Hungary’s Referendum on the Migrant Quota: a ‘no’ sought to do what?

By Márk Némedi

“Do you want the European Union to be able to prescribe the mandatory settlement of non-Hungarian nationals to Hungary even in lack of the consent of the National Assembly?”[i] – this is the question Hungarian voters will be asked to respond to on 2 October 2016. Speculations and verbal sparring have been strengthening about what may lie ahead, and not without reason. It appears that the possible legal and political implications of a valid vote could be broader than usual. At the least, referenda should pose concrete questions which invite an answer giving political institutions a well-circumscribed mandate. They should not give national governments a blanket authorisation and a political salvus conductus to freely choose what the will of the people requires. This contribution will look at how these principles fare in the upcoming referendum on the migrant quota and what the broader implications may be for both Hungary and the Union. Continue reading

Saving the Internet or linking limbo? CJEU clarifies legality of hyperlinking (C-160/15, GS Media v Sanoma)

By Bernd Justin Jütte

In a much awaited decision, the CJEU has ruled that linking to freely-available copyrighted content that has been uploaded without the consent of the right holder is, in principle, legal. However, it qualified that such a reference could infringe the right to communication to the public under Article 3(1) of the Information Society Directive (Directive 2001/29/EC) if certain elements were present. After AG Wathelet had provided his Opinion in early April (see post on this Blog here), the CJEU rendered its Judgement on 8 September 2016. Continue reading

Neues aus dem Elfenbeinturm: September 2016

Call for Papers: Regional Human Rights Systems in Crisis

Wisconsin International Law Journal Annual Forum, University of Wisconsin, 31 March 2017. Deadline for abstract submission: 23 September 2016.

Call for Papers: EUSA Conference “Uncertain Destinations: The European Union at 60”

Miami, 4-6 May 2017. Deadline for abstract submission: 30 September 2016.

Call for Papers: Workshop on the legislative choice between delegated and implementing rule-making

German Research Institute for Public Administration, Speyer, 20 March 2017. Deadline for abstract submission: 10 October 2016.

Conference: An Administrative Procedure Act for the EU?

Lund University, 24 November 2016. Deadline for (free) registration: 10 November 2016.

Brexit: A Tale of Two Agreements?

By Hugo Flavier and Sébastien Platon

There seems to be a common assumption (see, among many others, here 3.6, here or here at 14:00) that there is a distinction between two kinds of « post-Brexit agreements », i.e. the withdrawal agreement (the divorce settlement) and the agreement regarding the future relationship between the United Kingdom (UK) and the European Union (EU). However, this distinction is, in fact, not very clear. It raises, in particular, several questions related to the legal basis and the nature (exclusive or not) of the withdrawal agreement. This contribution aims to clarify the distinction between these two agreements and identify the legal difficulties arising from their articulation. It will be argued that, due to some legal uncertainties, the negotiators of these agreements should be careful of their respective contents. Continue reading

Brexit, Europhobia and Xenophobia

By Christopher Harding

One of the most worrying aspects of the recent campaigning in the UK ahead of the referendum on UK membership of the EU, and the subsequent outcome of the referendum, was the opportunity provided to express more openly and forcibly feelings which appeared to be Eurosceptic or even more deeply Europhobic or xenophobic. On the one hand, public opinion in the UK has long been considered insular and Eurosceptic, but the referendum seemed to trigger the more open and confident expression of xenophobic views and suggests a polarisation of opinion on Britain’s international and European roles. On the other hand, Britain also has a reputation as a welcoming and tolerant society in its general attitude towards those from other countries. This contribution is a reflection on the reality of tolerance and intolerance in contemporary British society and how recent events in the UK fit into the wider European legal and cultural landscape of human mobility across frontiers. Continue reading

Pirates of the Gulf of Aden: the Sequel, or how the CJEU further embeds the CFSP into the EU legal order

By Thomas Verellen

The Court of Justice of the EU (CJEU) recently added a new chapter to the long-running chain-novel on the relationship between the Common Foreign and Security Policy (CFSP) and other areas of EU external action. In its judgment of 14 June 2016, the Court’s Grand Chamber answered questions on the choice of legal basis (CFSP versus AFSJ) of a Council decision concluding a transfer agreement between the EU and Tanzania, and on the meaning of Article 218(10) TFEU on the sharing of information by the Council with the Parliament as it pertains to treaty-making in the CFSP.

