In this case, the Belgian government fined Essent Belgium for failure to comply with Belgian legislation requiring electricity suppliers to purchase a certain amount of green energy from Belgian suppliers. As many readers will no doubt notice, this case is very similar to PreussenElektra, however, the legislative context and European electricity market have undergone substantial changes since that judgment was handed down. Today, EU legislation enables Member States to verify whether electricity produced in other Member States is green. Also, EU legislation now requires Member States to reach certain national targets for contribution to green electricity production.

These two factors have considerable implications for the case at hand. Obviously, the possibility of verifying that electricity produced in other Member States is green significantly reduces Belgium’s options for a credible defence of the measure. On the other hand, Belgium is required to produce a certain percentage of its electricity from renewable energy sources. This goal is undermined if electricity suppliers can use green electricity from other Member States. Obviously, from the perspective of the environment it is immaterial in which country electricity is produced, as long as it is green and transport does not entail too much energy loss.

In this post I will discuss the two important questions of this case:

• The doctrinal question: does the rule of reason imply that Member States can justify distinctly applicable measures?
• The policy question: how do Member States achieve their national targets under the Renewables Directive if they must allow undertakings to use imports of green electricity as part of their local obligations?

The Rule of reason: open to distinctly applicable measures?

The Belgian requirement that electricity suppliers must buy green electricity from Belgian producers is blatantly discriminatory and obviously an impediment to the free movement of goods (electricity). Belgian law required electricity suppliers in Belgium to surrender a certain quota of green certificates, which were only granted to Belgian producers of green electricity. Certificates of origin, which indicate the source of electricity production, could not be used to comply with the quota.

It is well-established case law that Member States can only justify distinctly applicable measures by relying on the express derogations contained in the Treaty which in turn are interpreted narrowly. In the case of a breach of articles 34 and 35 (goods), this means only the derogations contained in article 36 TFEU. There is a more than plausible case to make that this distinction between the case law based justifications and Treaty derogations is artificial and out of line with the importance the Treaties attach to other public policy goals, notably environmental protection, protection of fundamental rights and consumer protection (although the Member States have never amended 36 TFEU in subsequent Treaty amendments).

The orthodoxy of the CJEU in this matter has put it in an uncomfortable position in a couple of environmental cases. When Member States have taken reasonable distinctly applicable measures on grounds other than the express derogations contained in article 36 TFEU, the CJEU has either sidestepped the issue or resorted to twisted reasoning. AG Bot in this case invites the CJEU to revisit its case law and let go of its orthodoxy with respect to the protection of the environment.

92.      Si nous ne pouvons que nous réjouir de cette évolution qui consacre l’intégration des préoccupations environnementales dans le cadre du marché intérieur, il reste que nous regrettons que l’exception à la règle selon laquelle seules des dispositions dérogatoires expresses peuvent justifier une mesure discriminatoire n’apparaisse pas, explicitement, dans la jurisprudence de la Cour, mais découle plutôt, subrepticement, de raisonnements au cas par cas obéissant à des logiques différentes. Il est nécessaire, selon nous, de clarifier la situation en reconnaissant formellement la possibilité d’invoquer la protection de l’environnement comme justification des mesures qui entravent la libre circulation des marchandises, quand bien même elles seraient discriminatoires. Nous voyons à cette consécration explicite trois séries d’avantages.

The Advocate General makes three arguments for this change in approach. First of all, he notes that clarification and elaboration of under which conditions distinctly applicable environmental measures can be justified will contribute to legal certainty (para. 93). Secondly, and more importantly, the Advocate General argues that not taking into account the discriminatory nature of measures in cases like PreussenElektra and Walloon Waste has the disadvantage that there is no room for an appropriate proportionality test. In that respect, the Advocate General argues that in relation to the protection of the environment, distinctly applicable measures should be able to be justified, albeit with a reinforced proportionality test:

Or, nous pensons que les mesures discriminatoires, particulièrement celles qui contreviennent à un principe aussi fondamental que celui de l’interdiction des discriminations directes en fonction de la nationalité, doivent être soumises à une exigence de proportionnalité renforcée. (para 94)

Lastly, the Advocate General argues that explicitly acknowledging that distinctly applicable measures can be justified on grounds of environmental protection would confirm the ‘special’ place environmental protection has within the EU legal system (para. 95).

National targets and green electricity imports

In the case at hand, however, the Advocate General argues that the Belgian measures cannot be justified on grounds of environmental protection. The Advocate General notes that reliance on PreussenElektra (Germany was not in a position to assess the green origin of foreign electricity) is no longer possible since Directive 2001/77/EC (replaced by 2009/28/EC) requires Member States to guarantee the origin of electricity and recognize these guarantees by other Member States (paras. 102-103). In addition, the reduction of greenhouse gas emissions is just as effectively achieved through the use of foreign green electricity as domestic green electricity (para. 104). The Advocate General also dismisses the relevance of the proximity principle (rather lightly in my opinion, although in this case he is right) and the security of supply arguments put forward by the Commission (!) (paras. 105-106).

The most remarkable part of the Opinion is that the Advocate General dismisses the relevance of the national indicative targets for renewable electricity production. Directive 2001/77/EC requires that a certain percentage of electricity production must stem from renewable energy sources. The percentage is indicative only, although in the new Directive (2009/28/EC) the percentage is compulsory. The way in which this percentage is achieved varies in every Member State. Belgium tries to meet its obligations by requiring a part of the supply of electricity to stem from renewable sources within Belgium. Electricity suppliers are required to surrender a number of green certificates to meet their quota. Obviously, if electricity suppliers can use foreign green electricity the whole system is undermined, because green electricity produced in Belgium is no longer guaranteed access to the Belgian grid. The only way to solve this problem is to allow the use of green electricity imports for the fulfilment of national targets. To avoid double counting, this should then be deducted from the target amount of green electricity production in the country of export (the Netherlands, for example).

Unfortunately, the rules regarding transfers have not been harmonized (the new Directive only allows for statistical transfers upon mutual agreement between Member States). Nevertheless, the Advocate General proceeds to argue that Belgium’s need to achieve its targets cannot serve as a ground for justification:

Si nous sommes sensible à la préoccupation d’éviter une répartition inégale entre les États des installations de production d’électricité à partir de sources d’énergie renouvelables, nous estimons toutefois que la protection de l’environnement relève d’une politique commune de l’Union. La protection de l’environnement ne fait d’ailleurs pas l’objet d’une appréhension purement nationale, mais elle bénéficie d’une dynamique européenne, notamment en matière de lutte contre le changement climatique (44). Il convient, dès lors, de tenir également compte des avantages susceptibles de résulter des échanges d’électricité verte au sein de l’Union. Si l’impact réel de tels échanges est difficilement mesurable, il est permis de penser qu’ils pourraient contribuer à faire baisser le coût des énergies renouvelables en permettant une localisation plus rationnelle de la production. (para 110)

The Advocate General uses a teleological approach here. What matters is the protection of the environment, which is served just as much by importing green electricity from other Member States as using domestic sources. The fact that the Belgium’s choice of system makes it difficult to meet its targets cannot justify violations of Belgium’s obligation to facilitate the trade in green electricity on its market, especially considering the efficiency benefits a functioning internal market for green electricity can bring.

This might sound a bit harsh for Belgium, as all Belgium is trying to do is to achieve the quota set by the Directive. Belgium is put in a bit of a catch 22 situation here: either facilitate the free movement of goods and potentially fail to meet the targets set by the directive, or reach the targets set by the directive and obstruct the free movement of goods. But it is not as bad as it seems. First of all, Belgium can choose other ways to achieve its targets (for example, though subsidies). And secondly, it can change its laws to permit imported green electricity to be used for its national targets (the Advocate General barely touches upon this issue in paras 108-109). The real problem here is the lack of harmonization in this matter and the excessively Member State-centric approach of Directive 2001/77/EC (the new Directive perpetuates the problem). A real EU-wide policy on sustainable energy production would arguably achieve two goals in one: facilitating free movement (leading to more competition and higher levels of efficiency) and ensuring a high level of protection of the environment.

