The EU Single Market Information Tool: The European Commission’s new investigative power in 2018

By Gianni De Stefano and Jaime Rodríguez-Toquero

The European Commission is about to gain a new investigative power through the Single Market Information Tool (SMIT).  The SMIT will allow the Commission to request information (including factual market data or fact-based analysis) from private firms or trade associations when the Commission initiates or substantiates infringement proceedings against one or more Member State(s) that may have failed to fulfil an obligation under the applicable Single Market legislation.  This post will discuss the background of the SMIT, its purported rationale, and critically reflect on the powers granted to the Commission under the SMIT.

The Commission is at pains to clarify that the SMIT initiative does not aim to create new enforcement powers allowing it to pursue infringements of Union law in the Single Market area against individual market participants.  That said, the Single Market rules can be infringed by either Member States or private companies.  Therefore, companies responding to such information requests will not only incur administrative and financial burdens, but they will also have to be careful not to incriminate themselves in doing so, as we will see below.

Continue reading

Does Member State Withdrawal from the European Union Extinguish EU Citizenship? C/13/640244 / KG ZA 17-1327 of the Rechtbank Amsterdam (‘The Amsterdam Case’)

By Oliver Garner

Update (21/02/2018; 19:00 CET): On 20th February 2017, an appeal to the ‘intention’ of the District Court to refer questions to the Court of Justice of the European Union was admitted. The Dutch government and the Municipality of Amsterdam now have three weeks within which to appeal.

Contents

Introduction: A New Route from Amsterdam to Luxembourg.

A Brief Chronology of the Relevant Facts and Sources for the Amsterdam Case.

A Summary of the Amsterdam District Court Decision.

Legal Analysis of the Questions Referred: The Arguments for and against Automatic extinction and a Potential Compromise.

Conclusion: The Ramifications of Emancipative Legal Constitutionalism.

Introduction: A New Route from Amsterdam to Luxembourg

Despite the United Kingdom’s impending withdrawal from the European Union, a direct Eurostar train route from London to Amsterdam will soon be established. This route will enable, amongst others, all of those holding the status and rights of EU citizenship to move ‘freely’ between the two metropolises. This class still includes nationals of the United Kingdom, and ostensibly will continue to do until that Member State’s withdrawal is concluded in accordance with Article 50 TEU. An incorporeal yet no less direct route has now also been established between Amsterdam and Luxembourg as a result of a preliminary reference by the Rechtbank Amsterdam (‘District Court’) to the European Court of Justice  (‘ECJ’)   under Article 267 TFEU. Such a judicial pathway may facilitate retention of the status and rights created by Article 9 TEU and Article 20 TFEU for the aforementioned nationals of the withdrawing state. Continue reading

Neues aus dem Elfenbeinturm: February 2018

Call for submissions – European Papers

No deadline.

Conference “Looking to the Future and Beyond: New Approaches to ADR”

University of Leicester, 10 May 2018. Deadline for abstract submissions: 28 February 2018.

Dimensions and Identities Summer School “Dimensions of Human Rights”

University of Salzburg, 23-27 July 2018. Deadline for abstract submissions: 30 March 2018.

Colloquium “Current Challenges for EU Cross-Border Litigation in a Changing Procedural Environment”

Max-Planck-Institute Luxembourg for International, European and Regulatory Procedural Law, 26 September 2018. Deadline for abstract submissions: 15 April 2018.

Conference “Le règlement des différends dans les accords de l’UE avec des pays tiers”

University of Fribourg, 2 May 2018. Deadline for registration: 18 April 2018.

Summer School: “Venice School of Human Rights”

EIUC Venice School, 9-16 June 2018. Deadline for registration: 23 April 2018.

Summer School “Recent Developments on Financial Crime, Corruption and Money Laundering: European and International Perspectives”

University of Thessaloniki, 4-12 July 2018. Deadline for applications: 30 April 2018.

The State of Play on Citizens’ Rights and Brexit

By Gareth Davies

When Britain leaves the EU there will be several million citizens of other Member States living in the UK, and probably around a million UK citizens living elsewhere in the EU. What happens to their rights when they suddenly cease to be living in the EU, or to be a Union citizen? This was one of the three ‘divorce’ issues that were addressed in the first phase of Brexit negotiations (the others were the Northern Irish border and the financial arrangements around withdrawal). That phase ended in December 2017 with a joint report to the Council setting out a basis for a future withdrawal agreement.

