In the domain of politics, trial and error are frequent occurrences. Through trial and error we tend to discover that political decisions, policy choices and even customary ways of doing things are no longer sustainable and thus in need of revision. There is nothing wrong in recognising mistakes or misjudgments and changing course. The doors of perception are not always fully open for human beings; information asymmetries, errors of judgement, ideological standpoints and self-interest often lead individuals to poor visualisations of the future and thus to imprudent actions. Continue reading →
Part II of the UK-EU Withdrawal Agreement provides extensive protection of the rights in the United Kingdom and the EU-27 that EU citizens currently derive from Article 21 TFEU. However, the Agreement is silent on the preservation of the rights to vote and stand as candidates in municipal and European Parliament elections that EU citizens derive from Article 22 TFEU. This ossifies a conception of EU citizenship as a status of passive ‘juridical objectity’ to the detriment of a conception of the status as one of political self-determination. This means that following the United Kingdom’s withdrawal from the European Union the voting rights of EU citizens within the United Kingdom and UK citizens within the EU-27 will revert to the discretion of the national legal orders. Therefore, I will argue in this piece that it would be more normatively desirable for the European Union’s legislature to adopt measures in order to preserve these electoral rights for UK citizens. The first section below will detail the arguments for why this would be acceptable, before the second section considers the legal methods by which this could be implemented. Continue reading →
Some have assumed that one of the consequences of Brexit is that EU citizens, who can currently vote in all elections in the UK except for those which choose MPs in the UK Parliament, will lose that right once, and if, the UK leaves the EU. In fact, Brexit will not automatically mean EU citizens in UK will lose the right to vote in elections for local government and the devolved legislatures. That is because the right of EU citizens to vote in local government elections is set out in the UK’s own domestic legislation. Therefore, all the rights of EU citizens to vote in other member states arises out of EU law, because that right is now contained with UK law, the fact that UK will no longer be a member of the EU does not change that provision giving EU citizens the right to vote in local elections. In that respect, they will join the citizens of many other countries who, although they have no right deriving from a treaty to vote in UK elections, nevertheless have such a right. For example Commonwealth citizens, if they have leave to enter or remain in the UK, or do not require such leave, can register, vote, and stand in all UK elections even though there may not be any reciprocal right for UK citizens to vote in elections in that Commonwealth country. Continue reading →
The UK is scheduled to leave the EU on 30th March 2019 at midnight, Brussels time, by automatic operation of EU law (Article 50(3) of the Treaty on European Union(TEU) and, indeed, according to section 20(1) of the UK’s EU (Withdrawal) Act 2018. Consequently, the UK will not be participating in the May 2019 European Parliamentary (EP), Elections. Its 73 MEPs, including the 3 MEPs representing Northern Ireland, will be gone. This post appraises, first, the ramifications of Brexit for electoral rights of EU-27 citizens resident anywhere in the UK as a ‘third country’ and, second, the unique electoral predicament of residents in Northern Ireland. It argues that, unless Member States (MS) act promptly, hundreds of thousands of their citizens, qua Union citizens, stand to be disenfranchised this coming May – a democratic outrage that can and should be averted. Continue reading →
On 22 October 2018, New Europeans and the Federal Trust held the event ‘EU citizenship rights in the shadow of Brexit’. Since that date, the end-game of Brexit has gathered pace. On 14 November, the Draft Withdrawal Agreement and political declaration on the future relationship between the UK and the EU was published. The UK government announced that a ‘meaningful vote’ would be held in the House of Commons on 11 December, before postponing on the eve of the vote leading to the Prime Minister weathering a vote of no confidence by Conservative MPs and the announcement that the vote would be held in the third week of January. Part 2 of this Agreement provides extensive protection for the legal rights of UK nationals in the EU-27 and EU citizens in the UK; however, it may be argued that this ossifies a conception of EU citizenship as one of juridical objectity rather than political self-determination. At the European level, the Court of Justice of the European Union held in its Wightmanjudgment on 10 December that the United Kingdom would be free to unilaterally revoke its notification under Article 50 in accordance with its own constitutional requirements. Continue reading →
All eyes were on the Wightman case in recent days. This may have somewhat overshadowed a second interesting development: On Friday 7 December the Swiss government (the Federal Council) decided to publish the result of its negotiations with the European Union on a Framework Agreement (FA) for their bilateral relationship. Such an agreement would form a sort of governing structure for the most important of the Bilateral Agreements that currently link the EU and Switzerland.