Der Staat im Recht is a Festschrift for Professor Eckart Klein, formerly Ordinarius at the University of Potsdam, which covers a broad range of topics – constitutional law, procedural law, international and human rights law and of course EU law. Now, while there are a number of non-EU law contributions which I found thought-provoking (if you have time, read the rather grim essay on the world dominance of human rights by Isensee, ‘Die heikle Weltherrschaft der Menschenrechte’), I will focus on the EU law contributions for this blog post.

There are essentially two kinds of contributions in this volume that are to be recommended in my view. The first one are somewhat ‘classic’ topics which set out issues of high relevance of the last few years and provide a welcome opportunity to bring your EU law Allgemeinbildung up to date. Under this rubric, e.g. Meng discusses the topic of services of general economic interest (‘Die “Dienste von allgemeinem wirtschaftlichen Interesse” – ein Problem der Normenklarheit im EU-Recht’). Stern assesses the EU Charter of Fundamental Rights before and after the entry into force of the Lisbon Treaty (‘Die Charta der Grundrechte der Europäischen Union vor und nach Lissabon’). Pechstein examines a crucial topic in the field of external relations, the codification of the ERTA case law in the treaties (‘Die Kodifizierung der AETR-Rechtsprechung durch den Vertrag von Lissabon’). Streinz illustrates a number of problems surrounding the imminent accession of the EU to the European Convention on Human Rights (‘EU und EMRK: Beitritt ermöglicht, aber nicht leicht gemacht. Probleme des Beitritts der Europäischen Union zur Europäischen Menschenrechtskonvention nach dem Vertrag von Lissabon’). It is in particular the last contribution which I find helpful, as Streinz sums up concisely the problems on the road to accession: beyond rather obvious issues such as the relationship between the CJEU and the European Court of Human Rights, he also assesses procedural topics such as the co-defense mechanism and the need to ensure previous internal review of a case by the CJEU.

The second set of contributions pursues what I would consider rather novel ideas. Take Stein’s contribution, for example, which examines the consequences of EU accession to the European Convention on Human Rights for the Common Foreign and Security Policy (‘Der Beitritt der Europäischen Union zur EMRK im Hinblick auf mögliche Konsequenzen für die Gemeinsame Aussen- und Sicherheitspolitik’). He concludes that currently, after accession the European Court of Human Rights would gain a more prominent role under the Common Foreign and Security Policy than the CJEU– and therefore suggests strengthening the latter’s review powers in this field of EU policy. Nettesheim examines the legal feasibility of a European Redemption Pact, the much discussed proposal by German economic experts as potential future part of a solution to the ongoing European debt crisis (‘Der Schuldentilgungsfonds: Rechtliche Rahmenbedingungen eines umstrittenen Instruments zur Eurorettung’) (for more on the proposal, see here). In perhaps the most fascinating piece, von Arnauld discusses the increasing use and relevance of ‘complementary’ international law solutions to EU legal problems (‘“Unions(ergänzungs)völkerrecht”. Zur unions- und verfassungsrechtlichen Einbindung völkerrechtlicher Instrumente differenzierter Integration’). International agreements, from Schengen to the ESM, pose potential problems in terms of the distribution and exercise of competences.

Summing up, this book does what a good Festschrift should do, at least in my view: it gives you an opportunity to make sure you are keeping abreast of where we stand today with its articles on rather fundamental issues, and then shows you the way forward by introducing you to some issues you may only have heard little about so far. If you can find the time, seize this chance.

Transnational law meets transnational education

Ever since Prof. Sebastian Thrun’s historic feat of attracting more than 150,000 students to his Massive Open Online Course on artificial intelligence two years ago, MOOCs have started to shake up the landscape and minds of higher education. In a kind of “gold rush”, academics want to join this remarkable development, and companies are being founded to provide platforms for such ventures, predominantly in the US, but also more recently in Europe. Beyond subjects closer to technology, such as computer science or engineering, the social sciences and humanities have also come to feel the potential and attraction of MOOCs.

At the same time, the spread of EU law as a subject across the continent and beyond has been continuing apace for decades already. From a somewhat eccentric subject, it is safe to say that today every respectable law curriculum in Europe includes courses on EU law. In addition, specialised graduate programmes in the area have mushroomed through which students can acquire LLMs in EU law or even certain subfields within it.

Of course, EU law is not a universal subject such as mathematics, physics or computer science. Nonetheless, it is a subject matter which per definition transcends borders and has in so many ways come to have direct effects (no pun intended) on citizens and businesses. Given that European integration and the rules that frame it are all about transnational interaction, why should it not be taught in an equally transnational fashion? Instead of sitting in a lecture hall with people from the same country or even region, at best with a few Erasmus students present, the idea of studying and discussing EU law in a digital agora which unites people hailing from all corners of Europe cannot fail to have considerable appeal.

Therefore, unsurprisingly, EU law and MOOCs have recently joined hands. Prof. Stefaan Van den Bogaert from Leiden University is currently pioneering a course on “The Law of the European Union: An Introduction” on the American platform Coursera.

Educational subsidiarity and the added value of MOOCs

 EU law and MOOCs share the overcoming of borders and the bringing together of different people (and peoples), and thus doing an EU law MOOC could, ideally, be a highly mutually reinforcing experience. However, there is also potential for them to reinforce each other in negative ways. As many Europeans feel (for the right or wrong reasons) increasingly estranged from the EU, seeing it as a distant, technocratic and largely unaccountable entity, it would be unfortunate to teach in EU law in a similar manner through MOOCs. This means, in the worst case, that such MOOCs would turn out to be taught by a distant computer programme managed by professors and TAs who are inaccessible, invisible and unresponsive. In doing so, we might well be mixing “integration fatigue” with “MOOC fatigue”. This can be avoided, for instance, through interactive, “smart” discussion forums, which, geographical distance notwithstanding, make the course a genuine meeting place for students and teachers. Through “crowd sourcing”, peer-to-peer rating and other novel tools, management of large numbers of students is facilitated, allowing also active and effective involvement of the faculty without having them chained to their computers day and night.

Furthermore, the question of “added value” is pertinent for both the EU and MOOCs. As the disciples of the principle of subsidiarity will know, there is no need to do something at the European level when it the same could be done equally well nationally, or even regionally or locally. The same certainly applies to MOOCs. Why study online when your own university offers an equally good course on the same subject? One important obstacle here for MOOCs is the credit system. Of course, it is nice to have a certificate from a renowned university and/or for having taken part in a course which is very useful for one’s career or personal interest. But most students in most countries, understandably, also want to obtain their degrees. Hence, if MOOCs do not yield credits, this makes them, literally, extracurricular activities. Then again, if your own university cannot offer a course, or in any event cannot offer a good course with good faculty for a subject close to one’s interests and heart, then MOOCs become an interesting solution, especially if offered for free, by leading authorities and providing this kind of transnational experience which one’s own campus may fail to muster. Moreover, MOOCs can serve to supplement campus courses. Instead of sounding the death knell for traditional university courses, both can be combined in a meaningful way. Concise concept videos and online discussion forums can help prepare students for lectures, seminars and exams on campus. Group work done face-to-face with one’s colleagues at home can be shared, reviewed and improved by bringing it to the global level by virtue of a MOOC. Just as European integration did not mean the end of the state in Europe, MOOCs and on-campus course can certainly be combined for their mutual benefit.

