POMFR: Der Staat im Recht

The moment has come to deliver on this blog’s promise of looking beyond the realm of the English language. For this POMFR post, I would like to present a recently published Festschrift which contains a number of contributions of interest to EU lawyers capable of reading German.

Der Staat im Recht is a Festschrift for Professor Eckart Klein, formerly Ordinarius at the University of Potsdam, which covers a broad range of topics – constitutional law, procedural law, international and human rights law and of course EU law. Now, while there are a number of non-EU law contributions which I found thought-provoking (if you have time, read the rather grim essay on the world dominance of human rights by Isensee, ‘Die heikle Weltherrschaft der Menschenrechte’), I will focus on the EU law contributions for this blog post. Continue reading →

EU Law and MOOCs: A marriage waiting to happen

In view of the current hype on Massive Open Online Courses (MOOCs), spawning recently a grant competition of the Stifterverband für die Deutsche Wissenschaft and iversity for courses to be hosted, publicly available and free of charge, on a Europe-based MOOC platform, a few thoughts an EU law, legal education and MOOCs are in order. It should be added at the outset that the author of this post is coordinating one of the bids for a MOOC grant for a course entitled “Europe in the World: Law and Policy Aspects of the EU in Global Governance”, which makes him particularly invested in this issue. The author is grateful to European Law Blog Team that he was granted the opportunity to share his thoughts on these developments, as well as his bid, in the form of this post.

Transnational law meets transnational education

Ever since Prof. Sebastian Thrun’s historic feat of attracting more than 150,000 students to his Massive Open Online Course on artificial intelligence two years ago, MOOCs have started to shake up the landscape and minds of higher education. In a kind of “gold rush”, academics want to join this remarkable development, and companies are being founded to provide platforms for such ventures, predominantly in the US, but also more recently in Europe. Beyond subjects closer to technology, such as computer science or engineering, the social sciences and humanities have also come to feel the potential and attraction of MOOCs. Continue reading →

Happy Europe Day and CJEU conference on Van Gend & Loos

Today is Europe Day so I wish our readers a very fine day today. We celebrate that it is exactly 63 years ago that French minister of Foreign Affairs Robert Schuman announced the beginning of European supranational cooperation with the Schuman declaration. I’ve always really liked the speech; it’s a nice mix of vision and practical thinking on European cooperation.

Anyway, I would also like to draw your attention to a pretty awesome conference organized by the CJEU next Monday. That’s right: the Court itself is organizing a conference which is open to all. But it gets better. Not only is it on a cool topic (reflection on 50 years since the Van Gend & Loos judgment), but it will also be broadcast live on the internet. So we can follow the conference from all around the globe without having to go to Luxembourg. You can find the programme here (with some excellent speakers), the link to the live stream is here. The conference starts at 9.30 AM UTC+01:00 on May 13.

The seal product cases (II): Case T-526/10 Inuit Tapriit Kanatami and others

In a second round of cases in Luxembourg, a number of seal hunters failed (yet again) to convince the General Court to annul the EU-wide ban on trade in seal products. In a nutshell, the seal hunters argued that the EU acted ultra vires by adopting the ban on the basis of article 114 TFEU (harmonization of rules for the establishment and functioning of the internal market). Moreover, the applicants argued that the ban violated their fundamental rights and the principles of subsidiarity and proportionality. According to the applicants, the EU-wide ban was not aimed at improving the functioning of the internal market, but rather at safeguarding the welfare of animals, an objective for which no legal basis exists within the EU Treaties.

In dismissing the arguments put forward by the seal hunters, the General Court made a number of interesting statements regarding the EU’s ability to severely restrict trade of an ‘exotic import’ (a product not made within the EU) within the EU’s internal market on grounds of protecting the welfare of animals living outside the EU. In this post I will focus on the competence issue by discussing the particularities of EU constitutional law and the (modest) challenge a ban on the sale of exotic imports such as seal products poses for EU legislative competence.

  Continue reading →

Multi-Speed Europe: Enhanced Cooperation or Increased Litigation?

Background

The idea of a ‘multi-speed Europe’ finds its concrete expression in a range of European Union (EU) policy fields from the single currency to EU criminal law. As the product of specific treaty authorizations, these examples of ‘enhanced cooperation’ have become a familiar means by which European integration has deepened while allowing individual states to avoid being bound by measures adopted in a new field of cooperation. With the Amsterdam Treaty, a new capacity was created to deploy enhanced cooperation on a more ad hoc policy issue basis, particularly where legislative negotiations had failed to resolve disagreements between Member States.

Yet the new capacity remained unused until after the entry into force of the Lisbon Treaty, which amended the provisions on enhanced cooperation (now Article 20 TEU and Articles 326-334 TFEU). The new provisions were deployed for the first time to permit a group of states to adopt a regulation on the law applicable to divorce and legal separation. However, it was the second authorization of enhanced cooperation in the area of the EU unitary patent which was more controversial and which gave rise to legal actions by Spain and Italy seeking an annulment of the authorizing decision. Both states had objected to the proposal to restrict the languages used for submission of patent applications to English, French and German. In the absence of the unanimity required for the establishment of the language regime (Article 118 TFEU), legislative negotiations had reached a stalemate and so the decision was taken by the Member States – with the exception of Spain and Italy – to authorize enhanced cooperation. The two countries then brought legal proceedings seeking the annulment of the authorizing decision.