The citizen’s rights chapter of this report (paras 6-41) was the easiest to negotiate. The reason for this is that the UK, even fervent Brexiteers, had always maintained that it had no desire to throw out Union citizens already living in the country, and so very quickly the two sides could agree on a guiding principle: a freezing of the status quo. Those with Union rights at the time of the breakup would continue to enjoy them for as long as they remained, even if that be for life, while those who migrated after the Brexit date would fall under whatever new regime might be negotiated. The position of those who may arrive during a transition period, if one is negotiated, was not discussed, and is now the subject of fierce exchanges.

Thus where Union citizens and family members live in the UK on the basis of the citizen’s rights directive (2004/38), or Article 21 TFEU, or where UK citizens and family members live in other member states on either of these bases, at the date of withdrawal – which will probably be 30th March 2019 – then they will continue to enjoy the same rights, including non-discrimination and rights regarding social assistance, as they did before. The rights of their future children will also be the same as if the directive still applied, even if the children are adopted, conceived or born after Brexit. Moreover, the right to be joined by family members falling within Article 2 or Article 3(2) (partners in durable relationships) will continue after Brexit, provided that the relationship existed before Brexit day. The right to be joined by other Article 3 family members, such as more distant dependents, appears to be dropped after Brexit. For those who have lived in their host state for more than five years, their right of permanent residence, which gives them a right to social assistance if necessary, will continue provided they do not spend more than five years continuously abroad. Continue reading

Neues aus dem Elfenbeinturm: January 2018

Call for papers: Workshop “Information Sharing and European Agencies: Novel Frontiers”

European University Institute, 23 May 2018. Deadline for submissions: 15 February 2018.

Call for Papers: “Challenges to EU Law and Governance in the Member States”

European University Institute, 8 June 2018. Deadline for submissions: 18 February.

Call for papers: Special Issue “Revisiting WTO’s Role in Global Governance”

Trade, Law and Development. Deadline for submissions: 28 February 2018.

Call for Papers: PhD Colloquium “Regulating New Technologies in Uncertain Times”

Tilburg University, 14 June 2018. Deadline for submissions: 28 February 2018.

Call for Papers: “Geography and Legal Culture on the International Bench”

Leiden University, The Hague Campus, 17-18 May 2018. Deadline for submissions: 28 February 2018.

PNR Agreements between Fundamental Rights and National Security: Opinion 1/15

By Arianna Vedaschi and Chiara Graziani

On July 26, 2017, the European Court of Justice (ECJ) issued Opinion 1/15 (the Opinion of the Advocate General on this case had been discussed previously in this blog, part I and part II) pursuant to Article 218(11) TFEU on the draft agreement between Canada and the European Union (EU) dealing with the Transfer of Passenger Name Record (PNR) data from the EU to Canada. The draft agreement was referred to the ECJ by the European Parliament (EP) on January 30, 2015. The envisaged agreement would regulate the exchange and processing of PNR data – which reveals passengers’ personal information, itinerary, travel preferences and habits – between the EU and Canada. The adoption of the agreement is crucial because, according to Article 25 of Directive 95/46/EC as interpreted in the Schrems decision (commented here), the transfer of data to a third country (discussed here) is possible only if such country ensures an “adequate level of protection.” This standard can be testified by an “adequacy decision” of the European Commission or, alternatively, by international commitments in place between non-EU countries and the EU – as the one examined by the ECJ in this Opinion.

Not surprisingly, the leitmotiv of the Court’s Opinion is the challenging balance between liberty and security. Maintaining a realistic perspective, the Court considered mass surveillance tolerable at least in theory, because it is a necessary and useful tool for the prevention of terrorism. Yet, it insisted that there should be very strict rules as to the concrete implementation of such surveillance. For this reason, it found some provisions of the draft agreement incompatible with Articles 7 (privacy) and 8 (data protection), in conjunction with Article 52 (principle of proportionality) of the Charter of Fundamental Rights of the European Union (CFREU).

