scholarly journals THE PATENTABILITY OF BIOTECHNOLOGICAL INVENTIONS IN THE EU: AN IMPACT ON THERAPEUTIC PRACTICE

2020 ◽  
Vol 73 (8) ◽  
pp. 1747-1751
Author(s):  
Tetyana V. Komarova
Keyword(s):  
Legal Protection ◽  
Embryonic Cells ◽  
Basic Principles ◽  
Therapeutic Practice ◽  
Court Of Justice ◽  
European Regulatory ◽  
Definition Of ◽  
Therapeutic Activities ◽  
Biotechnological Inventions ◽  
The Eu

The aim: To identify the spheres in which it is forbidden to patent the results of medical researches and as a consequence there is no legal protection of biotechnological inventions. Materials and methods: The research material is a modern European regulatory framework that establishes the basic principles for patentability of biotechnological inventions. The methods of information retrieval, analysis, systematization, and generalization were used in this article. Conclusions: The Court of Justice has categorically stated that inventions that use human embryonic cells cannot be used for industrial or commercial purposes and therefore cannot be patented. In connection with this prohibition, the Court of Justice provided a unified definition of “embryo” and determined that it could be considered a dividing human egg, but only if it had a real ability to develop into a human. That is, the determining factor is not the beginning of the process of cell proliferation, but their real ability to become human. These decisions have become crucial for the development of research and the use of their results in therapeutic activities in the EU.

Patently Unsatisfactory?: Community Legislative Competence and the ECJ Biotech Decision

2001 ◽  
Vol 2 (18) ◽  
Author(s):  
Malcolm MacLaren
Keyword(s):  
Legal Protection ◽  
Power Sharing ◽  
European Court Of Justice ◽  
Good Opportunity ◽  
Court Of Justice ◽  
European Court ◽  
Wide Range ◽  
Legislative Policy ◽  
Biotechnological Inventions ◽  
Community Directive

On 9 October 2001, the European Court of Justice dismissed (1) a challenge by the Netherlands with the support of Italy and Norway against the Community Directive on the legal protection of biotechnological inventions. (2) Although the Biotech Directive relates to a wide range of public concerns and the Application for its annulment was based on a half-dozen different pleas, the following article will focus on the case as it relates to European Community treaty limitations. It will critically examine the perspectives on the principles of harmonisation and subsidiarity presented in the Application, the Advocate General's Opinion and the Court's Judgment within the broader context of the Community/Union's past and future development. The examination will reveal that in this case the Court has foregone a good opportunity to delimit 'positive integration'. (3) It could have made an important contribution to the on-going discussion about power-sharing between the national and supranational levels. While the judgment does strongly affirm the positive integration paradigm, the margins of the EU's legislative policy competences remain blurred due to its oft-opaque reasoning. The judgment raises, directly and indirectly, as many questions as it answers.

Definition of “Waste” in Cross-Border Context: Un-Typical Story of TPS-NOLO (Geobal)

2020 ◽  
pp. 1-15
Author(s):  
David Hadrousek
Keyword(s):  
Member State ◽  
European Commission ◽  
Cross Border ◽  
Court Of Justice ◽  
Definition Of ◽  
The Eu ◽  
As If

The boundaries of EU waste legislation are drawn by the definition of “waste”. This is also true of the Waste Shipments Regulation. What if the authorities of dispatch and destination disagree on the classification of a particular substance? A recent judgment of the EU Court of Justice shows that the rule according to which, in case of such a disagreement, the substance “shall be treated as if it were waste” is in the end of limited value. There is no way the European Commission or the Member State of (typically) destination can win their case on this basis.

Where Next After Coman?

2019 ◽  
Vol 21 (1) ◽  
pp. 117-139
Author(s):  
Amanda Spalding
Keyword(s):  
Case Law ◽  
European Convention ◽  
The European Union ◽  
Current Position ◽  
Court Of Justice ◽  
Form Part ◽  
Recent Developments ◽  
Definition Of ◽  
The Impact ◽  
The Eu

Abstract This article considers the impact of the recent judgment of the Court of Justice of the European Union in Case C-673/16 Coman and Others in which same-sex marriages where found to fall under the definition of ‘spouse’ in the Citizenship Directive. In light of recent societal and case law developments in Europe it is possible that Coman may come to be an important foundational case which will form part of the groundwork for the CJEU to advance the rights of unmarried couples in the EU migration context. This article examines the current position of unmarried couples (including registered or civil partners) under EU migration legislation as well as recent developments under the European Convention of Human Rights to argue that there are clear indications that EU migration laws need to be adapted to better suit a wider range of relationships than marriage.

