By Orla Lynskey
The CJEU delivered its judgment in Tele2 Sverige AB and Watson on 21 December 2016. The Court had been asked by a Swedish and British court respectively to consider the scope and effect of its previous judgment in Digital Rights Ireland (discussed here). The judgment reflects continuity in so far as it follows in the line of this, and earlier judgments taking a strong stance on data protection and privacy. Yet, the degree of protection it offers these rights over competing interests, notably security, is radical. In particular, the Court unequivocally states that legislation providing for general and indiscriminate data retention is incompatible with the E-Privacy Directive, as read in light of the relevant EU Charter rights. While the judgment was delivered in the context of the E-Privacy Directive, the Court’s reasoning could equally apply to other EU secondary legislation or programmes interpreted in light of the Charter. This judgment will be a game-changer for state surveillance in Europe and while it offered an early Christmas gift to privacy campaigners, it is likely to receive a very mixed reaction from EU Member States as such. While national data retention legislation has been annulled across multiple Member States (Bulgaria, Czech Republic, Cyprus, Germany and Romania), this annulment has been based on an assessment of the proportionality of the relevant measures rather than on a finding that blanket retention is per se unlawful. For those familiar with the facts and findings, skip straight to the comment below. Continue reading
By Laurens Ankersmit
To say that the EU’s new generation of trade agreements (such as CETA and TTIP) is politically controversial is becoming somewhat of an understatement. These free trade agreements (FTA), going beyond mere tariff reduction and facilitating hyperglobalization, have faced widespread criticism from civil society, trade unions, and academics. It may come as no surprise therefore that the legal issue over who is competent to conclude such agreements (the EU alone, or the EU together with the Member States) has received considerable public attention, ensuring that the Advocate General Sharpston’s response to the Commission’s request for an Opinion (Opinion 2/15) on the conclusion of the EU-Singapore FTA (EUSFTA) has made the headlines of several European newspapers.
The Opinion of Advocate General Sharpston in Opinion 2/15, delivered on 21 December, is partly sympathetic to the Commission’s arguments on EU powers, but ultimately refutes the most outlandish of the Commission’s claims to EU power vis-à-vis that of its constituent Member States. The Opinion is of exceptional length (570 paragraphs, to my knowledge the longest Opinion ever written), and contains an elaborate discussion on the nature of the division of powers between the EU and the Member States and detailed reasoning on specific aspects of the EUSFTA such as transport services, investment protection, procurement, sustainable development, and dispute settlement.
Given the breadth of the AG’s conclusions, the aim of this post is to discuss the Opinion only in relation to investment protection and to reflect upon some of the consequences for the Commission’s investment policy, perhaps the most controversial aspect of this new generation of trade agreements. Continue reading
By Sandra Hummelbrunner and Anne-Carlijn Prickartz
Shortly before Christmas, the Court of Justice delivered its highly anticipated judgment in case C-104/16 P Council v Front Polisario, on appeal against the General Court (GC) judgment in case T-512/12 Front Polisario v Council, an action for annulment brought by Front Polisario, the national liberation movement fighting for the independence of Western Sahara. In this action, Front Polisario sought the (partial) annulment of Council Decision 2012/497/EU, which approved the conclusion of an agreement between the EU and Morocco concerning reciprocal liberalisation measures on agricultural and fishery products and amendments to the 2000 EU-Morocco Association Agreement. The main bone of contention was the application of the Liberalisation Agreement to the territory of Western Sahara, a non-self-governing territory to be decolonised in accordance with the principle of self-determination, but which is considered by Morocco to be an integral part of its sovereign territory and is largely under Morocco’s effective control.