There is a complex political context to the negotiations of this draft agreement that I will deliberately leave aside for the present post (see for a recent overview over Swiss-EU relations here). To put it in a nutshell, since 2008 the EU requests this step from Switzerland, and since 2014 the EU and Switzerland have been negotiating a special agreement to cover the most crucial current and future (market-access oriented) agreements among the Bilateral Agreements currently in force between Switzerland and the EU. The goal is to create a more reliable framework (1) for Switzerland’s incorporation of EU legal acts in the relevant domains, (2) for the uniform interpretation and application of the Agreements and the EU law referenced therein, (3) for the surveillance of the application of those norms and (4) for the settlement of disputes (Article 1 (3) FA). Presently, I want to highlight two elements that seem to be of relevance beyond the confines of Swiss-EU relations: the solution found for the interpretation and dispute settlement of the FA and the law it covers. Continue reading →
On 10 December 2018, the European Court of Justice (ECJ) delivered its judgment in the Wightman case on the revocation of a notification of an intention to withdraw from the EU under Article 50 TEU. Extraordinarily, the expedited process adopted by the CJEU upon the request of the referring Scottish Inner Court of Session has seen a judgment delivered barely three months after the original preliminary reference request was made in the domestic judgment on 21 September 2018. This is a reaction to the time-sensitivity of the political end-game of Brexit. The UK House of Commons had been scheduled to hold its ‘meaningful vote’ on adoption of the Withdrawal Agreement and political declaration on the future relationship on 11 December before the postponement of this vote by the government. This vote provided the factual background to the dispute in the case. The petitioners, including Scottish MPs, sought an answer to the question of whether legally there existed the third option of revocation rather than the dichotomy of either accepting the Withdrawal Agreement or else exiting the EU via the automatic operation of Article 50(3) TEU upon the elapse of the two-year time period on 29 March 2019. The full-court judgment has upheld the Advocate-General’s Opinion of 4 December that a Member State is free to revoke unilaterally a notification of intention to withdraw from the EU made under Article 50(2) TEU. Indeed, the final judgment has recognised a right to revoke that is even more receptive to the sovereign discretion of the withdrawing Member State than in the Opinion. This post will first summarise the judgment, before providing some comments thereupon. The Wightman decision has filled a lacuna in EU law; it remains to be seen whether this legal clarity will help to assuage the political chaos currently engulfing the United Kingdom. Continue reading →
A few days before the vote in the House of Commons on the Withdrawal Agreement, scheduled for December 11th, 2018, the debates are still vivid both in the United Kingdom and the European Union. The possibilities of holding a second referendum or stopping the withdrawal process have been repeatedly raised as alternatives should the Withdrawal Agreement be rejected by the House of Commons.
In this context, the pending case Wightman and others before the Court of Justice of the EU is of crucial importance. After the judgment of the UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union, which followed the submissions of counsel regarding the irrevocability of a withdrawal notification, the request for a preliminary reference from the Inner House of the Court of Session in Scotland could be a game changer. The Opinion of Advocate General Campos Sánchez-Bordona delivered on December 4th, 2018, invites the Court to rule in favour of the possibility for the UK to unilaterally revoke its notification of withdrawal, potentially opening up a third way. Continue reading →
On Monday 23 April 2018, the European Commission released its proposal on the protection of persons reporting on breaches of Union law. The proposal of the European Commission comes after pressure of the European Parliament and other organisations calling for a coherent protection of whistle-blowers at the EU level. This pressure results partially from different scandals that were revealed by whistle-blowers such as Panama Papers or the case of the Pilatus Bank in Malta. The Commission’s proposal aims to set common minimum standards to protect whistle-blowers when they report breaches of EU law. It has several legal bases and covers a wide-range of EU areas such as consumer protection, financial services and the protection of privacy and data. The reporting procedure follows the ‘classic’ three-tier model for whistle-blowing, that is reporting firstly internally, then to the designated authorities and as a last solution to the public. The text is innovative in the sense that it proposes a wide definition of the whistle-blower ranging from trainees to ex-employees. The European Commission regards whistle-blowing as an enforcement tool for the prevention, detection and prosecution of illegalities affecting EU law.
