Category: AFSJ

POMFR: Reviewing Protecting Vulnerable Groups – what about Hector Salamanca and Donald Gately?

By Thomas Burri

Francesca Ippolito/Sara Iglesias Sánchez (eds.), Protecting Vulnerable Groups – The European Human Rights Framework, Hart Publishing 2015

Hector Salamanca was vulnerable. The Mexican was old and, after having suffered a stroke, tied to the wheel chair. He had no means of communication save a tiny bell he barely managed to ring. After most of his family was dead, he lived the life of a lonesome vegetable in a nursing home.

Donald Gately is vulnerable. His sense of honour and duty as a staffer at Enfield House Drug and Alcohol Recovery House had practically compelled him to defend a drug addict who had got involved in a fight. In the fight, Don G. was shot in the shoulder. Now, he is tied to the hospital bed, suffering from inhuman pain, pain from which only opioids could bring relief – though not for him, for opioids had been the focus of his long history of substance abuse and now he is desperately abstinent.

Protecting Vulnerable Groups is a great book. It made me see all of the above (and more) in a new light. To be sure, Protecting Vulnerable Groups is not a book about Breaking Bad or Infinite Jest. It is not an economic, sociological, or socialist book either, despite the appearance the title creates. No, Protecting Vulnerable Groups is a rock solid book on the law, in particular case law. It explains how the European Court of Human Rights and the European Court of Justice attend to the vulnerable. Sometimes, the courts explicitly find persons vulnerable, as in MSS v Belgium and Greece when an asylum-seeker was declared “particularly vulnerable” (Protecting Vulnerable Groups, p. 249); sometimes the idea of vulnerability is merely inherent in the courts’ case law. Both occurrences are discussed extensively in the book. Continue reading

Top ten most read posts of 2015

By the editors

As is becoming a tradition with our blog (albeit a bit late this year), we present to you our top 10 most read posts of the last year. We have had another good year of blogging behind us: more readers contributing to the content of the blog with 33 posters coming from approximately 14 different countries this year. Equally important is that readership is steadily increasing according to Google Analytics (plus: we now have almost 1600 email subscribers and 2400 followers on twitter). Most of you are from the UK, followed by the Netherlands, Belgium, Germany, the United States, Italy, Sweden, France, Ireland and Poland, respectively.

Keeping in mind that there is a certain bias in favour of older posts which have had more time to become popular, this is the 2015 list of most read posts of the year: Continue reading

Neues aus dem Elfenbeinturm: November 2015

Conference “Soft law before the European courts : Discovering a common pattern ?”

Maastricht University Campus Brussels, 19-20 November 2015. Registration required.

Conference “Frontex : Legal Questions and Current Controversies”

University of Luxembourg, 27 November 2015. Deadline for (free) registration : 26 November 2015.

Young Scholars’ Conference 2016  “Law on the Move”

University of Michigan, 8-9 April 2016. Deadline for abstract submissions : 31 December 2015.

Call for Papers for a Symposium on “Constitutionalism Under Extreme Conditions”

University of Haifa, 18 July 2016. Deadline for abstract submissions : 1 February 2016.

Case C-216/14 Covaci –Minimum rules, yet effective protection?

By Stijn Lamberigts

Covaci is the first case dealing with two of the so-called Roadmap Directives on procedural safeguards in criminal proceedings, Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings and Directive 2012/13/EU on the right to information in criminal proceedings. The Roadmap Directives are the latest attempt of the EU to increase the mutual trust between Member States (MS) in the field of criminal justice, by establishing EU minimum rules for procedural safeguards. An earlier attempt failed and some have questioned the added value of the Roadmap Directives to the standards provided by the ECHR and the Charter of Fundamental Rights. Both the CJEU and the national courts can play a defining role in ensuring that the minimum rules of the Roadmap Directives really contribute to more effective defence rights throughout the EU. The preliminary ruling in Covaci seems to indicate that the CJEU is willing to take up that role – to a large, but not unlimited, extent.  Continue reading

Taricco kills two birds with one stone for the sake of the PIF

By Maxime Lassalle

The case C-105/14 Ivo Taricco and Others delivered on 8 September 2015 is a new example of activism of the EU Court of Justice (CJEU). It draws consequences from Åkerberg Fransson C-617/10 (already commented on this blog here and here), but this time goes in another direction as it extends the obligation of Member States in the field of criminal law for a more effective penalisation at the expense of national criminal procedure. Once again the obligations related to VAT collection are at stake, as was the case in Åkerberg Fransson, however this time from the point of view of the protection of the financial interests of the Union. In this field, the Member States have indeed the duty to counter fraud affecting the financial interests of the Union (Article 325 (1) TFEU), the so-called “PIF fraud” (where PIF is a French acronym for ‘protection des intérêts financiers de l’Union’). In particular, they are required to “take the same measures to counter fraud affecting the financial interests of the Union as they take to counter fraud affecting their own financial interests” (Article 325 (2)). In this Grand Chamber ruling, the Court took an opportunity to clearly express its will to include VAT fraud in the definition of PIF fraud and to significantly extend the obligations of the Member States to effectively penalize such fraud. Given the difficulties related to the ongoing negotiations on the project of PIF Directive, this decision is very timely. Continue reading

Case C-650/13 Delvigne – A Political Citizenship?

