15 December 2023/
By David Nagode
Blogpot 56/2023
‘Eco-friendly’ and ‘climate-neutral’ have become beloved phrases when it comes to marketing and labelling of everyday products. Apparently to such an extent that companies have decided to include such stickers on the packaging of their products, without actually doing, i.e. contributing anything towards the fight against climate change. This ‘eco-frenzy’ has gone so far that inherently environmentally unsustainable products and services are marketed as ‘eco-friendly’, such as airline flights or plastic bags. The European legislator has finally responded and proposed the so-called Green Claims Directive. This piece of legislation seeks to combat greenwashing commercial practices by harmonising the requirements and labelling schemes of Member States. From the consumer’s perspective, greenwashing is not merely a matter of preference; it is a question of credibility. Under current regulations, companies can often evade their environmental commitments, with the European Commission estimating that 40% of such claims are entirely unsubstantiated. For consumers, who truly strive towards more sustainable consumer habits ‘to wish was to hope, and to hope was to expect’ (Jane Austen, Sense and Sensibility). Will the Green Claims Directive improve consumer confidence regarding green claims?
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14 December 2023/
By Gareth Davies
Blogpost 55/2023
In OP v Commune d’Ans, the Court of Justice determined that a rule maintained by a Belgian municipality, which prohibited the showing of any signs of religious faith in the municipal workplace, could be justified by the cause of preserving an ‘entirely neutral administrative environment’. The measure primarily affected Muslim women who wished to wear a headscarf, and the effect is to de facto exclude such women from municipal employment, but the Court considered this less important than the preservation of this neutrality.
There were a few provisos. Firstly, the rule had to be imposed strictly and universally. The practice of tolerating discreet crosses on a necklace, and so on, common in Europe, could not be accepted. It was all or nothing. Secondly, the judgment only says that EU discrimination law does not prohibit such a rule. The Court emphasised that it is primarily for the Member States to determine the balance between religious freedom and other interests. Their courts and legislatures remain free to decide that the banning of all religious signs in public or other workplaces would amount to prohibited discrimination. They may, following Article 8(1) of Directive 2000/78, give greater protection to equality than the Directive requires. Or not. This judgment essentially washes its hands of the issue, and perhaps the Court felt it had no choice. The idea of the neutrality of the state has a quasi-religious status in some Member States – ironic given that it is used to exclude religion. However, we are shaped by our enemies – and, if the Court had found it contrary to EU law, they might have been faced with non-compliance, not to say revolution, led by a coalition of historically minded constitutional lawyers and Islamophobes.
There is thus something to be said for decentralising this kind of value balancing. Dictating that states must respect values such as equality is gratifying for the one who dictates but not always the most effective way of achieving that result. Sometimes it is better to let communities find their own way to overcome the shadows of their past and rethink their constitutional idées fixes. Nevertheless, for better or for worse, the EU has in fact adopted equality legislation, which precludes direct discrimination, and requires Member States to justify measures which exclude or disadvantage particular groups. That justification process requires them to show the measures actually meet some genuine need.
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Blogpost 54/2023
After millions of people fled to the EU following Russia’s invasion of Ukraine, Council Directive 2001/55/EC was activated for the first time in more than 20 years. Temporary protection was designed to protect not only Ukrainian nationals and their family members, but also people recognised as stateless and people granted international protection in Ukraine (see Article 2 of Council Implementing Decision 2022/382). When forced to flee, however, these particularly vulnerable categories face barriers to protection in the EU. These people’s documents may not be recognised by Member States, or they may lack the documents required of third-country nationals. States may insist that asylum seekers and refugees provide the national ID of their country of origin, which is held by authorities in Ukraine: they cannot travel to retrieve it (due to a lack of travel documents).
Many asylum seekers who found themselves in Ukraine when the full-scale war broke out had been waiting for months or years for a decision due to Ukraine’s dysfunctional asylum procedure. Whereas people with international protection documents are explicitly included in the scope of temporary protection, people who were seeking asylum are much less likely to be protected. They are not specifically included in the scope: rather, Member States can choose to offer temporary protection to people who were legally residing in Ukraine and cannot return safety to their country (or can instead offer “adequate protection under national law” – Article 2(2) of Council Decision 2022/382). On these grounds, some asylum seekers have received temporary protection, but most have been redirected to the asylum procedure or remain without status.
Temporary protection currently lasts until 4 March 2025. After this date, temporary protection holders must either access another legal status in the EU Member State they reside in, or return to Ukraine if – and only if – the hostilities have ended (Article 21 of Council Directive 2001/55/EC). Non-Ukrainian refugees and asylum seekers, even if they have received temporary protection so far, risk being excluded from national statuses offered when the Council Directive 2001/55/EC expires. Further, they risk being returned to their country of origin, or to Ukraine (while conflict persists), or being held in detention. Those who did not succeed in obtaining temporary protection are in an even more frightening situation: they may be undocumented, or unable to access an asylum procedure. Currently, no EU-wide approach has been announced that would offer harmonised and durable legal status to the some four million people currently protected by temporary protection.Continue reading
12 December 2023/
By Charlie Bennett
Blogpost 53/2023
An asset with a ‘dual-use’ nature is relatively simple in theory – it is an asset that inherently has the potential for both civilian and military applications simultaneously. Nowhere is this a more prominent feature than in the space industry, within which the vast majority of assets could be said to possess such a ‘dual-use’ nature.
In the context of the EU’s quest to better regulate and stimulate the European space industry in the face of pressing external (and internal) concerns and competition, however, this may result in many legal difficulties. The Lisbon Treaty is relatively unaccommodating for the supranational governance of such sensitive dual-use assets, because it features a fundamental divide between civilian competences (governed predominantly supranationally) and defence/security competences (governed predominantly intergovernmentally).
