Category: EU constitutional law

Neues aus dem Elfenbeinturm: March 2018

Conference “The Future of the EU and European Law”

Palacký University, Olomouc, 19-20 April 2018. Deadline for registration: 29 March 2018.

Conference “Law-Making in Multi-Level Settings – Federalism, Europe, and Beyond”

University of Antwerp, 20-21 September 2018. Deadline for abstract submissions: 9 April 2018.

Call for papers “European Junior Faculty Forum”

European University Institute, 12-13 July 2018. Deadline for paper submissions: 1 May 2018.

Conference “Brussels, We Have a Problem – Rethinking Justice Within the European Union”

University of Witten/Herdecke, 8-10 June 2018. No deadline for registration.

Summer School “Cinema Human Rights and Advocacy”

Venice, 27 August-5 September 2018. Deadline for registration: 20 June 2018.

Achmea – A Perspective from International (Investment) Law

By Pekka Niemelä

A week has passed since the European Court of Justice (ECJ) rendered the landmark Achmea judgment. A number of posts analyzing the judgment have already appeared in the legal blogosphere (see e.g. here, here, here and here). Much of this commentary has focused on describing the Court’s reasoning and on analyzing the judgment’s broader implications. Most commentators agree that there was nothing unexpected in the Court’s conclusion that the arbitration clauses in the less than two hundred intra-EU BITs have, as the Court put it, an ‘adverse effect on the autonomy of EU law’ (para. 59).

The judgment’s reception has also varied in accordance with the view one has of the underlying purposes of investment treaties – do they promote the international rule of law or narrow corporate interests at the expense of the public interest? Accordingly, those critical of investment treaties and arbitration have welcomed the judgment, whereas the proponents of investment treaties have argued that the judgment leads to less ‘rule of law within the EU’.[1] On a higher level of abstraction, the plausibility of the Court’s reasoning also depends on the view one has of the EU in general: is it an autonomous constitutional order based on the protection of fundamental rights and certain foundational values? Or should the EU demonstrate more openness towards other international law regimes, as it is just one such regime among others? Depending on the view one has over these two intertwined general questions, Achmea can either appear as a logical corollary of EU constitutionalism or as a breach of the EU’s commitment to the international rule of law.

What this blogpost strives to do is to take issue with the Court’s understanding that arbitral tribunals interpret and apply EU law in ways that pose a threat to its autonomy. The point is not to argue that the Court’s reasoning and conclusions are incorrect, but to shed light on the ways in which arbitral tribunals have actually ‘used’ EU law, and to show that the Court’s understanding (with which most commentators sympathize) that investment arbitration poses a threat to the autonomy of EU law is somewhat inflated. Continue reading

Don’t Lead with Your Chin! If Member States continue with the ratification of CETA, they violate European Union law

By Christina Eckes

 After last week’s Achmea ruling of the Court of Justice (CJEU) Member States can no longer legally go ahead with ratifying CETA – the mixed Free Trade Agreement that the EU and its Member States agreed with Canada. Achmea casts serious doubts on the legality of CETA’s investment chapter, which allows investors from one Party to submit to an arbitral tribunal a claim that the other Party has breached an obligation under CETA. By simply going ahead with the ratification, they violate the principle of loyalty under European Union law.

On 6 March, the CJEU declared in its Achmea ruling that the investor-state-dispute-settlement (ISDS) mechanism in the bilateral investment treaty between the Netherlands and Slovakia (NL-SK-BIT) as incompatible with EU law. A request by Belgium is pending before the CJEU asking for clarification on the legality of the new Investor Court System in CETA (Opinion 1/17). Achmea is a clear indication that the CJEU in Opinion 1/17 is likely to find also the Investor Court System in CETA problematic for the autonomy of EU law.

No general obligation exists for Member States to halt national ratification of mixed agreements when their compatibility with EU is questioned before the CJEU. Yet, CETA is different. The clear indication of incompatibility in Achmea imposes an obligation on national Parliaments to halt the CETA ratification process and wait for Opinion 1/17. Continue reading

Lounes, Naturalisation and Brexit

By Gareth Davies


Many Europeans in the United Kingdom and British citizens on the continent are currently wondering whether they should adopt the nationality of their host state, in order to guarantee their residence rights after Brexit. One disadvantage of doing this is that they cease to be foreigners, people living in a state ‘other than that of which they are a national’ (Article 3, Citizenship Directive) and so lose all the specific rights that EU law grants to migrants in a host state, most notably those concerning family members. These migrants’ rights are largely found in the Citizenship Directive, and are the basis for the provisions on Citizens’ rights in the draft Brexit Withdrawal Treaty. Ceasing to be a foreigner thus creates legal risks, as well as advantages.

