In the landmark cases Kendrion, Gascogne and Gascogne Germany the CJEU clarified some important procedural issues related to infringements of the reasonable time requirement. The most important legal question that the CJEU tackled is what is the appropriate remedy for infringements of the right to have the case adjudicated within a reasonable time. The CJEU had two options: the first one was to follow the Baustahlgewebe judgment in which the CJEU had concluded that the proceedings were excessively lengthy and subsequently reduced the fine the Commission had imposed upon the undertakings. The second was to follow the Der Grüne Punkt judgment where the CJEU also concluded that there had been an infringement, but required instead a separate action for damages to be lodged before the General Court. Following this path would, however, mean that the General Court itself would have to assess whether, and to what extent, the parties suffered any harm due to the excessive length of proceedings. In the present cases, the CJEU has opted for the second solution.
The Court of Justice of the European Union (‘the Court’) in the landmark decision of X, Y and Z v Minister voor Immigratie en Asiel, has provided a template based on which the Member States can address the claims of gay asylum seekers. The Court has ensured that the floodgates are not opened to enable gay and lesbian applicants from the 78 countries in the world, to arrive through the portcullis of Fortress Europe, seeking, and being granted sanctuary, solely on the basis of the existence of laws which criminalise consensual same-sex conduct in their countries of origin, even when they are not enforced.
The Fleeing Homophobia report estimated in September 2011 that approximately 10,000 gay or lesbian asylum seekers seek sanctuary in Europe every year. The following year, the Dutch authorities, ironically the first country in the world to recognise in 1981 the protection of gay men as a Particular Social Group under the 1951 Refugee Convention, posed three questions to be addressed by the Court, through the prism of the 2004 Qualification Directive, with respect to the asylum claims of 3 gay men from Senegal, Sierra Leone and Uganda: Continue reading
“De nos jours, il est difficile d’échapper au monde du football. Le football intéresse pratiquement tout le monde, même l’administration fiscal.” This deep sigh introduces Advocate General Kokott’s opinion (not yet available in English) in Sabou, and it seems to me that the Advocate General feels just as enthusiastic about this sport as I tend to do. To both our luck, the decision handed down last Tuesday only marginally touches upon the sport itself (I hope that the esteemed football-aficionados among our readers will forgive me and nonetheless bear with me), and rather quickly turns towards the topic of mutual assistance among Member States authorities on direct taxation under Directive 77/799; more specifically, the extent to which EU fundamental rights need to be respected in the process of requesting and receiving such assistance. For the Court, EU fundamental rights apply in principle, but do not have much impact in practice due to the rules of EU law at issue. Continue reading
The Grand Chamber today dismissed the appeal by the seal hunters to annul the basic regulation prohibiting the marketing of seal products on the EU internal market. As expected, the CJEU held that the seal hunters lacked standing to challenge a legislative act. This does not mean that the seal hunters will not prevail in the end (although I doubt it), as they have also challenged the Commission implementing Regulation, which will enable them to challenge the basic Regulation too (the decision of the GC in that case can be found here and my comments are here). What makes the judgment worth mentioning here though, is the more general relevance of the Grand Chamber’s interpretation of the concept of a ‘regulatory act’. This concept was introduced with the Lisbon Treaty and was intended to make it easier to challenge EU legal acts which were not of a legislative nature.
We have covered on this blog the remarkable Åkerberg Fransson decision (see here and here), in which the Court essentially held that the scope of application of EU fundamental rights was identical to that of the scope of application of EU law itself. The Texdata case – apart from some internal market law aspects we will subsequently cover as well – can mostly be seen as a confirmation of that case law. This is remarkable because the setting in the case is less contentious than in Åkerberg Fransson, but the Court seems to be willing to use already this early opportunity to confirm and emphasize that Åkerberg Fransson is the law and here to stay. The case concerns a requirement in Austrian company law which creates – based on Article 12 of Eleventh Council Directive 89/666/EEC – a system of automatic penalty payments for the failure of a capital company in another Member State with a branch in Austria to submit certain accounting documents within a nine-month period. The Court was called to examine the compatibility of this system with the Directive, with the freedom of establishment and with the principle of effective judicial protection and the rights of defence as enshrined in Articles 47 of the Charter of Fundamental Rights and 6 (2) of the European Convention on Human Rights.
While I cannot go into every detail of the case for the present post, I will first cover the scrutiny by the Court under the requirements of the Directive, which helps to understand the details of the Austrian regime of sanctions; I will then briefly address aspects of the freedom of establishment; and last but not least I will focus on the scope of fundamental rights review exercised by the Court. Continue reading
Is the Kadi case law of the Court of Justice of the EU to public international lawyers what the acquittal of O.J. Simpson in 1995 was to conservative white people in the USA? Did the CJEU simply sacrifice the supremacy of the UN Charter because it bought into the legal tricks of a Saudi businessman and his legal team, persuading the judges in Luxembourg by arguing that, to paraphrase the late Johnnie Cochran: ‘If the legal orders don’t fit, you must acquit’?