This post considers the implications of this litigation for the use of enhanced cooperation with a particular eye towards the legal action which has been launched by the United Kingdom challenging the use of enhanced cooperation for the adoption of the controversial Financial Transactions Tax (FTT). Continue reading →

Dutch Court asks Court of Justice to rule on the limits of verification of the sexual orientation of asylum seekers

On March 20, the Judicial Division of the Netherlands Council of State referred three cases concerning asylum seekers who claim to have been persecuted on account of their sexual orientation to the Court of Justice for a preliminary ruling. Pursuant to Article 10(1)(d) Qualification Directive, groups with a common characteristic of sexual orientation may fall within the ambit of the minimum level of protection afforded by European asylum law. However, during the initial procedure the asylum seekers concerned failed to convince the Dutch immigration service that they were gay and their application was subsequently denied.

On appeal, their lawyers argued that the mere statement that one is gay, lesbian or bisexual is sufficient proof of an asylum seeker’s sexual orientation. Moreover, the lawyers submitted, any further verification of their sexuality is contrary to, inter alia, Articles 3 and 7 of the Charter of Fundamental Rights. The Council of State accepted that some questions pertaining to the way in which the applicant experiences, sexually or otherwise, his sexual orientation or how and when the applicant became aware of his sexual orientation may be contrary to the right to personal integrity (art. 3 (1) Charter) and the right to private life as guaranteed in Articles 3 and 7 of the Charter of Fundamental Rights and asked the CJEU for guidance on this point. In this post, I will use queer theory in an attempt to substantiate the argument that verification ought to be considered contrary to human rights standards.

Continue reading →

AG Cruz Villalon in Case C-221/11 Demirkan: Selective Associationism

In Demirkan, the Court will have the difficult task to decide whether Article 41 (1) of the Additional Protocol to the 1963 Association Agreement between the EU and Turkey may actually extend to the passive freedom to receive services (the freedom to move to a Member State to receive a service). In his opinion presented last Thursday, Advocate General Cruz Villalon suggests the Court should say no – based on somewhat conventional, yet interesting arguments which use the rules of interpretation of the Vienna Convention on the Law of Treaties in a very selective way. Continue reading →

New Decision on Disability Discrimination from the CJEU

We are delighted to welcome this post from Eilionoir Flynn, a Senior Research Fellow at the Centre for Disability Law and Policy in Galway, Ireland. It will be cross-posted at the Human Rights in Ireland Blog.

Yesterday, the Court of Justice of the European Union handed down its decision in the joined cases of Ring and Skouboe Werge (see judgment here). This ruling is particularly significant as it represents the first decision on the definition of disability under the Framework Directive on Employment 2000/78 since the EU concluded the UN Convention on the Rights of Persons with Disabilities (CRPD) in 2010. In essence, the Court moved away from the restrictive definition it adopted Chacón Navas, and instead interpreted the Framework Directive in light of Article 1 CRPD, which states that

persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

Continue reading →

On the Rocky Road to Accession: Final Draft of EU’s Accession Agreement to ECHR Approved

“The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.” Article 6, paragraph 2, TEU

The EU took another step towards accession to the ECHR with the finalization, late last week, of the Draft Revised Agreement on the Accession of the EU to the ECHR, after almost three years of negotiations.

However, as Antoine Buyse notes over on ECHR Blog, the road to accession remains long and winding. The next hurdle will be to request an opinion from the Court of Justice on the compatibility of the agreement with the EU Treaties, pursuant to Article 218(11) TFEU. The agreement would then require the unanimous approval of the Council, in addition to the approval of all Member States “in accordance with their respective constitutional requirements” (Article 218(8) TFEU). Finally, the agreement will have to be ratified by all States of the ECHR. Continue reading →

Allianz and the Object-Effect Dichotomy in Article 101(1) TFEU: A Practical Solution Meets Not So Practical Competition Law

Two separate insurance companies Allianz and Generali concluded a number of contracts with autorepair shops on the prices and other conditions that would apply for cars insured by these companies repaired by those shops. Moreover, Allianz and Generali also concluded similar contracts with the dealers who operated car repair shops. Finally, they concluded similar agreements with the association of car dealers. In this category of agreement, the prices for car repairs would increase with the number of insurances sold by the dealers. Allianz and Generali, therefore sought to link the number of insurances sold by the dealers to the remuneration for car repairs. This is obviously designed to increase or at least consolidate the market share of Allianz and Generali on the market for car insurances. Apart from this business strategy, the idea behind these agreements was that auto repair shops could start repairing immediately on the basis of the predetermined tariffs, something that is clearly a practical solution to get people back on the road as quickly as possible.

The Hungarian Competition Authority (referred to in the judgment as GVH; HCA hereafter), however, considered these agreements to restrict competition by object on the market for car insurance contracts and the market for car repair services within the meaning of the Hungarian equivalent of Article 101 TFEU. As it happens, this provision closely mimics Article 101 TFEU, in line with the trend towards a spontaneous harmonisation of competition law throughout the EU (see the preamble and explanatory memorandum to the Hungarian competition act referred to in paragraphs 3 and 5 of the judgement). Because the HCA considered that there was no effect on trade, Article 101 TFEU was not applied by the national competition authority. The prohibition decision issued by the HCA was challenged by Allianz, in particular on the grounds that the agreement did not restrict competition by object. the decision by the HCA was partially reversed and then restored upon appeal, against which Allianz appealed to the Hungarian Supreme Court. The Supreme Court then made a preliminary reference essentially asking whether the agreements at hand fall within the object category.

Continue reading →