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.
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?
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
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.
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?
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.
The free movement of capital provision of Art. 63 TFEU applies ratione loci ‘worldwide’: to both capital movements within EU’s internal market and to movements from the internal market to third countries (and vice versa). Or perhaps almost worldwide, since the question arises whether the free movement of capital also applies to the British, Danish, Dutch and French Overseas Countries and Territories (OCTs), which are not part of the internal market but associated with the EU?
In 2011, the CJEU decided in Case C-384/09 Prunus that Art. 63 TFEU also applied to the OCTs as if they were third countries; they are not third countries, since they áre part of the EU Member States (such as the Caribbean island of Curacao which is part of the Kingdom of the Netherlands, both constitutionally as under public international law; under EU-law, Curacao is an OCT).
Now, only three years later, the CJEU has decided otherwise in joined cases C-24/12 and C-27/12 X BV and TBG Limited. It came to the conclusion that not Art. 63 TFEU applies to the OCTs, but that a special capital movement provision which is contained in the OCT Association Decision applies in relation to the OCTs. This latter provision liberalises – in my view – ‘less’ than Art. 63 TFEU, since it ‘only’ applies to ‘direct investments in companies’, whereas Art. 63 TFEU also applies to (at least) 12 other categories of capital movements, such as investments in immovable property.
In this very interesting Grand Chamber judgment, the Court found Sweden’s scheme promoting the national production of green electricity (in accordance with Directive 2009/28, the so-called RES Directive) to be compatible with article 34 TFEU. The Court’s judgment is particularly notable for its deferential stance towards measures related to environmental protection based on EU rules which – paradoxically – are very nationally oriented although they tackle the global problem of climate change. The judgment is to be welcomed for giving both the EU and its Member States sufficient policy discretion on how to mitigate the effects of climate change. However, it remains problematic that the EU legislator opted for such a national approach, as this is bound to frustrate the achievement of a truly European electricity market. In adopting this deferential approach, the Court had to deal with some interesting legal issues relating to the free movement of goods, in particular:
- The discriminatory nature of the rules in question and, despite this, their possible justification;
- The impact EU legislation has on the proportionality analysis of the Court.
Migration Summer School : International Migration Management – From Theory to Practice
University of Barcelona, 2-12 September 2014. Deadline for applications: 30 August 2014.
2014 Doctoral Scholarship Conference
Yale Law School, 14-15 November 2014. Deadline for abstract submission: 1 August 2014.
Global Law and Governance Summer School
European Public Law Organisation, Cape Sounion, 14-18 July 2014. Deadline for applications: 30 June 2014.
Conference ‘Using Human Security as a legal framework to analyse the Common European Asylum System‘
T.M.C. Asser Instituut, The Hague, 4 July 2014. Registration still open.
On June 5 the Court has handed down the eagerly awaited judgment in the Kone case. This is one of the several cases that result from the Commission’s decision finding a cartel in the elevators and escalators sector. The decision concerned a bid rigging cartel involving four well-known firms (Kone, Schindler, Otis and ThyssenKrupp) active in the market for the production, installation and servicing of elevators and escalators. Bid rigging is a practice by which the participants in a tender procedure coordinate their bids in order to determine who wins the tender at what price. They will typically determine the cartel member intended to win and ensure that the other bidders put in a higher price. As most of these products are bought by professional buyers that tend to hang on to their purchasing records, civil damages claims resulted from the Commission’s finding that there was cartel. This means that the customers of the companies involved in the cartel seek to claim the supracompetitive part of the price they paid (the cartel mark-up). In keeping with the need for more damages claims fervently voiced by then Competition Commissioner Neelie Kroes, the Court has had to deal with quite a few cases on this issue already, but many more are to be expected. Kone deals with the question to what extent the cartelists are required to compensate the higher price charged not just by the members of the cartel, but also by other companies in the market (the umbrella effect). Continue reading
In Wednesday’s Grand Chamber judgment C-377/12 Commission v Council, the Court annulled the Council’s decision to sign the Partnership and Cooperation Agreement (PCA) between the European Union and the Republic of the Philippines because the Council had erroneously used a number of legal bases in addition to the development cooperation legal basis of article 209 TFEU and the common commercial policy legal basis of article 207 TFEU. While the outcome of the judgment is not that surprising, the Court’s reasoning is only partly helpful in shedding further light on the principle of conferral and the choice of the correct legal basis for the conclusion of international agreements when an agreement covers a number of policy areas. This is particularly true for agreements in the field of development cooperation, which traditionally covers cooperation in a multitude of fields not only directly linked to poverty reduction. This blogpost will discuss the two seemingly conflicting tests the Court applies when determining the correct legal basis of a measure and which now appear to have been merged into one test.
Diego Acosta Arcarazo and Cian C Murphy (eds.) EU Security and Justice Law after Lisbon and Stockholm, Hart Publishing 2014, 211 pages, ISBN: 978-1-84946-422-2
Myriads of pages have been written about the impact of the Lisbon Treaty and the Stockholm Programme in the development of an EU ‘Area of Freedom, Security and Justice’ (AFSJ). This volume, edited by Diego Acosta Arcarazo and Cian Murphy and including a foreword by Sir Francis Jacobs, aims at adding to the existing literature. In particular, it takes stock of the legal developments in the field after Lisbon and Stockholm and provides an evaluation on what has been achieved and where there are still shortcomings. The publication of the volume comes at an interesting time; it coincides with the end of the transitional period, signifying that the Court of Justice of the EU (CJEU) and the Commission will assume their full powers over the former third pillar and the pick-and-choose relationship of the United Kingdom with the field will reach a crossroads. Besides, a new multi-annual Programme (named after Rome or any other Italian city) will be adopted by the European Council.
