstract":"Abstract The Digital Content Directive 2019/770 (the DCD), aiming to foster the Digital Single Market and improve consumer protection, became applicable on 1 January 2022. This article presents the results of the study of 100 Terms of Service (ToS) of online platforms, conducted to evaluate the Directive’s impact. By combining black letter analysis with qualitative and quantitative empirical research, the contribution sheds new light on the Directive’s assumptions, critically assesses its logic, and makes regulatory suggestions for European lawmakers. Our central finding is that a significant number of the studied contracts (28 per cent) do not contain descriptions of the digital content offered. Many of those that do, keep the descriptions extremely vague. Hence, the central institution of the Directive—conformity with the contract—might be less valuable than the lawmakers have assumed. Even though the DCD introduces the concept of ‘objective’ conformity, we show how, in the digital environment, it might lower legal certainty, defeating one of the purposes of the Directive. Moreover, we also demonstrate how the analysed ToS often fail to meet other requirements, such as the right to retrieve one’s content or the protection from unilateral content deletion. This begs the question about the regulatory approach, the efficacy of the chosen enforcement scheme and, more generally, the enforcement schemes used throughout the EU’s private law. To remedy these problems, we suggest engaging in more empirical research when designing future measures to protect consumers online and considering supplementing the existing enforcement schemes with administrative oversight like the one in the Digital Services Act.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135980493","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The European Union’s Preferential Trade Agreements: between convergence and differentiation","authors":"Andrés Delgado Casteleiro","doi":"10.1093/yel/yead003","DOIUrl":"https://doi.org/10.1093/yel/yead003","url":null,"abstract":"\u0000 Gone are the days when tariff liberalization was the centre of the European Union’s Preferential Trade Agreements (EU PTAs). Instead, the current generation of EU PTAs manages trade from a regulatory perspective: they establish rules that apply to domestic measures. Significantly, EU PTAs deploy international standards rather than EU law to regulate trade, directly influencing the speed of regulatory convergence with its treaty partners. Though EU PTAs aim to boost trade through regulatory convergence, they also consider the specific conditions of the EU’s treaty partner. This article analyses this regulatory turn in the EU’s PTAs, its practice and its consequences regarding trade and sustainable development.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"77 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83400497","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"European Company Law in transformation—strive for participation and sustainability","authors":"Stefan Grundmann","doi":"10.1093/yel/yead002","DOIUrl":"https://doi.org/10.1093/yel/yead002","url":null,"abstract":"\u0000 European Company Law, a European Union (EU)-level company law (as ‘federal policy’), has passed the 50-year mark these years. Twenty-five of those years were dominated by a market function approach, the ‘black-box’ approach, where the company was seen from outside and guaranteeing necessary information for those outside the corporation, rational information users (namely long-term creditors and investors), was paramount. A transformation away from this approach began some 30 years ago; the last 20 years were dominated, first, by an approach that strongly increased participation and true multiple ‘voices’ in companies—as an approach meant to empower and heat up discussion, it can be termed the ‘red-box’ approach. This is an approach where more structural information and empowerment took place, and relations within the company were more in the focus of the legislature as well. The advent of new economic sociology could also be sensed, as the EU became more of a political Union or the concept of a competition of legislatures became a potential reality, such as with Centros. As a common denominator, the ‘wisdom of the crowds’ would seem to be more in the focus. The second phase of these last 20 years, primarily in the last decade, was then dominated by a fixing of certain long-term goals from the outside, fostering a goal of sustainability. Again, important general trends of theoretical thought emerged, and this phase can therefore be seen as a ‘green-box’ approach. A framework constitution of values is the aim of such an approach. This article brings together EU company law as a federal task and the development of these three phases, including the history of thought and political developments, as well as their theoretical and political underpinning. The article does this mainly for development at the EU level (ius communitatis), but also provides a link to (comparative) national developments and inspiration (ius commune).","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"78 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90884349","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Tax competition and state aid","authors":"Ruth Mason","doi":"10.1093/yel/yead001","DOIUrl":"https://doi.org/10.1093/yel/yead001","url":null,"abstract":"Abstract At the inception of a new and potentially transformative type of tax enforcement, this article reviews the goals underlying the prohibition on state aid, and, in particular, whether those goals properly encompass limitations on tax competition. To explore this question, this article examines treaty text and structure, doctrine, and policy arguments for and against using state aid to curb tax competition. It concludes that the European Commission’s expansion of state-aid doctrine to limit tax competition improperly constrains Member State tax autonomy, arrogates tax policy power to the unelected Commission, and increases legal uncertainty. This article urges the Court of Justice of the European Union to clarify that preventing tax competition is not an independent goal of state-aid enforcement, although limits on tax competition may arise instrumentally via a free-trade interpretation of the prohibition of state aid.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"264 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135916103","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Thirty years since the Maastricht Treaty","authors":"A. Tizzano","doi":"10.1093/yel/yeac008","DOIUrl":"https://doi.org/10.1093/yel/yeac008","url":null,"abstract":"\u0000 The Article analyses the importance of Maastricht Treaty thirty years after his signature, but overall the different proposal presented during the negotiation.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"134 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90395519","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"EU Private Law Injustices","authors":"M. Hesselink","doi":"10.1093/yel/yeac005","DOIUrl":"https://doi.org/10.1093/yel/yeac005","url":null,"abstract":"\u0000 This article offers a critique of injustices in European private law. It explains why the EU should be held morally responsible for the injustices created or supported by its private law. In particular, it demonstrates for several core elements of EU private law that they are unjust, because they cannot be justified with non-rejectable reasons, and insofar lead to domination by EU private law. This is the case, especially, for EU private law’s consumerism, its Eurocentrism, its constitutionalized market-functionalism, its doctrinal and judicial expert government, and its blindness towards intersectional domination. The article also critically discusses, and rejects, various theories offering blueprints for an ideal European private law system. Instead, it argues for the priority of democratic justice and for an urgent focus on salient injustices in EU private law’s theory and practice.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"81 4 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77382528","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"From ‘Non-Market Economy’ to ‘Significant Market Distortions’: Rethinking the EU anti-Dumping Regulation and China’s State Interventionism","authors":"Ming Du","doi":"10.1093/yel/yeac004","DOIUrl":"https://doi.org/10.1093/yel/yeac004","url":null,"abstract":"This article questions the consistency of the EU anti-dumping regulation with the WTO Anti-dumping Agreement. It argues that with the expiry of paragraph 15(a)(ii) on 11 December 2016, China’s WTO Accession Protocol may no longer provide the legal basis for the EU to set aside Chinese domestic prices in determining normal value of Chinese products. Moreover, given that the European Commission has consistently used costs that are not actual costs of Chinese producers in constructing normal value of Chinese products, the EU anti-dumping practice runs the risk of being inconsistent with WTO law since the WTO Anti-dumping Agreement does not allow for such flexibility when determining costs of production in the exporting country. Drawing on Jackson’s interface theory, this article further argues that the EU’s introduction of the new concept ‘significant market distortions’ to anti-dumping practices should be conceptualized as an effort to reconstitute alternative interface mechanisms when old ones are no longer applicable. The dubious legality of the EU’s new anti-dumping regulation is simply a symptom of a long-brewing tension in the multilateral trade system: how can the WTO accommodate systemic friction between heterogeneous economic models?","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"36 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87144861","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}