By Oliver Garner
Introduction – A Timely History Lesson
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
by Szilárd Gáspár-Szilágyi
I. SETTING THE STAGE
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
By Laurens Ankersmit and Benedikt Pirker
Challenging EU rules on the basis of EU agreements is very difficult. Challenging EU rules on the basis of the Aarhus Convention is pretty much impossible. In ClientEarth v Commission the Court reasoned once again that the Aarhus Convention could not be relied upon to invalidate EU secondary legislation. In this case, the Court found that ClientEarth could not rely on the Aarhus Convention to challenge the Public Access to Documents Regulation (Regulation 1049/2001) in order to obtain commissioned studies on compliance by Member States with EU environmental law in the context of infringement procedures. One of the arguments put forward by the Court was that the Aarhus Convention could not be relied upon because it ‘was manifestly designed with the national legal orders in mind’. This is an extraordinary statement, since the EU is party to the Convention and thus bound by it. It was no doubt inspired by the concern to protect the infringement procedure contained in article 258 TFEU, raising a number of questions on the relationship between EU primary, secondary and international law. Continue reading
By Christopher Unseld
“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
By Benedikt Pirker
Should EU secondary legislation be reviewed against the benchmark of the provisions of an international agreement? In 2012 the General Court answered this question in the affirmative and annulled two decisions of the Commission which were based on a regulation which was deemed incompatible with the Aarhus Convention. However, the EU institutions appealed against those judgments. Consequently, in cases C‑401 to 403/12, Council e.a. v. Vereniging Milieudefensie and C-404 and 405/12, Council v. Stichting Natuur en Milieu e.a., the Grand Chamber of the Court was confronted with the same question. There is already quite some case law on the topic of review of legality within the EU legal order in light of international obligations of the EU, typically with the Court being hesitant to undertake such review. In the cases involving the Vereniging Milieudefensie and the Stichting Natuur en Milieu, the General Court and the Advocate General made, in my view, some valuable suggestions in favour of reviewing EU law against international agreements. Unfortunately, the Court decided to stick to its guns, thus continuing in the line of its own previous jurisprudence, and annulled the General Court’s judgments. The result leaves a somewhat sour taste for those who think that EU institutions and their legal acts should be amenable to judicial review under reasonable conditions. Not only is the very purpose of the EU regulation at issue to implement the obligations arising from the Aarhus Convention, but the Grand Chamber’s view also leads to a lacuna in legal protection in EU law exactly where the central aim of the Aarhus Convention would in theory be to provide individuals with access to justice. Continue reading
With the end of the third year of operation of the European Law Blog approaching, it is once again 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
On 2 October 2013, the Committee of Ministers of the Council of Europe opened for signature Protocol no. 16 to the European Convention on Human Rights. This new Protocol, which has been referred to as the “Protocol of the dialogue” by Dean Spielmann, the President of the European Court of Human Rights (ECtHR), creates the possibility for supreme courts of the Contracting States to the Convention to request an advisory opinion from the ECtHR on “questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto”.
Even though the material scope of Protocol no. 16 is clearly confined to the Convention and its protocols, some concerns have been expressed in the recent past, notably at the recent hearing held by the ECJ on the draft agreement on EU Accession to the Convention (“DAA”), that the use of this new instrument of consultation by courts of the EU Member States might be problematic from the point of view of EU law. More specifically, the question was raised in this context whether Protocol no. 16 would not threaten the autonomy of EU law and the monopoly of the ECJ on the interpretation of EU law, by allowing supreme courts of the Member States to engage in a kind of “forum shopping” between the Luxembourg and Strasbourg courts. This contribution purports to demonstrate that those concerns are unjustified and should not be allowed to undermine the further development of the Convention system initiated by Protocol no. 16. Continue reading
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.