As a result, the agreement cannot be adopted in the current form and the EU institutions will have to renegotiate it with Canada. For sure, this renegotiation will prove to be challenging. Nevertheless, as the analysis below will show, the Luxembourg judges, by addressing particularly technical issues of the agreement, provided a detailed set of guidelines that, if respected, would ideally preserve fundamental rights – in this case, the right to privacy and to data protection – without undermining public security. Through a smooth and refined reasoning, the Court’s decision indeed suggests potential solutions to amend the draft agreement in a way that is compliant with the CFREU and, ultimately, the rule of law. Continue reading

POMFR: Challenges in the Field of Economic and Financial Crime in Europe and the US

By Katrien Verhesschen

Katalin Ligeti, Vanessa Franssen (eds), Challenges in the Field of Economic and Financial Crime in Europe and the US (Hart Publishing, Oxford, 2017)

“A European ‘fraud hunter’ is beneficial for taxpayers”, “Fraud costs 100 euros per EU citizen” (own translations). As these examples of newspaper headlines demonstrate, economic and financial crimes are ‘hot topics’. Newspaper articles report on fraud cases on an almost daily basis. Economic and financial criminal law is a constantly evolving field of law, not only within states but also at the level of the EU, as is demonstrated by the recently adopted Council Regulation on the European Public Prosecutor’s Office. However, the globalisation and interconnectedness of financial markets, the digitalisation of our daily lives and the particularities of economic and financial crime pose considerable challenges to legislators and law enforcement trying to tackle these types of crime. The recently published ‘Challenges in the Field of Economic and Financial Crime in Europe and the US’ gives ‒ as its title suggests ‒ an interesting and at times eye-opening description of several of these challenges. Continue reading

A Right to Reside for the Unemployed Self-Employed: The Case Gusa (C-442/16)

By Dion Kramer

Introduction

Economic activity has been the Holy Grail of free movement of persons since the start of the European integration project. In case of unemployment, through article 7(3)(b) of Directive 2004/38 mobile EU citizens keep their status as ‘worker’ if they have worked for more than a year in their host Member State and thereby earn a continued right to reside and access to social benefits. However, does this provision also apply to mobile Union citizens who have been self-employed? In contrast to the Irish Department of Social Welfare, the Court of Justice of the European Union answered this question positively in the Gusa-case of 20 December 2017: EU law also protects the self-employed when they cease work due to circumstances beyond their control. Although this outcome is perhaps not so spectacular in terms of legal reasoning, it might help strengthen the rights of a significant number of self-employed EU citizens in the run-up to the ‘Great Divorce’ following the Brexit-vote. The case was also spiced up in advance by a controversial interpretation of the right to permanent residence by the Advocate-General.  Continue reading

AG Wathelet in C-284/16 Achmea: Saving ISDS?

By Andrea Carta and Laurens Ankersmit

A few months ago, AG Wathelet delivered a remarkable defence of investor-state dispute settlement (ISDS) in international investment agreements between Member States in his Opinion in C-284/16 Achmea. The case concerned a preliminary reference by a German court (the Federal Court of Justice, or Bundesgerichtshof) regarding the enforcement of an award rendered by an ISDS tribunal under the Dutch-Slovak bilateral investment treaty (BIT). This monetary award against the Slovak government was  the result of the partial reversal of the privatisation of the Slovak health care system. The Opinion is the latest development in the legal controversies surrounding ISDS and EU law after the Micula cases and, of course, the recent Request for an Opinion by Belgium (Opinion 1/17) on the compatibility of CETA with the EU Treaties. Although many aspects of this Opinion merit critical commentary, this post will focus on two issues:

  1. the question whether ISDS tribunals set up under intra-EU BITs should be seen as courts common to the Member States and are therefore fully part of the EU’s judicial system.
  2. whether  the discrimatory access to ISDS in the Dutch-Slovak BIT is compatible with Article 18 TFEU and justified under EU internal market law.  Continue reading

Top ten most read posts of 2017

By the editors

In tradition with previous years, we list the top 10 posts that have been read by our readers the most in 2017. The list gives everyone an insight in which topics have been most popular on the blog. The list is dominated by Brexit, trade, immigration, the refugee crisis, data protection and of course the recent Taricco II judgment. Keeping in mind that there is a certain bias in favour of older posts which have had more time to become popular, this is the 2017 list of most read posts of the year:

