Last week, the European Court of Human Rights (ECtHR) issued an important, highly anticipated judgment, condemning the United Kingdom for its mass surveillance program.
Following Edward Snowden’s revelations regarding the United States-United Kingdom intelligence surveillance and intelligence sharing programme, 16 organizations and individuals (including the NGO Big Brother Watch) filed an application against the United Kingdom before the ECtHR. The 212page-long judgment published on September 13, 2018 is rich and deals with a great variety of important issues. Several among them are directly linked to some major legal questions examined in the past by the Court of Justice of the European Union (CJEU) or currently pending before it – not to mention the ongoing debate about whether the EU-US data transfer agreement known as Privacy Shield provides an “adequate level of protection”. The objective of this piece is to provide some first thoughts focusing on the strategic place of this judgment in the European legal landscape. Continue reading →
Thinking about the whole legal saga arising from Romano Pisciotti’s involvement in the Marine Hose Cartel, discussed recently on this blog by J. Przerwa, triggers some thoughts about how much depends on circumstance and happenstance. This is relevant to the claims often made by enforcers and lawyers regarding the deterrent effect of severe sanctions (in particular the ‘inferno’ of prison terms in the US), of dedicated enforcement efforts (in particular on the part of the US Department of Justice), and of the possibility of extradition to the US (as in Pisciotti’s case). ‘From Hollywood to Hong Kong – criminal antitrust enforcement is coming to a city near you,’ warned Scott D Hammond of the DoJ in 2002. Maybe so. But aficionados of deterrence theory should remember that in this world much depends on circumstance and happenstance.
For instance, there is the happenstance of double criminality as a basis for extradition, and that still varies among European jurisdictions in relation to the criminality of cartel offending. If Pisciotti had changed flights at Amsterdam Schiphol Airport rather than Frankfurt Airport, there would have been a crucial criminal law difference – no possibility of extradition. Moreover, Pisciotti was unaware that he was at risk, having been indicted in the US ‘under seal,’ so that he blithely disembarked at Frankfurt Airport. Then there is the happenstance of court jurisdictions, the Landgericht in Berlin seemingly more willing to raise questions with the European Court of Justice than the Bundesverfassungsgericht. And then there is the circumstance that Pisciotti’s state of nationality, Italy, appeared disinterested or unwilling to take over the legal process and possibly save its national from the ‘inferno’ of an American correctional institution.
In sum, many elements along the road may remain unpredictable or variable, while arguably there are still arguments to be played out at the EU legal level that the variability of legal position across the EU may fall foul of non-discrimination and free movement rules. Even if Pisciotti brings no further claims, this may not be the end of the legal saga, especially in the circumstance of determinedly litigious cartelists such as Romano Pisciotti or Ian Norris, a former UK executive of Morgan Crucible who underwent a somewhat similar fate: his extradition to the US was first refused by the House of Lords on grounds of price-fixing but the DoJ eventually succeeded on the basis of obstruction of justice charges (see for instance here). Let’s hope this case law will also stimulate some further reflection on the underlying deterrence logic of cartel enforcement and the long road ahead to make detection, prosecution and enforcement of sentences more predictable across Europe.
In these times when “strong headwinds” are blowing against the European culture of fundamental rights and the rule of law (see P. Pinto de Albuquerque), the principles of mutual recognition and mutual trust on which judicial cooperation in the EU is based have come under pressure. The CJEU and the ECtHR are increasingly called upon to address the phenomenon of “rule of law backsliding” and to strongly defend these common values.
The recent preliminary reference submitted by the High Court of Ireland in case C-216/18L.M. fits into such trend. It concerns the possibility to refuse the execution of three European Arrest Warrants issued by Polish courts against an individual, L.M., on account of the potential violation of the right to a fair trial ensuing from the latest controversial reforms of the judiciary in Poland. According to the Commission’s reasoned proposal to activate for the first time in history the procedure of Art. 7 TEU, which recently found the endorsement of the European Parliament calling on the Council to take action swiftly, the said reforms resulted in a breach of the rule of law due to, essentially, a lack of sufficient guarantees of external independence of the judiciary at all levels. Even though the application of the Framework Decision on the EAW can be suspended only after a Council’s decision under Art. 7 (1) TEU has been adopted (Recital 10 of the Framework Decision on the EAW), it is nonetheless inevitable that such circumstances may – from the viewpoint of the person subject to an EAW issued by Poland – entail a serious risk of breach of the right to a fair trial. The CJEU now has thus the opportunity to clarify whether an alleged lack of judicial independence amounts to a breach of the right to a fair trial that calls for the refusal to execute an EAW, as an exception to the principle of mutual trust.
