In these times of increasing euroscepticism, critics of the European Union often contest the Union’s very raison d’être by referring to measures such as the “Bent Cucumber Regulation” and enquire after its right to legislate and adjudicate on areas that traditionally used to be within the scope of sovereign nation-states. What they actually enquire after in most of the cases is the legitimacy of the EU, having undergone an unprecedented and enormous transformation during the last 50 years from economic community to state-like polity, and its adjudicator, the Court of Justice (CJEU), whose jurisdiction ratione materiae has similarly expended and is now encompassing an unparalleled number of fields. The question remains whether the CJEU has shown too much judicial activism by using the instrument of teleological interpretation and whether it crossed the boundaries into the realm of illegitimacy. The time seems therefore ripe for a book like the one under review here, which is a volume of collected articles, edited by Maurice Adams, Henri de Waele, Johan Meeusen, and Gert Straetmans, fittingly entitled Judging Europe’s Judges: The Legitimacy of the Case Law of the European Court of Justice (Hart Publishing 2013) examining the legitimacy of the Luxembourg Court in areas as diverse as the internal market, citizenship, or the EU’s external relations.
In the landmark cases Kendrion, Gascogne and Gascogne Germany the CJEU clarified some important procedural issues related to infringements of the reasonable time requirement. The most important legal question that the CJEU tackled is what is the appropriate remedy for infringements of the right to have the case adjudicated within a reasonable time. The CJEU had two options: the first one was to follow the Baustahlgewebe judgment in which the CJEU had concluded that the proceedings were excessively lengthy and subsequently reduced the fine the Commission had imposed upon the undertakings. The second was to follow the Der Grüne Punkt judgment where the CJEU also concluded that there had been an infringement, but required instead a separate action for damages to be lodged before the General Court. Following this path would, however, mean that the General Court itself would have to assess whether, and to what extent, the parties suffered any harm due to the excessive length of proceedings. In the present cases, the CJEU has opted for the second solution.
Bananas are back on the menu of the Court of Justice of the EU. The court of first instance of Brussels (Interim Decision of 17 May 2013, 196/33/13, in Dutch, not online) decided to refer a preliminary question to Luxembourg concerning the consistency of Council Regulation 1964/2005 regarding import tariffs for bananas with the EU’s obligations under the GATT. Soon the Court is to decide whether to address this question in a regular panel, or instead in a Grand Chamber. This decision itself will signal whether the Court considers this a fresh legal argument warranting scrupulous attention, or regards this simply as old, long-settled questions. In this post, I will argue that authoritative judicial clarifications would indeed be desirable in this case. Continue reading
Having received from time to time requests to publish EU-law related calls for papers, we have been reflecting at the blog on how to deal with such requests. We would like the blog to remain mainly a forum for discussion on recent developments in EU (case) law, and have noted that – at least based on the statistics – this seems to meet our viewers’ needs as well. At the same time, we also continue to cover political developments and literature related to EU law, so that it would seem unjustified to exclude calls for papers and similar announcements, as they are arguably part and parcel of the academic development of EU law.
In conclusion, we have decided to have a monthly round-up of calls for papers on this blog. We will call this new category of posts – of course to be taken with a grain of salt – Neues aus dem Elfenbeinturm, news from the ivory tower. For you, distinguished readers, this means that you should please feel free to get in touch with us concerning calls for papers for EU law-related (!) topics. However, we kindly ask for your understanding that we will not publish your call immediately and as such, but in a shortened form in our monthly round-up; also, we take the liberty of refusing calls for papers that are in our view not sufficiently relevant for our readership. Looking forward to hearing from you! And now for our first admittedly short round-up… Continue reading
The Court of Justice of the European Union (‘the Court’) in the landmark decision of X, Y and Z v Minister voor Immigratie en Asiel, has provided a template based on which the Member States can address the claims of gay asylum seekers. The Court has ensured that the floodgates are not opened to enable gay and lesbian applicants from the 78 countries in the world, to arrive through the portcullis of Fortress Europe, seeking, and being granted sanctuary, solely on the basis of the existence of laws which criminalise consensual same-sex conduct in their countries of origin, even when they are not enforced.
