EU-freedom of movement: No protection for the stranded poor

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.

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Neues aus dem Elfenbeinturm: November 2014

Conference “International Litigation in Europe: the Brussels I Recast as a panacea?”

Verona University, 28-29 November 2014. Deadline for registration: 20 November 2014.

Workshop “L’ordre juridique de l’Union européenne sous l’angle de son action extérieure/The Legal Order of the European Union from the Perspective of Its External Action”

University of Luxembourg, 24 November 2014. (Free) registration required.

The Treaty of Lisbon and EU Criminal Law – Five Years On

University of Innsbruck, 1 December 2014. (Free) registration required.

Third REALaw Research Forum “Judicial Coherence in the European Union

University of Utrecht, 30 January 2015. Deadline for abstract submission: 1 December 2014.

13th Jean Monnet Seminar “EU Law and Risk Regulation”

Inter-University Center, Dubrovnik, 19-25 April 2015. Deadline for paper proposal submissions: 15 January 2015.

Will the Juncker Commission initiate unified Eurozone external representation?

As the response to the Eurozone sovereign debt crisis has shown, when push comes to shove, EU Member States are willing to accept a further transfer of powers to the European level. However, they are – understandably – not so keen on reforms that diminish their international stature. The long overdue consolidation of the Eurozone’s external representation, identified as one of the building blocks of a ‘genuine’ Economic and Monetary Union (EMU), was perpetually delayed under the Barroso Commission. EU Member States, it appears, are still not ready to accept this particular curtailment of their powers. This raises the question whether the new Juncker Commission will be able to seal the deal fifteen years after the Eurozone came into existence. Continue reading

POMFR: The developing regulatory framework of Foreign Direct Investment in the EU

Philip Strik, Shaping the Single European Market in the Field of Foreign Direct Investment, Hart Publishing 2014, 318 pages, ISBN 978-1-84946-5-427.

The place of foreign direct investment (‘FDI’) within the European Union’s legal framework is a topical issue among scholars and practitioners of European law and of international dispute settlement. This monograph explores the issues arising within the internal market and those that have come up in the European Union’s and the Member States’ individual external economic relations. It looks at the various aspects of FDI regulation, analysing the admission, treatment and protection direct investments in the EU.

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Requiring ‘unity first’ in relations with third states: the Court continues ERTA-doctrine in Opinion 1/13

 In last Tuesday’s Opinion (Grand Chamber) following an article 218 (11) request by the Commission, the Court confirmed that the acceptance of the accession of an non-Union country to the 1980 The Hague Convention on child abduction fell within the EU’s exclusive competence. As a consequence, the decision to accept accession of a third state can only be taken after the Council has taken a decision on the matter, and Member States can no longer decide that third countries can accede and establish bilateral obligations on their own. The Court rejected the position taken by 19 out of 20 Member States who submitted observations to the Court, and once again supported the view that EU Member States are required to act jointly first in matters which may affect the EU legal order. The judgment is particularly noteworthy because;

  • The Court’s interpretation on the scope and meaning of the article 218 (11) TFEU request;
  • The confirmation of the ERTA-case-law post-Lisbon.

This blogpost will consider both points in turn. Continue reading

Neues aus dem Elfenbeinturm: October 2014

Conference “The European Union as an Actor in International Trade and Investment”

University of Oslo, 31 October 2014. Registration still open.

4th Conference of the Postgraduate and Early Professionals/Academics Network of the Society of International Economic Law (PEPA/SIEL) 2015

University of Milan, 16-17 April 2015. Deadline for abstract submissions: 2 November 2014.

Call for Papers : Utrecht Journal of International and European Law – Privacy under International and European Law

Deadline extension (!): 14 November 2014.

Conference “Challenges in the field of economic and financial crime in Europe”

University of Luxembourg, 1-3 December 2014. Deadline for registration: 21 November 2014.

The Apple state aid investigation: fiscal state aid at its best

Oddly enough, state aid has recently been making headlines. In June, the Commission decided to open three in-depth investigations into tax rulings issued by Ireland, Luxembourg and the Netherlands in relation to Apple, Fiat and Starbucks respectively. In October, the Commission announced that it will also be examining whether the tax treatment of Amazon by Luxembourg is in line with EU state aid rules. These decisions are the spearhead of a recent clampdown on sweetheart tax deals between Member States and big multinationals that Commissioner Almunia says will ensure that they pay “their fair share of taxes”.

