After the referendum and before Brexit… Where now for workers’ rights in the EU?

By Rebecca Zahn

The British referendum on the country’s continued membership of the EU has dominated the political and media landscape both in the UK and abroad for the last few months. There has been a plethora of academic commentary on the possible consequences of a British exit (‘Brexit’). On 23 June, based on a turnout of 72%, 52% of the electorate voted for Leave, while 48% supported Remain. This narrow majority disguises dramatic differences between different regions: Scotland, Northern Ireland and large parts of London voted to Remain whereas substantial sections of Wales and most of England voted to Leave.

In the run-up to referendum day, workers’ rights were invoked repeatedly by both sides of the campaign as either a reason to back or oppose Brexit. Leave campaigners, such as Patrick Minford, Professor of Economics at Cardiff Business School, argued that the UK needed to reset its relationship with the EU to ‘jettison excessive protection and over-regulation, notably in the labour market’. Domestic employment laws originating from the EU legislature, such as the much vilified Working Time Directive, have often been described as a burden on business, inflexible, uncompetitive and inefficient. On the other hand, Remain campaigners such as Frances O’Grady, General Secretary of the British Trades Union Congress (TUC), warned repeatedly that ‘working people have a huge stake in the referendum because workers’ rights are on the line’ and the link between the UK’s membership of the EU and better protection of workers’ rights featured heavily in campaign material opposing Brexit. Continue reading

A post-Brexit analysis

By the editors

The British people voted by a majority of just over million people to leave the EU. Some have hailed this unprecedented decision as a return to sovereignty and a reassertion of British prominence on the global stage. Others mourn the outcome, believing it to represent a lurch towards splendid isolation and irrelevance. The vote laid bare a number of hard truths for both sides. While the close margin was largely anticipated, a negative and divisive campaign has meant that there is little common ground on which both the Remain and Leave camps can build. The results also exposed the extent of the inter-generational divide within the UK. Young voters chose by a large majority to remain while older voters chose to leave. This has led to the obvious recrimination that having reaped the benefits of EU membership for decades, older voters are depriving younger generations of these opportunities and deepening existing inequalities. The EU may, however, take some hope from this vote of confidence from the British youth.

 Beyond the political, economic and social implications of the result within the UK and for the EU, the vote will have significant legal consequences. In the coming months, we will attempt to identify the legal questions that Brexit will entail. A few spring to mind: Is the UK bound to invoke the Article 50 procedure? (The political establishment in the UK appear to think not.) What happens to the international (trade) agreements concluded jointly by the EU and the UK?  How will the border between Northern Ireland – which voted to Remain but will become an external border of the EU – and the Republic of Ireland be policed and what impact will this have on the Good Friday Peace Agreement? What – if any – immediate implications will this have for British MEPs, the CJEU, Commission officials, for the Council and – of course – for the British Presidency of the Council in 2017? Will Assange no longer have to fear for extradition to Sweden? What will happen to the more than one million UK citizens living and working in Europe? And what will happen to EU citizens living and working in the UK (including, for instance, professional football players)?  How will the UK’s environmental law and policy be affected, as, for instance, REACH will no longer be applicable in the UK? How will the Brexit vote affect the development of the digital single market or the future funding of scientific research?

 A particularly worrying feature of the UK referendum campaign, visible in the US Presidential Elections and elsewhere – is the vilification of ‘experts’ and the willing disregard of evidence. Nevertheless, as lawyers we must continue to rely on such evidence and expertise to negotiate the legal issues this vote will raise. All contributions to this blog on these legal implications are very welcome – informed expert opinion matters. 

Neues aus dem Elfenbeinturm: June 2016

Call for papers “The reform of the rules of procedure of the EU Courts”

University of Milan, 16 December 2016. Deadline for abstract submission: 10 August 2016.

Call for papers: “Human rights in the EU’s conditionality policy towards enlargement countries in the Western Balkans”

Deadline for abstract submissions: 15 July 2016.