  1. Opinion 2/15 and the future of mixity and ISDS

By Laurens Ankersmit (May 18 2017)

  1. The UK and sickness insurance for mobile citizens: An inequitable mess for Brexit negotiators to address

By Gareth Davies (March 17 2017)

  1. Case C-133/15 Chávez-Vílchez and Others – Taking EU Children’s Rights Seriously

By Maria Haag (May 30 2017)

  1. The power to conclude the EU’s new generation of FTA’s: AG Sharpston in Opinion 2/15

By Laurens Ankersmit (January 10 2017)

  1. Tele2 Sverige AB and Watson et al: Continuity and Radical Change

By Orla Lynskey  (January 17 2017)

  1. Opinion 2/15: Maybe it is time for the EU to conclude separate trade and investment agreements

By Szilárd Gáspár Szilágyi (June 20 2017)

  1. Third country law in the CJEU’s data protection judgments

By Christoph Kuner (July 12 2017)

  1. “So long (as) and Farewell?” The United Kingdom Supreme Court in Miller

By Oliver Garner (January 26 2017)

  1. CJEU Case C-638/16 PPU, X and X – Dashed hopes for a legal pathway to Europe

By Margarite Zoeteweij-Turhan and Sarah Progin-Theuerkauf (March 10 2017)

  1. A Way Out for the ECJ in Taricco II: Constitutional Identity or a More Careful Proportionality Analysis?

By Michal Krajewski (November 23 2017)

Thank you once again for following and blogging with us, and do not hesitate to contact us if you would like to contribute. We wish you all the best for 2018!

‘Conditional’ Primacy of EU Law and Its Deliberative Value: An Imperfect Illustration from Taricco II

By Michał Krajewski

To err is human and so it is with judges, even the highest ones. Take the long awaited ECJ’s judgment in case C-42/17, M.A.S. & M.B. (Taricco II). This is already a second ruling on the Italian statutes of limitation applicable to pending criminal proceedings regarding VAT fraud. The statutes of limitations turned out too short for the Italian justice system, facing workload and efficiency problems. As a result, a significant number of persons guilty of serious VAT fraud might go unpunished. This in turn would undermine the effective protection of the financial interests of the EU (Article 325 TFEU). Previously, in case C-105/14, Taricco I, the ECJ had obliged Italian criminal courts to disapply the statutes of limitations in VAT cases, in order to give full effect to Article 325 TFEU. However, following the firm opposition from the Italian Constitutional Court (the ‘ICC’), the ECJ revoked the said obligation in Taricco II.

In this blog post, I will point to ambiguities in the ECJ’s reasoning in Taricco II and to further problems that this ruling may generate. I will argue, however, that the shortcomings should not overshadow the generally positive conclusion that we may draw from the Taricco saga. In my view, this saga illustrates a positive side to the ‘conditional’ acceptance of EU law primacy by national constitutional courts as the latter provide checks and balances on the ECJ’s enormous judicial power. By threatening to disapply EU provisions, they can force the ECJ to seriously engage in a deliberative process, eventually leading to the correction of mistakes that the ECJ will surely commit from time to time. Continue reading

Neues aus dem Elfenbeinturm: December 2017

Conference “Constitutional Challenges in the EMU: the New Instruments of European Economic Governance”

Brussels, 29-30 March 2018. Deadline for abstract submissions: 15 January 2018.

International Electoral Observers Training

European Inter-University Centre for Human Rights and Democratisation, Venice, 19-24 March 2018. Deadline for registration: 15 February 2018.

Conference “Economic Constitutionalism: Mapping its Contours in European and Global Governance”

European University Institute, 14-15 June 2018. Deadline for abstract submissions: 28 February 2018.

Conference “Upgrading Trade and Services in EU and International Economic Law”

Radboud University, Nijmegen, 15 June 2018. Deadline for abstract submissions: 16 March 2018.

Call for papers: Utrecht Journal of International and European Law

Deadline for submissions: 9 April 2018.

