Category: External Relations

Neues aus dem Elfenbeinturm: March 2016

Jean Monnet Doctoral Workshop “Interactions Between European Union and International Law”

City University London, 23 June 2016. Deadline for abstract submission: 25 March 2016.

Conference “Boosting the Enforcement of EU Competition Law at Domestic Level”

Radboud University Nijmegen, 3 June 2016. Deadline for abstract submissions: 31 March 2016.

Workshop “The Disintegration of Europe”

Hertie School of Governance, Berlin, 30-31 May 2016. Deadline for abstract submissions: 1 April 2016.

Seminar “Transnational Solidarity: Setting the Boundaries”

Center for Transnational Legal Studies, London, 1 April 2016. (Free) registration needed.

Conference “Environmental Rights in Europe and Beyond”

Lund, 21-22 April 2016. (Free) registration needed.

Conference “Existe-t-il encore un seul non bis in idem aujourd’hui?”

University of Nancy, 28 April 2016. Registration needed.

Vienna Journal on International Constitutional Law Conference 2016

Vienna University of Economics and Business, 23 September 2016. Deadline for abstract submissions: 15 May 2016. Continue reading

Kingdom of Spain v. Council: another piece in the “Schengen puzzle”

By Angelo Marletta

The current European migratory crisis shows how politically sensitive the surveillance of the EU’s external borders is and the dramatic human consequences of the failures of that surveillance. On the one hand, border surveillance is essential to obtain situational awareness and to build an effective border policy. Border surveillance can indeed provide data and patterns to analyze and forecast migratory flows and to coherently plan actions to deal with them. Under EU Law, the surveillance of the External Borders is based on the Schengen acquis.

On the other, failures of surveillance can negatively impact the whole system of border management and, more concretely, the lives of migrants. Notwithstanding the relatively close distances between its shores, the Mediterranean is by far the deadliest sea border for migrants.

In Kingdom of Spain v. European Parliament and Council (C-44/14, 8 September 2015) the Grand Chamber of the Court of Justice (‘CJEU’) delivered its third judgement on Protocol 19 to the TFEU (‘Schengen Protocol’) addressing an essential element of the Schengen cooperation on border surveillance: the European Border Surveillance System – in short, EUROSUR. Continue reading

Top ten most read posts of 2015

By the editors

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

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

Review of EU legislation under EU international agreements revisited: Aarhus receives another blow

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

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

By Kanad Bagchi

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

Continue reading

Neues aus dem Elfenbeinturm: June 2015

Summer Academy in Global Food Law and Policy

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

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

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

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

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

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

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

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

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

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

By Michal Kutlík

1.       Introduction

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

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

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

Neues aus dem Elfenbeinturm: April 2015

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

Central European University, Budapest, 15 May 2015.

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

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

Summer School “The EU Area of Criminal Justice”

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

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

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

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

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

Opinion 2/13 of the Court of Justice on Access of the EU to the ECHR – One step ahead and two steps back

By Stefan Reitemeyer and Benedikt Pirker

The present contribution is a translated and somewhat simplified version of an article that appeared in German on 23 March 2015 in the Swiss legal online-journal Jusletter. The authors thank the Jusletter for their kind permission to republish the article and Markus Kern and the European Law Blog’s editorial team for valuable comments on earlier versions.

 Readers of this blog will nearly inevitably already have been confronted with this decision. The reactions to the Court’s Opinion have been vivid, to say the least. What did the Court say exactly on this draft agreement for accession to the ECHR? And is the current predominantly negative reaction (see for an exception here) justified? The main aim of the present post is to provide a concise summary of the Court’s findings, but also to provide some early assessment and criticism of the reactions on particular points. After a brief historical introduction to the context of the Opinion, we follow the sequence of analysis of the Court and thus examine in turn:

  • the arguments of the Court on the autonomy of the EU legal order;
  • the monopoly on dispute settlement established by Article 344 TFEU;
  • the co-respondent mechanism;
  • the procedure for the prior involvement of the CJEU and the specific characteristics of EU law concerning judicial review in matters of the Common Foreign and Security Policy (CFSP).

Continue reading

Neues aus dem Elfenbeinturm: March 2015

Seminar “The Future of EU Free Movement”

University of Edinburgh, 26 March 2015. No deadline for registration.

Call for Papers: Soft Law before the European Courts

Maastricht University, November 2015. Deadline for abstract submissions: 30 March 2015.

Call for Papers: The Extraterritorial Application of EU Law

Vigo, 18-19 June 2015. Deadline for abstract submissions : 1 April 2015. Continue reading

Cases C-401 to 403/12 and C-404 to 405/12: No review of legality in light of the Aarhus Convention

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

Neues aus dem Elfenbeinturm: December 2014

Call for Papers CJICL 2015 Conference: Developing Democracy – Conversations on Democratic Governance in International, European and Comparative Law

University of Cambridge, 8-9 May 2015. Deadline for paper proposals: 16 January 2015.

Call for Papers: Democratic Standards of and for Free Trade Agreements

Berlin, 24 April 2015. Deadline for paper proposals: 30 January 2015.

