Category: General

How Strict is “Strict Conditionality”? The New Eurozone Agreement on Greece

By Michael Ioannidis

Few elections have as their core issue an international arrangement. The Greek election of 25 January 2015 was one of these exceptions. In 2010 and 2012, Greece agreed with its Eurozone partners and the IMF to accept two large bailout packages conditioned on the fulfilment of far-reaching, austerity-oriented reforms. It also agreed to submit to a monitoring mechanism comprised by officials from the European Commission, the IMF, and the ECB that would supervise its compliance with the conditions and regularly revise them. This monitoring and rule-making structure became known as the Troika.

The second of the bailout agreements, concluded in 2012, was due to expire on 28 February 2015. Unlike Portugal or Ireland, Greece had not established access to the bond market by the end of its Adjustment Programme. Ending international financing support at the end of February would thus possibly prompt a Greek default. What the next step after the expiry of the 2012 bailout programme should be was put to a national vote on 25 January.

This post will offer an overview of the recent major developments concerning the Greek part of the Eurozone crisis. It will discuss how the Greek government tried to challenge basic elements of the new European economic governance and the outcome of this challenge. In the first part of the post, I present the starting position of the new Greek government (1.), then the legal and political context in which the negotiations took place (2.), and finally the agreement of 20 February 2015 (3.). In my conclusion, I take the position that opponents of austerity should wait to celebrate a victory. “Strict conditionality”, the necessary counterpart of financial assistance according to EU law, proved to be much stricter than many actors thought, both in economic and institutional terms (4.). 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

Top 10 Most Read Posts of the Year

With the end of the third year of operation of the European Law Blog approaching, it is once again time to take a brief look back at the most popular posts of the year. Based on our Google Analytics statistics and keeping in mind that there is a certain bias in favour of older posts which have had more time to become popular, we receive the following little tour d’horizon of EU law… Continue reading

EU-freedom of movement: No protection for the stranded poor

By Gijsbert Vonk

Case-note on C-333/13, Elisabeta Dano v Jobcenter Leipzig

The Dano case goes right to the heart of the debate on social tourism. Are economically inactive EU-citizens, residing in a Member State of which they are not a national, entitled to social assistance which is granted to nationals of that host Member State? Directive 2004/38/EC (the EU Citizenship Directive) does not oblige Member States to provide for such assistance, but Art. 18 TFEU, Regulation 883/2004 on the coordination of social security and the Charter of Fundamental Rights might do so in the end. These were the elements at stake in the Dano case.

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Protocol 16 and the Autonomy of EU law: who is threatening whom?

By Johan Callewaert

On 2 October 2013, the Committee of Ministers of the Council of Europe opened for signature Protocol no. 16 to the European Convention on Human Rights. This new Protocol, which has been referred to as the “Protocol of the dialogue” by Dean Spielmann, the President of the European Court of Human Rights (ECtHR), creates the possibility for supreme courts of the Contracting States to the Convention to request an advisory opinion from the ECtHR on “questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto”[1].

Even though the material scope of Protocol no. 16 is clearly confined to the Convention and its protocols, some concerns have been expressed in the recent past, notably at the recent hearing held by the ECJ on the draft agreement on EU Accession to the Convention (“DAA”), that the use of this new instrument of consultation by courts of the EU Member States might be problematic from the point of view of EU law. More specifically, the question was raised in this context whether Protocol no. 16 would not threaten the autonomy of EU law and the monopoly of the ECJ on the interpretation of EU law, by allowing supreme courts of the Member States to engage in a kind of “forum shopping” between the Luxembourg and Strasbourg courts. This contribution purports to demonstrate that those concerns are unjustified and should not be allowed to undermine the further development of the Convention system initiated by Protocol no. 16. 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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The Biocides judgment: In search of a new chemistry for the principle of EU institutional balance

By Alberto Alemanno

Where to draw the line between delegated acts and implementing acts? That has been the one million dollar question since the entry into force of the Lisbon Treaty. But I did not dare to ask this important question at the final exams of my students a few weeks ago. Why not? Because nobody, not even their teacher (after having spent years of research on the subject), had a plausible answer. However, on 18 March 2014, the Court of Justice in Commission v Parliament and Council, made a first attempt to answer this question. So would I now consider including this question in my next exam? Probably not, because the Court’s answer in this eagerly awaited judgment turns out to be quite hermetic and largely incomplete. Moreover, unfortunately, also the Opinion of the Advocate General – despite its deep analysis and ambitious tenor – failed to provide the necessary clarification to this endless and unsolved conundrum. Having said that, let me provide a brief analysis of this judgment and measure its most immediate impact.