A Fundamental Right to Tax Enforcement? A response to Prof. Capaldo

By Eduardo Gill-Pedro

In her recent entry on this blog, Prof. Capaldo criticised the judgment of the Court of Justice of the EU in Taricco II by arguing that there exists, in international law (or what the author calls ‘global law’), a fundamental human right to policies that criminalise tax fraud. According to the author, the Court presented in its judgment a false dichotomy between the need to ensure the effective application of EU law and the need to ensure the protection of constitutionally guaranteed rights of the accused. This is because the effective application of EU law also entails the protection of ‘social human rights’, presumably by the proper use of the taxes for public expenditure. In this blog entry I argue that Prof. Capaldo’s argument presupposes a particular understanding of human rights, and that this understanding of human rights is problematic from the perspective of democratic theory.

The understanding of human rights as socially beneficially outcomes  which are to be ensured through the proper expenditure of tax revenue, sees human rights as policy goals. Such policy goals are then to be optimized and balanced against other policy goals situated on the same level. This is made clear in the blog entry, which argued that there was a need to “balance[e] the rights under these articles [social rights which would be secured through tax collection] and the accused’s individual rights guaranteed by the legality principle”. Continue reading

Case C-600/14, Germany v Council (OTIF). More Clarity over Facultative ‘Mixity’?

By Hannes Lenk and Szilárd Gáspár-Szilágyi

  1. Setting the context

Opinion 2/15 on the division of requisite competences between the Union and its Member States for the conclusion of the EU-Singapore FTA has most certainly caused a flurry of academic discussions. Amongst the various topics discussed, two come to mind that are important for this short analysis. First, did the CJEU intend with its reasoning to effectively abolish ‘facultative mixity’ and ‘facultative EU-only’ agreements? (see here, here and here). Second, by placing almost all aspects of the EU-Singapore FTA under exclusive EU competences, with the exception of ISDS and non-direct foreign investment, did the Court of Justice implicitly determine the future of EU trade and investment policy? (see here, here and here). In other words, with a Commission that is determined to prioritize EU-only agreements, is the conclusion of mixed investment agreements in parallel to exclusive trade agreements a logical consequence of Opinion 2/15? Continue reading

The Global Fight against Impunity and the European Court of Justice: A New Approach to Tax Fraud as a Crime against Human Rights

by Giuliana Ziccardi Capaldo

Introduction

This contribution is a comment to the blog posts of Maxime Lassalle on Taricco I and Michal Krajewski on Taricco II. In the following, I summarize some reflections developed in my article entitled “Lotta globale all’impunità e Corte di giustizia europea: un nuovo approccio alla frode fiscale come crimine contro i diritti umani”, that touch upon the core of the Taricco dispute between the European Court of Justice (ECJ) and the Italian Constitutional Court concerning the prosecution of value added tax (VAT) fraud.

Two very closely related issues are considered in this regard. One is that the ECJ’s view in Taricco I on the interpretation and application of the obligation to combat fraud, imposed on Member States by Article 325 TFUE, opens the way to a new approach to tax fraud as a crime against human rights. The second, logically connected, is that the alleged conflict between the interpretation of Article 325 TFEU given by the ECJ and Italian Constitutional law (the principle of legality in criminal matters as laid down by Article 25(2) Const.) is a false problem for which I present a solution.  Continue reading

Mere accessibility of a website does not trigger jurisdiction for injunctions when personality rights are infringed (ECJ, C-194/16, Bolagsupplysningen/Ilsjan)

By Justin Jütte

In Bolagsupplysningen OÜ, Ingrid Ilsjan v Svensk Handel AB (BOÜ/Ilsjan) the Court of Justice of the European Union (ECJ) ruled that a legal person can bring an action for damages and request the correction and removal of allegedly defamatory information before the courts of the Member State where that person has its centre of interests. The ECJ, however, also ruled that an action for removal of certain incorrect information and removal of comments by way of an injunction can, cannot be initiated in every Member State where the website was accessible. With this ruling the Court implicitly confirms its jurisprudence on the special rule of jurisdiction under Article 7(2) of Regulation No 1215/2012 (Brussels I Regulation (recast)) for online infringements of personality rights. Unfortunately, it did not address the changes AG Bobek suggested in this respect in his Opinion (discussed here).  Continue reading

A Way Out for the ECJ in Taricco II: Constitutional Identity or a More Careful Proportionality Analysis?