Europe in the World: An EU Law MOOC “par excellence”

It is in view of these considerations that we, i.e. a consortium consisting of the Global Governance Programme of the EUI, the Centre for Global Governance Studies of the KU Leuven and Passau law School, entered our course “Europe in the World: Law and Policy Aspects of the EU in Global Governance” into the MOOC grant competition. The idea behind this course is that during past decades, programmes in EU Law, but also in related fields such as European Studies, International Relations, Global Governance and Intercultural Communication have widely proliferated across Europe and beyond. Within these, a course on “Europe in the World” would seem to be a ‘must have’. After all, the EU represents the world’s largest trade power and aid donor, has a diplomatic service larger than that of most states, and has launched more than 20 civil-military operations. It has presented itself as a normative, global actor, and its emergence as a legal entity that is neither a state nor a classic international organization has both puzzled and fascinated legal scholars and political scientists alike. Without a course addressing these manifold and interrelated issues, curricula would simply disregard the concurrent realities of Globalization and Europeanization.

However, this is a subject that is tricky to cover well, especially for a single teacher or even a single institution. We are faced here with a complex and fast-changing field, as well as myriad questions of law, politics and culture. This requires a profound, cutting-edge and interdisciplinary approach. With this course, we would like to start a truly global conversation on Europe’s place in the world, combining views and experiences from all over the continent and the world, and using the novel online tools to create a truly transnational experience and contribute to European integration also in the field of legal education.

For the next days, until 23 May at noon, people can still cast their votes for our as well as other MOOC proposals they find interesting on the website of the competition (everyone has up to ten votes). Of course, our consortium appreciates every vote from the EU Law Community. But however one may vote in this particular competition, the issue of MOOCs and the teaching of EU law is likely to stay.

Anyway, I would also like to draw your attention to a pretty awesome conference organized by the CJEU next Monday. That’s right: the Court itself is organizing a conference which is open to all. But it gets better. Not only is it on a cool topic (reflection on 50 years since the Van Gend & Loos judgment), but it will also be broadcast live on the internet. So we can follow the conference from all around the globe without having to go to Luxembourg. You can find the programme here (with some excellent speakers), the link to the live stream is here. The conference starts at 9.30 AM UTC+01:00 on May 13.

In dismissing the arguments put forward by the seal hunters, the General Court made a number of interesting statements regarding the EU’s ability to severely restrict trade of an ‘exotic import’ (a product not made within the EU) within the EU’s internal market on grounds of protecting the welfare of animals living outside the EU. In this post I will focus on the competence issue by discussing the particularities of EU constitutional law and the (modest) challenge a ban on the sale of exotic imports such as seal products poses for EU legislative competence.

Background

In 2009, in response to public concerns over the cruel hunting methods employed by seal hunters and the national bans placed on seal products by a number of Member States, the EU imposed a ban on the placing on the entire EU market of seal products. The ban was subject to two exceptions. The first exception – the “indigenous peoples” exception – allows seals products resulting from seal hunts by Inuit and other indigenous communities to be marketed within the EU. The second exception – the “natural resources” exception – allows the marketing of seal products which result from ‘by-products of hunting that is regulated by national law and conducted for the sole purpose of the sustainable management of marine resources.’

The ban, while of relatively minor economic importance, has led to strong reactions from seal hunting nations such as Canada and Norway and the seal hunting community itself: these countries are outraged by the EU’s ‘interference’ with a business model that they see as perfectly normal. Both Canada and Norway have challenged the validity of the EU seal product regime before the WTO, arguing essentially that the EU’s animal welfare policy is not consistent and is disproportionate (see for more information Rob Howse’s comments on the oral hearings of the case last week on the IELPBlog).

The seal hunters have already had one hearing before the Luxembourg courts. In the prior case, the seal hunters challenged the basic regulation banning trade in seal products (Regulation 1007/2009 of the European Parliament and the Council), but lost because the General Court found that they lacked standing to challenge a legislative act (this case is currently under appeal). In the second and present set of cases, the seal hunters are again challenging the basic regulation, but this time through a plea of illegality that challenges the Commission’s implementing Regulation (Regulation 737/2010). While the chances of success in either case is not great, the second direct challenge is, from a procedural point of view, much more likely to be at least admissible. I won’t comment on locus standi too much here; suffice it to say that the General Court put a rather large cart before a potentially even larger horse by skipping the admissibility issue altogether in the present case and dealing with the substantive issues head on (‘for the sake of the economy of the procedure’).

The source of contention in all of these cases is that a number of third countries and seal hunters are not too happy with the EU’s decision to damage their economic interests for reasons of protecting the health and life of animals not situated within the territory of the EU (granted, Greenland is part of the Kingdom of Denmark, but most EU law does not apply there, see article 198-204, 355 TFEU and Annex II of the Lisbon Treaty).

The EU seals ban is – in short – a prime example of a conflict resulting out of globalization: as a result of extensive economic ties between countries, people on one side of the globe become aware of activities on the other side that are objectionable in their view, and no longer wish to be a part of those objectionable activities, which decision in turn affects the economic interests of those engaged in such activities.

The objective of the ban: market regulation, not animal welfare protection

The first argument put forward by the seal hunters in this case is that the EU should not be able to rely on article 114 TFEU as a legal basis to adopt the seal product ban. According to the applicants the main objective of the Regulation is the protection of animal welfare, not the functioning of the internal market. According to well established case law, article 114 TFEU does not grant the EU general competence to regulate the internal market, but rather only to take measures which genuinely improve the conditions for the establishment and functioning of the internal market. A ban on the marketing of seal products does not contribute to that aim.

The General Court responded with the following statement:

In the present case it is clear from the basic regulation that its principal objective is not to safeguard the welfare of animals but to improve the functioning of the internal market. (para. 35)

For some, this statement might sound surprising, since the measure effectively makes trade in a particular product impossible in order to achieve a high level of animal welfare protection. One must keep in mind here, though, that the EU ban concerns commercial activity relating to seal products, not conservation measures aiming at improving the life and health of seals within the EU. The measure is directly aimed at regulating the conditions for the placing on the EU market of seal products and not directly aimed at protecting seals. The Regulation thus does not prohibit cruel hunting methods as such, nor does it attempt to regulate hunting methods for seals.

Nonetheless, it is quite remarkable that the General Court suggests that an EU-wide ban on the sale of seal products improves the functioning of the internal market, since trade in those products is effectively prohibited. The General Court’s reasoning is the result of the CJEU’s (in my opinion, rather unfortunate) legal meanderings on the EU’s competence to use article 114 TFEU to facilitate trade on the internal market. In Tobacco Advertising the CJEU effectively put a fence around the EU’s rule-making power under article 114 TFEU by holding that that article does not give the EU a ‘general power to regulate the internal market’. Recourse to article 114 TFEU is only possible when a rule will genuinely improve the conditions for the establishment and functioning of the internal market. This in turn means that the measure must either remove obstacles to trade that are the result of divergent national laws, or  remove appreciable distortions of competition.

To say the least, this is a troubling view if one wishes to limit the operation of free markets in order to protect important public interests such as the environment, animal welfare, consumer interests, and public health. This is because these conditions suggest that article 114 TFEU can only be used for trade facilitation, not trade regulation. Granted, trade can often be facilitated by taking public interests into account, for example by laying down uniform product requirements. But actually trumping trade with non-trade concerns becomes much more difficult. A ban on a product is not ‘trade facilitating’ at all: it is trade preventing. Many will argue that in such instances the EU needs to have recourse to another legal basis in the Treaty (although there is none for animal welfare). To me however, this appears to be contrary to the purpose of the Treaties itself which ‘by establishing a Common Market and progressively approximating the economic policies of the Member States seeks to unite national markets in a single market having the characteristics of a domestic market’. You would  expect the Union legislator to have the powers of a domestic legislator to protect vital non-trade interests and not to depend on Member States to subject the market to societal interests. Or even worse: to prevent Member States from subjecting the market to societal interests through weaker trade facilitating measures.

