The Grand Chamber today dismissed the appeal by the seal hunters to annul the basic regulation prohibiting the marketing of seal products on the EU internal market. As expected, the CJEU held that the seal hunters lacked standing to challenge a legislative act. This does not mean that the seal hunters will not prevail in the end (although I doubt it), as they have also challenged the Commission implementing Regulation, which will enable them to challenge the basic Regulation too (the decision of the GC in that case can be found here and my comments are here). What makes the judgment worth mentioning here though, is the more general relevance of the Grand Chamber’s interpretation of the concept of a ‘regulatory act’. This concept was introduced with the Lisbon Treaty and was intended to make it easier to challenge EU legal acts which were not of a legislative nature.
Is the Kadi case law of the Court of Justice of the EU to public international lawyers what the acquittal of O.J. Simpson in 1995 was to conservative white people in the USA? Did the CJEU simply sacrifice the supremacy of the UN Charter because it bought into the legal tricks of a Saudi businessman and his legal team, persuading the judges in Luxembourg by arguing that, to paraphrase the late Johnnie Cochran: ‘If the legal orders don’t fit, you must acquit’?
This July, the CJEU handed down the latest – and probably final – instalment of this legal saga which has captivated both EU and international law scholars for many years. Thanks what is commonly known as the Kadi II judgment, the academic year 2013/14 starts off with the end of what was undoubtedly one of the most vividly discussed series of cases in Luxembourg, not least if you’re interested in EU constitutionalism, fundamental rights and due process, external relations, international security and the fight against global terrorism, as well as, last but not least, the supremacy of the UN Charter in international law.
On 17 July 2013 the European Commission launched its proposal on the European Public Prosecutor’s Office (‘Proposed EPPO Regulation’). With this proposal, the Commission aims at improving the enforcement of offences affecting the EU’s financial interests and thereby at increasing the deterrent effect of law enforcement. At present, those offences are investigated and prosecuted by national prosecution authorities, to be brought to trial before national courts. This approach is however deemed inadequate. Offences affecting the EU budget are usually complex cases with a cross-border dimension and ‘of secondary importance’ for national prosecutors. Moreover, statistics used by the Commission show substantial differences in enforcement between the various Member States. With the establishment of an EPPO, this should change significantly. Most notable is the shift from administrative investigations, as they are now conducted by OLAF (i.e., the EU’s antifraud office), to criminal investigations by the EPPO, a new EU judicial body.
The idea of an EPPO is far from new. The first concrete proposals in that direction saw the light in the Corpus Juris (1997, finalised in 2000). This research project proposed an extensive harmonisation of national criminal procedure, which was politically unacceptable at the time. In 2001, the European Commission presented a Green Paper, which took an entirely different approach based on the principle of mutual recognition. The EPPO would apply national criminal procedure rules when investigating, prosecuting and bringing to trial offences against the Union’s financial interests. After a very critical public consultation, which revealed numerous pitfalls, the EPPO ‘dream’ was shelved for a few years, until it resurfaced in the Lisbon Treaty. Article 86 Treaty on the Functioning of the European Union (‘TFEU’) now provides an explicit formal basis for the creation of an EPPO. It determines the applicable legislative procedure and instrument, as well as the scope and competence of the future EPPO. Other aspects are left to the wisdom and discretion of the EU legislator. The current Commission proposal is based on Article 86 TFEU, and draws inspiration from the Draft Model Rules, which resulted from a triple EPPO research project funded by the Commission.
Today’s decision by the Grand Chamber in C-617/10 Åkerberg Fransson is a landmark decision on the scope of the Charter of Fundamental Rights, EU constitutional law, and the relationship between national and EU law in general. As I explained in an earlier post, it was not clear, until today, whether the Charter had the same scope of fundamental rights protection as under the ‘old’ regime of fundamental rights protection ensured by the CJEU. The CJEU dealt with the issue head on stating that article 51 (1) of the Charter ‘confirms the Court’s case-law relating to the extent to which actions of the Member States must comply with the requirements flowing from the fundamental rights guaranteed in the legal order of the European Union’ (para. 18).
It finally happened: After more than a decade, Mr Yassin Abdullah Kadi is no longer ‘blacklisted’ by the UN and the EU.
