The EU case law on the horizontal effect of fundamental rights is not the average lawyer’s go-to example of coherence, clarity, or adequate judicial reasoning. To give credit where credit is due, however, in a series of cases over the last year, the Court has significantly improved this state of affairs. The Grand Chamber’s judgment in Bauer et al is the most noteworthy affirmation of this change of direction so far. This post maps out what might now be safely described as the current position on the horizontal effect of fundamental rights in the European Union and attaches a threefold (mostly positive) meaning to the Bauer judgment. However, using Bauer as a springboard, it also raises two broader questions regarding the status of social rights and the non-horizontality of directives, which may require further refinement in future case-law. Continue reading →
On 8 October, four new Judges and two Advocates General officially entered into office at the Court of Justice of the European Union (henceforth ‘the Court’). Just two days before, the U.S. Senate had confirmed the appointment of Brett Kavanaugh to the U.S. Supreme Court. Whilst the latter process had attracted the attention of media from all over the world, the appointment of the new European judges had barely made the news. This situation is reflected also in the academic world, which, surprisingly, never showed much interest in the Court’s appointment process.
However, this does not mean that the procedure set out at Articles 253-255 of the Treaty on the Functioning of the European Union (henceforth “TFEU”) is immune to criticism. Two aspects in particular appear capable to negatively affect the appearance of independence of the European Judges: the duration of the mandate – 6 years – and the lack of transparency of the whole process which is dominated by national governments. These flaws may be one of the reasons why the Court had elaborated a minimal definition of the concept of judicial independence; a definition that may need to be reshaped in order to tackle the judicial reform enacted by the Polish government.
The concerns related to the transparency of the procedure and the discretion of national executives have been partially addressed by the Lisbon Treaty, with the creation of the s.c. Article 255 Panel. This Panel, composed of senior members of national judiciaries, former members of the Court and one person chosen by the European Parliament, is charged with the task to confirm a candidate’s suitability to perform the duties of Judge or Advocate General. Notwithstanding the undoubtedly positive effects produced by the panel on the quality of candidates, serious concerns remain regarding the transparency of its work: the Council Decision 2010/124/EU establishing the operating rules of this Panel, provides that both the hearing of the candidate and the deliberations of the body shall take place in private. Hence, the introduction of Article 255 Panel has been effectively dubbed as a form of “progress by stealth”.
Ahead of the oral hearing at the Bundesverfassungsgericht in the proceedings “European Banking Union” (on Tuesday, 27 November 2018, at 10:00 a.m.) signs can be found of the need of a slight reconsideration by the Court of some of its tenets about sovereignty and the status of the European Parliament, to which this case lends itself eminently. Here is one of the feelers for a possible outcome, as found circulating in the form of a fictional draft press release of the ruling.
The question whether it would be lawful for a Member State to revoke the notification of withdrawal from the EU before the two-year lapse (laid down in the third paragraph of Article 50 TEU) has, clearly, vital political, economic and social implications. Even though it cuts to the core of the philosophy governing the “ever closer Union” and the role that States and private individuals play in it, it’s also a matter to which the provision itself does not give a definite answer. Moreover, there is no case law issued on the matter by the CJEU that could contribute to the interpretation of the provision, while the UK Supreme Court seems to have posited the irrevocability of a withdrawal notification in the famous judgment issued in the case of R (Miller) v Secretary of State for Exiting the European Union [UKSC 2016/0196], foregoing the opportunity to use the preliminary reference mechanism. This absence of relevant CJEU case-law is expected to change after the Inner House of the Court of Session in Scotland decided on 21.09.2018 to refer a relevant preliminary question (see O. Garner’s analysis),
Part of the literature expressing interesting and strong legal arguments has suggested the answer to the above question to the positive (e.g. P. Craig, S. Peers, O. Garner, A. Sari). Arguing the contrary and attempting a contribution to the academic debate, this post’s point of view is based on the fundamental principle that the EU legal order constitutes an “autonomous legal system”, which is governed by its own rules enacted by its own institutions and interpreted by its established Court (C-26/62, Van Gend en Loos). It is, therefore, argued that the legal lacuna regarding the provision of revoking the withdrawal notification, leads, according to the interpretation of the provision set out in Article 50 TEU – in line with the letter and spirit thereof – to the conclusion that permitting such a revocation would contradict the principle of autonomy, regardless of whether it is unilateral or initiated upon consensus.