For the future, it is compelling to pursue the negotiations between the two co-legislators of the EU (European Parliament and Council) in order to follow the challenges on the question of whistle-blowing at the national and European level. These negotiations could take many years. This post aims to introduce the reader to the proposal for a Directive on the protection of whistle-blowers by cross-referring to the case of the Pilatus Bank where a journalist and a whistle-blower are involved. The purpose is to highlight that there is a need for an EU Directive on the protection of whistle-blowers and to demonstrate that the proposed EU Directive would have better protected the Pilatus Bank whistle-blower. Furthermore, this contribution will demonstrate the problematic nature of money laundering and banking supervision at the EU level. Following the creation of the Banking Union, the interconnectivity of banks is a fact and a problem in one country can create a domino effect to the others. For example, the Pilatus Bank scandal does not only concern Malta but the European banking system as a whole. Continue reading →
In the period since the entry into force of the Lisbon Treaty, Member States have more and more often and more and more passionately challenged the Union exercise of external relations powers conferred to it under the Lisbon Treaty. In the words of Advocate-General Kokott in her Opinion in the Antarctica cases legal actions are fought with ‘astonishing passion’ and ‘allegation[s are made] that the Commission wished to do everything possible to prevent international action by the Member States’, as well as that ‘the Council [was] compulsively looking for legal bases that always permit participation by the Member States’ (para 75).
On 20 November 2018, the Court of Justice ruled in the Antarctica cases on two actions of annulment brought by the Commission against Council decisions approving the submission, on behalf of the Union and its Member States, to the Commission for the Conservation of Antarctic Marine Living Resources (‘the CCAMLR’) of a reflection paper and a common position on four proposals concerning the creation and study of marine protected areas. The Council was supported in its defence in the two cases by 9 and 10 Member States, respectively. The point of contention – as is the case in a growing body of post-Lisbon litigation – was not the substantive position but the question of on behalf of whom the paper and the positions at issue could be submitted: the Union alone or the Union together with its Member States. Continue reading →
On 21 November 2018 the Court declared a provision of the Law on needs-based minimum income protection in Upper Austria which provides that refugees with a temporary right of residence are granted less social benefits than Austrian nationals and refugees with a permanent right of residence incompatible with Article 29 of the Qualification Directive (Directive 2011/95/EU). The case is important, as the Court also highlighted that the right of refugees to equal treatment with nationals of the respective state with regard to public relief and assistance directly stems from the Geneva Refugee Convention, which does not make the rights to which refugees are entitled dependent on the length of their stay in the respective State. The Court also emphasized that a refugee may directly rely on the incompatibility of the provision with Article 29 of the Qualification Directive before the national courts. Continue reading →
Case C-244/17 – Commission v Council(PCA with Kazakhstan) is one of the most recent cases in the long list of external relations cases and Opinions decided by the Court (in most cases in its Grand Chamber composition) since the entry into force of the Lisbon Treaty (beginning with Dai-Ichi Sankyo, Case C – 414/11). These cases have covered many aspects of the horizontal balance of competences between the political institutions of the Union, as well as the vertical distribution of powers between the Union and its Member States, in the field of the external relations of the Union.
Inevitably sometimes both aspects are touched upon, as in the present case. On the one hand, there is the question of which institutions play, or should play, a role in the decision-making under Article 218(9); on the other hand questions arise which methods of decision-making should be followed, unanimity or qualified majority voting; whether this should be determined by which legal bases such decisions should be taken and which method should be used to select such legal bases. The first question seems – and is – simple at first sight, but raises an important question about democratic legitimacy. The second question seems very complicated, but – after reflection – can be easily decided on the basis of existing precedents. Continue reading →
In the landmark judgement Commission v France rendered on the 8th of October, the Court of Justice condemned for the first time a Member State for a breach of Article 267(3) TFEU in the context of an infringement action, after the French administrative supreme court (Conseil d’Etat) failed to make a necessary preliminary reference. This decision is undoubtedly a crucial step towards a more complete system of remedies in the EU legal order, but may, upon closer examination, lead to detrimental consequences for judicial dialogue. Continue reading →
The EU case law on the horizontal effect of fundamental rights is not the average lawyer’s go-to example of coherence, clarity, or adequate judicial reasoning. To give credit where credit is due, however, in a series of cases over the last year, the Court has significantly improved this state of affairs. The Grand Chamber’s judgment in Bauer et al is the most noteworthy affirmation of this change of direction so far. This post maps out what might now be safely described as the current position on the horizontal effect of fundamental rights in the European Union and attaches a threefold (mostly positive) meaning to the Bauer judgment. However, using Bauer as a springboard, it also raises two broader questions regarding the status of social rights and the non-horizontality of directives, which may require further refinement in future case-law. Continue reading →
On 8 October, four new Judges and two Advocates General officially entered into office at the Court of Justice of the European Union (henceforth ‘the Court’). Just two days before, the U.S. Senate had confirmed the appointment of Brett Kavanaugh to the U.S. Supreme Court. Whilst the latter process had attracted the attention of media from all over the world, the appointment of the new European judges had barely made the news. This situation is reflected also in the academic world, which, surprisingly, never showed much interest in the Court’s appointment process.