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Protocol 16 and the Autonomy of EU law: who is threatening whom?

On 2 October 2013, the Committee of Ministers of the Council of Europe opened for signature Protocol no. 16 to the European Convention on Human Rights. This new Protocol, which has been referred to as the “Protocol of the dialogue” by Dean Spielmann, the President of the European Court of Human Rights (ECtHR), creates the possibility for supreme courts of the Contracting States to the Convention to request an advisory opinion from the ECtHR on “questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto”[1].

Even though the material scope of Protocol no. 16 is clearly confined to the Convention and its protocols, some concerns have been expressed in the recent past, notably at the recent hearing held by the ECJ on the draft agreement on EU Accession to the Convention (“DAA”), that the use of this new instrument of consultation by courts of the EU Member States might be problematic from the point of view of EU law. More specifically, the question was raised in this context whether Protocol no. 16 would not threaten the autonomy of EU law and the monopoly of the ECJ on the interpretation of EU law, by allowing supreme courts of the Member States to engage in a kind of “forum shopping” between the Luxembourg and Strasbourg courts. This contribution purports to demonstrate that those concerns are unjustified and should not be allowed to undermine the further development of the Convention system initiated by Protocol no. 16. Continue reading

No laughing matter: the right to parody in EU copyright law (Case Deckmyn v. Vandersteen, C-201/13)

Suske and Wiske

Parody is one of the limitations on copyright, contained in Article 5(3)(k) of the InfoSoc Directive (‘the Directive’). The list of limitations in Article 5 of the Directive is optional, meaning that the Member States are free to decide which of the limitations from the list they will implement into their national laws. The judgment in Deckmyn v. Vandersteen, issued on September 3rd, is about the concept of parody in the EU copyright law and it is meant to clarify two issues: the scope of harmonization of the parody limitation in the Directive and the criteria to be looked at when applying this limitation. The potential impact of the judgment, however, goes well beyond the pure sphere of copyright: at stake here was also the issue of balancing of the fundamental rights, in particular the balance between copyright and freedom of speech. The Advocate General went further than the Court and also looked at the conflict between the right of ‘human dignity’ (para. 82 of the Opinion) or ‘deepest convictions of European society’ (para. 85 of the Opinion) and the freedom of speech. Unfortunately, the brevity with which the CJEU addressed the most controversial aspects of this case, leaves many questions unanswered. Continue reading

It Takes Two to Tango: Two-Sided Markets and the Appeals in Cartes Bancaires and MasterCard

The Court has recently decided on the appeals in two seminal cases: MasterCard MIF (MasterCard) and Groupement des Cartes Bancaires (CB). Both cases result from Commission decisions that found Article 101 TFEU to have been infringed by the decisions taken within those schemes with regard to fees that form part of the working of these payment systems. To understand both cases it is necessary to first set out the background to the MasterCard and CB systems. After that we will examine the procedure and finally the judgments themselves. This will reveal essentially three interesting issues:

  1. the object-effect dichotomy,
  2. the relation between the exclusion of competitors and the object category, and
  3. the possibility to take into account redeeming features.

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Belgium & EU B-2-C Commercial Practices. Will they ever learn?

In the field of EU B-2-C Commercial Practices, Belgium is a hard learner. Although the Belgian trade practices legislation has already been under investigation several times and has even been declared incompatible with the Unfair Commercial Practices Directive (Directive 2005/29/EC) by the EU Court of Justice (e.g. Pelckmans Turnhout NV against Walter Van Gastel Balen NV a.o.; WAMO BVBA against JBC NV and Modemakers Fashion NV; VTB-VAB against Total Belgium,  and Galatea against Sanoma Magazines), the Belgian legislator nonetheless ‘maintained’ certain strict rules. For instance, the Belgian Law of 6 April 2010 on commercial practices, consumer information and consumer protection (LPMC) still excludes certain professions from its scope of application and includes strict rules on discount prices and on the organization of travelling trading and fairground activities.