On 12 April 2018 the Court of Justice of the EU (hereinafter, the “Court”) delivered a key ruling in A & S (case C-550/16), which hopefully marks a conscious step towards the creation of an effective EU system for the protection of children in migration.
As the Commission points out, the protection of children in all stages of migration should be “first and foremost about upholding European values of respect for human rights, dignity and solidarity. It is also about enforcing European Union law and respecting the Charter of Fundamental Rights of the European Union and international human rights law on the rights of the child” (COM (2017) 211 final). Yet their vulnerability is often denied or forgotten by Member States, especially in the mist of the so-called ‘migratory crisis’.
A & S brings forward the issue as to whether a Member State can deny both the status of being a child and the corresponding protection under EU law to a young refugee who entered its territory as an unaccompanied minor and turned eighteen while waiting for their application for international protection to be processed. In particular, could Member States be left to ‘use’ delays in the processing of children’s applications for the refugee status as a mechanism to thwart their fundamental right to family reunification?
In its children’s rights centred ruling, the Court made clear that Article 10 (3) (a) of Family Reunification Directive (Directive 2003/86/EC) creates an enforceable right to unaccompanied minor refugees to be reunited with their parents; a right which cannot be thwarted by the ‘negligent’ behaviour of the national authorities. In particular, an unaccompanied child who has turned eighteen while waiting for their refugee status application to be processed should still be considered as an ‘unaccompanied minor’ and therefore be entitled to a right to family reunification if their application is successful. Continue reading →
On July 26, 2017, the European Court of Justice (ECJ) issued Opinion 1/15 (the Opinion of the Advocate General on this case had been discussed previously in this blog, part I and part II) pursuant to Article 218(11) TFEU on the draft agreement between Canada and the European Union (EU) dealing with the Transfer of Passenger Name Record (PNR) data from the EU to Canada. The draft agreement was referred to the ECJ by the European Parliament (EP) on January 30, 2015. The envisaged agreement would regulate the exchange and processing of PNR data – which reveals passengers’ personal information, itinerary, travel preferences and habits – between the EU and Canada. The adoption of the agreement is crucial because, according to Article 25 of Directive 95/46/EC as interpreted in the Schrems decision (commented here), the transfer of data to a third country (discussed here) is possible only if such country ensures an “adequate level of protection.” This standard can be testified by an “adequacy decision” of the European Commission or, alternatively, by international commitments in place between non-EU countries and the EU – as the one examined by the ECJ in this Opinion.
Not surprisingly, the leitmotiv of the Court’s Opinion is the challenging balance between liberty and security. Maintaining a realistic perspective, the Court considered mass surveillance tolerable at least in theory, because it is a necessary and useful tool for the prevention of terrorism. Yet, it insisted that there should be very strict rules as to the concrete implementation of such surveillance. For this reason, it found some provisions of the draft agreement incompatible with Articles 7 (privacy) and 8 (data protection), in conjunction with Article 52 (principle of proportionality) of the Charter of Fundamental Rights of the European Union (CFREU).