By Stephen Coutts

Citizenship is typically conceived of as membership in a political community, carrying with it certain rights and obligations, and especially the right to participate in the government of that community. Union citizenship has until recently been deficient in that regard. Despite the existence of a democratically elected assembly since 1979 in the form of the European Parliament, the links between this parliament and the status of Union citizenship have been ambiguous[1] with the parliament representing not a single group of Union citizens but rather the ‘peoples’ of Europe, those peoples being defined by Member States and national law.

The Treaty of Lisbon changes that paradigm, stating boldly that the European Parliament represents no longer the peoples of Europe but rather the ‘citizens of the Union’.[2] The link between Union citizenship and the European Parliament being made apparent, it was perhaps only a matter of time before the Court drew the conclusion that the rights of Union citizenship contained a stand-alone right to vote in European Parliamentary elections. That decision has just occurred in the judgment in Delvigne. Continue reading

Schrems vs. Data Protection Commissioner: a slap on the wrist for the Commission and new powers for data protection authorities

By Fanny Coudert

On 6th of October, in Schrems vs. Data Protection Commissioner, the CJEU, following the controversial Opinion of AG Bot, put an end to the specific regime regulating data flows to the US. The 4600 US companies using this agreement are now forced to rethink how to ensure the continuity of the protection when data are transferred from EU to the US. In this milestone ruling, the Court also reaffirmed the key role played by national Data Protection Authorities (DPAs) in the European system of data protection, and clarified the different competences of the European Commission, the DPAs and the courts –including the ECJ- in assessing the adequate level of protection offered by a third country. Continue reading

“The winter is approaching” – Juncker and his state of the union address – has it said enough regarding the refugee crisis?

By Kanad Bagchi

With each passing day scores of lives are either ended by bodies being washed ashore or are lost in the faceless congregation of ‘refugees/migrants’ on the peripheries of Europe and beyond. Both the ‘European family’ and the ‘European Fabric’ has laid itself bare in the face of the uncontainable refugee crisis brewing in the heart of Europe, uncovering the stark divide between the East and the West. Amidst the melancholy that has reached the shores of Europe, it is vital to take pause and query whether the present catastrophe could have been contained and what steps are being taken by the European Union (hereinafter referred to as “EU”) towards this end. In this regard, Juncker’s State of the Union address 2015 (hereinafter referred to as “Union address”/ “Address”) comes at an auspicious time and has been met with pensive eagerness. The Union address rightly devotes significant attention towards the refugee crisis and has proposed a slew of measures, both immediate and long term, to alleviate the present situation. This post looks through these developments and assesses whether the measures adopted thus far and proposed for the immediate future are sufficient to improve the current circumstances and prepare the EU and its member states (hereinafter referred to as “MS”) to effectively deal with the continuing crisis.

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Neues aus dem Elfenbeinturm: June 2015

Summer Academy in Global Food Law and Policy

Bilbao, 20-24 July 2015. Deadline for application: 18 June 2015.

Conference “Constructive Links or Dangerous Liaisons? The Case of Public International Law and European Union Law”

Queen Mary University of London, 25-26 June 2015. Registration open.

Critical Legal Conference 2015 “Law, Space and the Political”

University of Wroclaw, 3-5 September 2015. Deadline for paper proposal submission: 30 June 2015.

Call for Papers “5es Journées des Doctorants du Centre de Droit des Migrations”

Muntelier-Leuwenberg, Universities of Bern/Fribourg/Neuchâtel, 26-27 November 2015. Deadline for abstract submissions: 19 August 2015.

Call for Papers for the PhD Forum “Law and Governance in the Digital Era”

University of Amsterdam, 20 November 2015. Deadline for abstract submissions: 4 September 2015.

C-81/13 UK v Council – Third time and still no charm?

By Michal Kutlík

1.       Introduction

When rendering one of its last judgments of 2014, the Court of Justice of the European Union (Court) had the opportunity to end once and for all the dispute of (now) three rounds between the United Kingdom (UK) and the Council of the European Union (Council) over the legal basis to be used when the EU wishes to adopt jointly, within the framework of an association agreement with a third country, a social legislation benefitting the migrating workers of both parties.

