In November 2014 the Dano judgment attracted unusual public attention, not least because of its importance for UK Prime-Minister David Cameron’s campaign against the phenomenon of ‘welfare tourism’. Although political and administrative attention has been redirected towards the mounting refugee crisis, scholars, administrators and some politicians have been eagerly awaiting the CJEU’s Alimanovic judgment in the sensitive field of EU citizens’ right to equal treatment as regards access to national welfare benefits. Dano made clear that Member States may reject claims to social assistance by EU citizens who have no intention to work and cannot support themselves. Alimanovic gave the Court the opportunity to clarify the application of this principle in the more complicated factual situation of an EU citizen who applies for social benefits after having worked for 11 months. In its bid to contribute to ‘legal certainty’ and ‘transparency’, Member States will for sure welcome the Court’s judgment, but the legacy of Brey still complicates the desired carte blanche for national authorities to refuse any claim to social assistance by indigent EU citizens. Continue reading →
In two recent preliminary rulings, the ECJ elaborated on the applicability of the acte clair doctrine. In these judgments, the Court seems to be looking for a new balance between the adoption of a strict approach towards national judges who are unwilling to make preliminary references and maintaining a cooperative relationship with national courts, effectively relaxing the conditions under the Cilfit doctrine.
“Viking, Laval and Beyond”, edited by Mark Freedland and Jeremias Prassl, constitutes the first volume of Hart’s new series on “EU Law in the Member States”. In the series’ foreword Sacha Prechal lays out how crucial it is to understand the “genuine life of EU law in the Member States” since EU law – of course – is generally transposed, applied and enforced at the domestic level. But that is easier said than done. One needs good knowledge of EU law, domestic and comparative (EU) law to come close to some understanding of what Prechal calls EU law’s genuine life. And, let’s be honest, it is often hard enough to keep up with the current developments in EU law while not losing touch with domestic legal issues. Continue reading →
With each passing day scores of lives are either ended by bodies being washed ashore or are lost in the faceless congregation of ‘refugees/migrants’ on the peripheries of Europe and beyond. Both the ‘European family’ and the ‘European Fabric’ has laid itself bare in the face of the uncontainable refugee crisis brewing in the heart of Europe, uncovering the stark divide between the East and the West. Amidst the melancholy that has reached the shores of Europe, it is vital to take pause and query whether the present catastrophe could have been contained and what steps are being taken by the European Union (hereinafter referred to as “EU”) towards this end. In this regard, Juncker’s State of the Union address 2015 (hereinafter referred to as “Union address”/ “Address”) comes at an auspicious time and has been met with pensive eagerness. The Union address rightly devotes significant attention towards the refugee crisis and has proposed a slew of measures, both immediate and long term, to alleviate the present situation. This post looks through these developments and assesses whether the measures adopted thus far and proposed for the immediate future are sufficient to improve the current circumstances and prepare the EU and its member states (hereinafter referred to as “MS”) to effectively deal with the continuing crisis.
Last week, the ECJ delivered its judgment in Case C-398/13 P, Inuit Tapiriit Kanatami II, which deals with the EU ban on trade in seals products. This judgment is interesting for two reasons. Firstly, the absence of any consideration of the admissibility question, more specifically the fulfilment of the locus standi requirements. Secondly, the relationship between, on the one hand, the Charter of Fundamental Rights and the ECJ and, on the other hand, the European Convention on Human Rights (ECHR) and its court, the European Court on Human Rights (ECtHR). This post will examine these two issues after a discussion of the background to the so-called “Inuit Saga” and the eventual ECJ judgment which came about after more than five years of litigation in two different episodes.
This judgment triggers a myriad of socio-legal questions pertaining to the EU multi-level health governance, including the rising area of sexual risk regulation, as well as questions regarding EU sexual citizenship, and more particularly the discrimination of Lesbian Gay Bisexual Trans (LGBT) individuals. The case, moreover, sheds light on the role scientific expertise plays in domestic and supranational courts, and the interplay between legal discourse, scientific knowledge, rights and identity politics. In this blog post, we offer a brief outline of the Court’s decision and highlight some of its controversial legal and normative aspects. Continue reading →
In Case C-170/13 Huawei Technologies Co. Ltd v ZTE Corp & ZTE Deutschland GmbH, (Judgment of the 5th Chamber, CJEU, 16 July 2015)the CJEU was asked to rule for the first time on whether seeking an injunction and other associated remedies by the owner of a Standard Essential Patent (SEP) against a company in breach of the patent (but one willing to become a licensee) can amount to an abuse of a dominant position in breach of EU competition law (Article 102 TFEU). It concluded that an injunction or an action to recall products can amount to an abuse of dominance in certain circumstances.