Fortunately, – as the Dutch say – the soup is not consumed as hot as it is served, as the CJEU softened its approach in two ways. Firstly, as soon as the conditions (removing obstacles to trade or preventing appreciable distortions of competition from arising) have been met by the EU legislature, the EU cannot be prevented from relying on article 114 TFEU on the ground that the protection of other public interests such as animal welfare is the decisive factor in the choices made (see para. 41 of the case under discussion). This is also in line with constitutional requirements of Union law making. Article 13 TFEU requires the Union, in formulating its internal market policy, to pay full regard to the welfare requirements of animals ‘since animals are sentient beings’.

Secondly, according to the CJEU, even the ban of a product facilitates the smooth operation of the internal market. The CJEU indicated in Swedish Match that product bans are permissible under article 114 TFEU. In that case, the CJEU held that a total ban (except for Sweden) on snuff, a tobacco product, was justified because it was likely that if the EU did not impose a ban divergent laws among the EU Member States would lead to obstacles to trade in the product concerned.  The ‘trick’ employed by the CJEU in Swedish Match as well as by the General Court in this second Inuit case is that a ban might in fact facilitate trade in other (similar) products and remove distortions of competition by uniformly limiting the availability of the product regulated.

According to the General Court, existence of disparities between national regulations on seal products discourages consumers from buying other products that do not involve seal hunting, but which might not be easily distinguishable from seal products (such as Omega 3 capsules) or products that contain seal products without being clearly recognisable as such (para. 39 and 47).  A Union-wide ban in seal products is therefore justified in order to restore consumer confidence ‘by offering them a general guarantee that no seal product would be marketed on the Union market, inter alia by banning the import of such products from third countries.’ (para. 45) The General Court also noted that seal products may still be traded within the EU as long as those seal products qualify for one of the two (rather limited) exceptions in the Regulation. I am quite curious whether a complete ban would have also passed the test of Tobacco Advertising as it did in Swedish Match, but in any event the exceptions appear to be rather marginal in scope.

According to the General Court, both exceptions to the ban facilitated trade in permitted seal products and facilitated trade in products in which trade might be hampered if there were no clear cut ban at the EU level. The General Court stated that:

In order to ensure that the products authorised under Article 3(1) of the basic regulation and all the products not made from seals, but which might not be easily distinguishable from similar goods made from seals, or products which might include elements or ingredients obtained from seals without this being clearly recognisable, are able to circulate freely on the internal market of the Union, the legislature provided, in Article 4 of the basic regulation that ‘Member States shall not impede the placing on the market of seal products which comply with [the basic regulation]’. It must be considered that this provision gives the basic regulation its full effect as regards its objective of improving the conditions for the functioning of the internal market. That article precludes Member States from impeding the circulation in the Union of all those categories of product by means, inter alia, of more restrictive provisions which they might find necessary to ensure the welfare of animals or to reassure consumers. Thus, Article 4 of the basic regulation expresses the objective set out in Article 1 of that regulation.

The ‘exotic import’ and article 207 TFEU

Another interesting aspect of the judgment by the General Court is the dismissal of the need for article 207 TFEU as an additional legal basis. Article 207 TFEU gives the EU competence to regulate commerce with third countries. The applicants had argued that the ban in seal products essentially affects commerce with third countries. This is obviously right. All seal products originate from third countries, or – to be a bit more precise – from territories that are not part of the EU customs union (Norway, for instance, incorporates – but has no say in – most EU internal market law, and is not part of the EU customs union). Formally speaking, the ban only affects the marketing of seal products, not their importation (although the ban is enforced at the border in accordance with the Ad Note to Article XI GATT), but there is no doubt that the Regulation amounts to a de facto import ban of seal products. Nonetheless, the General Court proceeded to classify the measure as an internal rather than an external measure on formal grounds. The GC notes that, firstly, the Regulation only prohibits the placing on the market of seal products and does not prohibit either the import or export of seal products (para. 69). Secondly, according to the GC ‘the basic regulation does not prevent the entry, warehousing, processing or manufacture of seal products in the Union, if they are intended for export and are never released for free circulation in the Union.’ In addition, imports are allowed if seal products are intended for personal use and not for commercial purposes, and seal products may be marketed if they are the result of national conservation measures. The GC therefore concludes that:

The prohibition on imports [as a result of enforcement at the border of the marketing ban] is in fact laid down in order to prevent the placing on the market of seal products and, by that means, to achieve the sole objective of the basic regulation which is to improve the functioning of the internal market. In that context, the effects of that regulation on external trade are merely secondary.

Again, I think the position of the General Court is understandable for the reason that if it were to rule otherwise, the regulation of all ‘exotic imports’ by Member States would be off limits. EU common commercial policy is an exclusive EU competence, and this means that everything that falls within its scope can no longer be undertaken by Member States. If the General Court were to accept the argument that if a rule only affects products from third countries only the EU may regulate that product, this would be a huge impediment to Member States’ competence to regulate their own markets and to determine which product is safe, healthy, or environmentally friendly enough to be sold on their territory.

Nonetheless, the General Court’s reasoning might create some uncomfortable smiles over at the European Commission. The Commission has always vehemently litigated in front of the CJEU to extend its competence under the common commercial policy as much as possible. The General Court’s non-functional reading reduces the scope of 207 TFEU to, inter alia, the negotiation of international economic agreements, anti-dumping measures, and the imposition of quantitative restrictions in the formal sense. The regulation of products stemming from third countries through means other than border measures is thus outside EU exclusive competence.

The idea of a ‘multi-speed Europe’ finds its concrete expression in a range of European Union (EU) policy fields from the single currency to EU criminal law. As the product of specific treaty authorizations, these examples of ‘enhanced cooperation’ have become a familiar means by which European integration has deepened while allowing individual states to avoid being bound by measures adopted in a new field of cooperation. With the Amsterdam Treaty, a new capacity was created to deploy enhanced cooperation on a more ad hoc policy issue basis, particularly where legislative negotiations had failed to resolve disagreements between Member States.

Yet the new capacity remained unused until after the entry into force of the Lisbon Treaty, which amended the provisions on enhanced cooperation (now Article 20 TEU and Articles 326-334 TFEU). The new provisions were deployed for the first time to permit a group of states to adopt a regulation on the law applicable to divorce and legal separation. However, it was the second authorization of enhanced cooperation in the area of the EU unitary patent which was more controversial and which gave rise to legal actions by Spain and Italy seeking an annulment of the authorizing decision. Both states had objected to the proposal to restrict the languages used for submission of patent applications to English, French and German. In the absence of the unanimity required for the establishment of the language regime (Article 118 TFEU), legislative negotiations had reached a stalemate and so the decision was taken by the Member States – with the exception of Spain and Italy – to authorize enhanced cooperation. The two countries then brought legal proceedings seeking the annulment of the authorizing decision.

This post considers the implications of this litigation for the use of enhanced cooperation with a particular eye towards the legal action which has been launched by the United Kingdom challenging the use of enhanced cooperation for the adoption of the controversial Financial Transactions Tax (FTT).