To recall, on 17 October 2001, the United Nations Security Council added Mr Kadi to a so-called ‘blacklist’, thus requiring his financial assets to be frozen in view of his suspected involvement in the financing of international terrorism. Two days later, the EU followed suit by adding Mr Kadi on its own list and thus subjecting him to EU measures implementing the Security Council resolutions, which Mr Kadi subsequently challenged before the EU courts. Fast forward almost eleven years: On 5 October 2012, the Security Council removed Mr Kadi from the UN list, ‘after concluding its consideration of the delisting request submitted by this individual through the Ombudsperson’. A week later, the EU followed suit once more and took Mr Kadi off its list as well.
Have you wondered recently whatever happened to all that “fragmentation of international law” we used to worry about? Well, a 2011 volume edited by Malcolm Evans and Panos Koutrakos and published by Hart Publishing, that’s what happened. While I would like to introduce you briefly to the whole volume, there is one contribution I would particularly like to draw your attention to.
To put you in context, this is in my view a good book for those among us who were fascinated by the „fragmentation of international law“ debate starting (or at least becoming one of THE topics) in the 2000s; who have perhaps read Koskenniemi’s report for the International Law Commission or other literature on the topic (legal pluralism, Pauwelyn’s Conflict of Norms, you name it); who find themselves now stuck in one of the boxes and/or compartments of international or EU law; and who probably would love an update and overview over where we stand today. Continue reading
In a grand chamber judgment on Tuesday (case C-571/10 Kamberaj), the Court dealt with some fun and intriguing aspects of EU law, which relate to the relationship between the ECHR, EU law and national law on social security matters.
Mr Kamberaj, an Albanian national with a residence permit for an indefinite period in Italy, was denied certain housing benefits because the funds for those benefits were exhausted. Mr Kambery was of the opinion that this resulted in discriminatory treatment between him, a third country national, and Union citizens since the funding of those housing benefits was split in two categories namely Union citizens and third country nationals and only the funds for the latter category were exhausted.
There are two interesting aspects of EU law in this case:
- Firstly, the relationship between the EU legal order and the national legal order with respect to the ECHR;
- and secondly, the interpretation of Directive 2003/109/EC on the status of third country nationals and its implications for national social security systems.
Member States are obliged to take all necessary measures to ensure fulfillment of their obligations under EU law according to article 4(3) TEU. This includes taking all legislative and administrative measures appropriate for ensuring collection of VAT in conformity with the obligations imposed on Member States by the EU VAT Directive (Directive 2006/112/EC) and its predecessors (amongst which the Sixth Directive, 1977/388/EEC). One may ask whether national legislation, by which a national court is effectively prohibited to judge in certain long-lasting VAT disputes in favour of the tax authorities, complies with the Member State’s obligation to collect VAT. In the case Belvedere Construzioni Srl (Case C-500/10) this was under discussion vis-à-vis the principle of resolving judicial proceedings in tax matters within reasonable time under Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Somewhat hidden is furthermore the problem whether tax authorities can directly invoke an EU directive to set aside national law to the disadvantage of a taxpayer.
What is the case? Well, Italy has introduced a decree by which (in essence) courts have to conclude tax disputes automatically if the first actions in the dispute have been lodged more than ten years before the date of entry into force of the decree (at the 26th of May 2010) and if two courts have already decided in favour of the tax payer. By introducing the decree, Italy aimed to comply with the obligation to resolve judicial proceedings in tax matters within reasonable time under Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to the decree, the referring court in the case at hand has to conclude the VAT dispute between Belvedere Construzioni Srl and the Italian tax authorities automatically in favour of Belvedere Construzioni Srl. However, the referring court calls into question the conformity of the decree with EU-law.
While some consider dark clouds to be gathering above internet freedom in Europe, the Court continues to make judgments that protect fundamental rights and the rights of internet users. In SABAM v. Netlog (Case C-360/10 Sabam v. Netlog) the Court had to decide whether a Belgian court could require Netlog, the Belgian equivalent to Facebook, to immediatly cease making available works from SABAM‘s repertoire. The Court held that not only was the injunction requiring Netlog to install a filtering system, which would oblige Netlog to actively monitor all the data of its users and to prevent future IPR-infringements, contrary to article 15 of Directive 2000/31, it was also contrary to the Charter of Fundamental Rights. National authorities are required to “strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures (para. 43).” Applied to this case, the injunction
would result in a serious infringement of the freedom of the hosting service provider to conduct its business since it would require that hosting service provider to install a complicated, costly, permanent computer system at its own expense, which would also be contrary to the conditions laid down in Article 3(1) of Directive 2004/48, which requires that measures to ensure the respect of intellectual-property rights should not be unnecessarily complicated or costly (see, by analogy, Scarlet Extended, paragraph 48).