Article, Case note

The Withdrawal of the Notification under Article 50, or How to Stop Brexit

The Editors

The United Kingdom is due to leave the European Union on 29 of March 2019. On what terms it will do so, it is yet uncertain when less than three weeks are left before Brexit day.

On Tuesday next week, 12 March 2019, the UK Parliament will cast a vote on the new deal reached by Theresa May and the EU – ‘new’ because the parties re-open the negotiation talks after the UK Parliament had rejected the previous deal on 15 January 2019, inflicting a historic defeat to Theresa May.

On 12 March, the deal with the EU on the conditions for leaving the European Union may either be approved or rejected. If it is rejected, the conservative party has promised to the Parliament the opportunity to vote on whether to go ahead in just over three weeks’ time without any kind of negotiated deal; or whether to ask the EU to push back Brexit day in order to extend negotiations. In the latter case, it is not excluded that the UK will hold new elections, a new referendum, or even eventually halt the Brexit process. We dedicate this blog post to the European Court of Justice’s decision on whether the UK can withdraw the notification of the intention to leave given in March 2017.

The Wightman case originates from a request for a preliminary ruling made by the Court of Session –  the Scottish Supreme Civil Court – to the European Court of Justice in October 2018. The case in front of the referring court concerned a petition for judicial review brought by some Members of the Scottish and the English Parliaments before the Scottish Court on the 19th December 2017. The referring Court asked the CJEU whether the notification to withdraw from the EU sent to the European Council by the UK government on the 29th March 2017 could be unilaterally revoked by the government itself before the expire of the 2 years period envisaged in article 50(3) TEU.

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Article, Case note

Is Uber a taxi service? Socio-legal reflections on the ECJ decision and beyond  

Serena Natile – Postdoctoral Researcher at King’s College London and Associate Lecturer at Kent Law School, University of Kent

Just before the holiday break, the Court of Justice of the European Union (ECJ) in its first ruling on the gig economy decided that the global digitally-enabled taxi company, Uber, is a transportation and not an information service and can be regulated by Member States (MS). This judgement has raised important questions regarding the regulation and social implications of digital platforms according to EU law and beyond. While the ECJ’s decision created more grounds to protect workers’ rights in the sharing economy and contributed to the debate on the allocation of EU/MS competences within the digital domain, it also offers useful insights to reflect on the social role of digital platforms more generally.

Continue reading “Is Uber a taxi service? Socio-legal reflections on the ECJ decision and beyond  “

Case comment, Case note

‘One for all, all for one’: the sweeping notion of defects in product liability case Boston Scientific

Luigi Lonardo, LLM in EU Law, King’s College London

The Court of Justice of the European Union’s (CJEU) first ruling on what is a ‘defective product’[1] will likely not be the last one, since it was highly ambiguous to say the least. The judgement is doomed to have broad repercussions indeed on European product liability litigation and consumer protection law.

The Court found that, with reference to medical devices implantable in the human body, “a product is defective within the meaning of Article 6 of Directive 85/374[2] (“the Directive”) “if products belonging to the same group or forming part of the same production series have a potential defect. In other words, there is no need to prove the defect in each individual case, if other products in the same batch have a potential defect. Moreover, the Court stated, under Article 9 of the same Directive, the producer is liable for the damages caused by a surgical operation necessary to replace a defective product.

Even if limited to implantable medical devices, such a definition may nonetheless surge compensation claims against producers and insurers for two reasons. First it simplifies what the claimant has to prove. Second it resorts to ill-defined concepts that may lead national courts to request further clarifications and plaintiffs to try action by taking advantage of the indiscriminate wording of Boston Scientific.

Continue reading “‘One for all, all for one’: the sweeping notion of defects in product liability case Boston Scientific”

Case note

A First Step towards the Localisation of the Harmful Event in Financial Torts? Case Comment on C-375/13 Kolassa v Barclays Bank

Giorgio Risso
PhD Candidate, University of Genoa, Department of Law – Visiting PhD student, King’s College London, The Dickson Poon School of Law 

Introduction

On 28 January 2015, the Court of Justice of the European Union (CJEU) decided on the application of EU conflict of jurisdiction rules over prospectus liability.[1] More specifically, the judgment concerns the application of Articles 5(1)(a) and (3) and 15(1) of the Brussels I Regulation.[2] This comment will only look at the issues related to Art. 5(3), since the correct localisation of harmful events in financial torts is at the heart of recent and intensive discussions (also from the perspective of a recast of Rome II Regulation). Continue reading “A First Step towards the Localisation of the Harmful Event in Financial Torts? Case Comment on C-375/13 Kolassa v Barclays Bank”

Case comment, Case note

Case C-435/12 ACI Adam v Stichting de Thuiskopie

Justin Koo, PhD Candidate, The Dickson Poon School of Law, King’s College London

The claimants in this case were importers of data media storage devices such as CDs. By virtue of Article 16c(2) of the Auteurswet (Dutch copyright law), the claimants were responsible for the payment of remuneration to authors. This payment has the effect of offsetting the costs of the private copy exception under Article 16b given that the imported media storage devices facilitate acts of private copying. However, the claimants contended that the remuneration payable to the defendants incorrectly takes into account copying from unlawful sources. In other words, the importers were being forced to pay compensation for illegal acts that should not fall within the private copy exception under Article 16b.