Cases C-274/11 and C-295/11
The Spanish government (case C-274/11) attacked the authorizing decision on two fronts. First, it suggested that enhanced cooperation was impermissible in that it constituted a misuse of powers – in effect imposing an opt-out on the non-participating countries – and that an alternative strategy – adopting a special agreement under the European Patent Convention – was open to the Member States. It also suggested that the regime did not respect the judicial system of the EU. Secondly, even if enhanced cooperation was permissible, it argued that the authorizing decision violated the treaty requirements for its use viz: the authorization was not a ‘last resort’ and was in an area of exclusive EU competence (Article 20 TEU); the authorization violated the principle of non-discrimination and undermined the single market by creating discrimination in trade and distortions to competition within the single market (Article 326 TFEU); and, did not respect the rights of the non-participating states (Article 327 TFEU).

The tenor of the arguments made by the Italian government (case C-295/11) was broadly similar but in addition it was argued that the authorization was contrary to the spirit of Article 118 TFEU which makes provision for the creation of the unitary patent. The two cases were joined and on 16 April the Court of Justice of the EU – composed as a Grand Chamber – delivered its judgment dismissing the applications. This was not wholly surprising given that Advocate General Bot in an earlier Opinion had also invited the Court to reject the applications. The aim here is to focus on the wider implications of the judgment for the use of enhanced cooperation and so it does not deal with those grounds of challenge that are specific to the patent regime.

Voting Rules, Enhanced Cooperation and Litigation
It might be thought that where the treaty demands unanimity in the Council, it envisages that an area is of such sensitivity that coordinated action demands complete consensus. It would then follow that enhanced cooperation would only apply to areas where majority voting is already permitted but the majority falls short of a qualified majority vote (QMV). That position is rejected by the Court. The mechanism of enhanced cooperation applies in any circumstance where agreement cannot be reached within a reasonable time within the Council including, and perhaps especially, in areas where unanimity is required. Thus, where enhanced cooperation is both possible and credible, this weakens the threat of the veto and avoids the watering down of proposals to a lowest common denominator. At the same time it is preferable to the use of QMV as a means of managing diverse interests in that the solution is only binding on participating states. Nonetheless, the ‘take-it-or-leave-it’ nature of enhanced cooperation means that non-participating states have to assure themselves that non-participation will not affect their interests now or in the future.

The Last Resort and Standards of Review
Under Article 20 TEU, authorization for enhanced cooperation is predicated on it being a last resort where it is established that the objective of the cooperation cannot be attained within a reasonable period by the Union as a whole. The interpretation of this provision is, therefore, of great legal significance in determining how high the bar is set for the Council to resort to enhanced cooperation. This is also politically significant in determining the strength and credibility of any threat to use enhanced cooperation as a means of breaking deadlock.

For Advocate General Bot, the new wording of Article 20 TEU highlighted that resort to enhanced cooperation was not limited to circumstances where the legislative process had been concluded but resulted in failure. Rather, it referred to a situation of deadlock in the negotiating process. The treaty does not specify the period which has to elapse before such deadlock can be determined. For AG Bot, this meant that the Council had a wide margin of discretion to determine when such a point had been reached. In turn, this meant that judicial review was confined to determining whether the Council had made a manifest error or manifestly exceeded the limits on its discretion by authorizing the use of enhanced cooperation. Indeed, more generally for AG Bot, the standard of judicial review in determining the legality of a ‘legislative’ act was that of determining whether there was a manifest error (a theme which also underpins AG Bot’s Opinion in Kadi II).

The Court’s approach arrives at a similar result to that proposed by AG Bot, namely that the Court’s duty is to review whether the Council carefully and impartially assessed the relevant factors leading to its decision and gave adequate reasons for its conclusions. The Court, however, avoids both a characterisation of the authorization decision as a ‘legislative’ act and does not use the language of review for ‘manifest error’. It found no reason to challenge the Council’s conclusion that negotiations were not likely to resolve the conflict with Spain and Italy.

Substantive Illegality and Challenges to Authorizing Decisions
It is useful to recall that enhanced cooperation entails the adoption of two acts: the authorizing decision and the substantive legislative act binding the participating parties. This creates a potential problem for litigating states challenging the use of enhanced cooperation in situations where the authorization decision has been adopted but the legislative act is still under negotiation. While issues of procedural illegality are likely to be addressed to the authorizing decision, issues as to whether the measure creates discrimination within the internal market or distorts competition or impinges on the rights and obligations of non-participating states are more properly addressed to the substantive legislative act. Accordingly, challenges to the compliance of an act with the substantive limitations on resort to enhanced cooperation may be premature and inadmissible when the act under challenge is the authorizing decision and not the resultant legislative act.

Thus, the position of AG Bot and the Court was that any allegations that the substantive measure on language requirements conflicted with the treaty was both premature and inadmissible as the legislative negotiations had not been concluded. That is to say, the focus of the litigation was on the authorizing decision and not the resulting legislation and so judicial review was confined in its scope to an analysis of the legality of the authorizing decision. This suggests that Member States may end up having to raise two distinct legal actions: a more procedurally-oriented action challenging the authorizing act and a more substantive challenge to the legality of the resulting legislative measure.

Respecting the Competences, Rights and Obligations of Non-Participating States
What differentiates QMV from enhanced cooperation as strategies for managing diverse interests in the legislative process is that the latter ought not to impinge upon the non-participating state. States which decide not to participate in the resulting measure should not be detrimentally affected by that choice. The ‘neutral’ nature of enhanced cooperation is also important for the ethos of the mechanism in that non-participating states should have the future capacity to opt-in to the measures adopted. For the Court, while it might be the case that non-participating states would then be faced with opting-in to measures with which they did not agree, of itself this did not render the enhanced cooperation incompatible with the competences, rights and obligations of non-participating states.

This was perhaps not the test case with which to flesh out the ‘extra-territorial’ effects of an enhanced cooperation measure. It will, however, be highly relevant to the litigation which the UK has announced it will commence, challenging the use of enhanced cooperation for the adoption of the Financial Transaction Tax.

Lessons for the Fate of the FTT
In September 2011, the European Commission adopted a proposal for an EU-wide financial transaction tax (FTT). After much negotiation it became clear that the unanimity required under Article 113 TFEU was absent. Accordingly, eleven Member States requested the use of enhanced cooperation. The authorization was duly given in January 2013 (Council Decision 2013/52/EU) with the Commission producing on 14th February a substantive legislative proposal based on its original proposal. Against the background of reports that the participating states were growing uneasy about the proposal, the United Kingdom announced on 19th April its intention to bring proceedings before the CJEU (Case C-209/13). The CJEU’s ruling in the EU patent case is, therefore, of some interest to this litigation.

The likely thrust of the UK challenge lies in the alleged extra-territorial effects of the proposed FTT. The tax would be imposed on financial transactions that are linked to the territory of one of the participating states: e.g. if one of the parties to the transaction is based in a participating state; if the issuer of the security is established in that state; if the financial institution is a branch of an institution based in a participating state. In a briefing note published in January 2013, law firm Clifford Chance suggested that UK financial institutions would experience extra-territorial effects of the FTT. Yet unless and until the legislation is adopted, these effects are speculative. Any legal proceedings challenging the authorizing decision on the grounds that a legislative measure still being negotiated impacts on the competences, rights and obligations of a state – presumably the right to exclude entities on its territory from the effects of such a tax – would be premature and inadmissible. The same would go for any argument that the legislative measure would distort competition in the internal market (a potential effect of the movement of financial activities to avoid payment of the tax). If nothing else, this litigation will afford the Court the opportunity to further clarify the timing and scope of litigation challenging the use of enhanced cooperation, and in particular, the scope of challenges to authorizing decisions.