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Joined Cases C-293/12 and 594/12 Digital Rights Ireland and Seitlinger and Others: The Good, the Bad and the Ugly

By Orla Lynskey

In its eagerly anticipated judgment in the Digital Rights Ireland case, the European Court of Justice held that the EU legislature had exceeded the limits of the principle of proportionality in relation to certain provisions of the EU Charter (Articles 7, 8 and 52(1)) by adopting the Data Retention Directive. In this regard, the reasoning of the Court resembled that of its Advocate General (the facts of these proceedings and an analysis of the Advocate General’s Opinion have been the subject of a previous blog post). However, unlike the Advocate General, the Court deemed the Directive to be invalid without limiting the temporal effects of its finding. This post will consider the Court’s main findings before commenting on the good, the bad and the ugly in the judgment. Continue reading

Neues aus dem Elfenbeinturm: March 2014

Strengthening the Rule of Law in Europe

University of Innsbruck, 3-4 April 2014. Registration still open.

Judicial Education and the Art of Judging:  From Myth to Methodology

University of Missouri’s Center for the Study of Dispute Resolution on Friday, 9-10 October 2014. Deadline: 26 May 2014.

Academy of European Law Summer Schools in Human Rights (16-27 June 2014) and EU law (30 June – 11 July 2014)

European University Institute, Florence. Deadline for applications: 10 April 2014.

The outer limits of article 18 TFEU? Case C-628/11 International Jet Management

By Laurens Ankersmit

On the face of it, one might consider the outcome of this Grand Chamber ruling unsurprising. The Court held that EU law precludes German legislation which establishes an authorization requirement for undertakings established in another Member State to provide services in Germany. That authorization requirement was not required for German undertakings, was established for reasons of protecting the national economy (!) and did not factually recognize an operating license granted on the basis of EU legislation by another Member State.

Yet, this ruling concerned the regulation of air transport services, which is not only subject to a particular regime under free movement law, but is also politically highly sensitive (national airlines are still seen as a source of pride by many) and still operates much in an international regulatory context which is not always in line with EU law and policy. The Court was therefore still required to answer some tough legal questions, in particular how to reconcile article 58 (1) TFEU (the prohibition on restrictions to provide services of article 56 TFEU does not apply to transport services which has its own regime) with article 18 TFEU (the prohibition of discrimination on the basis of nationality). The issue was further complicated by the fact that the authorization requirements were only required with respect to flights from and to third countries.

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STC 26/2014: The Spanish Constitutional Court Modifies its case law in response to the CJEU’s Melloni judgment

By Mario García

On 13 February, the Spanish Constitutional Court (“SCC” or the “Court”) handed down its awaited judgment in the Melloni case (STC 26/2014). The case concerned the problematic issue of differing levels of protection of fundamental rights at national and European levels in relation to the execution of a European Arrest Warrant (“EAW”). This affair was the source of the SCC’s first-ever preliminary reference to the Court of Justice of the European Union (“CJEU”). Following the CJEU’s ruling last year (Melloni, Case C-399/11, 26 February 2013), which has already been covered in this blog by V. Franssen, the SCC has now agreed to lower the degree of protection afforded by the Spanish Constitution in line with EU law.

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Melloni as a Wake-up Call – Setting Limits to Higher National Standards of Fundamental Rights’ Protection

By Vanessa Franssen

I plead guilty: this post on the Melloni ruling of the CJEU should have been written long ago. However, instead of invoking attenuating circumstances, I prefer to draw your attention to the reasons why a blog post on this case still is highly relevant today. First, Melloni is a true landmark case with respect to the relation between EU and national standards of fundamental rights in the field of criminal justice. Central issue in this case was whether Member States are still allowed to impose a higher level of fundamental rights’ protection for cross-border cooperation in criminal matters than the standard set by EU law. Second, Melloni has become ‘hot’ again thanks to the recent follow-up judgment of the Spanish Constitutional Court, which shows the real impact of the CJEU’s ruling and which will be discussed in a separate post by M. García García.

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The German Federal Constitutional Court on Outright Monetary Transactions by the European Central Bank – pressing the CJEU or a friendly gesture?

On Friday, February 7th, 2014, the German Federal Constitutional Court (BVerfG) requested the CJEU for preliminary ruling for the first time. The request is exceptional in terms of both European Union law and German constitutional law. Commentators call the decision a Spring in the Desert, a Golden Bridge to Luxembourg or simply put Historic. The BVerfG stated its opinion throughout several decisions regarding fundamental questions between the European Union and its Member States (e.g. Solange I, Solange II, Maastricht, Lisbon), but always abstained from requesting a preliminary ruling. This time, however, the BVerfG indeed submitted a question. The stakes in the case are high, as the BVerfG considers giving an ultra vires ruling regarding a decision by the Governing Council of the European Central Bank (ECB) concerning Outright Monetary Transactions (OMT) unless the CJEU announces that that decision is partially incompatible with primary law or restricts its scope. If the “conditions” laid out by the BVerfG are not met by the CJEU, the decision on OMT will be declared incompatible with the German constitution. The consequence would be that German authorities would not be bound to the decision by the ECB. In other words, the German central bank with around 18 % in capital subscriptions (shares) of the ECB would not participate in OMTs. Continue reading