Call for papers “Young Researchers Master Class on Agencification of EU executive governance”

European University Institute, Florence, 9 November 2016. Deadline for abstract submissions : 30 June 2016.

Call for papers: “Conference on Constitutionality, powers and legitimacy of EU agencies or agency-like bodies”

European University Institute, Florence, 10-11 November 2016. Deadline for abstract submissions : 30 June 2016. Continue reading

The Spanish Tax Lease case: identifying the beneficiary under the selectivity test in fiscal aid schemes

By Sébastien Thomas

In its judgment of 17 December 2015, Spain a.o./Commission, the General Court once again annulled a Commission decision dealing with a fiscal State aid scheme on the grounds that the Commission did not sufficiently establish that the scheme in question conferred a selective advantage to its beneficiaries.

Strikingly, the General Court’s judgment was very much inspired by two of its previous judgments – albeit in another composition – in the cases Autogrill España  and Banco Santander . In those cases, the General Court found that for the condition of selectivity to be satisfied, a category of undertakings which are exclusively favoured by the measure at issue must be identified in all cases and found that “the mere finding that a derogation from the common or ‘normal’ tax regime has been provided for cannot give rise to selectivity” [1]. This is especially the case when the measure at issue does not exclude, a priori, any category of undertakings from taking advantage of it. [2]

Without entering into the merits of these two judgments, against which the Commission has brought separate appeals, the General Court’s judgment in the Spanish Tax Lease (STL) case deserves special attention, for it contains also interesting developments on the links between the separate notions of advantage and selectivity, and the need for the Commission and for the EU courts to pay special attention to the identification of the correct beneficiary when dealing with State aid schemes involving multiple layers of actors. Continue reading

Harmonised European Standards and the EU Court of Justice: Beware Not to Open Pandora’s Box

By Bardo Schettini Gherardini

As already stressed by Megi Medzmariashvili in her post of 1st March 2016, the question of whether the Court of Justice of the European Union (‘the Court’ or ‘CJEU’) has jurisdiction to give a preliminary ruling on the interpretation of a harmonised technical standard (‘HTS’) adopted by the European Committee for Standardisation (‘CEN’) is, for the first time, raised in Case C-613/14, James Elliot Construction Ltd v Irish Asphalt Limited.

As Director – Legal Affairs of both CEN and CENELEC (the European Committee for Electrotechnical Standardization), I would like to give an insider’s view on the European standardization system and to expose a more critical approach to the Opinion delivered by the Advocate General (‘AG’) Campos Sanchez-Bordona on 28 January 2016.  The AG suggested, in reference to the first question referred for a preliminary ruling, that the Court must declare that it has jurisdiction for the main reason that the HTSs should be regarded as acts of the institutions, bodies, offices or agencies of the Union for the purposes of Article 267 of the Treaty on the functioning of the Union (‘TFEU’), which is the primary law basis of the cooperation between the CJEU and the national courts via the preliminary ruling system. The opinion of the AG is based on three arguments that I would like to comment on, just after insisting on some essential elements of background on the way HTSs are produced and how CEN and the other European standardisation bodies are working.   Continue reading

ECJ launches its own app CVRIA

cvria appBy Laurens Ankersmit

Earlier this month the Court launched its very own app for smartphone and tablet. Available for free in both the Apple App store (for iPhone and iPad) and Google Play (for Android), the app contains a few nice basic functions for us Court followers.

The application is available in 23 EU languages and has four basic features:

  • ‘Case-law’: this feature gives easy access to the latest decisions of the Courts of the CJEU (judgments, orders and Opinions);
  • ‘Press releases’: shows the 10 most recent press releases published by the institution;
  • Judicial calendar’: gives an overview of the hearings, readings of Opinions and deliveries of judgments scheduled for the next five weeks;
  • ‘Search’: gives easy access to all the case-law of the Court. This section allows searches to be made by case number, parties’ names and date and in full text mode.