On Friday, February 7th, 2014, the German Federal Constitutional Court (BVerfG) requested the CJEU for preliminary ruling for the first time. The request is exceptional in terms of both European Union law and German constitutional law. Commentators call the decision a Spring in the Desert, a Golden Bridge to Luxembourg or simply put Historic. The BVerfG stated its opinion throughout several decisions regarding fundamental questions between the European Union and its Member States (e.g. Solange I, Solange II, Maastricht, Lisbon), but always abstained from requesting a preliminary ruling. This time, however, the BVerfG indeed submitted a question. The stakes in the case are high, as the BVerfG considers giving an ultra vires ruling regarding a decision by the Governing Council of the European Central Bank (ECB) concerning Outright Monetary Transactions (OMT) unless the CJEU announces that that decision is partially incompatible with primary law or restricts its scope. If the “conditions” laid out by the BVerfG are not met by the CJEU, the decision on OMT will be declared incompatible with the German constitution. The consequence would be that German authorities would not be bound to the decision by the ECB. In other words, the German central bank with around 18 % in capital subscriptions (shares) of the ECB would not participate in OMTs. Continue reading
Yesterday, the Court handed down its decision in the much anticipated Association de Médiation Sociale case. The case concerns the question of potential horizontal effect of the workers’ right to information and consultation enshrined in Article 27 of the Charter of Fundamental Rights and implemented through Directive 2002/14 establishing a framework for informing and consulting employees in the Union. We have already covered the opinion handed down by Advocate General Cruz Villalón (see here), who suggested that the Court should allow Article 27 of the Charter in combination with the Directive to be applicable and to exclude thus the application of the national norm that was contrary to EU law despite the setting of proceedings between private parties. In contrast to the Advocate General, the Court did not grant Article 27 and the Directive such effect. Rather, it decided to follow its previous case law, with the unfortunate consequence of leaving quite some questions unanswered. Continue reading
Bananas are back on the menu of the Court of Justice of the EU. The court of first instance of Brussels (Interim Decision of 17 May 2013, 196/33/13, in Dutch, not online) decided to refer a preliminary question to Luxembourg concerning the consistency of Council Regulation 1964/2005 regarding import tariffs for bananas with the EU’s obligations under the GATT. Soon the Court is to decide whether to address this question in a regular panel, or instead in a Grand Chamber. This decision itself will signal whether the Court considers this a fresh legal argument warranting scrupulous attention, or regards this simply as old, long-settled questions. In this post, I will argue that authoritative judicial clarifications would indeed be desirable in this case. Continue reading
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).
This Opinion of Advocate General Bot, given in response to a preliminary reference raised by the Spanish Tribunal Constitucional, gives interesting insights on the relation between national and EU fundamental rights standards, and gives an important interpretation on the ambiguous wording of Article 53 of the Charter on Fundamental Rights. AG Bot reaffirms the autonomous nature of the EU fundamental rights standard. He clearly rejects the idea that Article 53 entails that the Charter merely lays down a minimum standard of rights protection above which Member States would be free to apply a higher –national- standard of protection. However, he admits that a provision of secondary law may be challenged where it infringes national constitutional identity. Continue reading
The CJEU handed down an important judgment two weeks ago on EU water policy which concerns a number of interesting definitional issues as well as the more general issue of legal effects of directives prior to their transposition deadline. The case concerned a preliminary reference from a Greek court in legal proceedings between the central Greek government and local authorities on the diversion of the river Acheloos in the north-west of Greece.
Authorities and local environmental groups have been fighting each other for over 20 (!) years concerning this diversion project, with those in favour of the diversion at the losing side (I call upon our Greek readers to share with us any information on what on earth is going on there).
Anyway, in the current legal proceedings the question arose whether the government measures leading to the partial diversion of the Acheloos river for water supply and electricity generation purposes was in conformity with a number of EU directives on water policy. The judgment is way too extensive to deal with in a single blog post, so I would like to discuss two aspects of the judgment:
- The legal effect of directive 2000/60 before the transposition period has expired (the Inter-Environment Wallonie doctrine);
- The definition of ‘imperative reasons of overriding public interest’ in article 6 (4) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora.