The Front Polisario, as the internationally recognised representative of the Sahrawi people, contended that the Agreement was contrary to both EU and international law, including the principle of self-determination, international humanitarian law, and EU fundamental rights. In first instance, the GC partly concurred with Front Polisario’s submissions, annulling the contested Decision insofar as it applied to Western Sahara (for a more extensive review of the GC judgment, see our Article on Front Polisario v Council). Deciding on appeal, the Court of Justice took a different path, managing to avoid a discussion on the merits by focussing on the GC’s interpretation of the territorial scope of application of the Liberalisation Agreement as determined by Article 94 of the EU-Morocco Association Agreement, which provides for the application of the Agreements to ‘the territory of the Kingdom of Morocco’. Continue reading
By the editors
As is becoming a tradition with our blog, we present to you our top 10 most read posts of the last year. Blogging in 2016 on EU law was no doubt marked by Brexit. The result of the UK’s advisory referendum on EU membership on 23 June 2016, which returned a slim majority in favour of ‘Brexit’ provoked much discussion on this blog (10 posts so far) and elsewhere about the UK’s future relationship with the EU and the future of the EU itself. It is therefore no surprise that three of this year’s top 10 blog posts dissect this momentous moment. But Brexit was surely not the only topic that gathered the attention of our readers.
Keeping in mind that there is a certain bias in favour of older posts which have had more time to become popular, this is the 2016 list of most read posts of the year: Continue reading
By Anne Friel
On 23rd November the Court of Justice handed down its judgment in appeal case C-673/13 P European Commission v Greenpeace Nederland and Pesticide Action Network Europe, confirming a broad interpretation of the concept of “information which relates to emissions into the environment” in the context of pesticides. According to the EU’s access to documents laws, public authorities, including the EU institutions, cannot disclose information that would harm the commercial interests of a third party unless there is an overriding public interest in doing so. And if the information relates to emissions into the environment, there is an irrebuttable presumption that disclosure is in the public interest (Article 4(4)(d) of the Aarhus Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters, implemented with regard to the EU institutions by Article 6(1) of Regulation 1367/2006 (the Aarhus Regulation)). Consequently, a broad interpretation of the term “information which relates to emissions into the environment” has a direct impact on the ability of companies to protect commercially sensitive information. The long list of international, European and American pesticide lobbies that intervened in the case bears witness to this. Continue reading
Conference « EU Civil Procedure Law and Third Countries: Which Way Forward? »
University of Kiel, 2-3 February 2017. Deadline for abstract submissions : 19 December 2016.
Workshop « International Law in a Dark Time »
University of Helsinki, 22-23 May 2017. Deadline for abstract submissions : 30 December 2017.
Conference « EU Policy on International Investments : Uncertainties, Challenges, and Opportunities »
University of Zaragoza, 20-21 March 2017. Deadline for proposal submissions : 31 December 2017.
IntLawGrrls! 10th Birthday Conference
University of Georgia Law School, 3 March 2017. Deadline for abstract submissions : 1 January 2017.
Workshop « New Challenges for European Solidarity »
University of Cambridge, 9-10 March 2017. Deadline for abstract submissions : 13 January 2017.
Call for papers Jean Monnet Seminar « The EU and Trust in the Online Environment »
Inter University Center, Dubrovnik, 23-29 April 2017. Deadline for abstract submissions : 31 January 2017.
ESIL Annual Conference 2017 : Global Public Goods , Global Commons, and Fundamental Values : The Responses of International Law
University of Naples, 7-9 September 2017. Deadline for abstract submissions : 31 January 2017.
Call for submissions : Trade, Law and Development Special Issue on Recent Regionalism
Deadline for submissions : 15 February 2017.
Call for papers : « Human Dignity and the Constitutional Crisis in Europe : Humanity, Democracy, Social Europe »
European University Institute, Florence, 15-16 June 2017. Deadline for abstract submissions : 28 February 2017.
European Environmental Law Forum 2017 Conference : « Sustainable Management of Natural Resources – Legal Approaches and Instruments »
Copenhagen, 30 August – 1 September 2017. Deadline for abstract submissions : 17 March 2017.
By Konstantinos Sidiropoulos
On 8 September 2016, the General Court (‘GC’) handed down a seminal judgment for the pharmaceutical sector in the Lundbeck case. The judgment is of particular importance, because it is the very first ruling of the EU Courts affirming that pharma pay-for-delay agreements (or reverse payment settlement agreements) may be subject to competition law scrutiny. Pay-for-delay (‘PFD’) agreements are agreements that are intended to delay the market entry of generic manufacturers with generic drugs in exchange for payments made by original pharmaceutical producers (i.e., holders of patents for an original branded drug). The GC, upholding the European Commission’s (‘Commission’) decision of 19 June 2013, held that Lundbeck and four generic producers had infringed EU competition law by entering into such agreements.