Call for Papers: Chasing Criminal Money in the EU: New Tools and Practices?

University of Luxembourg, 15-16 June 2015. Deadline for paper proposals: 31 January 2015.

Neues aus dem Elfenbeinturm: November 2014

Conference “International Litigation in Europe: the Brussels I Recast as a panacea?”

Verona University, 28-29 November 2014. Deadline for registration: 20 November 2014.

Workshop “L’ordre juridique de l’Union européenne sous l’angle de son action extérieure/The Legal Order of the European Union from the Perspective of Its External Action”

University of Luxembourg, 24 November 2014. (Free) registration required.

The Treaty of Lisbon and EU Criminal Law – Five Years On

University of Innsbruck, 1 December 2014. (Free) registration required.

Third REALaw Research Forum “Judicial Coherence in the European Union

University of Utrecht, 30 January 2015. Deadline for abstract submission: 1 December 2014.

13th Jean Monnet Seminar “EU Law and Risk Regulation”

Inter-University Center, Dubrovnik, 19-25 April 2015. Deadline for paper proposal submissions: 15 January 2015.

Will the Juncker Commission initiate unified Eurozone external representation?

By Chris Koedooder

As the response to the Eurozone sovereign debt crisis has shown, when push comes to shove, EU Member States are willing to accept a further transfer of powers to the European level. However, they are – understandably – not so keen on reforms that diminish their international stature. The long overdue consolidation of the Eurozone’s external representation, identified as one of the building blocks of a ‘genuine’ Economic and Monetary Union (EMU), was perpetually delayed under the Barroso Commission. EU Member States, it appears, are still not ready to accept this particular curtailment of their powers. This raises the question whether the new Juncker Commission will be able to seal the deal fifteen years after the Eurozone came into existence. Continue reading

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

 By Laurens Ankersmit

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

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

This blogpost will consider both points in turn. Continue reading

The boundaries of the development cooperation legal basis: What to make of the Court’s ‘centre of gravity’ test?

By Laurens Ankersmit

In Wednesday’s Grand Chamber judgment C-377/12 Commission v Council, the Court annulled the Council’s decision to sign the Partnership and Cooperation Agreement (PCA) between the European Union and the Republic of the Philippines because the Council had erroneously used a number of legal bases in addition to the development cooperation legal basis of article 209 TFEU and the common commercial policy legal basis of article 207 TFEU. While the outcome of the judgment is not that surprising, the Court’s reasoning is only partly helpful in shedding further light on the principle of conferral and the choice of the correct legal basis for the conclusion of international agreements when an agreement covers a number of policy areas. This is particularly true for agreements in the field of development cooperation, which traditionally covers cooperation in a multitude of fields not only directly linked to poverty reduction. This blogpost will discuss the two seemingly conflicting tests the Court applies when determining the correct legal basis of a measure and which now appear to have been merged into one test.

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

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

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

The return of the forbidden fruits: Van Parys II on the horizon

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

Commission v. Council: the saga over the scope of the CCP continues

This blogpost concerns probably my favorite EU law topic: the scope of the Common Commercial Policy (CCP). The scope of the CCP as a source of litigation between the Council and the Commission goes way back and most likely will continue to be so for a considerable time. The reasons are quite simple: the Common Commercial Policy is an important foreign policy tool and exclusive EU competence. As such, Member States are not entitled to act within this politically sensitive field. This is different with respect to shared competences of course, which enable Member States – subject to the Treaties – to continue to make policy that is not in violation of existing secondary legislation. In the most recent edition of this feud between the Commission and the Council, the scope of the Common Commercial Policy was at issue vis-à-vis the scope of internal market competences. Litigation in the past has usually evolved around the relationship between trade (art. 207 TFEU) and environment (art. 192 TFEU), so this case is a welcome variant to that strand of case law already explored in the Daiichi Sankyo case (commented here). In this case the Commission won yet another victory against the Council.

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Case C-221/11 Leyla Demirkan: introducing ‘regressive interpretation’ for Association Agreements

On the 24th of September the CJEU delivered its judgement in the Demirkan case. Ms Demirkan, a Turkish national, had requested a short-term tourist Visa to German authorities to go and visit her stepfather, a German national. However, since the German authorities rejected her request, Ms Demirkan attacked the decision arguing that on the basis of Article 41(1) of the Additional Protocol to the EU–Turkey Association Agreement she was entitled to enter Germany without a Visa because at the time of the conclusion of the Additional Protocol -1970- Turkish nationals did not need a Visa to enter Germany as tourists. On the basis of Ms Demirkan’s claim, the referring court in Berlin addressed two questions to the CJEU. First, it asked whether article 41(1) of the Additional protocol containing the ‘stand-still’ clause on restrictions related to the freedom of establishment and the freedom to provide services included the passive reception of services. Secondly, the referring court asked the CJEU whether a tourist traveling to visit family could be considered as a passive recipient of services when the purpose of traveling is personal and not economical. Continue reading