On appeal, their lawyers argued that the mere statement that one is gay, lesbian or bisexual is sufficient proof of an asylum seeker’s sexual orientation. Moreover, the lawyers submitted, any further verification of their sexuality is contrary to, inter alia, Articles 3 and 7 of the Charter of Fundamental Rights. The Council of State accepted that some questions pertaining to the way in which the applicant experiences, sexually or otherwise, his sexual orientation or how and when the applicant became aware of his sexual orientation may be contrary to the right to personal integrity (art. 3 (1) Charter) and the right to private life as guaranteed in Articles 3 and 7 of the Charter of Fundamental Rights and asked the CJEU for guidance on this point. In this post, I will use queer theory in an attempt to substantiate the argument that verification ought to be considered contrary to human rights standards.

The three problems of verifying sexual orientation

This preliminary reference reflects the increasing awareness of the distinct challenges that refugees persecuted on account of their sexual orientation face vis-à-vis other groups.[1] For example, last year the Dutch Council of State already asked whether a decision to deny an application with the argument that an asylum seeker may avoid persecution in their home country by remaining discreet about their sexual orientation is contrary to EU law or not. In other words: whether EU law prohibits that asylum seekers are send back into the closet by Member States. In the same judgement, it also asked whether lesbian, gay or bi asylum seekers can be returned to countries where same sex sexual activities are a criminal offense. This reference is still pending before the Court. The Council of State is now asking  the Court to deal with another sensitive topic: what methods are allowed to verify the sexual orientation of an asylum seeker?

Verification of sexual orientation entails a number of problematic aspects on three levels, namely: the individual case, the conceptual and the societal level.

Intimate Questioning and “The Normal Homosexual”

Turning first to the individual cases. Research into the way in which sexual orientation in individual cases is verified in Australia, New Zealand, the United Kingdom, Canada and the Netherlands has shown that it may involve inappropriate questioning and is subject to a certain degree of prejudice and bias.[2]

An example of inappropriate questioning is illustrated in a Dutch case in which an applicant was asked to give details of sexual intercourse and the subsequent finding that the applicant had lied about his sexual orientation because he did not tell what position he took in bed. Such questioning is clearly contrary to international standards and thankfully rare in the Netherlands. The decision was quashed on appeal.

However, other types of prejudice are more common. Questions asked and conclusions inferred from answers indicate that immigration officers tend to compare the statements of applicants to their expectations of what is “normal” for gay, lesbian, bisexual, transgender or intersex people.

For example, a Dutch official would not accept that a Pakistani youth did not really worry about his attraction to other men. The official held that ‘at no time [did the applicant] immersed himself into the question what it means to be homosexual’ and that ‘at no time [did] he experience an inner struggle’. According to the official this was particularly odd because he was raised ‘with the societal notion that homosexuality is bad’.

Although in itself not inappropriate questioning, the official betrayed that she had a biased expectation of what a “typical” homosexual person experiences. Indeed, the District Court quashed the decision on the basis that ‘nothing was adduced to support the contention that from homosexuals from a society like Pakistan may be expected to go through a phase of inner struggle.’

 What is sexual orientation anyway?

This leads us to the second problem that occurs with verifying sexuality: that of conceptualization.  The biased expectations about sexuality found in individual cases stems from fundamental questions about how to understand sexual orientation. What does it constitute? What do people experience? What meaning do people give to these experiences? How to express this in legal and policy terms?

The Yogyakarta principles appear to give some guidance in this: sexual orientation is understood by the preamble to “refer to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.” The UNHCR and the Dutch Immigration Service use similar language.[3]

This is very broad, but does not make clear what is experienced exactly, which in practice is what verification turns to. In other words, in order to verify membership of a category, that category needs to be conceptualized. However, here we encounter a major problem, which is aptly described by queer theorist Eve Sedgwick. She argued that sexuality is so complex that it cannot be understood and defined by anyone but the subject self. In other words, the experiences of a person are exclusively personal. This makes it hard to compare these experiences and describe them in general terms. And even if these experiences can be compared, the way in which persons will express them through language and actions is again very personal.

At the same time, the way in which experiences are expressed is also shaped by culture. In modern Western societies we tend talk of straight, gay, lesbian, bisexual people to understand and categorize their experiences into distinct identities. The problem for the asylum context will be obvious: the meaning and expression given to experiences will differ from culture to culture and age to age. With this ambiguity, conceptualization of sexual orientation becomes hard and attempts to do so may lead to decision on the individual case level that are biased through personal and cultural conceptions of sexuality.

The societal problem

The perceived need to conceptualize is not only in play in the asylum context but in all kinds of contexts. Eve Sedgwick observes that despite its personal nature, sexual orientation has become a question of authority and evidence in our society. By this, she means that a “coming out” may not be accepted by others as being genuine if the individual bases this on only a few feelings, but no actions or, conversely, on a few actions, but not feelings. In other words, the authority of definition does not lie with the subject but with others.

Sexual orientation is such a central theme in the perception of a personality that it needs to be defined. Thus, a coming-out, i.e. a claim that the default assumption that a person is heterosexual is untrue, needs to be proven: people experience a desire to understand the personality of persons in their immediate vicinity, in other words they experience a need to box people. However, the number boxes available are limited and rather stable and narrowly defined: straight, gay, lesbian, bisexual.

Accordingly, a person who claims to be straight needs to act in conformity of what their environment perceives to be normal for a straight person. Conversely, a gay person will do the same mutatis mutandis. As a consequence, any experience that is not on line with this expectation is suppressed and people let themselves confined to boxes and restrict their acts accordingly, with the result that they are defined in their identity and actions by others.

Eve Sedgwick turns against this dynamic, this ceding of authority of naming and behaving to others, as it interferes with their autonomy of behavior. She argues that the authority to define should be returned to the individual concerned. Obviously, this is exactly what the immigration service opposes to do when it engages into a process of verifying the sexual orientation of asylum seekers. In other words, the argument by the three lawyers in the case at hand that verification is contrary to the human dignity, integrity, and private life protected by the Charter finds support in queer approaches to individual autonomy.

Obviously, the major challenge that lawyers face is not only to connect queer theory to human rights, but also to embed them into one and another. Certain doctrinal innovations may have to be made in order for the Court to impose such heavy restrictions on the verification process. This falls beyond the scope of today’s post, which only serves to illustrate one of the complexities surrounding sexual orientation in the asylum context.

What can they ask?

If the CJEU were to accept the human rights argument put forward, what other avenues are available to verify narratives? It should be noted that in a number of Member States, the applicant’s statement that they have an alternative sexual orientation is considered the starting point and carries much weight.[4]

Verification may focus more on other aspects of the narrative than on whether the applicant is really gay. A good alternative is to focus more on aspects of the claimant’s life that have resulted from having an alternative sexual orientation and not the sexual orientation itself: experience of non-conformity; the experience of being different; relationships with family, friends and the wider community and any persecutors amongst them; romantic and sexual relationships; religion and acts of persecution may all serve to verify his narrative without having to engage into a discussion whether the applicant is gay or not. After all, perceived membership of a particular social group already satisfies the requirement. A consistent and coherent narrative may develop out of this. Or not. At least the problems described above are largely avoided. 

Article 41 (1) of the Additional Protocol is a stand-still clause which provides that ‘[t]he Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services’. It does not provide for the freedom to provide services itself, but – like the Association Agreement – it requires the Council of Association to take the necessary steps to remove obstacles to that freedom.

