By the editors
As is becoming a tradition with our blog, we present to you our top 10 most read posts of the last year. Blogging in 2016 on EU law was no doubt marked by Brexit. The result of the UK’s advisory referendum on EU membership on 23 June 2016, which returned a slim majority in favour of ‘Brexit’ provoked much discussion on this blog (10 posts so far) and elsewhere about the UK’s future relationship with the EU and the future of the EU itself. It is therefore no surprise that three of this year’s top 10 blog posts dissect this momentous moment. But Brexit was surely not the only topic that gathered the attention of our readers.
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 2016 list of most read posts of the year:
By Laurens Ankersmit
The negotiation and conclusion of the Comprehensive Economic and Trade Agreement between the EU and Canada has triggered intense debate among EU lawyers, in particular with regard to the proposed reformed system for investor-State dispute settlement that the agreement contains. It is thus no big surprise that Laurens’ post on the final deal reached between the Belgian federal government and the Belgian regional and community governments received a lot of attention. In his post, Laurens provides us with some background to understand the Walloon request and sets out what legal problems the new Investment Court System could cause under EU law. Certainly a topic that merits to be followed up in 2017…
- Short-term Residence, Social Benefits and the Family; an Analysis of Case C-299/14 (García-Nieto and others)
By Dion Kramer
The Court did Member State authorities a favour handing down a clear-cut judgment on social security benefits for economically inactive migrant EU citizens in García-Nieto following its earlier judgment in Dano. However, as argued by Dion Kramer the judgment comes with a human cost, neglecting the possibility to give a more substantial meaning to the unity of the family, allowing discrimination towards the migrant worker. The case concerned a Spanish family moving to Germany to work but where the (not married) father applied for social benefits while not immediately finding employment.
By Stijn Lamberigts
Stijn Lamberigts takes us through the newly adopted Presumption of Innocence Directive. The Directive is the latest addition to the increasing body of EU criminal law acquis. The post discusses whether the stated aim of the Directive (increased trust between the Member States in the field of criminal justice facilitating mutual recognition) can be achieved. Stijn commends the innovative aspects of the Directive, enshrining the right to remain silent and the right not to incriminate oneself, but criticises it on aspects that do not go beyond ECHR minimum standards.
- Ne bis in idem in the EU: Two important questions for the CJEU (Opinion of the AG in C-486/14 Kussowski)
By Michele Simonato
One of the crucial elements of the Area of Freedom, Security and Justice is the concept of ne bis in idem, as it can protect freely moving citizens from being prosecuted in several Member States for the same act. Michele discusses the AG’s Opinion in this important case which provides the opportunity for the Court to expand on its autonomous understanding of ne bis in idem. The Court has to deal with the fact that there exist parallel norms on the same topic in the Charter of Fundamental Rights and – with some notable differences – in the Convention Implementing the Schengen Agreement. For those who would like to see how the story continues, the Court’s decision handed down in June can be found here.
- Opening the ECJ’s Door to Harmonised European Standards? (Opinion of the AG in C-613/14 James Elliott Construction
By Megi Medzmariashvili
By Bardo Schettini Gherardini
The posts by Megi Mezmariashvili and Bardo Schettini Gherardini both concern a very important opinion handed down by the Advocate General on a remarkable legal question: Does the Court of Justice have jurisdiction to give preliminary rulings on harmonised technical standards? The answer will have important effects on the legal status and copyright protection of harmonised standards and the role and powers of European standard bodies. It is thus no wonder that our two contributors had diverging views with regard to the suggestions of the Advocate General, and that their respective posts received a similar high amount of attention from our readers. For those of you interested in how the story continues, here is the decision handed down by the Court on 27 October 2016…
By Oliver Garner
In ‘After Brexit: The road ahead’ Oliver Garner presciently discusses the post-Brexit constitutional requirements for triggering Article 50 TFEU in the UK. He highlights the various options ranging from the executive invoking Article 50 without parliamentary oversight to a parliamentary vote to invoke Article 50. This issue has been litigated before the UK Supreme Court in Miller the outcome of which is pending. Garner, writing in early July, was wise to caution that the time in the UK is ripe to focus on ensuring the protection of individual rights in the UK rather than overturning the result of the referendum.
By Hugo Flavier and Sébastien Platon
Hugo Flavier and Sébastien Platon parse the assumption that there is a distinction between two kind of post-Brexit agreements: a withdrawal agreement (or divorce settlement) and an agreement regarding future relations between the UK and the EU in ‘Brexit: A Tale of Two Agreements?’ . They query whether it is possible to conclude both agreements based on Article 50 TFEU and recommend that, in order to avoid legal complications down the line, it would be advisable for the UK and the EU to negotiate two distinct agreements.
By Gareth Davies
Gareth Davies queries whether the outcome of the Brexit vote could have been avoided by taking advantage of treaty-permitted restrictions on the free movement of workers in Article 45 TFEU. He suggests that the public policy exception to restrictions on free movement of workers might have been interpreted in an expansive way to incorporate the claim that migrant workers were indirectly threatening public policy. They were doing this due to the public’s perceptions of migrant workers and the real risk that this perception would lead to the UK’s withdrawal form the EU. Davies recognises the evidential burden that such a claim would face but suggests a generous application of preliminary reference guidance by national judges could go a long way and that, in the worst case scenario, the UK would face enforcement action from the Commission. He suggests other Member States may test these limits of the Treaty in the future.
- Dity links, porn previews without permission (Opinion of AG Wathelet in C-160/15, GS Media v Sanoma)
By Justin Jütte
Justin Jütte examines Advocate General Wathelet’s Opinion on a case that is certainly remarkable for its facts. In C-160/15, GS Media v Sanoma, a popular Dutch news website posted links to websites containing a Playboy photoshoot of a Dutch celebrity. The resulting litigation led to a preliminary reference on the question whether the hyperlinking to infringing material constituted a communication to the public in the sense of Article 3(1) of the InfoSoc Directive (Directive 2001/29/EC). The AG, taking a different approach than the ECJ in previous cases, argued that links such as those in the main proceedings did not amount to a communication to the public. The Court did not follow the AG’s Opinion but clung to the more established interpretation of Article 3(1).
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 2017!