The Fleeing Homophobia report estimated in September 2011 that approximately 10,000 gay or lesbian asylum seekers seek sanctuary in Europe every year. The following year, the Dutch authorities, ironically the first country in the world to recognise in 1981 the protection of gay men as a Particular Social Group under the 1951 Refugee Convention, posed three questions to be addressed by the Court, through the prism of the 2004 Qualification Directive, with respect to the asylum claims of 3 gay men from Senegal, Sierra Leone and Uganda: Continue reading
This blogpost concerns probably my favorite EU law topic: the scope of the Common Commercial Policy (CCP). The scope of the CCP as a source of litigation between the Council and the Commission goes way back and most likely will continue to be so for a considerable time. The reasons are quite simple: the Common Commercial Policy is an important foreign policy tool and exclusive EU competence. As such, Member States are not entitled to act within this politically sensitive field. This is different with respect to shared competences of course, which enable Member States – subject to the Treaties – to continue to make policy that is not in violation of existing secondary legislation. In the most recent edition of this feud between the Commission and the Council, the scope of the Common Commercial Policy was at issue vis-à-vis the scope of internal market competences. Litigation in the past has usually evolved around the relationship between trade (art. 207 TFEU) and environment (art. 192 TFEU), so this case is a welcome variant to that strand of case law already explored in the Daiichi Sankyo case (commented here). In this case the Commission won yet another victory against the Council.
Some time ago, I discussed here the European Commission’s proposal on the establishment of the European Public Prosecutor’s Office (‘EPPO proposal’). As I pointed out, this proposal adopts a ‘federal’ logic, aiming at an EU-wide criminal law enforcement of fraud against the financial interests of the Union (in short: EU fraud). The EPPO, when and if created, would have exclusive competence to investigate and prosecute EU fraud, thereby excluding any prosecutorial discretion at national level. What is more, the involvement of Eurojust would be reduced to an absolute minimum, even though Eurojust has acquired a lot of expertise over the years in coordinating and supporting criminal investigations and prosecutions of EU fraud. With this proposal, the Commission clearly wants to move away from the ‘old’ intergovernmental approach of the pre-Lisbon era.
As one could expect, the Commission’s federal approach triggered many negative reactions. By the deadline of 28 October 2013, national Parliaments of fourteen Member States expressed their critical concerns regarding the Commission’s EPPO proposal. Eleven of them even formally submitted a reasoned opinion, objecting that, for a variety of reasons (infra), the proposal does not respect the principle of subsidiarity. By using the Early Warning System laid down in Article 7 of Protocol No 2 to the Lisbon Treaty on the application of the principles of subsidiarity and proportionality, these national Parliaments issue a so-called ‘yellow card’ against the EPPO proposal. Strictly speaking, the German Bundesrat did not issue a reasoned opinion, but its report clearly shares some concerns of subsidiarity. Similarly, the Polish Senate criticizes the EPPO’s exclusive competence for not being in compliance with the principle of proportionality. Lastly, the Austrian National Council does not reject the EPPO proposal, but nonetheless identifies four major points of concern.
Last week’s Grand Chamber judgments Commission v Germany (C-95/12) and Essent (C-105/12) may have brought some important clarifications on the “golden share” case law. They seem to point towards a more prudent, differentiated understanding of Art 63 TFEU in regard to the corporate governance of publicly owned companies. In the decision Commission v Germany, the Court dismissed an action brought under Art 260(2) TFEU for failure to comply with the 2007 VW law judgment; and in Essent it found Dutch measures ensuring public ownership of gas and electricity transmission system operators justifiable on public interest grounds.
“De nos jours, il est difficile d’échapper au monde du football. Le football intéresse pratiquement tout le monde, même l’administration fiscal.” This deep sigh introduces Advocate General Kokott’s opinion (not yet available in English) in Sabou, and it seems to me that the Advocate General feels just as enthusiastic about this sport as I tend to do. To both our luck, the decision handed down last Tuesday only marginally touches upon the sport itself (I hope that the esteemed football-aficionados among our readers will forgive me and nonetheless bear with me), and rather quickly turns towards the topic of mutual assistance among Member States authorities on direct taxation under Directive 77/799; more specifically, the extent to which EU fundamental rights need to be respected in the process of requesting and receiving such assistance. For the Court, EU fundamental rights apply in principle, but do not have much impact in practice due to the rules of EU law at issue. Continue reading
On the 24th of September the CJEU delivered its judgement in the Demirkan case. Ms Demirkan, a Turkish national, had requested a short-term tourist Visa to German authorities to go and visit her stepfather, a German national. However, since the German authorities rejected her request, Ms Demirkan attacked the decision arguing that on the basis of Article 41(1) of the Additional Protocol to the EU–Turkey Association Agreement she was entitled to enter Germany without a Visa because at the time of the conclusion of the Additional Protocol -1970- Turkish nationals did not need a Visa to enter Germany as tourists. On the basis of Ms Demirkan’s claim, the referring court in Berlin addressed two questions to the CJEU. First, it asked whether article 41(1) of the Additional protocol containing the ‘stand-still’ clause on restrictions related to the freedom of establishment and the freedom to provide services included the passive reception of services. Secondly, the referring court asked the CJEU whether a tourist traveling to visit family could be considered as a passive recipient of services when the purpose of traveling is personal and not economical. Continue reading