According to 2012 OECD data, 52% of EU adults are overweight or obese. It is thus not surprising that the recent decision of the Court of Justice of the European Union (CJEU) in Kaltoft (Case C-354/13), on whether obesity discrimination can amount to disability discrimination, has created quite a stir in the press. Following Advocate General (AG) Jääskinen’s Opinion, some media suggested that ‘Severe obesity is a disability’. As will be discussed in this post, the CJEU did not quite go as far as to accept that obesity is a disability, but it did recognise that, in some cases, differential treatment on the basis of obesity can amount to disability discrimination. Hence, this judgment marks another step forward towards clarifying the scope of EU equality law and bringing about a consistent application at national level.
The present contribution is a translated and somewhat simplified version of an article that appeared in German on 23 March 2015 in the Swiss legal online-journal Jusletter. The authors thank the Jusletter for their kind permission to republish the article and Markus Kern and the European Law Blog’s editorial team for valuable comments on earlier versions.
Readers of this blog will nearly inevitably already have been confronted with this decision. The reactions to the Court’s Opinion have been vivid, to say the least. What did the Court say exactly on this draft agreement for accession to the ECHR? And is the current predominantly negative reaction (see for an exception here) justified? The main aim of the present post is to provide a concise summary of the Court’s findings, but also to provide some early assessment and criticism of the reactions on particular points. After a brief historical introduction to the context of the Opinion, we follow the sequence of analysis of the Court and thus examine in turn:
the arguments of the Court on the autonomy of the EU legal order;
the monopoly on dispute settlement established by Article 344 TFEU;
the co-respondent mechanism;
the procedure for the prior involvement of the CJEU and the specific characteristics of EU law concerning judicial review in matters of the Common Foreign and Security Policy (CFSP).
Few elections have as their core issue an international arrangement. The Greek election of 25 January 2015 was one of these exceptions. In 2010 and 2012, Greece agreed with its Eurozone partners and the IMF to accept two large bailout packages conditioned on the fulfilment of far-reaching, austerity-oriented reforms. It also agreed to submit to a monitoring mechanism comprised by officials from the European Commission, the IMF, and the ECB that would supervise its compliance with the conditions and regularly revise them. This monitoring and rule-making structure became known as the Troika.
The second of the bailout agreements, concluded in 2012, was due to expire on 28 February 2015. Unlike Portugal or Ireland, Greece had not established access to the bond market by the end of its Adjustment Programme. Ending international financing support at the end of February would thus possibly prompt a Greek default. What the next step after the expiry of the 2012 bailout programme should be was put to a national vote on 25 January.
This post will offer an overview of the recent major developments concerning the Greek part of the Eurozone crisis. It will discuss how the Greek government tried to challenge basic elements of the new European economic governance and the outcome of this challenge. In the first part of the post, I present the starting position of the new Greek government (1.), then the legal and political context in which the negotiations took place (2.), and finally the agreement of 20 February 2015 (3.). In my conclusion, I take the position that opponents of austerity should wait to celebrate a victory. “Strict conditionality”, the necessary counterpart of financial assistance according to EU law, proved to be much stricter than many actors thought, both in economic and institutional terms (4.). Continue reading →
Most state aid cases seem relatively straightforward, with the most notable exception being tax cases which had their fair share of attention recently. When I read a summary of the Eventech case (C-518/13), at first glance it seemed to fall in the straightforward category. However, as one may recall from tax state aid cases, often the most difficult aspects of these cases are the criteria of selectivity and the involvement of state resources. And it just so happens that these criteria are the main issues at stake before the CJEU in Eventech, which makes it a judgment worthy of some further discussion.
Anyone who has ever been to London knows the distinctive Black Cabs which are probably as much a British symbol as their well-known bigger sisters, the red double-deckers. What you may not know (at least I didn’t) is that there are also other kinds of taxis in London called minicabs.
In C-413/13 FNV Kunsten Informatie en Media, the Court decided that competition law does not apply to arrangements among freelance substitute orchestra musicians that aim to improving their working conditions if they can be qualifed as ‘workers’. In so doing, the Court significantly expanded the scope for taking social interests into account within competition law analysis and rejected the more narrow and liberal approach taken by the Dutch National Competition Authority (NCA), the Dutch government and—not surprisingly—the European Commission. This is a significant case, not only because the Court for the first time had to deal with the increasingly more common phenomenon of the ‘false self-employed’ when interpreting competition law, but also because the Court once again demonstrated its willingness to take public interests other than economic efficiency into account when applying competition law (a holistic approach that, I argue, is fundamentally more in line with the EU treaties).