The present post is divided into two parts. In the first part I approach the interpretation of Article 50 TEU through its letter and spirit. In the second part I develop my argumentation concerning the critical role that the fundamental principle of autonomy should play when attempting to find the true meaning of the provision and to fill the legal gap concerning the right to revoke the withdrawal notification. Continue reading →
In a Grand Chamber ruling of 4 September 2018, the European Court of Justice annulled two decisions of the Commission to refuse access to documents on impact assessment reports in environmental matters. The decision is an important precedent to ensure greater transparency of the EU institutions at the early stages of legislative action – arguably the key stage of influence – and therefore a resounding win for those arguing for greater participation and influence of citizens in the EU legislative process. The judgment’s explicit recognition of this key constitutional EU value of greater participation of its citizens in the EU decision-making process in an access to documents case is therefore without doubt the most notable aspect of the ruling. It marks a major step forward for the utility for citizens of Regulation 1049/2001, especially considering the extensive restrictive case-law (in terms of transparency) in relation to other powers of the Commission under the Treaties. For transparency lawyers specifically, the finding of the ECJ that there is no general presumption of confidentiality to documents drafted in the context of a legislative initiative is significant, as is the role of the Aarhus Regulation in access to documents cases. Continue reading →
This is not entirely surprising: due to the increased use of all kinds of online services and information and communication technologies (ICTs), police and judicial authorities are confronted on a daily basis with the problem to collect electronic evidence, as the data they are looking for are often processed, transmitted and/or stored by foreign service providers, including big global technology companies such as Google, Facebook, Microsoft or Amazon. To compel a foreign person to cooperate in a criminal investigation is not obvious – the enforcement jurisdiction of police and judicial authorities is, in principle, limited to their own national territory.
This post will present the highlights of the double e-evidence proposal that is on the table and the first reactions to the proposals, at a moment where the institutional negotiations are picking up speed. Continue reading →
Compulsory retention, by ICT-providers, of all non-content user and traffic data, to ensure that that data will be available for subsequent use by law enforcement or intelligence, has been a controversial issue in the EU for several years now. On 19 July 2018 the Belgian Constitutional Court requested a preliminary ruling from the CJEU. Basically, it asks the EU Court to further clarify its earlier case law. The Belgian constitutional judges indicate that they find some aspects of the CJEU’s previous decisions puzzling and they also offer a new angle by explicitly linking the matter to the positive obligations of member states under the European Convention on Human Rights. The implied suggestion seems that the CJEU did not give those obligations enough weight when it found blanket data retention obligations disproportionate. Continue reading →
Book review: S. Vogenauer and S. Weatherill (eds.), General Principles of Law – European and Comparative Perspectives, Hart, 2017, 418 p.
The book is a collection of articles that reflect the outcome of a two-day seminar organised by the Oxford Law Faculty’s Institute of European and Comparative Law in 2015 on general principles of law. As often with collective works the result is a mixed bag with articles jumping in various directions, dealing with international law, EU law, private law and comparative law; some take a bird’s eye view on the legal landscape or the history of European integration, others focus on very specific issues, such as discrimination on the grounds of obesity. All authors, however, have clearly something to tell.
The book starts off with a brief introduction, as is customary for a collective work, but quickly cuts to the chase. The first two substantive chapters contrast the use of general principles in international law through a pleasant overview by Catherine Redgewell and in EU law with a most enjoyable essay by one of the editors, Stephen Weatherill. Continue reading →
On the day that Theresa May declared that withdrawal negotiations between the United Kingdom and the European Union have reached an impasse, the Inner House of the Court of Session in Scotland issued a judgment that may pave the road for a third option between no deal and May’s imperilled Chequers deal. The Scottish court decided to refer the following question in a preliminary reference to the Court of Justice of the European Union:
‘Where, in accordance with Article 50 of the TEU, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the EU’.
The purpose of the reference is to clarify for Members of Parliament whether it would be a legally valid option under Section 13 of the European Union (Withdrawal) Act to withhold a resolution approving any negotiated withdrawal agreement, or lack thereof, and instead vote to revoke notification under Article 50(2).
This post will summarise the reasoning of the Court of Session judgment. It will then engage with the arguments for and against the proposition that notice under Article 50(2) may indeed be revoked unilaterally. The argument will be forwarded that such a unilateral revocation by the United Kingdom should be possible, so long as a decision is made to do so in accordance with the constitutional requirements of the Member State. The post will conclude with consideration of the second limb of the conditions and effects of such a revocation for the Member State remaining within the EU. If unilateral revocation is indeed possible, it will be argued that the most desirable method of creating such a statutory power would be to include it within legislation mandating the holding of a second referendum on the question of whether the United Kingdom should leave or remain within the European Union, and to predicate its operation thereupon. Continue reading →
Last week, the European Court of Human Rights (ECtHR) issued an important, highly anticipated judgment, condemning the United Kingdom for its mass surveillance program.
Following Edward Snowden’s revelations regarding the United States-United Kingdom intelligence surveillance and intelligence sharing programme, 16 organizations and individuals (including the NGO Big Brother Watch) filed an application against the United Kingdom before the ECtHR. The 212page-long judgment published on September 13, 2018 is rich and deals with a great variety of important issues. Several among them are directly linked to some major legal questions examined in the past by the Court of Justice of the European Union (CJEU) or currently pending before it – not to mention the ongoing debate about whether the EU-US data transfer agreement known as Privacy Shield provides an “adequate level of protection”. The objective of this piece is to provide some first thoughts focusing on the strategic place of this judgment in the European legal landscape. Continue reading →
Thinking about the whole legal saga arising from Romano Pisciotti’s involvement in the Marine Hose Cartel, discussed recently on this blog by J. Przerwa, triggers some thoughts about how much depends on circumstance and happenstance. This is relevant to the claims often made by enforcers and lawyers regarding the deterrent effect of severe sanctions (in particular the ‘inferno’ of prison terms in the US), of dedicated enforcement efforts (in particular on the part of the US Department of Justice), and of the possibility of extradition to the US (as in Pisciotti’s case). ‘From Hollywood to Hong Kong – criminal antitrust enforcement is coming to a city near you,’ warned Scott D Hammond of the DoJ in 2002. Maybe so. But aficionados of deterrence theory should remember that in this world much depends on circumstance and happenstance.