I have had the app for a week or so now and it is quite a handy basic version of the curia website. The design is also quite neat and it operates smoothly. However, don’t expect too many wonders from the app. The search function is basic, so if you want to search by procedure or subject-matter, you will still need to go to the curia website. Also, while it is great that with one touch you have access to the most recent judgments, the list of judgments does not include the subject-matter of the case. This is of course a general problem with the Court’s website (although half of the list of judgments does indicate the subject-matter) and it makes it a bit more tedious to skim through recent judgments that might potentially be of interest to you. Lastly, it would really be great if the next version of the app would have a notification feature which it unfortunately doesn’t have currently.

You can find the app under the name ‘CVRIA’ (with a V not a U) in your app store or in Google Play.

Neues aus dem Elfenbeinturm: May 2016

The Presumption of Innocence (and the Right to be Present at Trial) Directive

By Stijn Lamberigts

The recently adopted Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings (the Presumption of Innocence Directive) is the fourth Directive on the procedural rights of suspected and accused persons in criminal proceedings. After the Translation and Interpretation Directive, the Right to Information Directive and the Access to a Lawyer Directive, this new Directive tries to enhance the right to a fair trial through the adoption of common minimum rules on certain points of the presumption of innocence and the right to be present at trial (Recital 9). This should result in an increased trust between the Member States (MS) in the field of criminal justice and thereby facilitate mutual recognition. Whether this will be achieved by the Directive, will depend on the MS’s implementation efforts and the Court of Justice’s guidance on its interpretation.   Continue reading

Dirty links, porn previews without permission (Opinion of AG Wathelet in C-160/15, GS Media v Sanoma)

By Justin Jütte

Hyperlinking is one of the most important mechanisms that make the Internet workable and helps users to find and access information more easily. However, hyperlinking has come under scrutiny in the light of the provisions of the EU copyright rules. In the present case, the CJEU is being asked under which circumstances links to infringing material constitute a communication to the public. The request for a preliminary ruling by the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) is part of a growing body of case-law on the interpretation of Article 3(1) of the InfoSoc Directive (Directive 2001/29/EC). This post discusses the AG’s interpretation of the right of communication to the public in relation material which is made available on the Internet without the consent of the rightholder. Continue reading

Luxemburgerli: Astérix et la Politique Agricole Commune

Une belle introduction d’une opinion de l’Avocat Général Maciej Szpunar qu’il serait dommage de rater:

“Nous sommes en 2016 après Jésus-Christ. Toute la politique agricole commune (PAC) est régie par la procédure législative ordinaire… Toute ? Non ! Car une disposition irréductible du traité FUE relative à la PAC résiste encore à cette procédure ordinaire. Et la vie n’est pas facile pour ceux qui sont appelés à délimiter le champ d’application de cette disposition…”

Pernicious Effect of Similar Medicinal Product’s Orphan Exclusivity: CJEU Dismisses Teva’s Appeal (C-138/15 P)

By Mayank Dixit

In a significant, yet unusual judgment the Court of Justice of the European Union (CJEU) upheld the General Court’s decision (T-140/12; Teva Pharma v. EMA) that had affirmed the European Medicines Agency’s (EMA) rejection of Teva’s generic drug application for Glivec® (active substance-imatinib), not due to the reference product’s own orphan drug exclusivity but in view of orphan drug exclusivity of a similar medicinal product – Tasigna® (active substance-nilotinib).

The judgment is bizarre not only because it interprets the underlying orphan drug regulation in a manner incongruous with the spirit and substance of the legislation, but also for its potential to provide an unfair leg-up to the brand drug companies for extending their market monopolies indefinitely. It simply fails to fathom the underlying welfare rationale of the Regulation, which is meant to ensure the same quality of treatment for patients of rare conditions as those suffering from other diseases. The Court’s decision provides a skewed playing field where the interest of patients and generic pharmaceutical companies will be impacted by the unjustified extension of monopoly periods of brand drug products thus ensuring exploitative pricing of life-saving drugs. Continue reading

Limited liability for free Wi-Fi access (Case C-484/14, Mc Fadden v Sony Music)