As the Advocate points out, the problem in the present case arises now from the combination of the Court’s case law and secondary legislation. Regulation (EC) 539/2001 and (EC) 562/2006 establish that third country nationals coming from a country on a specific list (which includes Turkey) must be in possession of a visa when crossing the external border of a Member State for stays not exceeding three months. In its decision in Soysal and Savatli , however, the Court held that the stand-still clause of Article 41 (1) of the Additional Protocol also applied to a visa requirement introduced by Germany back in 1980 which applied to the entry of Turkish nationals for the purposes of providing services, in that case related to the international transport of goods for a Turkish-registered company. The Court thus struck down the German visa requirement as a new restriction on the freedom to provide services because of the ‘additional and recurrent administrative and financial burdens involved in obtaining such a permit’ (Soysal and Savatli, para 55). The secondary legislation in place was of no concern to the Court, as ‘the primacy of international agreements concluded by the Community over provisions of secondary Community legislation means that such provisions must, as far as is possible, be interpreted in a manner that is consistent with those agreements’ (Soysal and Savatli, para 59). As the Advocate General points out, both the Commission and Germany are already working on the modifications necessary to implement the decision in Soysal and Savatli.

The Soysal and Savatli case, however, fails to answer a central point concerning the potentially broad notion of the freedom to provide services embraced by Article 41 (1): Is the passive freedom to provide services also encompassed by Article 41 (1)?

 The Advocate General starts by pointing to the situation in EU law, where – despite the important effects on the movement across borders of natural persons for this purpose – the passive freedom to provide services is part of the EU fundamental freedom (paras 50-51).

In order to determine the scope of Article 41 (1), he suggests the rules of interpretation of international law (para 53). The Vienna Convention rules are certainly a help, but they essentially remain broad guidelines which allow the balancing of various rules of interpretation – as becomes particularly clear in the interpretative exercise suggested here by the Advocate General.

Beginning with the wording of the provision, the Advocate General blends some historical elements into his analysis. The historical understanding of the freedom to provide services at the time the Additional Protocol was concluded is hard to establish, since the Court only clarified matters in 1984 (para 55). As a comparison, even in the 1999 Agreement on the Free Movement of Persons with Switzerland, the freedom of movement of service recipients is explicitly regulated to avoid any confusion (para 57), setting out the conditions to be fulfilled for service providers and recipients to be entitled to move to the partner state.

Moving on to the context, the Advocate General rightly emphasizes the role of the Council of Association in furthering integration under the Association Agreement’s regime (para 58). Since the Association Agreement does not contain provisions mirroring the respective provisions on the fundamental freedoms in the TFEU, the standstill clause’s content is also rather limited (para 59). The Agreement speaks instead of the Association being ‘guided by’ the Treaty freedoms, which the Court interpreted as extending EU free movement principles only ‘so far as possible [sic]’ (para 60-61).

These arguments appear quite convincing. What follows, however, is marked by a feature which is unfortunately common to much of the case law on EU external agreements: a highly selective teleological reading of the Agreement at issue. Turning to the objectives of the EU Turkey-Association Agreement, the Advocate General correctly emphasizes that such objectives played a pivotal role in deciding what degree of integration was desired in a specific association regime (paras 62-63). The Advocate General finds it to be a ‘programme for integration’ rather than a ‘complete, immediately applicable and comprehensive treaty’; the Association Council has a major role to play in establishing fundamental freedoms. In practice, this entails a lot of progress in the field of trade in goods, but rather insignificant progress in other areas such as the freedom to provide services (para 66). By contrast, the EU aims at an internal market which includes integration beyond the individual citizens’ economic activities. Union citizenship thus illustrates that – contrary to the EU-Turkey association – the objectives of the EU go far beyond economic integration (para 67). For the Advocate General, the passive freedom to provide services is so intrinsically linked to the free movement of persons, an ‘area of such sensitivity’, that it ought not to be transferred to the stand-still clause of the Additional Protocol. This is so because in the EU context, this passive freedom was an ‘initial step towards the establishment of free movement for Union citizens’ (para 69). Therefore, the passive freedom to provide services is not a part of the stand-still clause, which is also confirmed by subsequent practice of the contracting parties, several Member States and Turkey having introduced at some points visa restrictions against the other (paras 70-71).

As a first sceptical remark, the Advocate General is distinguishing between the two legal regimes using different criteria: for the EU, he uses the objectives of the Treaties; for the EU-Turkey Association Agreement, he bases his findings on the effective use made of the provisions of the Agreement. The EU-Turkey Association Agreement can arguably also be read as a rather ambitious ‘programme for integration’, with actual accession being mentioned as the ultimate goal. But if, like the Advocate General, we define ‘objectives’ as the progress actually being made, the result is of course less impressive. Second, one may also have doubts as to whether the – essentially still economic – passive freedom to provide services is as intrinsically linked to the concept of Union citizenship as the Advocate General implies. Third, the rather selective reading of the objectives and structure of the Agreement reminds me of the approach of the CJEU towards the Agreement on the Free Movement of Persons between the EU and Switzerland. For both the Ankara Agreement and the Swiss Agreement, it is hard to shake the impression that the Court – or here the Advocate General – decides first which result ought to be reached, with the reasoning being then adapted to fit that result. In the case of the Swiss Agreement, an interesting trend can thus be identified: Initially, the Court insisted very much on the fact that Switzerland chose not to accede to the European Economic Area and to exclude accession to the EU when concluding the Bilateral Agreements (Grimme, Fokus Invest), all that to interpret the Agreement restrictively. Later case law, however, rather miraculously rediscovers the integration-friendly preamble of the Agreement and thus allows for a much more EU-law based interpretation (see Graf, para 33).

All that to say that one could probably have found respectable arguments to extend to some more limited extent the passive freedom to provide services and allow more comprehensive restrictions as justified than in the EU context. With this approach, a less restrictive reading of the Association Agreement and its Protocol could have been reached, while the case at hand still could have been easily dismissed (as the Advocate General also does in the second part of his opinion, pointing towards the ancillary character of the passive freedom to receive services in the concrete circumstances of the case, paras 78-79).

At the end of the day, one may agree or disagree with the result reached by the Advocate General. What I find of concern is, however, mainly the nearly arbitrary way in which external agreements of the EU are interpreted, sometimes in a minimalist, sometimes in a maximalist fashion. As a consequence, fundamental freedoms of the Common Market are sometimes extended, sometimes not; and many of us would probably like to hear a bit more than the mantra of the Vienna Convention rules of interpretation as an explanation for this inconsistent approach.

Yesterday, the Court of Justice of the European Union handed down its decision in the joined cases of Ring and Skouboe Werge (see judgment here). This ruling is particularly significant as it represents the first decision on the definition of disability under the Framework Directive on Employment 2000/78 since the EU concluded the UN Convention on the Rights of Persons with Disabilities (CRPD) in 2010. In essence, the Court moved away from the restrictive definition it adopted Chacón Navas, and instead interpreted the Framework Directive in light of Article 1 CRPD, which states that

persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

The facts of the joined cases involved two women who were dismissed from employment when they returned to work following a period of sick leave. Ms. Ring was dismissed after sick leave she took due to constant lumbar pain which could not be treated. Ms Skouboe Werge took sick leave due to whiplash injuries she received in a road traffic accident. The reasons provided for the employers for both dismissals were that the applicants could no longer carry out full time employment due to illness. The employers argued that such dismissals are provided for under Danish law, if the employee had received her salary during periods of illness for a total period of 120 days during any period of 12 consecutive months.

The trade union which brought claims on behalf of the applicants argued that both employees fell within the scope of the Employment Equality Directive as disabled persons, and that the respective employers should have offered both employees reduced working hours, as a ‘reasonable accommodation’ under the Danish Anti-Discrimination Law transposing the Directive, rather than dismissing them. The Danish law states in paragraph 2a that: “Employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to enable a person with a disability to undergo training. This does not however apply if such measures would impose a disproportionate burden on the employer. This burden shall not be regarded as disproportionate if it is sufficiently remedied by public measures.”