Lounes has now added an interesting twist to this situation. The essence of this judgment is that a migrant Union Citizen who naturalizes cannot be compared to a native citizen – their migrant history means that they should be treated differently, and continue to enjoy the rights they had as a migrant. It holds out the possibility of the best of both worlds for the potential Brexit victim. On the one hand, all the security that comes with possessing the nationality of their host state. On the other, all the privileges that come with being seen as a migrant in EU law. The draft Withdrawal Treaty, published on 28th February, seems to take this approach too. However, before the champagne can be uncorked we must wait for the final Treaty text, for it would only take small changes in the way that it defines those it protects to spoil the naturalization party. Continue reading

Does Member State Withdrawal from the European Union Extinguish EU Citizenship? C/13/640244 / KG ZA 17-1327 of the Rechtbank Amsterdam (‘The Amsterdam Case’)

By Oliver Garner

Update (21/02/2018; 19:00 CET): On 20th February 2017, an appeal to the ‘intention’ of the District Court to refer questions to the Court of Justice of the European Union was admitted. The Dutch government and the Municipality of Amsterdam now have three weeks within which to appeal.


Introduction: A New Route from Amsterdam to Luxembourg.

A Brief Chronology of the Relevant Facts and Sources for the Amsterdam Case.

A Summary of the Amsterdam District Court Decision.

Legal Analysis of the Questions Referred: The Arguments for and against Automatic extinction and a Potential Compromise.

Conclusion: The Ramifications of Emancipative Legal Constitutionalism.

Introduction: A New Route from Amsterdam to Luxembourg

Despite the United Kingdom’s impending withdrawal from the European Union, a direct Eurostar train route from London to Amsterdam will soon be established. This route will enable, amongst others, all of those holding the status and rights of EU citizenship to move ‘freely’ between the two metropolises. This class still includes nationals of the United Kingdom, and ostensibly will continue to do until that Member State’s withdrawal is concluded in accordance with Article 50 TEU. An incorporeal yet no less direct route has now also been established between Amsterdam and Luxembourg as a result of a preliminary reference by the Rechtbank Amsterdam (‘District Court’) to the European Court of Justice  (‘ECJ’)   under Article 267 TFEU. Such a judicial pathway may facilitate retention of the status and rights created by Article 9 TEU and Article 20 TFEU for the aforementioned nationals of the withdrawing state. Continue reading

Neues aus dem Elfenbeinturm: February 2018

Call for submissions – European Papers

No deadline.

Conference “Looking to the Future and Beyond: New Approaches to ADR”

University of Leicester, 10 May 2018. Deadline for abstract submissions: 28 February 2018.

Dimensions and Identities Summer School “Dimensions of Human Rights”

University of Salzburg, 23-27 July 2018. Deadline for abstract submissions: 30 March 2018.

Colloquium “Current Challenges for EU Cross-Border Litigation in a Changing Procedural Environment”

Max-Planck-Institute Luxembourg for International, European and Regulatory Procedural Law, 26 September 2018. Deadline for abstract submissions: 15 April 2018.

Conference “Le règlement des différends dans les accords de l’UE avec des pays tiers”

University of Fribourg, 2 May 2018. Deadline for registration: 18 April 2018.

Summer School: “Venice School of Human Rights”

EIUC Venice School, 9-16 June 2018. Deadline for registration: 23 April 2018.

Summer School “Recent Developments on Financial Crime, Corruption and Money Laundering: European and International Perspectives”

University of Thessaloniki, 4-12 July 2018. Deadline for applications: 30 April 2018.

Neues aus dem Elfenbeinturm: January 2018

Call for papers: Workshop “Information Sharing and European Agencies: Novel Frontiers”

European University Institute, 23 May 2018. Deadline for submissions: 15 February 2018.

Call for Papers: “Challenges to EU Law and Governance in the Member States”

European University Institute, 8 June 2018. Deadline for submissions: 18 February.

Call for papers: Special Issue “Revisiting WTO’s Role in Global Governance”

Trade, Law and Development. Deadline for submissions: 28 February 2018.

Call for Papers: PhD Colloquium “Regulating New Technologies in Uncertain Times”

Tilburg University, 14 June 2018. Deadline for submissions: 28 February 2018.

Call for Papers: “Geography and Legal Culture on the International Bench”

Leiden University, The Hague Campus, 17-18 May 2018. Deadline for submissions: 28 February 2018.

PNR Agreements between Fundamental Rights and National Security: Opinion 1/15

By Arianna Vedaschi and Chiara Graziani

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

AG Wathelet in C-284/16 Achmea: Saving ISDS?