The ruling is interesting, as it is perhaps indicative of a relaxed, rather pragmatic, approach to the politically thorny question of the CFSP’s scope, as well as revealing of a principled effort by the Court to further embed the CFSP into the EU legal order. In this sense, the Court’s approach in Somali Pirates II is structurally similar to the one undertaken in the recent case of H v Council on the scope of the CJEU’s jurisdiction in CFSP-disputes.

In the following post, I briefly develop both aspects of this equation – pragmatism with regard to the scope of the CFSP versus principle with regard to the reach of EU constitutional principles into the CFSP – and I conclude with a brief reflection on the normative issue of whether the Court stays within its role as a judicial body, where I suggest the CJEU’s approach fits squarely within its duty to say what the law is. Before proceeding any further, however, a few words of background are in order. Continue reading

Neues aus dem Elfenbeinturm: August 2016

PhD Forum “Law and Governance in a Crisis-Ridden Union

Netherlands Institute for Law and Governance, Vrije Universiteit Amsterdam, 17 November 2016. Deadline for abstract submissions : 4 September 2016.

Call for papers “The Migration Crisis as a Challenge for Democracy

Centre for Direct Democracy Studies, University of Białystok. Deadline for abstract submissions : 10 September 2016.

Could it all have been avoided? Brexit and Treaty-permitted restrictions on movement of workers

By Gareth Davies

Of course, it wasn’t all about immigration. But that claimed flood of Eastern Europeans was certainly at the heart of the leave campaign, and, unusually for an immigration debate, it was their right to work in the UK that was the political issue: there were too many of them, they were pushing down wages, they were keeping the low-skilled native out of work, they were costing the government a fortune in in-work benefits, they were making towns and villages unrecognisable and alienating the more established inhabitants.

Whether or not they were true, a lot of these claims seemed to be shared by both sides. Cameron didn’t so much deny them, as offer counter-claims (but they do add to the economy) and promises of change (if you vote remain, we’ll have a new deal and be able to do something about it!).

So the question is this: if the government thought that free movement of workers was causing such terrible problems, why didn’t it impose restrictions years ago when the post-Enlargement flood was at its high point and the issue first became prominent? Continue reading

The future of national data retention obligations – How to apply Digital Rights Ireland at national level?

Note by the editors: we will take a short break over the summer and resume blogging in the week of 16 August

By Vanessa Franssen

On 19 July, Advocate General (AG) Saugmandsgaard Øe delivered his much awaited opinion on the joined cases Tele2 Sverige AB and Secretary of State for the Home Department, which were triggered by the Court of Justice’s (CJEU) ruling in Digital Rights Ireland, discussed previously on this blog. As a result of this judgment, invalidating the Data Retention Directive, many Member States which had put in place data retention obligations on the basis of the Directive, were confronted with the question whether these data retention obligations were compatible with the right to privacy and the right to protection of personal data, guaranteed by Articles 7 and 8 of the EU Charter of Fundamental Rights (Charter). Hence, without a whisper of a doubt, several national legislators eagerly await the outcome of these joined cases, in the hope to get more guidance as to how to apply Digital Rights Ireland concretely to their national legislation. The large number of Member States intervening in the joined cases clearly shows this: in addition to Sweden and the UK, no less than 13 Member States submitted written observations. The AG’s opinion is a first – important – step and thus merits a closer look. Continue reading

Neues aus dem Elfenbeinturm: July 2016

Conference “The Concept of International Constitutional Law”

Vienna University of Economics and Business, 23 September 2016. Deadline for (free) registration : 16 September 2016.

