A few months ago, AG Wathelet delivered a remarkable defence of investor-state dispute settlement (ISDS) in international investment agreements between Member States in his Opinion in C-284/16 Achmea. The case concerned a preliminary reference by a German court (the Federal Court of Justice, or Bundesgerichtshof) regarding the enforcement of an award rendered by an ISDS tribunal under the Dutch-Slovak bilateral investment treaty (BIT). This monetary award against the Slovak government was the result of the partial reversal of the privatisation of the Slovak health care system. The Opinion is the latest development in the legal controversies surrounding ISDS and EU law after the Micula cases and, of course, the recent Request for an Opinion by Belgium (Opinion 1/17) on the compatibility of CETA with the EU Treaties. Although many aspects of this Opinion merit critical commentary, this post will focus on two issues:
the question whether ISDS tribunals set up under intra-EU BITs should be seen as courts common to the Member States and are therefore fully part of the EU’s judicial system.
whether the discrimatory access to ISDS in the Dutch-Slovak BIT is compatible with Article 18 TFEU and justified under EU internal market law. 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 recent months, the Spanish Constitutional Court (SCC) has issued a series of decisions related to EU law that show an interesting combination of both openness toward the European legal order and a certain degree of apprehension to the growing role of the Court of Justice of the European Union (CJEU) in constitutional matters. In these cases the SCC has arrived at fairly pro-EU results: the SCC decided that preliminary references from Spanish courts to the CJEU take precedence over constitutional questions submitted to the SCC, and that a non-transposed, directly-effective EU Directive can be taken as a factor in the interpretation of a constitutional provision. But, as discussed below, the details subtly suggest that the SCC does not fully agree with the ways in which the CJEU has asserted its institutional position, and prefers to avoid potential conflicts in the future. Continue reading →
Opinion 2/15 on the EU’s powers to conclude the EU-Singapore Free Trade Agreement (EUSFTA) delivered Tuesday received considerable attention from the press. This comes as no surprise as the Court’s Opinion has consequences for future EU trade deals such as CETA and potentially a future UK-EU FTA. Despite the fact that the ECJ concluded that the agreement should be concluded jointly with the Member States, the Financial Times jubilantly claimed victory for the European Union, belittling Wallonia in the process. This victory claim calls for three initial comments as there are aspects of the Opinion that might merit a different conclusion. Continue reading →
In a significant win for access to justice in environmental matters, the Court’s Grand Chamber found that Article 47 of the Charter of Fundamental Rights (the right to an effective remedy), read together with the Aarhus Convention, precluded the application of national procedural rules allowing for swift decision-making at the expense of rights granted to environmental NGOs. The case’s procedural history is very complex (the Advocate General referred to it as either Kafkaesque or tilting windmills like Don Quixote, depending on your point of view), so after only a brief factual discussion I will focus on the two major constitutional issues that the Court had to deal with:
On the 24th January 2017, 7 months to the day of the result of the UK’s referendum to leave the European Union, the President of the United Kingdom Supreme Court delivered the judgment in the Miller appeal. The Court held, by an 8-3 majority, that the UK Government did not have the power to give notice under Article 50 TEU to withdraw from the European Union without a prior Act of Parliament .
Lord Neuberger started the announcement in the manner of a history lecture, detailing the United Kingdom’s accession to the then European Economic Community in 1973. This was a fitting introduction to a judgment which at times reads like a lesson in the UK’s constitution. Accordingly, this lesson encompasses the place that EU law occupies within this order. This post will attempt to provide a concise summary of the magisterial judgment, before providing some comment on the salient issues relevant to EU law. Continue reading →
In recent years ISDS has been on the lips of many politicians, academics, NGOs and even laymen, some of whom have recently ‘discovered’ that there is a mechanism through which foreign investors (often large multinationals, but not always) can bring claims against host-states before an international arbitral tribunal. The arguments in favour and against ISDS are plentiful, but one always catches my eyes. According to this argument (page 3), the EU does not need ISDS in its new free trade and investment agreements (FTIAs) with developed states, because the original rationale of this mechanism was to protect foreign investors from host‑state jurisdictions where basic tenets of the rule of law were not observed. However, trading partners such as the US or Canada have well‑functioning judicial systems that protect foreign investors; therefore, ISDS is not needed.
As a novice to the field of EU investment law, I must confess I am not yet fully convinced by the benefits of ISDS. Nevertheless, the afore-mentioned argument resonates with my previous field of research, concerned with the domestic enforcement of EU and US international agreements, and once again illustrates that there is often a disconnect between the international and the domestic enforcement of treaties.