By Andrea Carta and Laurens Ankersmit

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:

  1. 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.
  2. 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

‘Conditional’ Primacy of EU Law and Its Deliberative Value: An Imperfect Illustration from Taricco II

By Michał Krajewski

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

Neues aus dem Elfenbeinturm: December 2017

Conference “Constitutional Challenges in the EMU: the New Instruments of European Economic Governance”

Brussels, 29-30 March 2018. Deadline for abstract submissions: 15 January 2018.

International Electoral Observers Training

European Inter-University Centre for Human Rights and Democratisation, Venice, 19-24 March 2018. Deadline for registration: 15 February 2018.

Conference “Economic Constitutionalism: Mapping its Contours in European and Global Governance”

European University Institute, 14-15 June 2018. Deadline for abstract submissions: 28 February 2018.

Conference “Upgrading Trade and Services in EU and International Economic Law”

Radboud University, Nijmegen, 15 June 2018. Deadline for abstract submissions: 16 March 2018.

Call for papers: Utrecht Journal of International and European Law

Deadline for submissions: 9 April 2018.

A Fundamental Right to Tax Enforcement? A response to Prof. Capaldo

By Eduardo Gill-Pedro

In her recent entry on this blog, Prof. Capaldo criticised the judgment of the Court of Justice of the EU in Taricco II by 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

Case C-600/14, Germany v Council (OTIF). More Clarity over Facultative ‘Mixity’?

By Hannes Lenk and Szilárd Gáspár-Szilágyi

  1. Setting the context

Opinion 2/15 on the division of requisite competences between the Union and its Member States for the conclusion of the EU-Singapore FTA has most certainly caused a flurry of academic discussions. Amongst the various topics discussed, two come to mind that are important for this short analysis. First, did the CJEU intend with its reasoning to effectively abolish ‘facultative mixity’ and ‘facultative EU-only’ agreements? (see here, here and here). Second, by placing almost all aspects of the EU-Singapore FTA under exclusive EU competences, with the exception of ISDS and non-direct foreign investment, did the Court of Justice implicitly determine the future of EU trade and investment policy? (see here, here and here). In other words, with a Commission that is determined to prioritize EU-only agreements, is the conclusion of mixed investment agreements in parallel to exclusive trade agreements a logical consequence of Opinion 2/15? Continue reading

POMFR: L. Ankersmit, Green Trade and Fair Trade in and with the EU: Process-based Measures within the EU Legal Order (Cambridge: CUP, 2017)

By Thomas Horsley

Green Trade and Fair Trade in and with the EU: Process-based Measures within the EU Legal Order, by Laurens Ankersmit (Cambridge, Cambridge University Press, 2017, ISBN 9781107191228); 294 pp.; £85.00

This monograph examines the position of ‘process-based measures’ within the EU legal order. PBMs (also known as ‘process and production method’ rules) are characterised as public and private initiatives that, in the context of international trade, seek to address environmental and social concerns that arise externally; in other words, beyond the territory of the regulating state. Examples include, bans on the importation and sale of cosmetics tested on animals; national and regional product labelling schemes; and private initiatives such as Fairtrade and the Marine Stewardship Council certification programme. Continue reading

Neues aus dem Elfenbeinturm: November 2017

Roundtable discussion “Modelling Divergence(s) and Convergence(s) of the EU in the World”

City University, London, 24 November 2017. Registration necessary.

Conference “Citizenship, Citizenships and New Types of Personal Status: International and European Aspects, and National Developments”

University of Salerno, 18-19 January 2018. Deadline for abstract submissions: 25 November 2017.

Workshop “Unpacking the ‘Accountability Paradox’ in Expert-based Decision-making”

Erasmus University Rotterdam, 30 November-1 December 2017. Registration necessary.

Erasmus Early-Career Scholars Conference 2018 “New business models and globalized markets: Rethinking public and private responsibilities”

University of Rotterdam, 11-13 April 2018. Deadline for abstract submissions: 7 January 2018.

Call for papers: Inaugural Issue of the Nordic Journal of European Law

Deadline for submissions: 31 March 2018.

Call for papers: Comparative Constitutional Law and Administrative Law Quarterly

Deadline for submissions: 2 January 2018.

Neues aus dem Elfenbeinturm: October 2017

Call for Papers : Workshop on Challenges and Opportunities for EU Parliamentary Democracy – Brexit and beyond

Maastricht University, 18-19 January 2018. Deadline for abstract submissions : 20 October 2017.

Workshop « The Political and Legal Theory of International Courts and Tribunals »

University of Oslo, 18-19 June 2018. Deadline for abstract submissions : 1 November 2017.

Workshop: « Resolving the Tensions between EU Trade and Non-Trade Objectives: Actors, Norms, and Processes »

Utrecht University, 10 November 2017. Deadline for registration: 3 November 2017.

Conference « The future of free movement in stormy times »

The Hague University of Applied Sciences, 21 November 2017. Deadline for (free) registration: 13 November 2017.