The German Way of Dealing with “The Tragedy of the Anticommons” – Purpose-Bound Protection for Product Patents on Genetic Information in Germany

2005 ◽  
Vol 2 (5) ◽  
Author(s):  
Niclas Kunczik
Keyword(s):  
Patent Protection ◽  
Patent Application ◽  
Legal Protection ◽  
The Political ◽  
The European Union ◽  
Gene Patents ◽  
Human Dna ◽  
Court Of Justice ◽  
European Court ◽  
Biotechnological Inventions

AbstractThe phenomenon of “the tragedy of the anticommons”Making decisions in the European Union and transforming them into legal instruments can sometimes become a life-task. Although it took a whole decade to adopt the European Communities “Directive 98/44/EC of the European Parliament and the Council of 6 July 1998 on the legal protection of biotechnological inventions”, the political and legal dispute about ”patents on life” was not settled at all. Some member states – the Netherlands, supported by Italy and Norway – took this issue to the European Court of Justice (ECJ) seeking the annulment of the Directive. The Court dismissed this appeal in 2001. But the discussion about ”patents on life” did not end. Even though it has been a somehow accepted fact that patents on living materials including human DNA are being granted, an even more heated discussion is focusing on the scope of those gene-patents. The question is if it is acceptable to allow the classical scope protection for gene sequences, or if the patent protection should be limited to the specific use disclosed in the patent application (“purpose-bound protection”).

scholarly journals Doctrine of methods of interpretation of legal norms formed in the case law of the Court of Justice

2021 ◽  
Author(s):  
I. V. Kaminska
Keyword(s):  
Detailed Analysis ◽  
Case Law ◽  
Lisbon Treaty ◽  
Theological Method ◽  
Legal Norms ◽  
Court Of Justice ◽  
The Law ◽  
Domestic Sources ◽  
Definition Of ◽  
The Eu

The doctrinal approaches to the definition of methods and principles of interpretation of legal norms applied by the Court of Justice of the EU are analyzed. The traditional and special methods of interpretation inherent in integration justice are singled out. The dynamics of changes in the approaches to the interpretation of legal norms in the decisions of the Court of Justice of the EU after the signing of the Lisbon Treaty is described. Scientific approaches to defining the concept of interpretation of legal norms contained in domestic sources are analyzed. Foreign sources on the methods of interpretation of the law by the Court of Justice of the EU have been studied. The article analyzes several European publications written at different times before the signing of the Lisbon Treaty and established, which primarily draws attention to authors who have subjected the theological method of interpretation, and very few sources that influence the justification of methods or principles of their application by the Court. It can be concluded that the tendency of European scholars to emphasize the importance of the theological method of interpretation was related to their views on the constitutional nature of the Treaties and legal considerations about the need to adopt the EU Constitution. Such conclusions correlate with the limited jurisdiction of the Court of Justice, as before the signing of the Lisbon Treaty not all provisions of secondary legislation were interpretable (in particular, visas, asylum, immigration and other policies related to the movement of persons). on the constitutionality of the Treaties, although their form and content have become even more similar to constitutional acts, without losing a clear functional statement of provisions. Since then, the case law of the Court of Justice has been characterized by a variety of methods of interpretation, and European doctrine by publications that have re-substantiated the system of methods and paid more attention to their detailed analysis, making each of these methods autonomous and collectively interchangeable.

scholarly journals The Right to Forced Heirship in the Legislation of Ukraine and Foreign Countries

2019 ◽  
pp. 251-259
Author(s):  
Alla KIRYK
Keyword(s):  
Legal Protection ◽  
Legal Regulation ◽  
European Countries ◽  
Basic Principles ◽  
Inheritance Law ◽  
Freedom Of Will ◽  
Foreign Countries ◽  
The Will ◽  
Definition Of ◽  
The Right