The Commission has lately been particularly active in this area. Indeed, PFD agreements were first regarded as potential targets for scrutiny under competition law in the EU as a result of the Commission’s Pharmaceutical Sector Inquiry, leading to the publication of its Pharmaceutical Sector Inquiry Final Report in July 2009. Since then, the Commission has been continuously monitoring patent settlements between originator and generic companies, publishing six reports on this matter – the latest of those being published in December 2015. Continue reading
By Jessica Lawrence
What is the scope of the marketing ban on cosmetics containing ingredients that were tested on animals? Does it include cosmetics that were tested on animals because of the requirements of a third country’s laws? This was the question the CJEU addressed in its decision in the European Federation for Cosmetic Ingredients case. The Court’s 21 September 2016 judgment goes some way toward resolving the lack of clarity of the animal testing provisions of the Cosmetics Regulation (which Advocate General Bobek’s Opinion referred to as ‘not well drafted’ and ‘not a paragon of clarity’ (AG’s Opinion paras 74 & 24)). But it also continues a recent line of cases in which the Court approves of EU rules with important extraterritorial effects. Continue reading
by Szilárd Gáspár-Szilágyi
I. SETTING THE STAGE
In recent years ISDS has been on the lips of many politicians, academics, NGOs and even laymen, some of whom have recently ‘discovered’ that there is a mechanism through which foreign investors (often large multinationals, but not always) can bring claims against host-states before an international arbitral tribunal. The arguments in favour and against ISDS are plentiful, but one always catches my eyes. According to this argument (page 3), the EU does not need ISDS in its new free trade and investment agreements (FTIAs) with developed states, because the original rationale of this mechanism was to protect foreign investors from host‑state jurisdictions where basic tenets of the rule of law were not observed. However, trading partners such as the US or Canada have well‑functioning judicial systems that protect foreign investors; therefore, ISDS is not needed.
As a novice to the field of EU investment law, I must confess I am not yet fully convinced by the benefits of ISDS. Nevertheless, the afore-mentioned argument resonates with my previous field of research, concerned with the domestic enforcement of EU and US international agreements, and once again illustrates that there is often a disconnect between the international and the domestic enforcement of treaties.
I will not advocate for the ‘greater’ protection of foreign investors. Instead, I want to shed some critical light on the argument according to which foreign investors already enjoy high levels of protection in advanced domestic judicial systems. I will argue that the domestic protection of foreign investors is more complex. On the one hand, foreign investors can bring a claim before a domestic court against the host-state, invoking domestic standards of protection. On the other hand, they could also potentially bring a claim before the same domestic courts, relying on international standards of investment protection. As I will illustrate, the international and domestic levels of enforcement should not be treated as worlds apart and the interplay between the two can shape the strategies of the treaty negotiators and of the investors. Continue reading
By Oliver Garner
An Encore to (R)Miller from the Court of Justice?
There is a potential European encore to the constitutional drama of the UK High Court decision in R(Miller) v Secretary of State for Exiting the European Union. The judgment found that the UK government cannot trigger Article 50 TEU without Parliament’s involvement. The government has already indicated its intention to appeal directly to the UK Supreme Court (UKSC). Certain commentators in the media have picked up on the possibility that the Supreme Court could refer (certain aspects of) the case to the Court of Justice of the European Union (CJEU). This has been referred to as ‘the constitutional equivalent of breaking the space-time continuum’.
Of course, as the reaction to the judgment in (R)Miller has shown, the UK media are not afraid of exaggeration. The first and most important thing to reiterate is that the CJEU could not act as the final constitutional arbiter of the question in the case of whether the UK government may use the royal prerogative to give notice under Article 50 TEU. The EU law clause is clear that the condition for the decision to withdraw is ‘accordance with [the] constitutional requirements’ of the Member State. Therefore, the final decision on the substance of whether these requirements have been fulfilled will always be for that Member State’s highest judicial authority. Instead, the possibility of a referral to the Court of Justice in the case concerns one specific aspect of the withdrawal clause: whether the notification to the European Council of an intention to withdraw under Article 50(2) is revocable. The silence of the clause can be seen to constitute a ‘gap’ in the law.