As the UK did in earlier cases on this topic submitted to the Court, in case C-81/13 UK v Council it criticised the Council once more for using Article 48 TFEU as the substantive legal basis for the adoption of a social security measure implementing an association agreement, in this particular case the Council Decision 2012/776/EU, which aimed to update the obsolete implementing provisions on the coordination of social security systems as established by the EEC-Turkey Association Agreement (Agreement).

The following post discusses whether the judgment delivered by the Grand Chamber of the Court in this case has been successful in finally bringing the above-mentioned dispute to an end, and it also provides a closer look on the Court’s reasoning as regards the choice of legal basis in relation to the measures implementing association agreements. Continue reading

Neues aus dem Elfenbeinturm: April 2015

Conference “Hungarian Particularism in the European Union: Politico-Legal Perspectives”

Central European University, Budapest, 15 May 2015.

Conference “Chasing criminal money in the EU: new tools and practices”

University of Luxembourg, 15-16 June 2015. Deadline for registration: 22 May 2015.

Summer School “The EU Area of Criminal Justice”

Université Libre de Bruxelles, 29 June – 3 July 2015. Deadline for application: 31 May 2015.

Summer School “European Union Law and Policy on Immigration and Asylum” 

Université Libre de Bruxelles, 29 June – 10 July 2015. Deadline for application : 5 June 2015.

Workshop “Constructive Links or Dangerous Liaisons? The Case of Public International Law and European Union Law”

Queen Mary School of Law, University of London, 25-26 June 2015. Deadline for registration: 23 June 2015.

Neues aus dem Elfenbeinturm: January 2015

Conference : Alternatives to Immigration Detention in the EU – The Time for Implementation

Université Libre de Bruxelles, 6 February 2015. Deadline for (free) registration : 2 February 2015.

Workshop “Drones and Targeted Killings: Defining a European Position”

Aarhus University, 5-6 March 2015. Deadline for abstract submissions : 1 February 2015. Continue reading

The CJEU and the Spasic case: recasting mutual trust in the Area of Freedom, Security and Justice?

By Angelo Marletta

Ne bis in idem is a fundamental principle of EU criminal law, protecting citizens against double prosecution, even in transnational situations. Yet what is more, since the entry into force of the Lisbon Treaty, the ne bis in idem principle has become a yardstick of the systemic impact of the Charter of Fundamental Rights of the European Union (CFREU) on secondary EU law.

One reason for this is that the ne bis in idem principle in Article 50 CFREU differs in some aspects from the principle as laid down in the Convention implementing the Schengen Agreement (CISA), which introduced transnational ne bis in idem in the EU legal order. In particular, the CFREU neither provides for the “enforcement clause” (Article 54 CISA) nor for the exceptions foreseen by Article 55 CISA, such as the national security exception. According to the enforcement clause, the transnational ne bis in idem bars further prosecution provided that, if a penalty has been imposed: a) it has been enforced, b) it is actually in the process of being enforced or c) it can no longer be enforced under the laws of the Contracting State. Since none of these enforcement conditions are mentioned by Article 50 CFREU, the question arose, when the CFREU became a source of primary EU law, whether those limiting conditions in the CISA are compatible with the CFREU, taking into account that the CFREU is a lex superior and posterior.

In the Spasic case (C-129/14 PPU, 27 May 2014) the Grand Chamber of the Court of Justice (CJEU) provided a partial and to a certain extent striking answer to this question, as this contribution will show.   Continue reading

C-148/13, C-149/13 and C-150/13, A, B and C v Staatssecretaris van Veiligheid en Justitie: Stop Filming and Start Listening – a judicial black list for gay asylum claims

By S Chelvan

The recent 2 December judgment in the A, B and C case, provides guidance on prohibited steps in determining an asylum claim based on sexual identity. Where was the positive guidance? Is the Court’s failure to provide guidelines on how a claim is to be determined a blessing in disguise?

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Requiring ‘unity first’ in relations with third states: the Court continues ERTA-doctrine in Opinion 1/13

 By Laurens Ankersmit

In last Tuesday’s Opinion (Grand Chamber) following an article 218 (11) request by the Commission, the Court confirmed that the acceptance of the accession of an non-Union country to the 1980 The Hague Convention on child abduction fell within the EU’s exclusive competence. As a consequence, the decision to accept accession of a third state can only be taken after the Council has taken a decision on the matter, and Member States can no longer decide that third countries can accede and establish bilateral obligations on their own. The Court rejected the position taken by 19 out of 20 Member States who submitted observations to the Court, and once again supported the view that EU Member States are required to act jointly first in matters which may affect the EU legal order. The judgment is particularly noteworthy because;

  • The Court’s interpretation on the scope and meaning of the article 218 (11) TFEU request;
  • The confirmation of the ERTA-case-law post-Lisbon.