Conference “Movement of People – A Comparative Conference on Migration

University of Hamburg, 23-24 September 2016. (Free) registration necessary.

Conference “An Administrative Procedure Act for the EU?”

University of Lund, 24 November 2016. Deadline for (free) registration : 10 November 2016.

Advocate General wants libraries to lend e-books (Opinion of AG Szpunar in C- 174/15, Vereniging Openbare Bibliotheken)

By Bernd Justin Jütte

On 16 June 2016 Advocate Geneal (AG) Szpunar, who recently is very active in the field of European copyright (see also on this blog here), published his Opinion in Vereniging Openbare Bibliotheken v Stichting Leenrecht. The case deals with the question whether public libraries are entitled to lend electronic versions of books (e-books) and, if so, under which conditions. The AG takes a favourable position regarding the lending of e-books under the Rental and Lending Rights Directive (Directive 2006/115/EC). Yet, what is more interesting than the actual outcome of his opinion is his very daring argumentation to treat e-books and printed books alike for the purpose of the said Directive. The opinion, if followed by the Court of Justice (CJEU), could also have an influence on the interpretation of the Information Society Directive (Directive 2001/29/EC) and more far-reaching questions of digital exhaustion.

It is quite noteworthy that AG Szpunar highlights in a rather long introduction the important role of libraries and their difficulties to adapt to the changing circumstances of book consumption. He identifies the case as one which would enable the Court “to help libraries not only to survive, but also to flourish.” (para. 1) This, so the AG, would be possible by answering the question whether libraries are allowed to lend e-books. Continue reading

Union Citizenship – Still Europeans’ Destiny after Brexit?

By Gareth Davies

If the UK withdraws from the EU, then its citizens will cease to be citizens of the Union. That much is simple – Article 20 TFEU doesn’t leave any doubt that Union citizens are those who are citizens of the Member States.

Still, while that provision was once thought to make Union citizenship dependent on national citizenship, in Rottmann the Court turned it neatly around, showing how it made national citizenship equally dependent on EU law. In that case a German citizen was faced with threatened denaturalisation, which would be likely to leave him stateless. He argued that the denaturalisation, because it also deprived him of his Union citizenship, was an interference with his EU law rights, and so should be constrained by EU law.

He won on the principle, although he probably lost on the facts: the Court said that indeed, a national measure which deprives a Union citizen of their Union citizenship clearly falls within the scope of EU law, and is therefore subject to judicial review in the light of EU law rules and principles. However, it went on to say that such a measure is not per se prohibited. It must merely be proportionate. Denaturalising fraudsters probably is, in most circumstances. Continue reading

After Brexit: The road ahead. A vote to leave but a decision to remain?

By Oliver Garner

On 23 June 2016, the population of the United Kingdom voted “leave” on the referendum question of whether the United Kingdom should leave or remain within the European Union.  The consequences of this vote could be that the government of the Member State triggers Article 50 of the Treaty on European Union; this will start the process of the United Kingdom becoming the first Member State to withdraw from the European Union. This seismic event poses a new challenge to our understanding of European integration as a progressive process of ever closer union.  Instead, fragmentation in the scope of integration could now occur through the rights created by European Union law no longer being enforceable in the territory of the United Kingdom, and no longer being applicable to United Kingdom citizens within the territory of the European Union.

Much has already been written in the months preceding the referendum regarding the process of the withdrawal negotiations following the triggering of Article 50. In contrast, this particular post will focus on whether the conditions for withdrawal have in fact been fulfilled, and therefore whether the United Kingdom is indeed bound to withdraw from the European Union. The result has triggered outrage from the 48% of the population who voted to remain, with calls for a second referendum, suggestions that the House of Commons could ignore the result, and a promise by the leader of the Liberal Democrats that the party would run on a platform to remain within the Union in any future general election.  Despite the exercise in direct democracy, the answer of whether the United Kingdom must now withdraw is not clear from the country’s constitution because there is no precedent for the withdrawal from a multilateral treaty regime which creates directly effective legal rights for citizens. Continue reading

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