On January 14, Advocate General (AG) Cruz-Villalón issued his opinion in the reference for a preliminary ruling on Gauweiler et al. v Deutscher Bundestag on the ECB’s Outright Monetary Transactions (OMT). The OMT Programme launched in September 2012 was part of a series of measures taken by the ECB in response to the Euro crisis accompanying the loan facilities (European Financial Stability Facility – EFSF, European Stability Mechansim – ESM).
The German Constitutional Court (Bundesverfassungsgericht, “BVerfG”) had asked the Court of Justice (CJEU) two questions in what it classified as an ultra vires review of acts of the European Union. Roughly speaking, the BVerfG wanted to check whether the European Central Bank (ECB) had transgressed the limits of its powers derived from the treaties. If the ECB had, this would have consequences for the constitutional identity of Germany. Therefore, the BVerfG first wanted clarification on whether the Outright Monetary Transactions (OMT) Programme was an economic rather than a monetary measure and whether the ECB had therefore exceeded its powers by establishing it. Second, the BVerfG raised the question whether the OMT programme was not violating the prohibition of monetary financing of Member State. Continue reading →
Sometimes a book wins you over, and José Luís Da Cruz Vilaça’s EU Law and Integration: Twenty Years of Judicial Application of EU Law (Oxford/Portland, Hart 2014), is such a book.
I must admit that I had some reservations at first over the concept of the book, which is in essence an overview of the legal career – both as a legal scholar and a judge – of José Luís Da Cruz Vilaça, on the basis of a series of articles on different topics written over the course of two decades. Books like this only stand out if they can avoid three traps. Continue reading →
Should EU secondary legislation be reviewed against the benchmark of the provisions of an international agreement? In 2012 the General Court answered this question in the affirmative and annulled two decisions of the Commission which were based on a regulation which was deemed incompatible with the Aarhus Convention. However, the EU institutions appealed against those judgments. Consequently, in cases C‑401 to 403/12, Council e.a. v. Vereniging Milieudefensie and C-404 and 405/12, Council v. Stichting Natuur en Milieu e.a., the Grand Chamber of the Court was confronted with the same question. There is already quite some case law on the topic of review of legality within the EU legal order in light of international obligations of the EU, typically with the Court being hesitant to undertake such review. In the cases involving the Vereniging Milieudefensie and the Stichting Natuur en Milieu, the General Court and the Advocate General made, in my view, some valuable suggestions in favour of reviewing EU law against international agreements. Unfortunately, the Court decided to stick to its guns, thus continuing in the line of its own previous jurisprudence, and annulled the General Court’s judgments. The result leaves a somewhat sour taste for those who think that EU institutions and their legal acts should be amenable to judicial review under reasonable conditions. Not only is the very purpose of the EU regulation at issue to implement the obligations arising from the Aarhus Convention, but the Grand Chamber’s view also leads to a lacuna in legal protection in EU law exactly where the central aim of the Aarhus Convention would in theory be to provide individuals with access to justice. Continue reading →
Ne bis in idem is a fundamental principle of EU criminal law, protecting citizens against double prosecution, even in transnational situations. Yet what is more, since the entry into force of the Lisbon Treaty, the ne bis in idem principle has become a yardstick of the systemic impact of the Charter of Fundamental Rights of the European Union (CFREU) on secondary EU law.
One reason for this is that the ne bis in idem principle in Article 50 CFREU differs in some aspects from the principle as laid down in the Convention implementing the Schengen Agreement (CISA), which introduced transnational ne bis in idem in the EU legal order. In particular, the CFREU neither provides for the “enforcement clause” (Article 54 CISA) nor for the exceptions foreseen by Article 55 CISA, such as the national security exception. According to the enforcement clause, the transnational ne bis in idem bars further prosecution provided that, if a penalty has been imposed: a) it has been enforced, b) it is actually in the process of being enforced or c) it can no longer be enforced under the laws of the Contracting State. Since none of these enforcement conditions are mentioned by Article 50 CFREU, the question arose, when the CFREU became a source of primary EU law, whether those limiting conditions in the CISA are compatible with the CFREU, taking into account that the CFREU is a lex superior and posterior.