This July, the CJEU handed down the latest – and probably final – instalment of this legal saga which has captivated both EU and international law scholars for many years. Thanks what is commonly known as the Kadi II judgment, the academic year 2013/14 starts off with the end of what was undoubtedly one of the most vividly discussed series of cases in Luxembourg, not least if you’re interested in EU constitutionalism, fundamental rights and due process, external relations, international security and the fight against global terrorism, as well as, last but not least, the supremacy of the UN Charter in international law.
On July 18th, Advocate General Cruz Villalón delivered a fascinating opinion in a case that could very well keep quite a number of scholars interested in EU fundamental rights law busy for a while. In Association de Médiation Sociale not yet available in English as far as I can see) the Court is confronted with a set of fundamental questions. First, whether the workers’ right to information and consultation within the undertaking as enshrined in Article 27 of the Charter and implemented through Directive 2002/14 establishing a framework for informing and consulting employees in the Union can be applied in a legal dispute between two private parties, i.e. on its potential horizontal effect. Second, this also implies discussing – for the first time explicitly – the difference between rights and principles enshrined in Articles 51 (1) and 52 (5) of the EU Charter of Fundamental Rights. In particular, this requires shedding light on the notion of implementation of principles, as Article 52 (5) speaks of principles being ‘judicially cognisable’ only in the interpretation of their implementing acts and the ruling on their legality. Third, the act with which the Union implemented the principle in the present context is a directive, which again raises the question as to the limits to the effect of directives in a legal dispute between private parties, as has already caused problems in well-known cases like Mangold and Kücükdeveci. As the opinion is already quite comprehensive, I’ll keep my comments to the minimum to not try our readers’ patience.
On 17 July 2013 the European Commission launched its proposal on the European Public Prosecutor’s Office (‘Proposed EPPO Regulation’). With this proposal, the Commission aims at improving the enforcement of offences affecting the EU’s financial interests and thereby at increasing the deterrent effect of law enforcement. At present, those offences are investigated and prosecuted by national prosecution authorities, to be brought to trial before national courts. This approach is however deemed inadequate. Offences affecting the EU budget are usually complex cases with a cross-border dimension and ‘of secondary importance’ for national prosecutors. Moreover, statistics used by the Commission show substantial differences in enforcement between the various Member States. With the establishment of an EPPO, this should change significantly. Most notable is the shift from administrative investigations, as they are now conducted by OLAF (i.e., the EU’s antifraud office), to criminal investigations by the EPPO, a new EU judicial body.
The idea of an EPPO is far from new. The first concrete proposals in that direction saw the light in the Corpus Juris (1997, finalised in 2000). This research project proposed an extensive harmonisation of national criminal procedure, which was politically unacceptable at the time. In 2001, the European Commission presented a Green Paper, which took an entirely different approach based on the principle of mutual recognition. The EPPO would apply national criminal procedure rules when investigating, prosecuting and bringing to trial offences against the Union’s financial interests. After a very critical public consultation, which revealed numerous pitfalls, the EPPO ‘dream’ was shelved for a few years, until it resurfaced in the Lisbon Treaty. Article 86 Treaty on the Functioning of the European Union (‘TFEU’) now provides an explicit formal basis for the creation of an EPPO. It determines the applicable legislative procedure and instrument, as well as the scope and competence of the future EPPO. Other aspects are left to the wisdom and discretion of the EU legislator. The current Commission proposal is based on Article 86 TFEU, and draws inspiration from the Draft Model Rules, which resulted from a triple EPPO research project funded by the Commission.
On 6 June 2013, the Court issued an important ruling in the case of MA & Others v UK (C-648/11) on the position of unaccompanied children subject to the Dublin II Regulation. The case concerned three children who claimed asylum in the UK after having previously lodged asylum claims in the Netherlands and Italy. Due to ambiguity as to its meaning, the UK Court of Appeal submitted a preliminary reference question on Article 6 of the Regulation, the rule applicable to determining the Member State which must examine the asylum application lodged by a child. In essence, the Court was asked to identify which State was responsible for a child’s asylum claim in situations where the child in question has lodged claims in more than one Member State and has no family members present in the territories of Member States.
An interesting case not only for ‘Sons of Anarchy’ fans was handed down by the EFTA-Court this week. The scenario is somewhat similar to the early, well known Van Duyn case law, where the Church of Scientology was at issue. In the present case, a member of the Norvegian Hells Angels was denied entry into Iceland because the Icelandic authorities argued that he played a central role in the final stage of accession of an Icelandic motorcycle club as a new charter in Hells Angels. The Supreme Court of Iceland referred a number of questions to the EFTA Court, most interesting to us regarding the interpretation of Article 27 of Directive 2004/38/EC. To quite some extent, the EFTA Court reiterates here what it had already established in Van Duyn long ago. However, there are three points I find interesting: The insistence on the need for the individual in question to constitute a genuine and sufficiently serious threat; the treatment of the dangerous organization by the State in question; and finally the findings on the alleged discrimination of non-nationals.