This blogpost will consider both points in turn. Continue reading

POMFR: European Police and Criminal Co-Operation

By Claudio Matera

Maria Bergström and Anna Jonsson Cornell (eds.), European Police and Criminal Co-Operation, Swedish Studies In European Law, Volume 5, Hart Publishing 2014, 198 pages, ISBN: 978-1-84946-350-8

The fields of police and criminal law cooperation within the European Union have been significantly transformed and widened with the entry into force of the Lisbon Treaty in 2009; yet, they remain contested on a number of grounds. Maria Bergström and Annna Jonsson Cornell, the editors of the book under current review, argue that there are two main reasons for this. Firstly, they consider that this is because the two policies have a significant impact on the rights of individuals and on the relationship between the individual and the State; secondly, they consider that this is because policing and criminal law remain anchored to State sovereignty and the monopole of enforcement exercised by the States in these domains. Against this background, the different contributions of the book take stock of post-Lisbon developments in order to assess the extent to which the reform of 2009 and recent legislative initiatives relate to the two main controversial aspects identified by the editors. With legislative proposals such as the new Europol Regulation and the establishment of the European Public Prosecutor pending in Brussels, the book comes out at a time in which the powers of the EU in the fields are in the spotlight.

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POMFR: EU Security and Justice Law after Lisbon and Stockholm

By Niovi Vavoula

Diego Acosta Arcarazo and Cian C Murphy (eds.) EU Security and Justice Law after Lisbon and Stockholm, Hart Publishing 2014, 211 pages, ISBN: 978-1-84946-422-2

 Myriads of pages have been written about the impact of the Lisbon Treaty and the Stockholm Programme in the development of an EU ‘Area of Freedom, Security and Justice’ (AFSJ). This volume, edited by Diego Acosta Arcarazo and Cian Murphy and including a foreword by Sir Francis Jacobs, aims at adding to the existing literature. In particular, it takes stock of the legal developments in the field after Lisbon and Stockholm and provides an evaluation on what has been achieved and where there are still shortcomings. The publication of the volume comes at an interesting time; it coincides with the end of the transitional period, signifying that the Court of Justice of the EU (CJEU) and the Commission will assume their full powers over the former third pillar and the pick-and-choose relationship of the United Kingdom with the field will reach a crossroads. Besides, a new multi-annual Programme (named after Rome or any other Italian city) will be adopted by the European Council.

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STC 26/2014: The Spanish Constitutional Court Modifies its case law in response to the CJEU’s Melloni judgment

By Mario García

On 13 February, the Spanish Constitutional Court (“SCC” or the “Court”) handed down its awaited judgment in the Melloni case (STC 26/2014). The case concerned the problematic issue of differing levels of protection of fundamental rights at national and European levels in relation to the execution of a European Arrest Warrant (“EAW”). This affair was the source of the SCC’s first-ever preliminary reference to the Court of Justice of the European Union (“CJEU”). Following the CJEU’s ruling last year (Melloni, Case C-399/11, 26 February 2013), which has already been covered in this blog by V. Franssen, the SCC has now agreed to lower the degree of protection afforded by the Spanish Constitution in line with EU law.

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Melloni as a Wake-up Call – Setting Limits to Higher National Standards of Fundamental Rights’ Protection

By Vanessa Franssen

I plead guilty: this post on the Melloni ruling of the CJEU should have been written long ago. However, instead of invoking attenuating circumstances, I prefer to draw your attention to the reasons why a blog post on this case still is highly relevant today. First, Melloni is a true landmark case with respect to the relation between EU and national standards of fundamental rights in the field of criminal justice. Central issue in this case was whether Member States are still allowed to impose a higher level of fundamental rights’ protection for cross-border cooperation in criminal matters than the standard set by EU law. Second, Melloni has become ‘hot’ again thanks to the recent follow-up judgment of the Spanish Constitutional Court, which shows the real impact of the CJEU’s ruling and which will be discussed in a separate post by M. García García.

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Protection from ‘internal armed conflict’ in EU law: The Diakité case

What is an ‘internal armed conflict’ in EU law? This was a question which the Belgian Conseil d’État referred to the Court of Justice of the European Union (CJEU), asking in essence whether this concept is to be understood as defined in international humanitarian law (IHL) or as a term with an independent meaning in the Union legal order.

On 30 January 2014, the CJEU gave its answer in the Diakité judgment, which concerns the granting of ‘subsidiary protection’ to third country nationals as well as stateless persons who seek refuge in the EU from such ‘internal armed conflicts’. By giving an autonomous meaning to the latter term in EU law, the CJEU has spoken up for a lower threshold for receiving such status throughout the 28 Member States. While this is, from a legal point of view, a highly interesting case with regard to the relationship between EU law and international law, it amounts, more practically speaking, to good news for all those in search of shelter from violence-ridden regions on a continent marked by an increasing reluctance to welcome foreigners (note most recently the successful Swiss referendum on limiting mass immigration). Continue reading