As a result, the agreement cannot be adopted in the current form and the EU institutions will have to renegotiate it with Canada. For sure, this renegotiation will prove to be challenging. Nevertheless, as the analysis below will show, the Luxembourg judges, by addressing particularly technical issues of the agreement, provided a detailed set of guidelines that, if respected, would ideally preserve fundamental rights – in this case, the right to privacy and to data protection – without undermining public security. Through a smooth and refined reasoning, the Court’s decision indeed suggests potential solutions to amend the draft agreement in a way that is compliant with the CFREU and, ultimately, the rule of law. Continue reading →
“A European ‘fraud hunter’ is beneficial for taxpayers”, “Fraud costs 100 euros per EU citizen” (own translations). As these examples of newspaper headlines demonstrate, economic and financial crimes are ‘hot topics’. Newspaper articles report on fraud cases on an almost daily basis. Economic and financial criminal law is a constantly evolving field of law, not only within states but also at the level of the EU, as is demonstrated by the recently adopted Council Regulation on the European Public Prosecutor’s Office. However, the globalisation and interconnectedness of financial markets, the digitalisation of our daily lives and the particularities of economic and financial crime pose considerable challenges to legislators and law enforcement trying to tackle these types of crime. The recently published ‘Challenges in the Field of Economic and Financial Crime in Europe and the US’ gives ‒ as its title suggests ‒ an interesting and at times eye-opening description of several of these challenges. Continue reading →
To err is human and so it is with judges, even the highest ones. Take the long awaited ECJ’s judgment in case C-42/17, M.A.S. & M.B. (Taricco II). This is already a second ruling on the Italian statutes of limitation applicable to pending criminal proceedings regarding VAT fraud. The statutes of limitations turned out too short for the Italian justice system, facing workload and efficiency problems. As a result, a significant number of persons guilty of serious VAT fraud might go unpunished. This in turn would undermine the effective protection of the financial interests of the EU (Article 325 TFEU). Previously, in case C-105/14, Taricco I, the ECJ had obliged Italian criminal courts to disapply the statutes of limitations in VAT cases, in order to give full effect to Article 325 TFEU. However, following the firm opposition from the Italian Constitutional Court (the ‘ICC’), the ECJ revoked the said obligation in Taricco II.
In this blog post, I will point to ambiguities in the ECJ’s reasoning in Taricco II and to further problems that this ruling may generate. I will argue, however, that the shortcomings should not overshadow the generally positive conclusion that we may draw from the Taricco saga. In my view, this saga illustrates a positive side to the ‘conditional’ acceptance of EU law primacy by national constitutional courts as the latter provide checks and balances on the ECJ’s enormous judicial power. By threatening to disapply EU provisions, they can force the ECJ to seriously engage in a deliberative process, eventually leading to the correction of mistakes that the ECJ will surely commit from time to time. Continue reading →
In her recent entry on this blog, Prof. Capaldo criticised the judgment of the Court of Justice of the EU in Taricco IIby arguing that there exists, in international law (or what the author calls ‘global law’), a fundamental human right to policies that criminalise tax fraud. According to the author, the Court presented in its judgment a false dichotomy between the need to ensure the effective application of EU law and the need to ensure the protection of constitutionally guaranteed rights of the accused. This is because the effective application of EU law also entails the protection of ‘social human rights’, presumably by the proper use of the taxes for public expenditure. In this blog entry I argue that Prof. Capaldo’s argument presupposes a particular understanding of human rights, and that this understanding of human rights is problematic from the perspective of democratic theory.
