Maastricht Journal of European and Comparative Law

Created in 2013 after a troubled and long standing debate, the Unified Patent Court (UPC) is a ‘Common Court’ of 25 EU Member States that will adjudicate on ‘classical’ European Patents and on the new European patents with unitary effect. Although its establishing Agreement has not yet entered into force, the establishment of the UPC makes for a very interesting case study. It is a unique construct in the field of international courts and it might well inspire the creation of other ‘common jurisdictions’ in other fields lying on the border between international and EU law. Future dialogue between the CJEU and the UPC will have to deal with some controversial issues that might require some innovative approaches in the CJEU’s jurisprudence and some caution on the part of the UPC. Despite all the efforts made to mitigate the international origin of the UPC, it remains a fundamental anomaly in the system of EU courts, and it clearly demonstrates that the current EU system of judicial protection requires profound reconsideration.

After the referendum in June 2016, both the EU and the UK were plunged into political turmoil. The withdrawal procedure must be triggered by the UK government, in accordance with the UK’s constitutional requirements. The judiciary has consequently faced questions whether the government could use the royal prerogative and the status of the devolved legislatures in the context of triggering Brexit. The Supreme Court confirmed that the UK government cannot trigger Article 50 TEU without an authorizing Act of Parliament. On the role of the devolved legislatures, the Supreme Court ruled that these do not have a veto on the UK’s decision to withdraw from the EU. The UK now needs to decide what it wants to achieve in the negotiations for its future relationship with the EU. In this article, a few models are explored. Although it currently seems that the UK government is leaning towards a ‘hard’ or ‘clean’ Brexit, a deeper analysis of the options reveals that there is no easy answer to the question of what the new EU–UK relationship will be like. The purpose of this article is to analyse the options available to the UK rather than to advocate any one particular model.

The analysis of the category of minority directors is discussed in this article in an ambitious undertaking. This niche body of directors, a classification present in very few jurisdictions across the world, is discussed against the backdrop of a legal framework – Italy – where it has been codified for quite some time. Italy then will be the starting point of a legislative expedition which will firstly encounter the shores of a comparator, the United Kingdom, and its local system of corporate governance, before ultimately reaching its journey’s end in Brussels, and its legal framework of corporate governance addressed to listed companies. Based on the findings of this doctrinal analysis, it is suggested that the notion of minority directors as public safe-keepers, albeit exclusively confined to listed companies, could spearhead the agenda of the EU legislature and is a device fit for transplantation across the different corporate law frameworks, first and foremost the British one. Ultimately, through a speculative reference to the notion of ‘board diversity’ and the literature sprouted on this concept, the Italian voting list model is discussed as a means of adding both value to listed entities and efficiency to the relevant boards.

This contribution examines the role of the duration of lawful residence and the assessment of the facts of the individual case for the determination of the rights of (European) Union citizens and their family members by the Court of Justice of the European Union. While the Court initially embraced an approach which aimed at furthering and strengthening the rights of Union citizens, a conceptual shift has become visible over the last couple of years which seems to aim at limiting Union citizen’s rights. This article seeks to shed light on the underlying rationale of the Court’s judgments regarding Union citizens and their third-country family members by focusing on the application of the criterion of an individual assessment and the criterion of the duration of lawful residence respectively. To that end, it examines the Court’s case law in four selected areas of European Union law: the protection against expulsion, the right of permanent residence, access to non-contributory cash benefits, and the right of residence of third-country family members of Union citizens upon return to the latter’s Member State of nationality after having exercised free movement rights. It is submitted that the Court’s application and interpretation of these criteria in the areas under scrutiny seems to be driven primarily by the aim to limit citizens’ rights and not by the attainment of legal certainty which has been brought forward by the Court.

The Draft Accession Agreement (DAA) for the EU’s accession to the ECHR has been found to be incompatible with the EU Treaties by the Court of Justice of the European Union (CJEU). One of the grounds on which the CJEU condemned the Agreement was the design of the co-respondent mechanism. The issue of attributing responsibility to the EU and its Member States for joint violations of the ECHR has been central to the legal debate over the EU’s accession to the ECHR. To this end, this article examines the co-respondent mechanism in light of the findings in Opinion 2/13, considering each of its claims regarding the modes for triggering the co-respondent procedure, the concerns on the joint-responsibility model and the assumed loopholes on the possibility that one of the (co-)respondent(s) withdraw from the procedure before the European Court of Human Rights. The article also presents an analysis to the question of whether the CJEU was right to reject the core provisions of the co-respondent mechanism established by the DAA.

Few national laws or collective agreements provide specific rules determining the elements of the minimum rates of pay due to posted workers. As a consequence, there is confusion between the neighbouring expressions of ‘minimum wage’ (national concept) and ‘minimum rates of pay’ (EU concept) which countries have a tendency to consider as being equivalent. Furthermore, the distinction between two key questions – on the one side, the establishment of the components of the minimum rates of pay of the host country and, on the other side, the sums paid by the sending employer that can be compared to the minimum rates of pay of the host country – is not always made by countries. The aim of this article is to analyse how the targeted countries and sectors concretely define the components of the minimum rates of pay and then to focus, as a useful example for other countries, on the rules applicable in French law.