However, this post will argue that it is not necessary for the Court of Justice to prove an authoritative determination on this question of EU law in order for the UK Supreme Court to decide the specific question of UK constitutional law in the (R)Miller adjudication. Therefore – in the specific case of (R)Miller – the UK court is under no obligation under Article 267 TFEU to refer the question to the Court of Justice of the European Union. The post will go on to consider the hypothetical situations in which there may be such an obligation to refer, and will suggest how the Court of Justice should determine the question in such a scenario. Continue reading
By Laurens Ankersmit
Last Thursday, the leaders of the Belgian federal government and the regional and community governments reached a compromise deal over the EU-Canada Comprehensive Economic and Trade Agreement (CETA). One of the key outcomes is that the Belgian federal government will seek the Opinion of the European Court of Justice on the compatibility of the Investment Court System (ICS) in Chapter Eight of CETA with the Treaties. As soon as the Belgian federal government makes the request for an Opinion, the Court will be able to express itself on this contentious legal issue. In this post, I will provide some background on the origins of the Walloon request before explaining why ICS could potentially pose a legal problem for the EU.
Wallonia’s longstanding resistance against CETA and the resolution of 25 April of 2016
To insiders, the resistance put up by Wallonia in particular should have been no surprise. Over the past few years, the Walloon and Brussels parliaments have had extensive debates on the merits of CETA and have been increasingly critical of the deal. One of the main and more principled sources of opposition was the inclusion of ICS in CETA, a judicial mechanism that allows foreign investors to sue governments over a breach of investor rights contained in the agreement. Continue reading
By Maxime Lassalle
The AG’s proportionality test
After these general considerations, the AG starts his proportionality test. In the opinion nine points are considered separately (para. 210). From this analysis, three main elements deserve to be emphasized. Continue reading
By Maxime Lassalle
On 8 September 2016, Advocate General (AG) Mengozzi delivered his much awaited opinion on the agreement between Canada and the European Union on the transfer and processing of Passenger Name Record (PNR). It follows the European Parliament’s resolution seeking an Opinion from the Court of Justice of the European Union (CJEU) on the compatibility of the agreement with the Treaties. Even though the opinion concludes that the agreement has many loopholes, it could disappoint those who were expecting a strong condemnation of PNR schemes as such.
This blogpost intends to present the context of this procedure and the main elements of the AG’s opinion before analysing them. The question of the appropriate legal basis for the agreement, also raised by the Parliament, will not be addressed. However, before turning to the AG’s opinion, we need to briefly sketch the background of the proposed agreement. Continue reading
Conference « New Instruments to Promote the Correct Application of the EU Charter of Fundamental Rights »
Florence, 28 October 2016. Deadline for (free) registration : 18 October 2016.
Colloquium « Les religions et le droit du travail »
Université de Rouen, 20-21 Octobre 2016. Free access.
Conference « Computers, Privacy & Data Protection : The Age of Intelligent Machines »
Brussels, 25-27 January 2017. Deadline for submissions : 22 October 2016.
Call for Papers: ESIL Conference “The Role of the European Parliament in the Conclusion and Implementation of International Agreements on International Economic Law Issues”
European Parliament, Brussels, 9 December 2016. Deadline for abstract submissions: 7 November 2016.
Call for papers : One Day Symposium on Transnational and International Environmental Crime – Synergies, Priorities and Challenges
University of Lincoln, 15 February 2017. Deadline for abstract submissions : 18 November 2016.
Call for submissions Comparative Constitutional Law and Comparative Law Quarterly
Deadline for submissions : 27 November 2016.
Housing Law Research Network 3rd Annual Housing Law Symposium: Human Rights, Housing and Dispute Resolution
Malmö University, 23-24 March 2017. Deadline for abstract submissions : 1 January 2017.