 Not surprisingly, the European Commission decided to challenge the aforementioned rules and bring an action for failure to fulfil obligations under Article 258 TFEU against Belgium. In this short contribution, I will discuss the judgment of the EU Court of Justice (‘CJEU’) following the aforementioned action. This judgment does not only have an impact on current Belgian trade practices legislation – the LPMC was abolished and replaced by Book VI of the (recently adopted) Belgian Code of Economic Law –, but also contains lessons for other EU Member States.

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Neues aus dem Elfenbeinturm: September 2014

Detention of irregular migrants – The Returns Directive shows its true colours in Mahdi (C-146/14 PPU)

Directive 2008/115/EC on the returns of irregular migrants (or, less neutrally, ‘illegally staying third-country nationals’) has been the subject of fierce criticism and not without good reasons. In an attempt to make the legal framework clearer, the Court of Justice of the European Union (CJEU) has been called to interpret its provisions on numerous occasions (such as Kadzoev, El Dridi, and Achughbabian). In particular, with regard to Article 15 on the detention of irregular migrants prior to their removal the Court has so far explained how the period of detention should be calculated and when there is a ‘reasonable prospect of removal’ (Kadzoev); it has precluded the incarceration of irregular migrants during the return process on the sole ground that they remain on the territory of a Member State even though an order to leave exists (El Dridi), and it has attempted to strike a balance between the right to be heard and the efficiency of the administrative procedure to extend the period of detention (G & R).

In the past few months one has witnessed the re-emergence of the issue of pre-removal detention. The judgment in the case of Mr. Mahdi, released on the 5th June 2014 by the Third Chamber, is central in this regard and raises mixed feelings. On the one hand, the Court provides the national authorities with important guidelines with a view to ensuring –at least to a certain extent- the right of irregular migrants to effective remedies. On the other hand, it seems to lack inspiration when dealing with harder questions that require a constructive approach beyond the mere replication of the provisions of the Directive. Continue reading

The Appeal in Greek Lignite: Clarification of the Law or Jumpstarting Article 106 TFEU?

Introduction

In October 2012 I wrote an entry about the General Court judgment that annulled the Commission decision in the Greek Lignite-saga, concerning the Greek state-owned electricity company DEI that benefitted from the exclusive right to mine for lignite (brown coal) which, according to the Commission, distorted competition. In a nutshell I found that the judgment did little to clarify the obscure clarity or clear obscurity of Article 106 TFEU, but it was certainly good news for DEI, the state-owned electricity company that benefitted from the exclusive right to mine for lignite. In that blog I wrote that the Commission should appeal so that the Court could clarify its own case law (instead of the General Court second-guessing what the Court could have meant). Well, the Commission did appeal, but I’m not sure whether the Court clarified its own case law. One thing that is for sure it that Article 106 TFEU may well have been given a new lease of life. This turns on the question whether actual abuse by the public undertaking must be shown in Article 106 TFEU-cases. This follows from the fact that Article 106 TFEU is addressed to the Member States, but is an empty norm that only gets substance when it is read in conjunction with another Treaty provision. In this regard Article 102 TFEU is by far the most popular norm to be mated to Article 106 TFEU as the exclusive right mentioned in Article 106 TFEU is easily equated to a statutory monopoly for the public undertaking and thus dominance within the meaning of that provision.

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POMFR: European Police and Criminal Co-Operation

Maria Bergström and Anna Jonsson Cornell (eds.), European Police and Criminal Co-Operation, Swedish Studies In European Law, Volume 5, Hart Publishing 2014, 198 pages, ISBN: 978-1-84946-350-8

The fields of police and criminal law cooperation within the European Union have been significantly transformed and widened with the entry into force of the Lisbon Treaty in 2009; yet, they remain contested on a number of grounds. Maria Bergström and Annna Jonsson Cornell, the editors of the book under current review, argue that there are two main reasons for this. Firstly, they consider that this is because the two policies have a significant impact on the rights of individuals and on the relationship between the individual and the State; secondly, they consider that this is because policing and criminal law remain anchored to State sovereignty and the monopole of enforcement exercised by the States in these domains. Against this background, the different contributions of the book take stock of post-Lisbon developments in order to assess the extent to which the reform of 2009 and recent legislative initiatives relate to the two main controversial aspects identified by the editors. With legislative proposals such as the new Europol Regulation and the establishment of the European Public Prosecutor pending in Brussels, the book comes out at a time in which the powers of the EU in the fields are in the spotlight.