Investigated the combination of the basic principles of inheritance law — freedom of will and state legal protection of the interests of disabled family members and relatives. Analyzed the principle of freedom of will which is typical for all developed legal systems. It is established that the legislation of Ukraine does not contain a definition of the freedom of will, but there is no doubt about the existence of this principle, which follows from an analysis of the Civil Code of Ukraine. It has been determined that the institution of the forced heirship is a social security measure that is designed to financially support the category of people who need special protection. Analyzed the aspects of the limitation of the freedom of will. The first restriction on the freedom of will is the right to demand heirs under the law against heirs under the will, another restriction is applied through the reserve system. The analysis of the legislation of foreign countries in the field of forced heirship. It has been determined that most European countries include the children of the testator and, in some cases, the widow (widower) and the parents of the testator as forced heirs; instead, Ukrainian law classifies the number of forced heirs as minor, adult disabled children of the testator, disabled widows (widowers) and disabled parents. Have been studied the novelties of the legal regulation of inheritance of the forced share in Austria, Hungary, Belgium and other European countries. Investigated the tendency to reduce the number of obligatory heirs by depriving the widow (widower) and the parents of the testator. But it is possible for these persons to go to court with a lawsuit on establishing usufruct on the property of the testator.

scholarly journals EU Values Are Law, after All: Enforcing EU Values through Systemic Infringement Actions by the European Commission and the Member States of the European Union

2021 ◽  
Author(s):  
Kim Lane Scheppele ◽  
Dimitry Vladimirovich Kochenov ◽  
Barbara Grabowska-Moroz
Keyword(s):  
European Union ◽  
Member State ◽  
Rule Of Law ◽  
Eu Law ◽  
The European Union ◽  
Basic Principles ◽  
Member States ◽  
The Rule Of Law ◽  
Court Of Justice ◽  
The Eu

Abstract Although compliance with the founding values is presumed in its law, the Union is now confronted with persistent disregard of these values in two Member States. If it ceases to be a union of Rule-of-Law-abiding democracies, the European Union (EU) is unthinkable. Purely political mechanisms to safeguard the Rule of Law, such as those in Article 7 Treaty of European Union (TEU), do not work. Worse still, their existence has disguised the fact that the violations of the values of Article 2 TEU are also violations of EU law. The legal mechanisms tried thus far, however, do not work either. The fundamental jurisprudence on judicial independence and irremovability under Article 19(1) TEU is a good start, but it has been unable to change the situation on the ground. Despite ten years of EU attempts at reining in Rule of Law violations and even as backsliding Member States have lost cases at the Court of Justice, illiberal regimes inside the EU have become more consolidated: the EU has been losing through winning. More creative work is needed to find ways to enforce the values of Article 2 TEU more effectively. Taking this insight, we propose to turn the EU into a militant democracy, able to defend its basic principles, by using the traditional tools for the enforcement of EU law in a novel manner. We demonstrate how the familiar infringement actions—both under Article 258 and 259 TFEU—can be adapted as instruments for enforcing EU values by bundling a set of specific violations into a single general infringement action to show how a pattern of unlawful activity rises to the level of being a systemic violation. A systemic violation, because of its general and pervasive nature, in itself threatens basic values above and beyond violations of individual provisions of the acquis. Certified by the Court of Justice, a systemic violation of EU law should call for systemic compliance that would require the Member State to undo the effects of its attacks on the values of Article 2. The use of Article 260 Treaty on the Functioning of the EU (TFEU) to deduct fines from EU funds due to be received by the troubled Member State would provide additional incentives for systemic compliance. We illustrate this proposed militant democratic structure by explaining and critiquing what the Commission and Court together have done to reign in the governments of Hungary and Poland so far and then showing how they can do better.

Defining ‘Family Members’ of EU Citizens and the Circumstances under Which They Can Rely on EU Law

2020 ◽  
Author(s):  
Georgios Milios
Keyword(s):  
Present Article ◽  
National Level ◽  
Family Members ◽  
Case Law ◽  
Legal Concept ◽  
Court Of Justice ◽  
Definition Of ◽  
Human Rights Standards ◽  
The Eu ◽  
The Way

Abstract The present article deals with the legal concept of family members of EU citizens in EU and national legislation. In particular, it examines the legal definition of family in Directive 2004/38, as well as the way the Court of Justice of the EU has interpreted the relevant provisions of the Directive. Not least, the present article focuses on the circumstances under which these persons may qualify as family members according to the case law of the CJEU. As for the research at national level, the present study examines the way the same issues are regulated in national implementing legislation of Spain. The article concludes that although the definition of family in Directive 2004/38 is still focused on a formal and traditional family model, the CJEU has quite progressively adopted a more expansive interpretation in relation to this concept. Regardless of this finding, this article argues that a more de facto approach is still necessary in order for the applicable rules to become more compatible with the reality of personal relations nowadays but also with the international human rights standards.

