by Giuliana Ziccardi Capaldo
This contribution is a comment to the blog posts of Maxime Lassalle on Taricco I and Michal Krajewski on Taricco II. In the following, I summarize some reflections developed in my article entitled “Lotta globale all’impunità e Corte di giustizia europea: un nuovo approccio alla frode fiscale come crimine contro i diritti umani”, that touch upon the core of the Taricco dispute between the European Court of Justice (ECJ) and the Italian Constitutional Court concerning the prosecution of value added tax (VAT) fraud.
Two very closely related issues are considered in this regard. One is that the ECJ’s view in Taricco I on the interpretation and application of the obligation to combat fraud, imposed on Member States by Article 325 TFUE, opens the way to a new approach to tax fraud as a crime against human rights. The second, logically connected, is that the alleged conflict between the interpretation of Article 325 TFEU given by the ECJ and Italian Constitutional law (the principle of legality in criminal matters as laid down by Article 25(2) Const.) is a false problem for which I present a solution. Continue reading
By Michal Krajewski
The final countdown to the announcement of the long awaited judgment in case C-42/17, M.A.S. & M.B. (Taricco II) on 5 December 2017 has begun. The preliminary reference (for an overview see Bassini and Pollicino), by which the Italian Constitutional Court (the ‘ICC’) challenged the judgment of the European Court of Justice (the ‘ECJ’) in C-105/14, Taricco I, has already generated a heated debate online (see for instance here and here). The most fascinating question is whether for the first time the ECJ will authorise a national court to disapply an EU legal provision to protect its national constitutional identity or higher national standards of fundamental rights’ protection. My aim in this post is to question the compatibility of Taricco I judgment with the EU law itself. I will first argue that the ECJ’s judgment in Taricco I is problematic under EU law because the ECJ left out from its reasoning the general principle of legal certainty and ensuing limits to the direct applicability of EU provisions. Second, I will explore whether the ECJ can still withdraw from its stance taken in Taricco I without opening the Pandora’s box of exceptions to the EU law primacy: either due to national constitutional identity (Article 4(2) TEU) or higher national standards of fundamental rights’ protection (Article 53 of the Charter of Fundamental Rights). Continue reading
By Michele Simonato
The principle of the ne bis in idem in criminal matters (i.e. the right not to be prosecuted or punished twice for the same criminal conduct) is a key safeguard against arbitrary use of the ius puniendi. Furthermore, it offers an interesting perspective from which we can observe the development of an area of freedom, security and justice in Europe, and how the relationships between the two main European human rights instruments – the Charter of Fundamental Rights of the EU (‘CFREU’) and the European Convention of Human Rights (‘ECHR’) and the related case law emanating from the courts of Luxembourg and Strasbourg – are evolving. Indeed, the way in which the CJEU will answer in the near future the questions that are submitted to it in several pending cases (see cases C-524/15, Menci; C-537/16, Garlsson et al.; C-596/16 and C-597/16, Di Puma) might have a ‘constitutional’ impact that goes well beyond the ne bis in idem principle. This post will take a closer look at some of these pending questions. Continue reading
By Cristina Saenz Perez
The future of EU-UK judicial cooperation in criminal matters is far from certain. In her Florence speech, Theresa May affirmed that one of the goals of the UK government was to establish a “comprehensive framework for future security, law enforcement and criminal justice cooperation” after Brexit. In the government’s ‘Future Partnership Paper’, the government also expressed the need of concluding a separate agreement that guarantees the future of cooperation in police and security matters between the UK and the EU. Despite all the efforts, the latest decisions have shown how difficult an agreement in this area will be. Continue reading
By Christopher Kuner
Much discussion of foreign law in the work of the Court of Justice of the European Union (CJEU) has focused on how it deals with the rules, principles, and traditions of the EU member states. However, in its data protection judgments a different type of situation involving foreign law is increasingly arising, namely cases where the Court needs to evaluate the law of third countries in order to answer questions of EU law.