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The territorial reach of the “right to be forgotten”: think locally, but act globally?

By Brendan Van Alsenoy and Marieke Koekkoek

In May of this year, the Court of Justice of the European Union (CJEU) decided that individuals can ask Google to stop referring to certain information about them, as discussed previously on this blog. The CJEU’s recognition of this so-called “right to be forgotten” has kicked up quite a storm. Now that the dust is beginning to settle, it is time to direct our attention to questions of practical implementation. One set of questions is about territorial reach. How far should the right to be forgotten extend, geographically speaking? Should Google, upon finding that an individual’s request is justified, modify its search results globally? Or should it only modify search results shown within the EU?And if so, how useful or effective is this right to be forgotten then?

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Democratic scrutiny of EU foreign policy: From pirates to the power of the people (Case C-658/11 Parliament v. Council)

Opinions may differ on what is the “most dangerous branch” in the EU. However, at the moment the most ambitious institution regarding the expansion of its powers is doubtlessly the European Parliament (EP). The recent judgment in Case C-658/11 Parliament v. Council shows that even the Union’s traditionally “sovereignty-sensitive” Common Foreign and Security Policy (CFSP) is not immune to the Parliament’s advances.

Wielding the all-powerful mantra of “democratic legitimacy” (on the concept in transnational context, see this recently published Special Report), the EP has a decades-long history of increasing its influence in European politics. In recent months, it could celebrate important victories by interpreting the new rules laid down in the post-Lisbon reform EU Treaties in its favour. The most prominent triumph concerned the first ever election, and no longer mere approval, of the new Commission President by the Parliament. By proposing Jean-Claude Juncker as the prevailing Spitzenkandidat, the European Council acquiesced to the Parliament and set an important precedent for the future direction of the European polity. Continue reading

Neues aus dem Elfenbeinturm: August 2014

10th International Workshop for Young Scholars (WISH) – New Directions in EU and Global Risk Regulation

HEC Paris, December 2014 (exact date to be determined). Deadline for proposal submission: 1 September 2014.

Bilingual (fr/en) Doctoral Colloquium on The European Union and International Law/L’Union européenne et le droit international

University of Fribourg (CH), 17-18 April 2015. Deadline for abstract submission: 31 August 2014.

Postgraduate Law Conference 2015

University of Copenhagen, 29-30 January 2015. Deadline for abstract submission: 10 October 2014.

International Interdisciplinary Conference “The Transnational in International Law”

University of Bremen, 25-27 March 2015. Deadline for abstract submission: 31 October 2014.

State aid case C-224/12 ING: Private investor test by default?

On 3 April 2014 the CJEU confirmed the General Court’s judgment of 2 March 2012 in the State aid dispute between the European Commission and the Kingdom of the Netherlands, ING Groep NV and the Dutch Central Bank (De Nederlandsche Bank NV). All six grounds of appeal brought by the Commission in this case were dismissed by the Court. Most notable are the Court’s considerations  on the applicability of the private investor test. The Court confirmed that the Commission cannot evade its obligation to assess the economic rationality of a given measure in the light of the private investor test solely on the basis that the measure is connected to a measure which itself already constitutes State aid. Centrally, the decision raises the question as to why the Court sticks to the private investor test in the particular circumstances of the given case. Is the private investor test to be applied by default? Or are there good reasons for the applicability of this test, no matter what?

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Neues aus dem Elfenbeinturm: July 2014

Workshop Global Administrative Law and the Concept of Law

University of Lisbon Law School, 28 November 2014. Deadline for abstract submissions: 15 August 2014.

Workshop Imagining post-neoliberal regulatory subjectivities

University of Turku, 15-17 October 2014. Deadline for abstract submissions: 15 August 2014.

Trade, Law & Development – Call for submissions

Deadline for manuscript submissions: 17 September 2014.