Two recent cases dealt with the question whether periods of imprisonment must be taken into account for the calculation of periods of residence under the Citizenship Directive. The cases are interesting for European citizenship law, as they provide further insight into what the ‘fundamental status’ of EU citizenship entails. In particular, the cases are interesting because the Court was required to meander between a more republican reading of citizenship (rights need to be earned) and a liberal reading of citizenship: rights are granted to all citizens even if they are no model citizens. Continue reading
St. Anne’s College, University of Oxford, 27-28 March 2014. Registration deadline: 28 February 2014.
Tilburg Law School, 5-6 June 2014. Deadline : 9 March 2014.
On Friday, February 7th, 2014, the German Federal Constitutional Court (BVerfG) requested the CJEU for preliminary ruling for the first time. The request is exceptional in terms of both European Union law and German constitutional law. Commentators call the decision a Spring in the Desert, a Golden Bridge to Luxembourg or simply put Historic. The BVerfG stated its opinion throughout several decisions regarding fundamental questions between the European Union and its Member States (e.g. Solange I, Solange II, Maastricht, Lisbon), but always abstained from requesting a preliminary ruling. This time, however, the BVerfG indeed submitted a question. The stakes in the case are high, as the BVerfG considers giving an ultra vires ruling regarding a decision by the Governing Council of the European Central Bank (ECB) concerning Outright Monetary Transactions (OMT) unless the CJEU announces that that decision is partially incompatible with primary law or restricts its scope. If the “conditions” laid out by the BVerfG are not met by the CJEU, the decision on OMT will be declared incompatible with the German constitution. The consequence would be that German authorities would not be bound to the decision by the ECB. In other words, the German central bank with around 18 % in capital subscriptions (shares) of the ECB would not participate in OMTs. Continue reading
What this case states (linking to freely available content on the internet is permissible) is so obvious that at first one might think: how could this ever have been a problem? There would have been a problem, however, if the Court had decided otherwise and had followed what in particular some copyright holders deem sensible: that permission from the copyright holder is needed for redirecting internet users via hyperlinks to freely available information. So, whereas the Svensson-case for EU scholars and practitioners is not of particular relevance, it is an important verdict for all EU citizens.
Case C-466/12, Svensson v. Retriever Sverige AB, published on 13 Feb. 2014, deals with the question whether a copyright holder may forbid people to link to public information. At first sight this seems absurd: how could merely directing internet users to information that can be found freely elsewhere ever be relevant from a copyright perspective? We have to keep in mind, however, that while European copyright used to be the intellectually oriented “droit d’auteur”, in recent years we followed in the footsteps of the American tradition of the economically oriented “right to copy”.
What is an ‘internal armed conflict’ in EU law? This was a question which the Belgian Conseil d’État referred to the Court of Justice of the European Union (CJEU), asking in essence whether this concept is to be understood as defined in international humanitarian law (IHL) or as a term with an independent meaning in the Union legal order.
On 30 January 2014, the CJEU gave its answer in the Diakité judgment, which concerns the granting of ‘subsidiary protection’ to third country nationals as well as stateless persons who seek refuge in the EU from such ‘internal armed conflicts’. By giving an autonomous meaning to the latter term in EU law, the CJEU has spoken up for a lower threshold for receiving such status throughout the 28 Member States. While this is, from a legal point of view, a highly interesting case with regard to the relationship between EU law and international law, it amounts, more practically speaking, to good news for all those in search of shelter from violence-ridden regions on a continent marked by an increasing reluctance to welcome foreigners (note most recently the successful Swiss referendum on limiting mass immigration). Continue reading
University of Edinburgh, 28 March 2014. Deadline: 28 February 2014.
University of Copenhagen, 28 May 2014. Deadline: 1 March 2014.
HEC Paris, December 2014. Deadline: 15 March 2014.
Hungarian Academy of Sciences, Budapest, 3-4 July 2014. Deadline: 30 March 2014.
This important constitutional case of last week deals with the legal limits of the proliferation of agencies within the EU and their powers imposed by EU constitutional law, and in particular with the Meroni (1958) and Romano (1981) judgments as well as the new constitutional structure created with the Lisbon Treaty with respect to delegated and implementing powers. The case presented an opportunity for the Court, as the Advocate General had put it, ‘to balance the functional benefits and independence of agencies against the possibility of them becoming “uncontrollable centres of arbitrary power”’(para 19). The Court concluded that the fears of the United Kingdom in relation to the powers of the European Securities and Market Authority (‘ESMA’) to intervene in the financial assets and securities markets were unfounded, and by doing so clarified that articles 290 and 291 TFEU do not present a closed system of delegating regulatory powers. The judgement solidifies the legality of much of the EU’s practice in having recourse to specialized agencies to deal with issues which require a certain level of expertise. In this blog post, I will highlight the three main aspects of the judgement:
- the compatibility of the EU’s delegation of powers to ESMA with the Meroni and Romano judgments;
- its compatibility with articles 290 and 291 TFEU;
- its compatibility with the principle of conferral of powers in relation to article 114 TFEU. Continue reading
With the Directives on the right to information in criminal proceedings and the right to access to a lawyer successfully passed, the Proposal for a Directive on the strengthening of certain aspects of the presumption of innocence and the right to be present at trial in criminal proceedings marks a new step in the recent efforts of the Commission to create common EU framework of defence rights which minimally need to be respected by the Member States. The proposal entails two different aspects of the right to a fair trial as its subject matter (Art. 1-2). On the one hand, the proposal deals with the presumption of innocence and several related aspects of the right to a fair trial (Art. 3-7). On the other hand, the proposal also regulates the right to be present at one’s trial (Art. 8-9).
Yesterday, the Court handed down its decision in the much anticipated Association de Médiation Sociale case. The case concerns the question of potential horizontal effect of the workers’ right to information and consultation enshrined in Article 27 of the Charter of Fundamental Rights and implemented through Directive 2002/14 establishing a framework for informing and consulting employees in the Union. We have already covered the opinion handed down by Advocate General Cruz Villalón (see here), who suggested that the Court should allow Article 27 of the Charter in combination with the Directive to be applicable and to exclude thus the application of the national norm that was contrary to EU law despite the setting of proceedings between private parties. In contrast to the Advocate General, the Court did not grant Article 27 and the Directive such effect. Rather, it decided to follow its previous case law, with the unfortunate consequence of leaving quite some questions unanswered. Continue reading
The 20th century has witnessed an impressive rise of constitutional justice, in particular as regards the emergence of and role given to constitutional courts in many European countries and the CJEU at the supranational level. A lot of literature has covered aspects of this development, and in the academic debate several authors have also voiced criticism of this court-centred constitutionalism and academic obsession with courts. This can be seen e.g. in the recent issue of the German Law Journal which features a number of contributions on the Political Constitution as a counter movement. In this rich context, Maartje de Visser examines two questions in her book Constitutional Review in Europe: First, who should uphold the Constitution, and second, how is constitutional review organised? In an attempt to answer these questions, she scrutinizes the legal order of 11 European countries and the EU legal order. In this post, I will first briefly set out the structure and content of the book in some more detail, before offering some praise and criticism. Continue reading