DEFINITION OF THE REGISTERED OFFICE OF POLISH COMMERCIAL COMPANY AND THE PROCEDURE OF ITS CROSS-BORDER TRANSFER TO THE EU

2020 ◽  
Vol 2 (XX) ◽  
pp. 293-301
Author(s):  
Tomasz Słapczyński
Keyword(s):  
Case Law ◽  
Point Of View ◽  
The European Union ◽  
Cross Border ◽  
Court Of Justice ◽  
Commercial Company ◽  
Economic Markets ◽  
Registered Office ◽  
Definition Of ◽  
The Eu

The study characterizes the problem of transferring the registered office of a Polish commercial company and the dependence of its procedures on the definition and interpretation of the concept of a commercial company. This problem is significant from the point of view of the procedure of transferring the company’s registered office. Case law and doctrine and are not in the same line when the definition of registered office of polish commercial company is on the topic. The significance of this issue indirectly influence on the rules of freedom of economic markets. The goal of the article thesis is to describe a unite point of view, by linguistic and functional analysis of national and EU law, case law of the Polish jurisdiction and the Court of Justice of the European Union. The doctrine is also important. The transfer of a commercial company abroad is an important problem from the point of view of economic freedom and guarantees in force in the EU. It is reasonable to assume that the registered office of the Polish commercial company is the registered office, which consequently raises fewer problems during the transfer procedure. An attempt to confirm the above thesis will be included in the following text by analyzing the aforementioned national and EU regulations, case law of the Polish courts and the CJEU. The term ‚registered office of a commercial company’ can be interpreted differently

Administrative and judicial remedies of EU on civil servants’ rights protection

2021 ◽  
pp. 21-26
Author(s):  
Ivanna Maryniv ◽  
Andriy Kotenko
Keyword(s):  
European Union ◽  
Legal Protection ◽  
Civil Servants ◽  
Main Body ◽  
The European Union ◽  
Rights Protection ◽  
Court Of Justice ◽  
The One ◽  
Effective Remedy ◽  
The Eu

Problem setting. The modern pandemic reality makes all the citizens of the European Union vulnerable, especially in terms of employment and employment disputes. European civil service framework has been existing for more than 50 years, but until now some fundamental issues need to be tackled. Transparency is what the international community is striving for nowadays. The numerous tools for legal protection available to the EU servants offer completely different solutions to the one problem. Therefore, it is crucial to maintain the sound practice, according to the principle of sustainable development. The problems of the pre-trial administrative disputes resolution are questioning the mere ability of this mechanism to provide protection impartially and within sound terms. On the one hand, European Court of Justice stands as an effective remedy, which compensates the drawbacks of administrative way of rights protection. But on the other hand, the European Ombudsman institute shows, that both of the aforementioned remedies are not capable of giving up-to-date protection to the EU servants. That’s why substantial changes in this framework are needed, including reconsideration of the procedure of appeals prescribed under the Council of the EU Staff Regulation. Target of research is to evaluate the effectiveness of each of the remedies available to the EU servants for today in the EU acquis framework. Article’s main body. The article is devoted to the research of administrative and judicial means of remedies available to the EU servants. The analysis of the Court of Justice of the European Union case practice has been conducted. The procedure of resolution of administrative disputes between the EU servants and the EU institutions via the European Ombudsman institute has been investigated. The analysis of disputes concerning the protection of EU servants’ rights within the administrative framework within the institutions has been carried out. Conclusions. After analyzing various types of remedies on the protection of civil servants’ rights, a couple of issues to tackle has been revealed. The administrative remedies under Staff Regulations of the Council are not transparent enough to consider them sufficient for being the main way of protecting Staff rights prescribed in the Regulation. The European Ombudsman, along with judicial practice of the Court of Justice of the European Union might be the relief for the institutional mechanism of civil servants rights protection due to the strategic investigations the European Ombudsman is capable to undertake. Further recap of the administrative means of remedies available under the Staff Regulation is explicitly urgent to conduct as soon as possible.

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