By Oliver Garner
‘Brexit means Brexit’ means March
We have learned two important things about what ‘Brexit means Brexit’ means from the Conservative party conference last week: (1) Theresa May’s government will trigger Article 50 TEU in March 2017 at the latest; and (2) a ‘Great Repeal Bill’ will be proposed in the next Queen’s speech which will repeal the European Communities Act 1972 and enshrine all EU law into domestic law (at least for the time being). This post will focus on some potential legal implications of the ‘Great Repeal’ of EU law in the United Kingdom. It will consider how exactly EU Directives and Regulations will be implemented into UK law, before considering the substantive issue of whether such implementation means that EU citizens in the UK will retain their ‘acquired rights’ to residence. The argument will be that enacting the ‘Great Reform Bill’ will be a far more difficult task for the UK government and Parliament than its announcement suggests. Furthermore, without extensive amendments, such wholesale transposition could undermine the effectiveness of the withdrawal from the Union legal order.
The announcement of a March Article 50 notification does not provide answers to all the vagaries of the legal procedure of Article 50 (including exactly how notification will be sent, and which government minister will be responsible). However, it does provide political certainty as to the timeframe of Brexit, barring the notification being blocked by the outcome of the upcoming constitutional challenge to the government’s authority to trigger Article 50 without the consent of Parliament. Under Article 50(3), if a withdrawal treaty is not concluded, and if there is no unanimous agreement to extend the time-frame of negotiations, the United Kingdom will cease to be a Member State of the European Union by March 2019. Continue reading
By Darren Harvey
During her speech at the Conservative Party conference on Sunday, Prime Minister Theresa May stated that the UK would be notifying the European Council of its intention to withdraw from the EU in accordance with Article 50(1) TEU by the end of March 2017 at the latest.
Earlier that day, during an interview on the BBC with Andrew Marr, the Prime Minister was asked what will happen immediately after the notification to leave the EU has been made.
The Prime Minister responded:
“Well, it’s for the European Union, the remaining members of the EU have to decide what the process of negotiation is. I hope, and I’ll be saying to them, that now that they know what our timing is going to be, it’s not an exact date but they know it’ll be in the first quarter of next year, that we’ll be able to have some preparatory work, so that once the trigger comes we have a smoother process of negotiation.”
Shortly after this announcement, European Council President Donald Tusk took to Twitter, stating that once Article 50 had been triggered, the remaining 27 EU Member States would “engage to safeguard [their] interests” – thus suggesting that no preliminary negotiations shall be conducted prior to such notification.
This exchange raises a fundamental question about the Article 50 TEU withdrawal process that has not yet been fully considered; namely, what role will the European Council play in this process? Continue reading
By Josef Weinzierl and Jonas Weissenmayer
Minimum harmonisation has always been in the toolbox of the EU legislature as one way of regulating the internal market, and its normative virtues are hotly debated in the literature. The concept also raises a quirky and often neglected constitutional issue: are minimum harmonising Directives compatible with the re-regulatory aim of Article 114 TFEU, despite the fact that they allow for varying national standards that go beyond the common floor of the Directive, hence failing to eliminate all obstacles to trade? The CJEU’s answer to this question given in the recent Philip Morris judgment, emerged from the latest round of challenges by the tobacco industry against Directive 2014/40/EU, seems to be ‘no’. This post offers some reflections on the controversial regulatory structure of Directive 2014/40, as well as on the reasoning of the Court. Continue reading
By Bernd Justin Jütte
One week after the Court of Justice (CJEU) handed down its Judgment in GS Media (see for a comment here), it has ruled on another important copyright case. In Mc Fadden v Sony Music the Court followed the Opinion of AG Szpunar (see for comment on this blog here) to a large extent while disagreeing on two crucial points. It decided that the operator of an open wireless network provides an ‘information society service’ (ISS) within the meaning of Article 14 E-Commerce Directive if he provides access to the network as part of his economic activities. This means he can avail himself of the liability exemption laid down in that provision. However, the operator of a wireless network can be required to protect the network with a password in order to deter users from infringing the rights of copyright holders. The Court further decided that the right holder can claim from network operators the costs related to an injunction (e.g. to prevent future infringements), but not the costs related to claims for primary infringements of copyrights by the users of the Wi-Fi network. Continue reading