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 validity of an award rendered by an ISDS tribunal under the Dutch-Slovak bilateral investment treaty (BIT). This monetary award against the Slovak government was the result of the partial reversal of the privatisation of the Slovak health care system. The Opinion is the latest development in the legal controversies surrounding ISDS and EU law after the Micula cases and, of course, the recent Request for an Opinion by Belgium (Opinion 1/17) on the compatibility of CETA with the EU Treaties. Although many aspects of this Opinion merit critical commentary, this post will focus on two issues:
- the question whether ISDS tribunals set up under intra-EU BITs should be seen as courts common to the Member States and are therefore fully part of the EU’s judicial system.
- whether the discrimatory access to ISDS in the Dutch-Slovak BIT is compatible with Article 18 TFEU and justified under EU internal market law. Continue reading
By Hannes Lenk and Szilárd Gáspár-Szilágyi
- 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
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
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.
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
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
By Szilárd Gáspár-Szilágyi
Opinion 2/15 is already causing quite a stir in legal academia. While some take an EU law perspective, others look at it from the perspective of investment law or public international law. In this short post I will not focus on purely legal issues. Instead, I will look at the Opinion’s effects on the EU’s investment policy and propose a change in the Commission’s approach to the negotiation of international economic agreements. Continue reading
By Laurens Ankersmit
Opinion 2/15 might keep legal scholars, practitioners, and policy-makers busy for the foreseeable future. Many aspects of the ruling deserve comment and further discussion (see already for starters the blogposts here, here, here, here, here, and here) and I would like to follow up my previous post with some comments on an intriguing paragraph of the Opinion: paragraph 161 on the possible suspension of the agreement for a breach of one of its ‘sustainable development’ provisions. The ECJ’s statements here touch upon a long-standing debate whether labour and environmental provisions in trade and investment agreements should be enforceable. The ECJ found that Parties could indeed (partially) suspend or even terminate the agreement for breaches of such provisions. Practicalities aside, this finding is certainly a positive step from a social and environmental point of view. Continue reading
By Laurens Ankersmit
Opinion 2/15 on the EU’s powers to conclude the EU-Singapore Free Trade Agreement (EUSFTA) delivered Tuesday received considerable attention from the press. This comes as no surprise as the Court’s Opinion has consequences for future EU trade deals such as CETA and potentially a future UK-EU FTA. Despite the fact that the ECJ concluded that the agreement should be concluded jointly with the Member States, the Financial Times jubilantly claimed victory for the European Union, belittling Wallonia in the process. This victory claim calls for three initial comments as there are aspects of the Opinion that might merit a different conclusion. Continue reading
By Stephen Coutts
The on-going conflict in the Middle East has profound implications for the global legal order in two areas of law in particular: asylum law and anti-terrorist law. The European Union and EU law have not been immune from this development and in many respects are closely affected by these geopolitical developments and their legal impact. After a fitful start, the EU has become a major actor in the area of criminal law, and in particular anti-terrorist law, on the one hand and in asylum law on the other. The two fields meet in Article 12(2)(c) of the Qualification Directive, itself reflecting Article 1F of the Geneva convention, providing that an individual shall be excluded from eligibility for refugee status for acts contrary to the principles and purposes of the United Nations, acts which have been held to include acts of terrorism. Furthermore, Article 12(3) of the Qualification Directive extends that exclusion to ‘persons who instigate or otherwise participate in the commission of the the crimes or acts’ mentioned in Article 12(2). The status of terrorist and refugee are legally incompatible and mutually exclusive; one simply cannot be a terrorist and also a refugee. What, however, constitutes a terrorist for the purposes of Article 12 of the Qualification Directive? That essentially is the question at stake in Lounani. Continue reading
By Thomas Verellen
On Valentine’s Day 2017, the Grand Chamber of the ECJ issued its opinion on the competence of the EU to conclude the ‘Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.’ As happens increasingly often, the Commission, on the one hand, and several Member States and the Council on the other, disagreed on the nature of the competence of the EU to conclude the agreement. The Commission considered the agreement to be covered entirely by the EU’s exclusive competences, whereas the Member States, and to a lesser extent the Council, argued that at least part of the agreement fell outside of the scope of those competences, and instead fell within the scope of the EU’s shared competences.