In the Spasic case (C-129/14 PPU, 27 May 2014) the Grand Chamber of the Court of Justice (CJEU) provided a partial and to a certain extent striking answer to this question, as this contribution will show. Continue reading →
With the end of the third year of operation of the European Law Blog approaching, it is onceagain time to take a brief look back at the most popular posts of the year. Based on our Google Analytics statistics and keeping in mind that there is a certain bias in favour of older posts which have had more time to become popular, we receive the following little tour d’horizon of EU law… Continue reading →
A perceptive follower of the development of the case-law on access to court and justice in general might have noticed that the less willing the Court of Justice to loosen up the constraints in regard of the locus standi for non-privileged applicants, the more generous it seems to be towards the actual acts which can be amenable to judicial review. Be it for the reasons of democracy and rule of law or for the broadening of its competences, it is apparent that the Court is following this path.
This post shall provide a concise view on one of such cases, namely the recent judgment of the Grand Chamber of the Court of Justice in case C-261/13 P Schönberger v Parliament, where the Court assessed the decisions adopted by the Petitions Committee of the European Parliament (Parliament), by which a petition is either found admissible and further processed or declared inadmissible, in view of the possibility to challenge such decisions before the EU Courts. Continue reading →
At the time of writing, EU scholars and lawyers are still eagerly awaiting the Court’s verdict on the compatibility of the EU/ECHR Accession Agreement with the Union Treaties (Opinion 2/13 is to be delivered on 18 December 2014 and hopes are high that accession may proceed as smoothly as possible and without any major amendments to the agreement). In the meantime – pre-Christmas stress allowing – I can only recommend the latest academic contribution to this topic, a volume co-edited by Vasiliki Kosta, Nikos Skoutaris and Vassilis P. Tzevelekos, concisely entitled The EU Accession to the ECHR (Hart Publishing, 2014). Even though the issue of the EU’s accession to the European Convention on Human Rights is almost as old as the Union itself, this book aptly brings the debate again to the spotlight and discusses the intricate nitty-gritties of this historically unprecedented step in a clear and precise manner. And whatever the outcome of Opinion 2/13 might be, human rights in Europe undoubtedly form part and parcel of the European ‘constitutional’ public order – a development to which the case law of the Court of Justice and the entry into force of the Charter of Fundamental Rights have successfully contributed. Accession remains the missing building block in the edifice of European human rights law, which is intended to close the last gaps in the protection of individual rights by subjecting the EU and its institutions to the external supervision of the European Court of Human Rights. Thus, as the editors correctly state, ‘the post-accession order will be structured on a vertical basis confirming that the last say in human rights will rest with the Strasbourg Court’ (p. 4). Continue reading →
The recent 2 December judgment in the A, B and C case, provides guidance on prohibited steps in determining an asylum claim based on sexual identity. Where was the positive guidance? Is the Court’s failure to provide guidelines on how a claim is to be determined a blessing in disguise?
Ne bis in idem is one of the key principles of EU criminal law. On the one hand, it is an important individual safeguard for suspects and convicted persons in the EU, as it protects against double prosecution and double punishment. On the other hand, it is the only mechanism – although imperfect and insufficient – to regulate conflicts of jurisdiction in the Area of Freedom, Security and Justice (AFSJ). A final judgment in one Member State indeed prevents another Member State from (further) prosecuting the same person (again) for the same facts.
Last June the Court of Justice (CJEU) issued an important judgment regarding the scope of the transnational protection against double jeopardy. The decision of the CJEU further expands the concept of ‘final decision’ triggering the ne bis in idem, confirming the validity of the previously consolidated trend which, on the one hand, recognises a strong importance to the mutual trust between Member States, and on the other hand acknowledges the inherent link between ne bis in idem and the freedom of movement in the EU. Continue reading →
Case-note on C-333/13, Elisabeta Dano v Jobcenter Leipzig
The Dano case goes right to the heart of the debate on social tourism. Are economically inactive EU-citizens, residing in a Member State of which they are not a national, entitled to social assistance which is granted to nationals of that host Member State? Directive 2004/38/EC (the EU Citizenship Directive) does not oblige Member States to provide for such assistance, but Art. 18 TFEU, Regulation 883/2004 on the coordination of social security and the Charter of Fundamental Rights might do so in the end. These were the elements at stake in the Dano case.