I will not advocate for the ‘greater’ protection of foreign investors. Instead, I want to shed some critical light on the argument according to which foreign investors already enjoy high levels of protection in advanced domestic judicial systems. I will argue that the domestic protection of foreign investors is more complex. On the one hand, foreign investors can bring a claim before a domestic court against the host-state, invoking domestic standards of protection. On the other hand, they could also potentially bring a claim before the same domestic courts, relying on international standards of investment protection. As I will illustrate, the international and domestic levels of enforcement should not be treated as worlds apart and the interplay between the two can shape the strategies of the treaty negotiators and of the investors. Continue reading →
An Encore to (R)Miller from the Court of Justice? There is a potential European encore to the constitutional drama of the UK High Court decision in R(Miller) v Secretary of State for Exiting the European Union. The judgment found that the UK government cannot trigger Article 50 TEU without Parliament’s involvement. The government has already indicated its intention to appeal directly to the UK Supreme Court (UKSC). Certain commentators in the media have picked up on the possibility that the Supreme Court could refer (certain aspects of) the case to the Court of Justice of the European Union (CJEU). This has been referred to as ‘the constitutional equivalent of breaking the space-time continuum’.
Of course, as the reaction to the judgment in (R)Miller has shown, the UK media are not afraid of exaggeration. The first and most important thing to reiterate is that the CJEU could not act as the final constitutional arbiter of the question in the case of whether the UK government may use the royal prerogative to give notice under Article 50 TEU. The EU law clause is clear that the condition for the decision to withdraw is ‘accordance with [the] constitutional requirements’ of the Member State. Therefore, the final decision on the substance of whether these requirements have been fulfilled will always be for that Member State’s highest judicial authority. Instead, the possibility of a referral to the Court of Justice in the case concerns one specific aspect of the withdrawal clause: whether the notification to the European Council of an intention to withdraw under Article 50(2) is revocable. The silence of the clause can be seen to constitute a ‘gap’ in the law.
However, this post will argue that it is not necessary for the Court of Justice to prove an authoritative determination on this question of EU law in order for the UK Supreme Court to decide the specific question of UK constitutional law in the (R)Miller adjudication. Therefore – in the specific case of (R)Miller – the UK court is under no obligation under Article 267 TFEU to refer the question to the Court of Justice of the European Union. The post will go on to consider the hypothetical situations in which there may be such an obligation to refer, and will suggest how the Court of Justice should determine the question in such a scenario. Continue reading →
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 →
In two recent preliminary rulings, the ECJ elaborated on the applicability of the acte clair doctrine. In these judgments, the Court seems to be looking for a new balance between the adoption of a strict approach towards national judges who are unwilling to make preliminary references and maintaining a cooperative relationship with national courts, effectively relaxing the conditions under the Cilfit doctrine.
“Viking, Laval and Beyond”, edited by Mark Freedland and Jeremias Prassl, constitutes the first volume of Hart’s new series on “EU Law in the Member States”. In the series’ foreword Sacha Prechal lays out how crucial it is to understand the “genuine life of EU law in the Member States” since EU law – of course – is generally transposed, applied and enforced at the domestic level. But that is easier said than done. One needs good knowledge of EU law, domestic and comparative (EU) law to come close to some understanding of what Prechal calls EU law’s genuine life. And, let’s be honest, it is often hard enough to keep up with the current developments in EU law while not losing touch with domestic legal issues. Continue reading →
On January 14, Advocate General (AG) Cruz-Villalón issued his opinion in the reference for a preliminary ruling on Gauweiler et al. v Deutscher Bundestag on the ECB’s Outright Monetary Transactions (OMT). The OMT Programme launched in September 2012 was part of a series of measures taken by the ECB in response to the Euro crisis accompanying the loan facilities (European Financial Stability Facility – EFSF, European Stability Mechansim – ESM).
The German Constitutional Court (Bundesverfassungsgericht, “BVerfG”) had asked the Court of Justice (CJEU) two questions in what it classified as an ultra vires review of acts of the European Union. Roughly speaking, the BVerfG wanted to check whether the European Central Bank (ECB) had transgressed the limits of its powers derived from the treaties. If the ECB had, this would have consequences for the constitutional identity of Germany. Therefore, the BVerfG first wanted clarification on whether the Outright Monetary Transactions (OMT) Programme was an economic rather than a monetary measure and whether the ECB had therefore exceeded its powers by establishing it. Second, the BVerfG raised the question whether the OMT programme was not violating the prohibition of monetary financing of Member State. Continue reading →
With the end of the third year of operation of the European Law Blog approaching, it is onceagain time to take a brief look back at the most popular posts of the year. Based on our Google Analytics statistics and keeping in mind that there is a certain bias in favour of older posts which have had more time to become popular, we receive the following little tour d’horizon of EU law… Continue reading →