However, this does not mean that the procedure set out at Articles 253-255 of the Treaty on the Functioning of the European Union (henceforth “TFEU”) is immune to criticism. Two aspects in particular appear capable to negatively affect the appearance of independence of the European Judges: the duration of the mandate – 6 years – and the lack of transparency of the whole process which is dominated by national governments. These flaws may be one of the reasons why the Court had elaborated a minimal definition of the concept of judicial independence; a definition that may need to be reshaped in order to tackle the judicial reform enacted by the Polish government.
The concerns related to the transparency of the procedure and the discretion of national executives have been partially addressed by the Lisbon Treaty, with the creation of the s.c. Article 255 Panel. This Panel, composed of senior members of national judiciaries, former members of the Court and one person chosen by the European Parliament, is charged with the task to confirm a candidate’s suitability to perform the duties of Judge or Advocate General. Notwithstanding the undoubtedly positive effects produced by the panel on the quality of candidates, serious concerns remain regarding the transparency of its work: the Council Decision 2010/124/EU establishing the operating rules of this Panel, provides that both the hearing of the candidate and the deliberations of the body shall take place in private. Hence, the introduction of Article 255 Panel has been effectively dubbed as a form of “progress by stealth”.
Ahead of the oral hearing at the Bundesverfassungsgericht in the proceedings “European Banking Union” (on Tuesday, 27 November 2018, at 10:00 a.m.) signs can be found of the need of a slight reconsideration by the Court of some of its tenets about sovereignty and the status of the European Parliament, to which this case lends itself eminently. Here is one of the feelers for a possible outcome, as found circulating in the form of a fictional draft press release of the ruling.
The question whether it would be lawful for a Member State to revoke the notification of withdrawal from the EU before the two-year lapse (laid down in the third paragraph of Article 50 TEU) has, clearly, vital political, economic and social implications. Even though it cuts to the core of the philosophy governing the “ever closer Union” and the role that States and private individuals play in it, it’s also a matter to which the provision itself does not give a definite answer. Moreover, there is no case law issued on the matter by the CJEU that could contribute to the interpretation of the provision, while the UK Supreme Court seems to have posited the irrevocability of a withdrawal notification in the famous judgment issued in the case of R (Miller) v Secretary of State for Exiting the European Union [UKSC 2016/0196], foregoing the opportunity to use the preliminary reference mechanism. This absence of relevant CJEU case-law is expected to change after the Inner House of the Court of Session in Scotland decided on 21.09.2018 to refer a relevant preliminary question (see O. Garner’s analysis),
Part of the literature expressing interesting and strong legal arguments has suggested the answer to the above question to the positive (e.g. P. Craig, S. Peers, O. Garner, A. Sari). Arguing the contrary and attempting a contribution to the academic debate, this post’s point of view is based on the fundamental principle that the EU legal order constitutes an “autonomous legal system”, which is governed by its own rules enacted by its own institutions and interpreted by its established Court (C-26/62, Van Gend en Loos). It is, therefore, argued that the legal lacuna regarding the provision of revoking the withdrawal notification, leads, according to the interpretation of the provision set out in Article 50 TEU – in line with the letter and spirit thereof – to the conclusion that permitting such a revocation would contradict the principle of autonomy, regardless of whether it is unilateral or initiated upon consensus.
The present post is divided into two parts. In the first part I approach the interpretation of Article 50 TEU through its letter and spirit. In the second part I develop my argumentation concerning the critical role that the fundamental principle of autonomy should play when attempting to find the true meaning of the provision and to fill the legal gap concerning the right to revoke the withdrawal notification. Continue reading →
This is not entirely surprising: due to the increased use of all kinds of online services and information and communication technologies (ICTs), police and judicial authorities are confronted on a daily basis with the problem to collect electronic evidence, as the data they are looking for are often processed, transmitted and/or stored by foreign service providers, including big global technology companies such as Google, Facebook, Microsoft or Amazon. To compel a foreign person to cooperate in a criminal investigation is not obvious – the enforcement jurisdiction of police and judicial authorities is, in principle, limited to their own national territory.
This post will present the highlights of the double e-evidence proposal that is on the table and the first reactions to the proposals, at a moment where the institutional negotiations are picking up speed. Continue reading →