Completing the Banking Union

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

Neues aus dem Elfenbeinturm: April 2014

Grotius Centre for International Legal Studies Summer Schools on international criminal law, American law, international children’s rights, human rights and transitional justice, and women, peace and security

Leiden University, June and July 2014. Deadline for applications: 1 May 2014.

EIUC Venice School of Human Rights

European Inter-University Centre for Human Rights and Democratisation, Venice, 27 June – 5 July 2014. Deadline for applications: 15 May 2014.

Cases C-456/12 O. and B. and C-457/12 S. and G.: Clarifying the inter-state requirement for EU citizens?

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

Joined Cases C-293/12 and 594/12 Digital Rights Ireland and Seitlinger and Others: The Good, the Bad and the Ugly

In its eagerly anticipated judgment in the Digital Rights Ireland case, the European Court of Justice held that the EU legislature had exceeded the limits of the principle of proportionality in relation to certain provisions of the EU Charter (Articles 7, 8 and 52(1)) by adopting the Data Retention Directive. In this regard, the reasoning of the Court resembled that of its Advocate General (the facts of these proceedings and an analysis of the Advocate General’s Opinion have been the subject of a previous blog post). However, unlike the Advocate General, the Court deemed the Directive to be invalid without limiting the temporal effects of its finding. This post will consider the Court’s main findings before commenting on the good, the bad and the ugly in the judgment. Continue reading

Luxemburgerli: Groundhog Day in Luxembourg with Case C-322/13 Grauel Rüffer

luxemburgerli BildRemember the movie Groundhog Day, in which Bill Murray is caught in a time loop and relives the same day over and over again? Well, that’s a bit how the Court must have felt when being asked this question by the Landesgericht Bozen:

“Does the interpretation of Articles 18 and 21 TFEU preclude the application of provisions of national law, such as those at issue in the main proceedings, which grant the right to use the German language in civil proceedings pending before the courts in the province of Bolzano only to Italian citizens domiciled in the Province of Bolzano, but not to nationals of other EU Member States, whether or not they are domiciled in that province?” Continue reading

Neues aus dem Elfenbeinturm: March 2014

Strengthening the Rule of Law in Europe

University of Innsbruck, 3-4 April 2014. Registration still open.

Judicial Education and the Art of Judging:  From Myth to Methodology

University of Missouri’s Center for the Study of Dispute Resolution on Friday, 9-10 October 2014. Deadline: 26 May 2014.

Academy of European Law Summer Schools in Human Rights (16-27 June 2014) and EU law (30 June – 11 July 2014)

European University Institute, Florence. Deadline for applications: 10 April 2014.

The outer limits of article 18 TFEU? Case C-628/11 International Jet Management

On the face of it, one might consider the outcome of this Grand Chamber ruling unsurprising. The Court held that EU law precludes German legislation which establishes an authorization requirement for undertakings established in another Member State to provide services in Germany. That authorization requirement was not required for German undertakings, was established for reasons of protecting the national economy (!) and did not factually recognize an operating license granted on the basis of EU legislation by another Member State.

Yet, this ruling concerned the regulation of air transport services, which is not only subject to a particular regime under free movement law, but is also politically highly sensitive (national airlines are still seen as a source of pride by many) and still operates much in an international regulatory context which is not always in line with EU law and policy. The Court was therefore still required to answer some tough legal questions, in particular how to reconcile article 58 (1) TFEU (the prohibition on restrictions to provide services of article 56 TFEU does not apply to transport services which has its own regime) with article 18 TFEU (the prohibition of discrimination on the basis of nationality). The issue was further complicated by the fact that the authorization requirements were only required with respect to flights from and to third countries.

Continue reading

STC 26/2014: The Spanish Constitutional Court Modifies its case law in response to THE CJEU’s Melloni judgment

On 13 February, the Spanish Constitutional Court (“SCC” or the “Court”) handed down its awaited judgment in the Melloni case (STC 26/2014). The case concerned the problematic issue of differing levels of protection of fundamental rights at national and European levels in relation to the execution of a European Arrest Warrant (“EAW”). This affair was the source of the SCC’s first-ever preliminary reference to the Court of Justice of the European Union (“CJEU”). Following the CJEU’s ruling last year (Melloni, Case C-399/11, 26 February 2013), which has already been covered in this blog by V. Franssen, the SCC has now agreed to lower the degree of protection afforded by the Spanish Constitution in line with EU law.

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Case C-206/13 Siragusa: A further piece for the Åkerberg Fransson jigsaw puzzle

In this case of last week, the Court was confronted once again with the question of the scope of application of the Charter of Fundamental Rights as regards Member State action. Many will remember the landmark decision in Åkerberg Fransson on the subject; the decision essentially equated the scope of EU law with the scope of application of EU fundamental rights: where Member States act thus within the scope of EU law, they are bound by EU fundamental rights and the CJEU is the ultimate interpretive authority. The case has caused quite some controversy, with some suggesting a judicial overreach by a Court determined to become the final instance for fundamental rights in the EU to the detriment of national catalogues of fundamental rights and the national courts called to protect them. Nonetheless, other observers – to which I would count myself – have rather read the decision as the confirmation of the principles laid out by the Court in its previous jurisprudence on the topic (see also the coverage of the case on this blog). Siragusa seems to strengthen this view in a number of ways. First, the result of the case can be considered as due deference towards national courts and fundamental rights protection at the national level. Moreover, the Court also uses extensive and systematic references to earlier case law to put its decision in context with the previous jurisprudence. Lastly, there is a valuable attempt to develop a first set of explicit criteria which might serve as future guidance to separate the national and the EU spheres of judicial competence in fundamental rights protection. Continue reading

Melloni as a Wake-up Call – Setting Limits to Higher National Standards of Fundamental Rights’ Protection

I plead guilty: this post on the Melloni ruling of the CJEU should have been written long ago. However, instead of invoking attenuating circumstances, I prefer to draw your attention to the reasons why a blog post on this case still is highly relevant today. First, Melloni is a true landmark case with respect to the relation between EU and national standards of fundamental rights in the field of criminal justice. Central issue in this case was whether Member States are still allowed to impose a higher level of fundamental rights’ protection for cross-border cooperation in criminal matters than the standard set by EU law. Second, Melloni has become ‘hot’ again thanks to the recent follow-up judgment of the Spanish Constitutional Court, which shows the real impact of the CJEU’s ruling and which will be discussed in a separate post by M. García García.

Continue reading

Prison time and EU Citizenship: Cases Onuekwere (C-378/12) and M.G. (C-400/12)

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

Neues aus dem Elfenbeinturm: February 2014

The Image(s) of the ‘Consumer’ in EU Law: Legislation, Free Movement and Competition Law

St. Anne’s College, University of Oxford, 27-28 March 2014. Registration deadline: 28 February 2014.

What Form of Government for the European Union and the Eurozone?

Tilburg Law School, 5-6 June 2014. Deadline : 9 March 2014.

The German Federal Constitutional Court on Outright Monetary Transactions by the European Central Bank – pressing the CJEU or a friendly gesture?

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

Case C-466/12 Svensson: free movement of goods, capital, services, people, and … hyperlinks

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”.

Continue reading

Protection from ‘internal armed conflict’ in EU law: The Diakité case

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

Neues aus dem Elfenbeinturm: Recent calls for papers from January 2014

The legal limits to ‘agencification’ in the EU? Case C-270/12 UK v Parliament and Council

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

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

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).

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C-176/12 AMS: Charter principles, subjective rights and the lack of horizontal direct effect of directives

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

POMFR: Constitutional Review in Europe – A Comparative Analysis

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