For almost 25 years, retailers have sought, without much success, to invoke Union law in an effort to liberalise Member State restrictions on shop opening hours. The Pelckmans judgment, delivered by the Court of Justice (First Chamber) on 8 May 2014, marks a new stage of development in a long line of case law. In that decision, the CJEU was requested to review, for the first time, the compatibility of Belgian legislation prohibiting seven-day retail trading with provisions of the EU Charter of Fundamental Rights. The Court’s response on the Charter is unremarkable. Nevertheless, Pelckmans remains an interesting case. That decision refreshes an important statement of principle in EU internal market law: non-discriminatory rules on retail trading hours fall outside the scope of the Treaty. More significantly, it reminds us that the legal framework governing the outer limits of the Treaty freedoms remains fragmented – a structural feature that the Court arguably maintains to its own advantage.
Judgment of the Court (Grand Chamber) in C-131/12 Google Spain v AEPD and Mario Costeja Gonzalez
When Advocate General Jääskinen delivered his Opinion in the Google Spain case in June of last year (as commented upon on this blog here), it seemed to many (myself included) that it was the last nail in the coffin of the controversial ‘right to be forgotten’ provided for in the EU’s Proposed Data Protection Regulation. The judgment of the Grand Chamber of the Court of Justice delivered this morning in this case would however indicate otherwise. Indeed, it seems to follow from the judgment, which comes down decisively in favour of data protection and privacy when balanced with freedom of expression, that a ‘right to be forgotten’ already exists in the EU data protection regime in all but name only. For an assessment of the implications of this case, skip right to the bottom of this lengthy post!
Summer School on The Protection of Fundamental Rights in Europe
Bologna University, 30 June-4 July 2014. Deadline for applications: 10 June 2014.
Summer Academy in Global Food Law & Policy
Bilbao, Spain, 21 July – Friday, 25 July, 2014. Deadline for applications: 18 May 2014.
Where to draw the line between delegated acts and implementing acts? That has been the one million dollar question since the entry into force of the Lisbon Treaty. But I did not dare to ask this important question at the final exams of my students a few weeks ago. Why not? Because nobody, not even their teacher (after having spent years of research on the subject), had a plausible answer. However, on 18 March 2014, the Court of Justice in Commission v Parliament and Council, made a first attempt to answer this question. So would I now consider including this question in my next exam? Probably not, because the Court’s answer in this eagerly awaited judgment turns out to be quite hermetic and largely incomplete. Moreover, unfortunately, also the Opinion of the Advocate General – despite its deep analysis and ambitious tenor – failed to provide the necessary clarification to this endless and unsolved conundrum. Having said that, let me provide a brief analysis of this judgment and measure its most immediate impact.
On 16 January 2014, the CJEU ruled on case Reyes regarding dependent family members in the EU free movement law. The Court was asked to consider whether a family member of an EU/EEA citizen can be required to have unsuccessfully searched for employment in the country of origin in order to be regarded as a ‘dependant’ and whether for the interpretation of the same notion any importance should be attached to the intention of the family member to find employment in the host Member State.
In its judgment, the Court stated that family members cannot be required to prove that they have searched for a job in the country of origin and that whether they will eventually manage to find employment in the host Member State is an irrelevant factor with regards to the interpretation of ‘dependant’. The judgment is useful as it complements the previous jurisprudence of the Court regarding this issue and adds further details on the notion of dependence which is particularly important in the field of immigration law.
While the Eurozone crisis started as banking crisis which turned into a sovereign debt crisis simultaneously leading to the crisis of the monetary union, the first measures taken (bilateral loans to Greece, the EFSF, the ESM, the ECB’s SMP and later OMTs, the Six-Pack and the TSCG) were primarily meant to stabilize and contain the ongoing crisis. The Banking Union, however, completed through the recent agreement on the Single Resolution Mechanism (SRM), is a further, forward-looking step. More than to contain, it is meant to prevent crises of the kind just experienced. It has rightly been described as the most ambitious integration project since the creation of the single currency as it leads to its members transferring the control of their biggest banks to the supranational level.
The Banking Union consists of two pillars – the Single Supervisory Mechanism (SSM) and the Single Resolution Mechanism (SRM). Continue reading
It is common knowledge that, barring exceptional circumstances, only EU citizens who exercise their free movement rights can invoke the right to be joined or accompanied by close family members. An EU citizen who moves to another Member State can take his close family members along, even if the latter are not EU citizens themselves; the same is true when the EU citizen later returns to his home Member State. So far, everything is pretty much clear.
However, there still remains a large degree of uncertainty as to how much ‘movement’ is in fact required in order to be able to invoke this right. Does it suffice to go on a daytrip to another Member State (e.g. to visit an amusement park)? Does it suffice to work in another Member State without moving there? Is it necessary to reside in the other Member State for a number of months or even years?
In her recent Opinion in Cases C-456/12 and C-457/12, AG Sharpston urges the CJEU:
‘to take the opportunity afforded by these two references to give clear and structured guidance as to the circumstances in which the third country national family member of an EU citizen who is residing in his home Member State but who is exercising his rights of free movement can claim a derived right of residence in the home Member State under EU law.’
In what follows, I will briefly discuss the CJEU’s judgments and analyse their key points. As will become clear, the Court did in fact respond to the AG’s call, by providing further clarification on this point. Continue reading