The distinction between exclusive and shared competences matters. Unless an agreement is covered entirely by the EU’s exclusive competences, it will most likely be concluded in the form of a mixed agreement, i.e. an agreement to which not only the EU, but also the Member States are parties. This typically is the case even when the agreement falls within the scope of the EU’s shared competences, as the Council considers that when the Commission proposes to negotiate and conclude an international agreement parts of which are covered by shared competences, the Council can opt not to exercise those competences with regard to part of that agreement, however small this part may be. In such an event, the Member States must fill the gap by exercising their own competences, rendering the agreement a mixed agreement. Continue reading
Workshop Series “Current Issues in EU External Relations”
University of Luxembourg, 31 March/19 May/29 May 2017. Deadline for proposal submissions: 6 March 2017.
Conference “Comparative Public Law in Europe – Opportunities and Challenges”
University of Essex, 14 March 2017. Deadline for (free) registration: 10 March 2017.
Radboud Economic Law International Conference “Digital Markets in the EU”
Radboud University, 9 June 2017. Deadline for abstract submissions: 24 March 2017.
Summer Schools “Venice Academy of Human Rights – Economic, Social and Cultural Rights as an Answer to Rising Inequalities” and “Venice School of Human Rights – Human Rights as Our Responsibility”
EIUC Venice, 3-12 July and 9-17 June 2017, respectively. Deadline for applications: 19/27 April 2017.
By Laurens Ankersmit
This blog post summarises my contribution to the Brexit & Environment roundtable organised by the British Academy & EUrefEnv on 30 January 2017. It was published before on the blog The EU Referendum and the UK Environment: an expert review.
The UK government has announced that it will pursue a “bold and ambitious Free Trade Agreement” with the EU. The EU, no stranger to negotiating such agreements, typically includes in its FTAs a chapter dedicated to sustainable development. From the start, it should be clear that these chapters come nowhere near the protection offered by current EU environmental legislation. That said, these chapters may present some opportunities. This contribution seeks to explain the EU’s approach to environmental protection in its FTAs and identifies four key options for a potential future environmental chapter in a UK-EU FTA. Continue reading
By Laurens Ankersmit
To say that the EU’s new generation of trade agreements (such as CETA and TTIP) is politically controversial is becoming somewhat of an understatement. These free trade agreements (FTA), going beyond mere tariff reduction and facilitating hyperglobalization, have faced widespread criticism from civil society, trade unions, and academics. It may come as no surprise therefore that the legal issue over who is competent to conclude such agreements (the EU alone, or the EU together with the Member States) has received considerable public attention, ensuring that the Advocate General Sharpston’s response to the Commission’s request for an Opinion (Opinion 2/15) on the conclusion of the EU-Singapore FTA (EUSFTA) has made the headlines of several European newspapers.
The Opinion of Advocate General Sharpston in Opinion 2/15, delivered on 21 December, is partly sympathetic to the Commission’s arguments on EU powers, but ultimately refutes the most outlandish of the Commission’s claims to EU power vis-à-vis that of its constituent Member States. The Opinion is of exceptional length (570 paragraphs, to my knowledge the longest Opinion ever written), and contains an elaborate discussion on the nature of the division of powers between the EU and the Member States and detailed reasoning on specific aspects of the EUSFTA such as transport services, investment protection, procurement, sustainable development, and dispute settlement.
Given the breadth of the AG’s conclusions, the aim of this post is to discuss the Opinion only in relation to investment protection and to reflect upon some of the consequences for the Commission’s investment policy, perhaps the most controversial aspect of this new generation of trade agreements. Continue reading