The understanding of human rights as socially beneficially outcomes which are to be ensured through the proper expenditure of tax revenue, sees human rights as policy goals. Such policy goals are then to be optimized and balanced against other policy goals situated on the same level. This is made clear in the blog entry, which argued that there was a need to “balance[e] the rights under these articles [social rights which would be secured through tax collection] and the accused’s individual rights guaranteed by the legality principle”. Continue reading →
Two very closely related issues are considered in this regard. One is that the ECJ’s view in Taricco I on the interpretation and application of the obligation to combat fraud, imposed on Member States by Article 325 TFUE, opens the way to a new approach to tax fraud as a crime against human rights. The second, logically connected, is that the alleged conflict between the interpretation of Article 325 TFEU given by the ECJ and Italian Constitutional law (the principle of legality in criminal matters as laid down by Article 25(2) Const.) is a false problem for which I present a solution. Continue reading →
The final countdown to the announcement of the long awaited judgment in case C-42/17, M.A.S. & M.B. (Taricco II) on 5 December 2017 has begun. The preliminary reference (for an overview see Bassini and Pollicino), by which the Italian Constitutional Court (the ‘ICC’) challenged the judgment of the European Court of Justice (the ‘ECJ’) in C-105/14, Taricco I, has already generated a heated debate online (see for instance here and here). The most fascinating question is whether for the first time the ECJ will authorise a national court to disapply an EU legal provision to protect its national constitutional identity or higher national standards of fundamental rights’ protection. My aim in this post is to question the compatibility of Taricco I judgment with the EU law itself. I will first argue that the ECJ’s judgment in Taricco I is problematic under EU law because the ECJ left out from its reasoning the general principle of legal certainty and ensuing limits to the direct applicability of EU provisions. Second, I will explore whether the ECJ can still withdraw from its stance taken in Taricco I without opening the Pandora’s box of exceptions to the EU law primacy: either due to national constitutional identity (Article 4(2) TEU) or higher national standards of fundamental rights’ protection (Article 53 of the Charter of Fundamental Rights). Continue reading →
The principle of the ne bis in idem in criminal matters (i.e. the right not to be prosecuted or punished twice for the same criminal conduct) is a key safeguard against arbitrary use of the ius puniendi. Furthermore, it offers an interesting perspective from which we can observe the development of an area of freedom, security and justice in Europe, and how the relationships between the two main European human rights instruments – the Charter of Fundamental Rights of the EU (‘CFREU’) and the European Convention of Human Rights (‘ECHR’) and the related case law emanating from the courts of Luxembourg and Strasbourg – are evolving. Indeed, the way in which the CJEU will answer in the near future the questions that are submitted to it in several pending cases (see cases C-524/15, Menci; C-537/16, Garlsson et al.; C-596/16 and C-597/16, Di Puma) might have a ‘constitutional’ impact that goes well beyond the ne bis in idem principle. This post will take a closer look at some of these pending questions. Continue reading →
In these days of burgeoning specialist discussion and publication of what is now firmly embedded under the title ‘EU criminal law’, Jacob Oberg’s book stands out as a distinctive contribution to the debates, with some real potential to drive forward policy and law. Broadly speaking, this work presents a strategy for a project which is in some respects bold and inventive – the legal (and hence constitutional) testing of policies and legal measures of criminalisation. And here we are talking about criminalisation in a novel and different context, that of EU policy and law. It is also a response to the significant, but still unheralded and poorly appreciated entry of the EU into that domain. So there is a real need for outward looking and engaging accounts of a subject on which debate is still really confined to a small quarter. Continue reading →
The future of EU-UK judicial cooperation in criminal matters is far from certain. In her Florence speech, Theresa May affirmed that one of the goals of the UK government was to establish a “comprehensive framework for future security, law enforcement and criminal justice cooperation” after Brexit. In the government’s ‘Future Partnership Paper’, the government also expressed the need of concluding a separate agreement that guarantees the future of cooperation in police and security matters between the UK and the EU. Despite all the efforts, the latest decisions have shown how difficult an agreement in this area will be. Continue reading →
The on-going conflict in the Middle East has profound implications for the global legal order in two areas of law in particular: asylum law and anti-terrorist law. The European Union and EU law have not been immune from this development and in many respects are closely affected by these geopolitical developments and their legal impact. After a fitful start, the EU has become a major actor in the area of criminal law, and in particular anti-terrorist law, on the one hand and in asylum law on the other. The two fields meet in Article 12(2)(c) of the Qualification Directive, itself reflecting Article 1F of the Geneva convention, providing that an individual shall be excluded from eligibility for refugee status for acts contrary to the principles and purposes of the United Nations, acts which have been held to include acts of terrorism. Furthermore, Article 12(3) of the Qualification Directive extends that exclusion to ‘persons who instigate or otherwise participate in the commission of the the crimes or acts’ mentioned in Article 12(2). The status of terrorist and refugee are legally incompatible and mutually exclusive; one simply cannot be a terrorist and also a refugee. What, however, constitutes a terrorist for the purposes of Article 12 of the Qualification Directive? That essentially is the question at stake in Lounani. Continue reading →