By Justin Jütte

The civil liability of intermediary service providers remains a hotly debated topic in EU law, especially in relation to infringement of intellectual property rights (IPRs). Whereas the Information Society Directive (Directive 2001/29/EC), as well the IP Enforcement Directive (2004/48/EC) provide that owners of IPRs can, in principle, request injunctions against intermediaries, the E-Commerce Directive (Directive 2000/31/EC) exempts certain intermediaries from indirect liability under certain, well defined circumstances. The present case raises questions as to the scope and interpretation of Article 12 of the E-Commerce Directive, in particular with regard to fundamental rights. Concretely, the referring court in Tobias Mc Fadden v Sony Music Entertainment Germany GmbH asks under which circumstances and to what extent operators of publicly accessible Wi-Fi networks can be held liable for infringements of works protected by copyright, and what type of injunctions can be ordered against such operators.

Continue reading

POMFR: What form of government for the European Union and the Eurozone? (Fabbrini et al, eds.; Hart Publishing 2015).

By Daniela Jaros

A couple of months ago, an interesting volume edited by Federico Fabbrini, Ernst Hirsch Ballin and Han Somsen entitled „What form of government for the European Union and the Eurozone?“ appeared on the EU law book market. Containing contributions of many renowned scholars of EU law and EU politics, it seeks to explore the impact of the Euro-crisis on the institutional setting, the distribution of competences and the balance of power as well as issues of legitimacy and accountability within the Eurozone and ultimately within the European Union. Continue reading

Neues aus dem Elfenbeinturm: March 2016

Jean Monnet Doctoral Workshop “Interactions Between European Union and International Law”

City University London, 23 June 2016. Deadline for abstract submission: 25 March 2016.

Conference “Boosting the Enforcement of EU Competition Law at Domestic Level”

Radboud University Nijmegen, 3 June 2016. Deadline for abstract submissions: 31 March 2016.

Workshop “The Disintegration of Europe”

Hertie School of Governance, Berlin, 30-31 May 2016. Deadline for abstract submissions: 1 April 2016.

Seminar “Transnational Solidarity: Setting the Boundaries”

Center for Transnational Legal Studies, London, 1 April 2016. (Free) registration needed.

Conference “Environmental Rights in Europe and Beyond”

Lund, 21-22 April 2016. (Free) registration needed.

Conference “Existe-t-il encore un seul non bis in idem aujourd’hui?”

University of Nancy, 28 April 2016. Registration needed.

Vienna Journal on International Constitutional Law Conference 2016

Vienna University of Economics and Business, 23 September 2016. Deadline for abstract submissions: 15 May 2016. Continue reading

Restriction of the freedom of movement for beneficiaries of international protection (Joined Cases C‑443/14 and C‑444/14, Alo and Osso v Region Hannover)

By Margarite Helena Zoeteweij

Introduction

On 1 March 2016 the Court of Justice of the European Union gave its judgment in the joined cases of Ibrahim Alo and Amira Osso, Cases C-443/14 and C-444/14, ruling that the EU’s Qualification Directive does not sanction the imposition of restrictions of the freedom of movement for beneficiaries of subsidiary protection, and that such a limitation is not justifiable for reasons of territorial sharing of social assistance burdens, while at the same time leaving it up to the referring German Federal Administrative Court to decide whether the limitation can be justified for  reasons of migration and integration policy. The judgment comes in the midst of Europe’s biggest migrant crisis since World War II, and affects especially the rights of the beneficiaries of subsidiary protection status – those seekers of international protection that do not qualify as ‘refugees’, – the number of which is currently booming in Europe. The judgment will have instant and far-reaching consequences on the leeway of the national authorities in their dealings with beneficiaries of subsidiary protection status, especially since the Court confirms that, in principle, refugees and beneficiaries of subsidiary protection status are entitled to the same catalog of rights contained in Chapter VII of the Qualification Directive. Continue reading

Kingdom of Spain v. Council: another piece in the “Schengen puzzle”

By Angelo Marletta

The current European migratory crisis shows how politically sensitive the surveillance of the EU’s external borders is and the dramatic human consequences of the failures of that surveillance. On the one hand, border surveillance is essential to obtain situational awareness and to build an effective border policy. Border surveillance can indeed provide data and patterns to analyze and forecast migratory flows and to coherently plan actions to deal with them. Under EU Law, the surveillance of the External Borders is based on the Schengen acquis.