By Michal Krajewski

The final countdown to the announcement of the long awaited judgment in case C-42/17, M.A.S. & M.B. (Taricco II) on 5 December 2017 has begun. The preliminary reference (for an overview see Bassini and Pollicino), by which the Italian Constitutional Court (the ‘ICC’) challenged the judgment of the European Court of Justice (the ‘ECJ’) in C-105/14, Taricco I, has already generated a heated debate online (see for instance here and here). The most fascinating question is whether for the first time the ECJ will authorise a national court to disapply an EU legal provision to protect its national constitutional identity or higher national standards of fundamental rights’ protection. My aim in this post is to question the compatibility of Taricco I judgment with the EU law itself. I will first argue that the ECJ’s judgment in Taricco I is problematic under EU law because the ECJ left out from its reasoning the general principle of legal certainty and ensuing limits to the direct applicability of EU provisions.  Second, I will explore whether the ECJ can still withdraw from its stance taken in Taricco I without opening the Pandora’s box of exceptions to the EU law primacy: either due to national constitutional identity (Article 4(2) TEU) or higher national standards of fundamental rights’ protection (Article 53 of the Charter of Fundamental Rights).  Continue reading

POMFR: L. Ankersmit, Green Trade and Fair Trade in and with the EU: Process-based Measures within the EU Legal Order (Cambridge: CUP, 2017)

By Thomas Horsley

Green Trade and Fair Trade in and with the EU: Process-based Measures within the EU Legal Order, by Laurens Ankersmit (Cambridge, Cambridge University Press, 2017, ISBN 9781107191228); 294 pp.; £85.00

This monograph examines the position of ‘process-based measures’ within the EU legal order. PBMs (also known as ‘process and production method’ rules) are characterised as public and private initiatives that, in the context of international trade, seek to address environmental and social concerns that arise externally; in other words, beyond the territory of the regulating state. Examples include, bans on the importation and sale of cosmetics tested on animals; national and regional product labelling schemes; and private initiatives such as Fairtrade and the Marine Stewardship Council certification programme. Continue reading

(Any) relevance of the European Pillar of Social Rights for EU law?

by Zane Rasnača

Today on 17 November 2017 the European Parliament, the Council and the European Commission will proclaim the European Pillar of Social Rights (EPSR). Accused of going much too far by some and for falling disappointingly short by others the EPSR has caused a stir. This turmoil, however, has mainly been political, and the EPSR has received comparatively little attention from EU lawyers. Probably duly so because the EPSR, despite its political salience, is a soft law instrument without legally binding force and such instruments are rarely noticed.

Here, however, I argue that while its overall impact on the EU acquis in all likeliness will be underwhelming, the EPSR nevertheless deserves a closer look, especially when the context of the initiative and the CJEU’s case law on similar soft law measures are considered. A closer look also allows one to find at least some hope concerning its enforceability. The future of the EPSR depends largely on how it will be treated by the stakeholders, and here the judicial arenas should be activated if there is no meaningful enforcement actions following from the EU political actors and the member states. Continue reading

Neues aus dem Elfenbeinturm: November 2017

Roundtable discussion “Modelling Divergence(s) and Convergence(s) of the EU in the World”

City University, London, 24 November 2017. Registration necessary.

Conference “Citizenship, Citizenships and New Types of Personal Status: International and European Aspects, and National Developments”

University of Salerno, 18-19 January 2018. Deadline for abstract submissions: 25 November 2017.

Workshop “Unpacking the ‘Accountability Paradox’ in Expert-based Decision-making”

Erasmus University Rotterdam, 30 November-1 December 2017. Registration necessary.

Erasmus Early-Career Scholars Conference 2018 “New business models and globalized markets: Rethinking public and private responsibilities”

University of Rotterdam, 11-13 April 2018. Deadline for abstract submissions: 7 January 2018.

Call for papers: Inaugural Issue of the Nordic Journal of European Law

Deadline for submissions: 31 March 2018.

Call for papers: Comparative Constitutional Law and Administrative Law Quarterly

Deadline for submissions: 2 January 2018.