This is illustrated by its judgment in Schrems (Case C-362/14; previously discussed on this blog, as well as here), and by Opinion 1/15 (also discussed on this blog, part I and part II), a case currently before the CJEU in which the judgment is scheduled to be issued on 26 July. While these two cases deal with data protection law, the questions they raise are also relevant for other areas of EU law where issues of third country law may arise. The way the Court deals with third country law in the context of its data protection judgments illustrates how interpretation of EU law sometimes involves the evaluation of foreign legal systems, despite the Court’s reluctance to admit this. Continue reading
By Mario García
In recent months, the Spanish Constitutional Court (SCC) has issued a series of decisions related to EU law that show an interesting combination of both openness toward the European legal order and a certain degree of apprehension to the growing role of the Court of Justice of the European Union (CJEU) in constitutional matters. In these cases the SCC has arrived at fairly pro-EU results: the SCC decided that preliminary references from Spanish courts to the CJEU take precedence over constitutional questions submitted to the SCC, and that a non-transposed, directly-effective EU Directive can be taken as a factor in the interpretation of a constitutional provision. But, as discussed below, the details subtly suggest that the SCC does not fully agree with the ways in which the CJEU has asserted its institutional position, and prefers to avoid potential conflicts in the future. Continue reading
By Maria Haag
Can the Netherlands deny a third-country national (TCN), who is the primary carer of Dutch children, the right to reside? Two weeks ago, the Court of Justice of the European Union (CJEU) held in Chávez-Vílchez and Others that under EU law it cannot. In this important Grand Chamber decision, the CJEU has reaffirmed and expanded its landmark Ruiz Zambrano decision. Continue reading
By Gareth Davies
And below: Bougnaoui v Micropole: Mildly Surreal Thoughts on Competence and Clothes (particularly when worn by women)
The two cases were decided on the same day by the Grand Chamber of the Court of Justice. Although they both concern essentially the same fact set – a firm wishing to dismiss an employee who insists on wearing an Islamic headscarf – the questions referred were different, and the substantive discussion is found in Achbita. Bougnaoui, briefly noted at the end of this blog, addresses just one, odd, point: the Court confirmed that the fact that a Muslim woman wears a headscarf does not make her incapable of doing her work. That is little comfort though – since Achbita decided that she can probably be dismissed anyway.
In Achbita v G4S the Court of Justice was asked whether a private firm could prohibit the wearing of Islamic headscarves by employees who dealt with customers, or whether this violated the ban on religious discrimination in the workplace, found in Directive 2000/78. The claimant, Ms Achbita, worked as a receptionist for G4S in Belgium. When she began wearing a headscarf she was warned that it was against company policy, which disallowed all religious, political or philosophical signs in the workplace. When she continued, she was dismissed.
The Court found that under the right circumstances a company might be entitled to have a policy of this sort. One condition was that the policy must be in writing – in the interests of certainty and clarity. Another condition was that it must apply without distinction to all beliefs. Continue reading
By Laurens Ankersmit
In a significant win for access to justice in environmental matters, the Court’s Grand Chamber found that Article 47 of the Charter of Fundamental Rights (the right to an effective remedy), read together with the Aarhus Convention, precluded the application of national procedural rules allowing for swift decision-making at the expense of rights granted to environmental NGOs. The case’s procedural history is very complex (the Advocate General referred to it as either Kafkaesque or tilting windmills like Don Quixote, depending on your point of view), so after only a brief factual discussion I will focus on the two major constitutional issues that the Court had to deal with:
- The legal effects of the Aarhus Convention in the EU legal order;
- The meaning of Article 47 of the Charter of Fundamental Rights (CFR).
By Margarite Zoeteweij-Turhan and Sarah Progin-Theuerkauf
On 7 March 2017, the CJEU announced its judgement in case C-638/16 PPU (X and X / Belgium) and dashed all hopes for an extensive interpretation of the EU Visa Code in the light of the EU Charter of Fundamental Rights. To summarize the facts of the case, X and X and their three small children are an Orthodox Christian family living in rebel-held Aleppo. In October 2016 X leaves Aleppo to apply for a visa with limited territorial validity ex Article 25(1) of the EU Visa Code at the Belgian embassy in Beirut (Lebanon). The application states that the aim of entry into Belgium is to apply for asylum. X returns to his family in Aleppo immediately after lodging the application. Less than a week later, they are served with a negative decision from the Belgian authorities, against which they appeal. The court of appeal refers the case to the Court of Justice for a preliminary ruling on the interpretation of Article 25 of the Visa Code. In its rather short judgment the CJEU determines, contrary to what AG Mengozzi (see detailed analyses of this Opinion here and also here) argued with regard to this case, that the applications of X and X fall outside the scope of the EU Visa Code, even if they were formally submitted on its basis. 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 Margarite Zoeteweij-Turhan and Sarah Progin-Theuerkauf
The opinion of AG Mengozzi in the case of X and X v. Belgium, so far only available in French, has created quite a stir throughout the European Union. In a nutshell, the AG found that, when third country nationals apply for a visa with limited territorial validity (‘LTV’) under Article 25 of the Visa Code with the aim of applying for international protection once they have arrived in a Member State’s territory, the Member State’s immigration authority should take the circumstances of the applicant into account and assess whether a refusal would lead to an infringement of the applicant’s rights as protected by the Charter of Fundamental Rights. Although the AG makes an effort to cover all the arguments brought up by the parties, this blogpost focuses mainly on the issues directly related to the margin of discretion left to the Member States by Article 25(1) of the Visa Code. Continue reading