Call for Participants : European Law Moot Court 2017-2018

Deadline for team registrations : 15 November 2017.

Call for Papers: « The neglected methodologies of international law »

University of Leicester, 31 January 2018. Deadline for abstract submissions: 15 November 2017.

Call for nominations: International Society for Public Law Book Prize

Deadline for nominations: 31 December 2017.

Call for Papers : ESIL Annual Conference « International Law and Universality »

University of Manchester, 13-15 September 2018. Deadline for abstract submissions : 31 January 2018.

Cases C-643 and C-647/15: Enforcing solidarity in EU migration policy

By Daniela Obradovic

The duty of solidarity between EU Member States

Although the Court of Justice of the European Union (CJEU) long ago characterised the deliberate refusal of a Member State to implement EU law as a ‘failure in the duty of solidarity’ that ‘strikes at the fundamental basis’ of the EU legal order (Case 39/72, para. 25), it has not been clear whether the principle of solidarity among Member States can be enforced in European courts. The recent response of the CJEU to the Slovakian and Hungarian challenge (C-643 and C-647/15, the migrant quotas verdict) to the Council decision on the relocation of migrants from Italy and Greece (the relocation decision)  seems to establish that the principle of solidarity between Member States in the area of EU immigration policy can be a source of EU obligations susceptible to judicial enforcement. Continue reading

The EP’s ‘European Standards’ Resolution in the wake of James Elliott Construction: carving ever more holes in Pandora’s Box?

By Pieter van Cleynenbreugel and Iris Demoulin

A mere three years ago, the voluntary and non-binding nature of technical standards was still deemed self-evident. Standards, it was believed, would never be seen as parts of EU law. In the meantime, however, the James Elliott Construction case (C-613/14) caused a serious crisis of faith in this regard. Holding that it has jurisdiction to interpret a European harmonised technical standard adopted by the European Committee for Standardisation (‘CEN’), the EU Court of Justice (‘CJEU’) forewarned that it would play a more active role in the interpretation and legality assessment of harmonised technical standards. In the wake of that judgment, the European Parliament in July 2017 additionally also called for more control and accountability mechanisms to be put in place, albeit in ways diametrically opposed to what the CJEU had proposed just eight months earlier. This post will compare and contrast the Parliament’s proposals with the CJEU’s approach in James Elliott Construction, inviting the European Commission to reconcile both institutions’ positions as part of its on-going modernisation initiatives in this field. Continue reading

Case C 142/16 Commission v Germany: the Habitats Directive meets ISDS?

By Laurens Ankersmit

Recently, the ECJ has found Germany in breach of its obligations under the Habitats Directive for authorising the operation of a coal-fired power plant near Hamburg, Germany without an appropriate environmental impact assessment. The case is the latest addition to a series of legal battles surrounding the environmental impact of the plant. On the one hand, the negative environmental impact, in particular for fish species in the Elbe river, has led to litigation opposing the authorisation of the plant, including these infringement proceedings before the ECJ. On the other, Swedish power company Vattenfall has opposed the environmental conditions attached to its water use permit before a national court and before an ISDS tribunal which in its view would make the project ‘uneconomical’. This post will discuss the general legal background of the case, the ECJ judgment, and comment on the wider implications of these legal battles for the relationship between investment law and EU law. Continue reading

A Joint EU-UK court for citizens’ rights: A viable option after and beyond Brexit?

The European Law Blog will be taking a summer recess. We’ll be back end of August with new commentaries, including on key Summer developments. Please do send us on your contributions throughout this period and we will get back to you in due course. Happy Holidays to all our readers!

By Oliver Garner


An impasse in Brexit negotiations exists between the United Kingdom and the European Union regarding the jurisdiction of the Court of Justice of the European Union. This post will consider the legal viability of a proposed solution to this stalemate: a joint EU-UK court to adjudicate upon citizens’ rights. Although the proposals have limited the substantive remit of such a potential court to citizens’ rights, due to this area being the most contentious between the EU and the UK, in principle one could envisage a joint court with jurisdiction over all aspects of the withdrawal agreement. It may be argued that such a solution would be politically unacceptable for the European Union as it allows the United Kingdom to “have its cake and eat it” through a substitute for the Court of Justice over which the withdrawing state has far more influence. However, this post will focus on the legal rather than political viability of the proposal. This post will consider the proposal with a particular focus on whether the joint court could violate the Court of Justice’s stringent conditions for protecting the autonomy of the EU legal order. A comparison will be drawn to the similar proposals for an EEA court in the original EEA agreement, and the eventually established EFTA court. Finally, beyond the United Kingdom’s withdrawal, the post will move on to consider whether the idea of a joint national and European court could provide a solution to the problems that arise from the unique composite nature of the EU legal order. Continue reading