In this post, I first provide a primer on Standards and Standard Essential Patents (‘SEPs’) before summarizing the Court’s reasoning and setting out some initial observations on the judgment’s significance.
Recent media coverage of the EU Court of Justice suggests that the period of ‘benign neglect by the powers that be and the mass media’ – once described by Professor Eric Stein – may well be truly over once and for all. The most unexpected aspect of this rather unique level of media attention is that it does not directly concern any particular judicial ruling by a Court, which, since it decided its first case in 1954, has issued more than 28,000 judgments and orders. Instead, the Court of Justice (CJ) and its President, Mr Vassilios Skouris, have been subject to unprecedented media scrutiny following intense internal infighting about a contentious proposal which officially aims to ‘reinforce the efficiency of justice at EU level’ by doubling the number of judges working at the General Court (GC).
In an interesting judgment, the CJEU has ruled that Regulation 1/2005 on the protection of animals during transport applies outside of EU borders to transport taking place in third states, if that transport began on EU territory. This is a novel ruling that is expected to have important positive impacts on animal welfare. However, it can also be seen as an example of the CJEU’s tendency in recent years to read the EU’s jurisdiction expansively, stretching traditional international law notions of ‘territorial jurisdiction’ to permit the regulation of conduct taking place in third states. Continue reading →
This post concerns an interesting case (commented on by Steve Peers a while ago) on one of the main powers of the Commission that accompanies its right to initiate legislation: its right to withdraw a proposal. In Case C-409/13 Council v. Commission the Grand Chamber of the Court had to decide on the limits of this power to withdraw and its judgment has important implications for the balance of powers among the EU’s institutions. In a nutshell, the Court required the Commission to state reasons for an act of withdrawal and even assessed the Commission’s actions on the merits. While this means that withdrawals by the Commission may be challenged on both procedural and substantive grounds, the Court did nonetheless exercise deference towards the Commission. The case may have implications for the Commission’s controversial policy to ‘improve’ EU rules by inter alia withdrawing proposals for ‘unnecessary’ legislation in the future, although the deadline for challenging the withdrawal of the circular economy legislative package has already passed. Continue reading →
When is the Charter of Fundamental Rights of the EU applicable to a Member State measure? In C-446/12 – 449/12 Willems the CJEU held that a Member State which stores and uses fingerprint data, originally collected in compliance with Regulation No 2252/2004, but which the Member State then uses for purposes other than those stipulated in the Regulation, is not acting within the scope of EU law, and therefore is not bound by the Charter. This case appears to indicate a retreat by the Court from the expansive interpretation of the scope of application of the Charter which it had previously laid down in C-617/10 Fransson. Continue reading →
Situated between the market and the state, the notion, concept and characteristics of public services are often multifaceted and difficult to grasp. The EU layer of public service regulation further adds to this complexity as it interacts in many different ways with the national legal frameworks in this field: EU law may structure national legal norms, coordinate the provision of services between the Member States, bring about minimal or maximal standards (e.g. pertaining to quality, ubiquity or affordability of the services provided), comprise detailed regulation or even set prices for the provision of public services as in the case of mobile roaming tariffs. At the same time the law on public services is under the influence of a whole range of EU law provisions and regimes: namely the rules on free movement, competition law and state aid, general and sector-specific primary law provisions, horizontal rules of secondary law, as well as a large body of sector-specific secondary EU law, which has increased substantially over the past few years. With his book Public Services in EU Law Wolf Sauter undertakes a challenging attempt to elucidate the complexity of EU law in the field of public services. Continue reading →
When rendering one of its last judgments of 2014, the Court of Justice of the European Union (Court) had the opportunity to end once and for all the dispute of (now) three rounds between the United Kingdom (UK) and the Council of the European Union (Council) over the legal basis to be used when the EU wishes to adopt jointly, within the framework of an association agreement with a third country, a social legislation benefitting the migrating workers of both parties.
As the UK did in earlier cases on this topic submitted to the Court, in case C-81/13 UK v Council it criticised the Council once more for using Article 48 TFEU as the substantive legal basis for the adoption of a social security measure implementing an association agreement, in this particular case the Council Decision 2012/776/EU, which aimed to update the obsolete implementing provisions on the coordination of social security systems as established by the EEC-Turkey Association Agreement (Agreement).
The following post discusses whether the judgment delivered by the Grand Chamber of the Court in this case has been successful in finally bringing the above-mentioned dispute to an end, and it also provides a closer look on the Court’s reasoning as regards the choice of legal basis in relation to the measures implementing association agreements. Continue reading →
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.