In Chacón Navas, the Court distinguished between illness or ‘sickness’ and disability, stating that “the legislature deliberately chose a term which differs from ‘sickness’. The two concepts [disability and sickness] cannot therefore simply be treated as being the same.” The Court stated that disability “must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life.” Where illness or sickness did not entail such a limitation, it could not therefore come within the definition of disability.

In yesterday’s ruling the Court did not set aside its decision in Chacón Navas, but did point out that this previous ruling was adopted prior to the entry into force of the CRPD – and that “the primacy of international agreements concluded by the European Union over instruments of secondary law means that those instruments must as far as possible be interpreted in a manner that is consistent with those agreements.” Therefore, the Court read ‘disability’ in the Framework Directive to reflect Article 1 of the CRPD as stated above – which provides an inclusive, non-exhaustive list of impairments, which when combined with societal barriers, can constitute disability.

The Court also held that a reduction in working hours would fall within the type of reasonable accommodation to disabled people prescribed by the Employment Equality Directive, but acknowledged that it fell to the national court to determine whether such a reduction would constitute a disproportionate burden for the employers involved. With regard to the shortened period of notice provided for in Danish law for such dismissals (following a period of sick leave in which an individual received her salary), the Court also held that this could constitute indirect discrimination on the ground of disability. In order to justify such indirect discrimination, the Court found that the national court would have to consider whether Danish law was pursued a legitimate aim, and was proportionate to that aim.

This ruling is particularly significant in so far as it affirms that the CRPD takes precedence over EU secondary law, and that such laws must be, as far as possible, read in a manner that conforms with the CRPD. Such a ruling will have relevance far beyond the Employment Equality Directive, and could have a positive impact on the application of all secondary law which affects persons with disabilities – including in the areas of transport, the internal market and funding provided by the EU, such as the Structural Funds (see more on these issues here). It is a promising decision which will be welcomed by European disability activists as an important step to deepen understanding of the relationship between the CRPD and substantive EU law, as applied to persons with disabilities.

“The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.” Article 6, paragraph 2, TEU

The EU took another step towards accession to the ECHR with the finalization, late last week, of the Draft Revised Agreement on the Accession of the EU to the ECHR, after almost three years of negotiations.

However, as Antoine Buyse notes over on ECHR Blog, the road to accession remains long and winding. The next hurdle will be to request an opinion from the Court of Justice on the compatibility of the agreement with the EU Treaties, pursuant to Article 218(11) TFEU. The agreement would then require the unanimous approval of the Council, in addition to the approval of all Member States “in accordance with their respective constitutional requirements” (Article 218(8) TFEU). Finally, the agreement will have to be ratified by all States of the ECHR.

The explanations of the Draft Agreement are available in annex to the report. Below, I flag some important aspects of the Draft Agreement, notably the co-respondent mechanism and the prior involvement of the CJEU.

Co-Respondent Mechanism

Article 1(4) of the Draft Agreement states that, for the purposes of the ECHR:

an act, measure or omission of organs of a member State of the European Union or of persons acting on its behalf shall be attributed to that State, even if such act, measure or omission occurs when the State implements the law of the European Union, including decisions taken under the [TEU and the TFEU]. This shall not preclude the European Union from being responsible as a co-respondent for a violation resulting from such an act, measure or omission […].

Thus, the EU may, either by way of request or upon the invitation of the Strasbourg Court, become a co-respondent along with the respondent Member State (Article 3(5)), giving it the status of a “party” to the proceedings. The voluntary nature of the mechanism, dependent on the consent of the EU or Member State concerned, has been criticized (see Tobias Lock’s post here).

Article 3(2) specifies that the co-respondent mechanism can be triggered when proceedings have been initiated against a Member State if it appears that the alleged violation:

calls into question the compatibility with the Convention rights at issue of a provision of European Union law, including decisions taken under the TEU and under the TFEU, notably where that violation could have been avoided only by disregarding an obligation under European Union law.

Similarly, the Member States may become co-respondents in a case against the EU where the alleged violation hinges on provisions on EU law and could only have been avoided by disregarding those obligations (Article 3(3)).

Notably, if a violation is established in such a case, “the respondent and the co-respondent shall be jointly responsible for that violation”, unless the Court decides otherwise for specific reasons. The reference to “joint responsibility” has also been described as sitting uneasily with the requirement under Article 1 of Protocol No 8 to the EU Treaties to establish “mechanisms necessary to ensure that proceedings […] are correctly addressed to Member States and/or the EU as appropriate” (for further discussion, see the ESIL Reflection by Judge Gaja of the ICJ).

Prior Involvement of the CJEU

At the heart of this issue is a desire to accommodate the autonomy of the EU legal order (and of the CJEU to interpret the rules of that order) within the ECHR system, while also reconciling it with the requirement to exhaust domestic remedies (Article 35(1) ECHR).

When considering the role of the EU courts in this regard, two situations must be distinguished. The first situation concerns a “direct action” against the EU challenging an act of an EU institution. This situation is not addressed by the Draft Agreement, but it emerges from the Joint Communication of the Presidents of the CJEU and the ECHR, that an applicant bringing a direct action against the EU would first have to exhaust all remedies before the EU courts.

The second situation concerns an “indirect action” in which a Member State is alleged to have violated the ECHR when implementing or applying EU law, and it is this scenario that has been the subject of much discussion. As the explanations to the Draft Agreement note, since applicants cannot compel a national court to make a preliminary reference to the CJEU, a preliminary ruling “cannot be considered as a legal remedy that an applicant must exhaust before making an application to the Court.” However, in order to ensure that the Strasbourg Court would not adjudicate on the conformity of EU law without the CJEU first having the opportunity to review it, Article 3(6) of the Draft Agreement provides that:

In proceedings to which the European Union is a co-respondent, if the Court of Justice of the European Union has not yet assessed the compatibility with the Convention rights at issue of the provision of European Union law as under paragraph 2 of this Article, sufficient time shall be afforded for the Court of Justice of the European Union to make such an assessment, and thereafter for the parties to make observations to the Court. The European Union shall ensure that such assessment is made quickly so that the proceedings before the Court are not unduly delayed. The provisions of this paragraph shall not affect the powers of the Court.

The specific modalities of such a procedure are not set down in the Draft Agreement and are left to be determined by EU law.

Final Thoughts

As noted above, the accession process is unlikely to be concluded any time soon. Consequently, Strasbourg’s existing jurisprudence concerning the (indirect) judicial review of EU law, notably the Bosphorus case, remains relevant.

In that regard, readers might be interested in a recent decision of the ECtHR which ostensibly refined the Bosphorus rule by emphasizing the importance of prior review of the CJEU to the Bosphorus presumption of equivalent protection. In Michaud v France, which became final on 6 March 2013, the Court was asked to assess the compatibility of an obligation pursuant to EU Money Laundering Directive requiring lawyers to report reasonable suspicions of money laundering or terrorist financing with the right to privacy protected by Article 8 ECHR.

The ECtHR declined to extend the presumption of equivalent protection to the Directive on two grounds. First, the Court noted that Directives, unlike Regulations, grant a “margin of manoeuvre” to States as to how the obligation is to be achieved. If this is relatively unsurprising, the Court then proceeded to find that secondly, and “above all”, the present case was to be distinguished from Bosphorus because the Conseil d’Etat had not made preliminary ruling to the CJEU, nor had the CJEU any other opportunity to examine the question. The Court thus concluded that:

because of the decision of the Conseil d’Etat not to refer the question before it to the Court of Justice for a preliminary ruling, even though that court had never examined the Convention rights in issue, the Conseil d’Etat ruled without the full potential of the relevant international machinery for supervising fundamental rights – in principle equivalent to that of the Convention – having been deployed. In the light of that choice and the importance of what was at stake, the presumption of equivalent protection does not apply. [para.115]

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