On the other, failures of surveillance can negatively impact the whole system of border management and, more concretely, the lives of migrants. Notwithstanding the relatively close distances between its shores, the Mediterranean is by far the deadliest sea border for migrants.

In Kingdom of Spain v. European Parliament and Council (C-44/14, 8 September 2015) the Grand Chamber of the Court of Justice (‘CJEU’) delivered its third judgement on Protocol 19 to the TFEU (‘Schengen Protocol’) addressing an essential element of the Schengen cooperation on border surveillance: the European Border Surveillance System – in short, EUROSUR. Continue reading

Short-term Residence, Social Benefits and the Family; an Analysis of Case C-299/14 (García-Nieto and others)

By Dion Kramer

Following its strict findings in the Dano and Alimovic judgments, the Court of Justice of the European Union could not but state the obvious in case C-299/14 (García-Nieto and others): Member States may exclude economically inactive EU citizens from social assistance who are residing in the host Member State for a period shorter than three months. Again, the Court opts for legal certainty in rigorous and explicit terms and emphasises the objective of preventing the foreign EU citizen from becoming an unreasonable burden on the host Member State’s social assistance system. However, just like with Dano and Alimanovic, this comes with a human cost. This time the Court neglected the possibility to give a more substantial meaning to the unity of the family, allowing discrimination towards the migrant worker. Continue reading

Case C-25/15 Balogh – The Translation and Interpretation Directive and (questionable) special procedures

By Stijn Lamberigts

Advocate General Bot killed two birds with one stone in his Opinion in Balogh (currently not available in English). After Covaci, previously analyzed here, the CJEU has now been asked to examine the role of the Translation and Interpretation Directive in special procedures. This Directive is one of the so-called Roadmap Directives, the latest attempt of the EU to increase the mutual trust between Member States (MS) in the field of criminal justice, by establishing EU minimum rules for procedural safeguards.  In his Opinion Advocate General Bot gave the referring Court, the Regional Court of the Budapest metropolitan area (Budapest Környéki Törvényszék), more than it had bargained for.  Continue reading

Opening the ECJ’s Door to Harmonised European Standards? (Opinion of the AG in C-613/14 James Elliott Construction)

By Megi Medzmariashvili

The James Elliott Construction case brings before the Court of Justice (ECJ), for the first time, the issue of whether it is within the Court’s jurisdiction to give preliminary rulings on harmonised technical standards (HSs). This contribution will analyse Advocate General (AG) Campos Sánchez-Bordona’s Opinion in this case, in particular its potential effects on the legal status and copyright protection of HSs. It will also discuss, more generally, the legality of the delegation of rule-making powers to the European Standard Bodies (ESBs). If the Court follows the AG’s opinion it will most certainly craft a New Approach to the New Approach. Continue reading

Rétention d’un demandeur d’asile et droits fondamentaux – L’ arrêt J.N. de la CJUE (C-601/15 PPU)

Par Sarah Progin-Theuerkauf et Samah Posse-Ousmane

Dans un arrêt important du 15 février 2016 dans l’affaire J.N., la Cour de justice de l’Union européenne a confirmé la validité de l’art. 8 par. 3, premier alinéa, sous e), de la directive 2013/33/UE (directive « accueil »). La Cour s’est notamment prononcée sur sa compatibilité avec l’art. 6 de la Charte des Droits fondamentaux de l’Union européenne (UE) et l’art. 5 CEDH (tel qu’interprété par l’arrêt Nabil). Si le raisonnement de la Cour dans le cas d’espèce paraît judicieux, il laisse ouvertes certaines questions relatives à la détention des demandeurs d’asile en général. Continue reading