On appeal to the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), the case was stayed and three questions referred to the Court of Justice of the European Union (CJEU).[1] In short, the first question asked whether private copying from unlawful sources fell within the scope of the private copy exception under Article 5(2)(b) of the Information Society Directive. In terms of the second question, the Dutch Supreme Court essentially asked what the role of the three-step test under Article 5(5) of the Information Society Directive is. The CJEU in addressing both questions together, posed the question whether reading Article 5(2)(b) and Article 5(5) of the Information Society Directive together would preclude national legislation that does not distinguish between the sources (lawful or unlawful) from which a private reproduction is made. With this in mind, the significance of the case was not about the determination of the levy to be paid but rather, the scope and application of the private copy exception.

In simple form, Article 5(2)(b) does not expressly address whether the source of the reproduction must be lawful in order to come within the exception. As such it was unclear whether copying from unlawful sources could also be included in the scope of the private copy exception. From a preliminary perspective, the exceptions and limitations provided by Article 5 of the Information Society Directive must be interpreted strictly following the decision in Infopaq.[2] Furthermore, their implementation into domestic law must be in accordance with the three-step test, as provided under Article 5(5) and emphasised under Recital 44 of the Information Society Directive. Following this established reasoning, the interpretation of Article 5(2)(b) must be understood to preclude the making of private copies from unlawful sources.

In respect to the strict interpretation of the exceptions and limitations, this can be aligned to the aim of establishing a smooth functioning internal market. Therefore, adopting a broad interpretation of the private copy exception as in the case of Article 16c of the Dutch copyright law could be detrimental to the proper functioning of the internal market.  This is because it could allow Member States to have varying forms of copyright protection not envisaged by the Information Society Directive. Furthermore, tolerating private copies made from unlawful sources would run counter to the Information Society Directive’s aim to establish a high level of protection and foster creation and investment in copyright works. Moreover, it would likely influence further acts of piracy and counterfeiting. This is because the toleration of copies made from unlawful sources could be indirectly seen as toleration of the unlawful sources.

In terms of the application of the three-step test, making private copies from unlawful sources would fail that test in at least two regards. Firstly, allowing private copies to be made from unlawful sources would conflict with the normal exploitation of the work because persons would be inclined to make a personal copy from a cheaper illegitimate copy rather than from a legal copy. This could negatively impact on the demand for legitimate versions of authors’ works. Secondly, tolerating private copying from unlawful sources may prejudice the legitimate economic interests of the author because he would be effectively unable to rely on his exclusive right of reproduction in cases of private copying. In other words, authors would be forced to tolerate the reproduction infringements that accompany private copying even where the source is an unlawful one. Thus allowing, private copying from unlawful sources would undermine the effectiveness of the exclusive right of reproduction.

With this in mind, Articles 16b and 16c of the Dutch copyright law have to distinguish between the lawful and unlawful sources of private copying in order to be compliant with Article 5(2) (b) of the Information Society Directive. The implication of this is that the inclusion of compensation for copying from unlawful sources would not be fair on the grounds that copying from unlawful sources does not fall within the scope of the private copy exception.[3] As such the claimants were right in contending that the private copy levy they were being charged was unfair and excessive.

What Now

From this case it is made clear that the private copy exception only applies to copies made from lawful sources. Therefore, making copies from unlawful sources amounts to an infringement of the exclusive right of reproduction provided by Article 2 of the Information Society. However, the more pertinent lessons to be learned from this case relate more generally to the implementation of the exceptions and limitations found under Article 5 of the Information Society Directive. It would appear that Member States do not have much leeway in transposing and interpreting the twenty-one exceptions and limitations provided. Member States do not have the freedom to expand the scope of the exceptions provided. Rather, they only have the freedom to restrict the scope of the exceptions especially in regards to new technologies.[4] Furthermore, there must be coherent and consistent application of the exceptions across Member States. As a result, it can be inferred that the wording of the exceptions provided under Article 5 are not just prototypes but perhaps ready-made provisions to be implemented verbatim.

On the one hand this strict interpretation may be good in terms of legal certainty. However, from a different perspective this development of narrow exceptions may be cause for concern given the broad and far reaching interpretations given to the exclusive rights.

 


[1] Only the first two questions are looked at in this article.

[2] Case C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009]

[3] This position was suggested in the earlier Advocate General Opinion of Trstenjak on Case C-467/08 Sociedad General de Autores y Editores (SGAE) v Padawan SL [2010] para 78

[4] See Recital 44 of the Information Society Directive