Neues aus dem Elfenbeinturm: Recent calls for papers from January 2014

Top 10 most read posts of the year

With the end of the year approaching, it is once again time to continue the fine tradition of listing the 10 most read posts of the year for the purpose of this concluding post of 2013. The numbers are as usual based on Google Analytics, and of course it should be warned that they are somewhat biased in favour of older posts which had more time to become popular. But let us have a look nonetheless… Continue reading

Interview with Judge Sacha Prechal Part II: Cooperation with national judges, embedding the internal market and transparency at the CJEU

I would be very hesitant to put hearings on livestream”

Judge Sacha PrechalA while ago we had the privilege of interviewing Judge Sacha Prechal for the European Law Blog about her work at the Court. Sacha Prechal is the current Dutch Judge at the European Court of Justice since June 2010. Before becoming a judge at the Court she was professor in European Law at Utrecht University. She is also a member of the Royal Netherlands Academy of Arts and Sciences and has worked as a legal secretary at the Court prior to her academic career. This is the second part of the interview (the first part can be found here).

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Interview with Judge Sacha Prechal of the European Court of Justice: Part I: Working at the CJEU

“In the past it was a bit of a family, now it is a bit of a factory.”

Judge Sacha PrechalA while ago we had the privilege of interviewing Judge Sacha Prechal for the European Law Blog about her work at the Court. Sacha Prechal is the current Dutch Judge at the European Court of Justice since June 2010. Before becoming a judge at the Court she was professor in European Law at Utrecht University. She is also a member of the Royal Netherlands Academy of Arts and Sciences and has worked as a legal secretary at the Court prior to her academic career.

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Plenty to retain? Opinion of the Advocate General in Joined Cases C-293/12 and 594/12, Digital Rights Ireland ltd and Seitlinger and others

In what circumstances is it possible for the EU to introduce a directive which limits the exercise of fundamental rights guaranteed by the EU Charter? This is just one of the many questions of constitutional significance which the Court is asked to address in Joined Cases C-293/12 and C-594/12.  In his Opinion delivered on 12 December 2013, Advocate General (AG) Cruz Villalón provides plenty of food for thought for the Court. For instance, the Opinion offers interesting yet contestable insights into the relationship between the rights to privacy and data protection in the EU legal order.

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Calling calls for papers: Our new category of posts Neues aus dem Elfenbeinturm

Having received from time to time requests to publish EU-law related calls for papers, we have been reflecting at the blog on how to deal with such requests. We would like the blog to remain mainly a forum for discussion on recent developments in EU (case) law, and have noted that – at least based on the statistics – this seems to meet our viewers’ needs as well. At the same time, we also continue to cover political developments and literature related to EU law, so that it would seem unjustified to exclude calls for papers and similar announcements, as they are arguably part and parcel of the academic development of EU law.

In conclusion, we have decided to have a monthly round-up of calls for papers on this blog. We will call this new category of posts – of course to be taken with a grain of salt – Neues aus dem Elfenbeinturm, news from the ivory tower. For you, distinguished readers, this means that you should please feel free to get in touch with us concerning calls for papers for EU law-related (!) topics. However, we kindly ask for your understanding that we will not publish your call immediately and as such, but in a shortened form in our monthly round-up; also, we take the liberty of refusing calls for papers that are in our view not sufficiently relevant for our readership. Looking forward to hearing from you! And now for our first admittedly short round-up… Continue reading

National Parliaments Issue Yellow Card against the European Public Prosecutor’s Office

Some time ago, I discussed here the European Commission’s proposal on the establishment of the European Public Prosecutor’s Office (‘EPPO proposal’). As I pointed out, this proposal adopts a ‘federal’ logic, aiming at an EU-wide criminal law enforcement of fraud against the financial interests of the Union (in short: EU fraud). The EPPO, when and if created, would have exclusive competence to investigate and prosecute EU fraud,[1] thereby excluding any prosecutorial discretion at national level. What is more, the involvement of Eurojust would be reduced to an absolute minimum, even though Eurojust has acquired a lot of expertise over the years in coordinating and supporting criminal investigations and prosecutions of EU fraud. With this proposal, the Commission clearly wants to move away from the ‘old’ intergovernmental approach of the pre-Lisbon era.

As one could expect, the Commission’s federal approach triggered many negative reactions. By the deadline of 28 October 2013, national Parliaments of fourteen Member States expressed their critical concerns regarding the Commission’s EPPO proposal. Eleven of them even formally submitted a reasoned opinion, objecting that, for a variety of reasons (infra), the proposal does not respect the principle of subsidiarity. By using the Early Warning System laid down in Article 7 of Protocol No 2 to the Lisbon Treaty on the application of the principles of subsidiarity and proportionality, these national Parliaments issue a so-called ‘yellow card’ against the EPPO proposal. Strictly speaking, the German Bundesrat did not issue a reasoned opinion, but its report clearly shares some concerns of subsidiarity. Similarly, the Polish Senate criticizes the EPPO’s exclusive competence for not being in compliance with the principle of proportionality. Lastly, the Austrian National Council does not reject the EPPO proposal, but nonetheless identifies four major points of concern.

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