This period around the end of summer breaks is probably a busy time for everyone, so I will keep it short; as always, readers of this blog are very much welcome to point out and discuss some points in more detail in the comments if so desired. In this case, the Court was asked about the content of the obligation to ‘facilitate’, in accordance with national legislation, entry and residence for ‘any other family members’ (set out in Article 3(2) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely) who are dependants of a Union citizen. For this wider circle of ‘other family members’ (as opposed to the narrow circle of family members set out in Article 2 (2) of the Directive), Member States enjoy a broader margin of discretion and do not have to grant an ‘automatic’ right of entry and residence (para 20). The Court also clarified some matters on the situation of dependence that must be given for such a family member under Article 3 (2), but I’ll focus on the first point for the purpose of this post. Continue reading
Yesterday, the Court decided to give horizontal effect to Article 34 TFEU on the free movement of goods. In the Fra.bo case, the Oberlandesgericht Düsseldorf had asked whether a private-law association (DVGW) ought to be subject to the principle of free movement of goods. The organisation at issue operates both to draw up technical standards for products used in the drinking water supply sector and to certify products based on these standards.
As Laurens has pointed out in his post on the Advocate General’s opinion, the Court has accepted such horizontal effect for the other Treaty freedoms, but not yet for the case of the free movement of goods. Advocate General Trstenjak, however, suggested in her Opinion to extend the reasoning of cases like Bosman, Viking and Laval by analogy. Based on their horizontal effect, fundamental freedoms could thus be imposed in cases where non-public organisations held the power to draw up certain kinds of collective rules. In the present case, the German private organization DVGW possessed in her view a de facto competence to determine what fittings could be offered for sale on the market in pipes and accessories for drinking water supply in Germany (para 41). The Advocate General pointed out that horizontal effect was required by the effet utile of European Union law because (paras 46 ff.) the abolition of obstacles to trade imposed on Member States might otherwise be compromised by obstacles erected by private parties. Also, the fact that some Member States would rely on public standardisation bodies while others turn to private organisations may lead to inequalities in the application of EU law. Continue reading
The scope of EU fundamental rights protection and the influence of the Charter of Fundamental Rights on this scope is a much discussed topic among EU constitutional lawyers. As is well-known, the recognition of fundamental rights as part of the general principles of EU law by the Court is not new. Already in the cases of Stauder and Internationale Handelsgesellschaft, handed down in 1969 and 1974 respectively, the Court recognized fundamental rights as part of the general principles of EU law. It did so to anticipate challenges to the primacy of EU law by national constitutional courts and the Court therefore took great care in stressing the autonomous nature of EU fundamental rights protection. This means that the Court has maintained authority in determining the content of EU fundamental rights protection and thus remained the ultimate interpreter of EU law. However, before the coming into force of the Treaty of Lisbon, there was no EU catalogue of rights formally binding on the EU as such. Rather, the Court drew inspiration from international treaties and national constitutions, whilst at the same time maintaining the autonomy of the EU rights standard. With the coming into force of the Lisbon Treaty the Charter of Fundamental Rights has also become formally binding on the EU. This means there now is a binding catalogue of rights at the EU level.
A contentious issue is whether the Charter of Fundamental Rights alters the scope of the EU fundamental rights standard laid down in previous case-law of the Court. In its case law, the Court has held that fundamental rights recognized as general principles of EU law apply not only to the acts of the EU institutions but also to the acts of Member States in certain circumstances. Generally, Member States have to act in accordance with fundamental rights recognized at the EU level ‘whenever they act within the scope of EU law’. In the case-law of the Court this includes at least two situations. First, Member States are bound by the EU rights standard where the implement and enforce EU law. Second, the Member States are also bound by the EU rights standard where they derogate from EU law provisions (see cases such as Schmidberger, and ERT). However, when precisely a Member State acts within the ‘scope of EU law’ is not entirely clear. The dividing line between situations within the scope and those outside the scope of EU law often appears arbitrary, as was pointed by AG Sharpston in the case of Zambrano.
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.