This blogpost will thus briefly explore why the dual-use nature of space assets, combined with the Lisbon Treaty’s particular legal architecture, may complicate or hinder the EU’s plans for broadened and deepened space governance. It may render certain (in context, necessary) actions entirely infeasible, slow down the legislative process, or require the dilution of legislative initiatives, and thus diminished effectiveness, so as to ensure they are able to be passed into law.
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11 December 2023/
By Vasiliki Kosta
Blogpost 52/2023
The illiberal challenge to academic freedom emanating from national governments, and notably in Hungary, has brought the topic of academic freedom to the spotlight also in EU law.
Increased EU institutional activity followed, including the launch of the European Parliament STOA Forum for Academic Freedom (STOA Forum), which has as one of its tasks to monitor academic freedom in the Member States. Following its launch last year, it had its high-level annual conference at the end of last month (29 November 2023). This initiative is to be welcomed. It provides a platform for assessing and discussing academic freedom challenges occurring at the Member State level and possible solutions facilitated by the EU level. However, there remains a blind spot in the academic freedom debates as currently conducted at EU level: the commercialisation challenge to academic freedom which can potentially emanate from the EU or implicate EU activity. That challenge cannot be seriously debated in the absence of a deeper understanding of the content of Article 13 of the EU Charter of Fundamental Rights (‘CFR’).
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5 December 2023/
By Sara Notario
Blogpost 51/2023
In 2008, the European Union (‘EU’) established its largest civilian mission under the Common Security and Defence Policy (‘CSDP’): the European Union Rule of Law Mission in Kosovo (‘EULEX Kosovo’). Among the tasks conferred under the Council Joint Action 2008/124/CFSP, the mission exercises investigative functions into the disappearances and killings that occurred during the 1999 Kosovo conflict. Over the years, families of victims kidnapped and killed have been lodging complaints considering that the mission has not been complying efficiently with its investigative duty, which finds its legal basis both in the Host State law (inter alia: Article 8 of the Law on Jurisdiction No. 03/L-053; Article 5 of the Law on the Special Prosecution Office of Kosovo No. 03/L-052), in the Council Joint Action and under the procedural limb of Article 2 of the European Convention on Human Rights (‘ECHR’).
On 23 November 2023, Advocate General (‘AG’) Ćapeta published her Opinion in Joined Cases C-29/22 P and C-44/22 concerning a human rights action for damages brought before the Court of Justice of the European Union (‘CJEU’) by direct family members of persons who got killed or kidnapped – KS and KD – against the Council, the European Commission and the European External Action Service (‘EEAS’).
This blog post aims at discussing the Opinion of AG Ćapeta and the implications of the KS & KD case in light of the accountability gap characterising the Common Foreign and Security Policy (‘CFSP’) under EU law, on the one side, and the process of the EU’s accession to the ECHR, on the other. Continue reading
Blogpost 50/2023
This blogpost only reflects the views of their authors and not the organisations they represent.
Introduction
In his second Opinion on the HADOPI case (C-470/21) (short for: Haute Autorité pour la diffusion des œuvres et la protection des droits sur internet), the Advocate General Szpunar seemingly suggests that the Court of Justice of the European Union (CJEU) should change its jurisprudence when Member States refuse to apply it. He argues that the CJEU should be “pragmatic” and “nuanced” when national courts fail to implement its case law. This blog post argues that, if followed by the Court, the interpretation proposed by the AG would lead to a severe weakening of the CJEU’s authority and legitimacy, more generally. This would be of great symbolic significance in an already challenging environment for the Court which is faced with increasing defiance of Member States in the field of data protection.
The case, brought by the digital rights group, La Quadrature du Net, questions the compatibility of the “HADOPI” law, the French legal framework to combat the online exchange of copyrighted material without permission from right-holders, with European Union law. After a Grand Chamber hearing in July 2022 and a first AG Opinion in October 2022, the case was referred to the Full Court in March 2023 at the request of the Grand Chamber, pursuant to Article 60(3) of the Rules of Procedure of the Court. A reassignment from the Grand Chamber to the Full Court is very rare, but no reason has been provided in the public documents of the case. A second hearing was held in May 2023, and the AG delivered a second Opinion on 28 September 2023.
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Blogpost 49/2023
This post relies on research being conducted in the framework of the ERC Starting Grant EUDAIMONIA (GA: 948473).
Regulation 2022/2065, also known as the Digital Service Act (hereafter, DSA or Act), is a landmark piece of EU legislation. By providing a clear set of due diligence obligations, especially risk-management and risk-assessment obligations for different categories of online intermediaries, the DSA provides much welcomed harmonised rules for a safe, predictable, and trusted online environment (Art. 1). However, its merit is not limited only to introducing new harmonised legal obligations. At least equally important has been the EU legislator’s ambition to establish an EU-structured institutional system through which those obligations are applied and enforced.
The DSA enforcement framework entrusts the European Commission with overseeing very large online platforms (VLOPs) and very large online search engines (VLOSEs) (art. 56(2)). All other online intermediaries will be supervised by their Member State of establishment (art. 56(1)), in which one or more competent authorities have to be designated. The DSA leaves Member States considerable freedom to choose which authorities will be involved in DSA enforcement and does not necessarily require the establishment of a new or specific authority. As a result, Member States may entrust multiple either new or existing competent authorities with the enforcement of (parts of) the DSA (art. 49(1)). At the same time, however, they have to designate, by 17 February 2024, one of their competent authorities as their Digital Services Coordinator (art. 49(3)). Digital Services Coordinators will take part, together with the European Commission, in the activities of the European Board for Digital Services, a network aimed at coordinating DSA enforcement among the Member States and within the Member State of which they are part (art. 61).
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