By Orla Lynskey
The CJEU delivered its judgment in Tele2 Sverige AB and Watson on 21 December 2016. The Court had been asked by a Swedish and British court respectively to consider the scope and effect of its previous judgment in Digital Rights Ireland (discussed here). The judgment reflects continuity in so far as it follows in the line of this, and earlier judgments taking a strong stance on data protection and privacy. Yet, the degree of protection it offers these rights over competing interests, notably security, is radical. In particular, the Court unequivocally states that legislation providing for general and indiscriminate data retention is incompatible with the E-Privacy Directive, as read in light of the relevant EU Charter rights. While the judgment was delivered in the context of the E-Privacy Directive, the Court’s reasoning could equally apply to other EU secondary legislation or programmes interpreted in light of the Charter. This judgment will be a game-changer for state surveillance in Europe and while it offered an early Christmas gift to privacy campaigners, it is likely to receive a very mixed reaction from EU Member States as such. While national data retention legislation has been annulled across multiple Member States (Bulgaria, Czech Republic, Cyprus, Germany and Romania), this annulment has been based on an assessment of the proportionality of the relevant measures rather than on a finding that blanket retention is per se unlawful. For those familiar with the facts and findings, skip straight to the comment below. Continue reading
By Sandra Hummelbrunner and Anne-Carlijn Prickartz
Shortly before Christmas, the Court of Justice delivered its highly anticipated judgment in case C-104/16 P Council v Front Polisario, on appeal against the General Court (GC) judgment in case T-512/12 Front Polisario v Council, an action for annulment brought by Front Polisario, the national liberation movement fighting for the independence of Western Sahara. In this action, Front Polisario sought the (partial) annulment of Council Decision 2012/497/EU, which approved the conclusion of an agreement between the EU and Morocco concerning reciprocal liberalisation measures on agricultural and fishery products and amendments to the 2000 EU-Morocco Association Agreement. The main bone of contention was the application of the Liberalisation Agreement to the territory of Western Sahara, a non-self-governing territory to be decolonised in accordance with the principle of self-determination, but which is considered by Morocco to be an integral part of its sovereign territory and is largely under Morocco’s effective control.
The Front Polisario, as the internationally recognised representative of the Sahrawi people, contended that the Agreement was contrary to both EU and international law, including the principle of self-determination, international humanitarian law, and EU fundamental rights. In first instance, the GC partly concurred with Front Polisario’s submissions, annulling the contested Decision insofar as it applied to Western Sahara (for a more extensive review of the GC judgment, see our Article on Front Polisario v Council). Deciding on appeal, the Court of Justice took a different path, managing to avoid a discussion on the merits by focussing on the GC’s interpretation of the territorial scope of application of the Liberalisation Agreement as determined by Article 94 of the EU-Morocco Association Agreement, which provides for the application of the Agreements to ‘the territory of the Kingdom of Morocco’. Continue reading
By Maxime Lassalle
The AG’s proportionality test
After these general considerations, the AG starts his proportionality test. In the opinion nine points are considered separately (para. 210). From this analysis, three main elements deserve to be emphasized. Continue reading
By Maxime Lassalle
On 8 September 2016, Advocate General (AG) Mengozzi delivered his much awaited opinion on the agreement between Canada and the European Union on the transfer and processing of Passenger Name Record (PNR). It follows the European Parliament’s resolution seeking an Opinion from the Court of Justice of the European Union (CJEU) on the compatibility of the agreement with the Treaties. Even though the opinion concludes that the agreement has many loopholes, it could disappoint those who were expecting a strong condemnation of PNR schemes as such.
This blogpost intends to present the context of this procedure and the main elements of the AG’s opinion before analysing them. The question of the appropriate legal basis for the agreement, also raised by the Parliament, will not be addressed. However, before turning to the AG’s opinion, we need to briefly sketch the background of the proposed agreement. Continue reading
Conference « New Instruments to Promote the Correct Application of the EU Charter of Fundamental Rights »
Florence, 28 October 2016. Deadline for (free) registration : 18 October 2016.
Colloquium « Les religions et le droit du travail »
Université de Rouen, 20-21 Octobre 2016. Free access.
Conference « Computers, Privacy & Data Protection : The Age of Intelligent Machines »
Brussels, 25-27 January 2017. Deadline for submissions : 22 October 2016.
Call for Papers: ESIL Conference “The Role of the European Parliament in the Conclusion and Implementation of International Agreements on International Economic Law Issues”
European Parliament, Brussels, 9 December 2016. Deadline for abstract submissions: 7 November 2016.
Call for papers : One Day Symposium on Transnational and International Environmental Crime – Synergies, Priorities and Challenges
University of Lincoln, 15 February 2017. Deadline for abstract submissions : 18 November 2016.
Call for submissions Comparative Constitutional Law and Comparative Law Quarterly
Deadline for submissions : 27 November 2016.
Housing Law Research Network 3rd Annual Housing Law Symposium: Human Rights, Housing and Dispute Resolution
Malmö University, 23-24 March 2017. Deadline for abstract submissions : 1 January 2017.