For instance, there is the happenstance of double criminality as a basis for extradition, and that still varies among European jurisdictions in relation to the criminality of cartel offending. If Pisciotti had changed flights at Amsterdam Schiphol Airport rather than Frankfurt Airport, there would have been a crucial criminal law difference – no possibility of extradition. Moreover, Pisciotti was unaware that he was at risk, having been indicted in the US ‘under seal,’ so that he blithely disembarked at Frankfurt Airport. Then there is the happenstance of court jurisdictions, the Landgericht in Berlin seemingly more willing to raise questions with the European Court of Justice than the Bundesverfassungsgericht. And then there is the circumstance that Pisciotti’s state of nationality, Italy, appeared disinterested or unwilling to take over the legal process and possibly save its national from the ‘inferno’ of an American correctional institution.
In sum, many elements along the road may remain unpredictable or variable, while arguably there are still arguments to be played out at the EU legal level that the variability of legal position across the EU may fall foul of non-discrimination and free movement rules. Even if Pisciotti brings no further claims, this may not be the end of the legal saga, especially in the circumstance of determinedly litigious cartelists such as Romano Pisciotti or Ian Norris, a former UK executive of Morgan Crucible who underwent a somewhat similar fate: his extradition to the US was first refused by the House of Lords on grounds of price-fixing but the DoJ eventually succeeded on the basis of obstruction of justice charges (see for instance here). Let’s hope this case law will also stimulate some further reflection on the underlying deterrence logic of cartel enforcement and the long road ahead to make detection, prosecution and enforcement of sentences more predictable across Europe.
The story of Romano Pisciotti is the first ever case that resulted in extradition of an EU citizen to the US on antitrust charges. On 10 April 2018, the Court of Justice rendered its second ruling in the saga. Before, in Case C-411/14 P, the Court declared inadmissible Pisciotti’s complaint that the European Commission had not instigated infringement proceedings against Germany for breach of EU law. In the most recent case (C-191/16), the German court referred questions to Luxembourg concerning compatibility of the different treatment in extradition cases of German nationals and other Member States’ nationals with EU law. When Member State nationals are treated differently than nationals of other Member States, such extradition practices may raise questions of compatibility with EU free movement law and the principle of equal treatment. Continue reading →
In these times when “strong headwinds” are blowing against the European culture of fundamental rights and the rule of law (see P. Pinto de Albuquerque), the principles of mutual recognition and mutual trust on which judicial cooperation in the EU is based have come under pressure. The CJEU and the ECtHR are increasingly called upon to address the phenomenon of “rule of law backsliding” and to strongly defend these common values.
The recent preliminary reference submitted by the High Court of Ireland in case C-216/18L.M. fits into such trend. It concerns the possibility to refuse the execution of three European Arrest Warrants issued by Polish courts against an individual, L.M., on account of the potential violation of the right to a fair trial ensuing from the latest controversial reforms of the judiciary in Poland. According to the Commission’s reasoned proposal to activate for the first time in history the procedure of Art. 7 TEU, which recently found the endorsement of the European Parliament calling on the Council to take action swiftly, the said reforms resulted in a breach of the rule of law due to, essentially, a lack of sufficient guarantees of external independence of the judiciary at all levels. Even though the application of the Framework Decision on the EAW can be suspended only after a Council’s decision under Art. 7 (1) TEU has been adopted (Recital 10 of the Framework Decision on the EAW), it is nonetheless inevitable that such circumstances may – from the viewpoint of the person subject to an EAW issued by Poland – entail a serious risk of breach of the right to a fair trial. The CJEU now has thus the opportunity to clarify whether an alleged lack of judicial independence amounts to a breach of the right to a fair trial that calls for the refusal to execute an EAW, as an exception to the principle of mutual trust.
The Commission established OLAF (Office de Lutte Anti-Fraude), an administrative investigative service of the Commission, in 1999, in the wake of the fall of the Santer Commission, to strengthen the fight against illegal activities affecting the Union’s financial interests. One of the shortcomings in OLAF’s legal framework on the conduct of on-the-spot inspections, one of the service’s main investigative powers, is that it refers back to national law at various instances, requiring OLAF to cooperate with national authorities which operate on the basis of national law. A question that has lingered in academic circles for some time is when precisely – and to what extent – national law applies. In the recent Sigma Orionis case the General Court shed light on this issue. The General Court’s solution has been embraced by the Commission in its recently published proposal to amend the rules which govern OLAF’s investigations. The Commission´s proposal, as a result of the Court´s judgment, places OLAF shoulder to shoulder with other Union bodies – at least when it comes to the applicable law – in the business of enforcing Union law by means of inspections. Continue reading →