Category: General

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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The seal product cases (III): CJEU confirms GC and AG analysis of the concept ‘regulatory act’ in article 263 TFEU

The Grand Chamber today dismissed the appeal by the seal hunters to annul the basic regulation prohibiting the marketing of seal products on the EU internal market. As expected, the CJEU held that the seal hunters lacked standing to challenge a legislative act. This does not mean that the seal hunters will not prevail in the end (although I doubt it), as they have also challenged the Commission implementing Regulation, which will enable them to challenge the basic Regulation too (the decision of the GC in that case can be found here and my comments are here). What makes the judgment worth mentioning here though, is the more general relevance of the Grand Chamber’s interpretation of the concept of a ‘regulatory act’. This concept was introduced with the Lisbon Treaty and was intended to make it easier to challenge EU legal acts which were not of a legislative nature.

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AG Cruz Villalón in C-176/12 AMS: Rights vs. principles and the horizontal effect of Charter provisions Ante Portas

On July 18th, Advocate General Cruz Villalón delivered a fascinating opinion in a case that could very well keep quite a number of scholars interested in EU fundamental rights law busy for a while. In Association de Médiation Sociale  not yet available in English as far as I can see) the Court is confronted with a set of fundamental questions. First, whether the workers’ right to information and consultation within the undertaking as enshrined in Article 27 of the Charter and implemented through Directive 2002/14 establishing a framework for informing and consulting employees in the Union can be applied in a legal dispute between two private parties, i.e. on its potential horizontal effect. Second, this also implies discussing – for the first time explicitly – the difference between rights and principles enshrined in Articles 51 (1) and 52 (5) of the EU Charter of Fundamental Rights. In particular, this requires shedding light on the notion of implementation of principles, as Article 52 (5) speaks of principles being ‘judicially cognisable’ only in the interpretation of their implementing acts and the ruling on their legality. Third, the act with which the Union implemented the principle in the present context is a directive, which again raises the question as to the limits to the effect of directives in a legal dispute between private parties, as has already caused problems in well-known cases like Mangold  and Kücükdeveci. As the opinion is already quite comprehensive, I’ll keep my comments to the minimum to not try our readers’ patience.

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Proposed Regulation on the European Public Prosecutor – Thinking Federal?

On 17 July 2013 the European Commission launched its proposal on the European Public Prosecutor’s Office (‘Proposed EPPO Regulation’). With this proposal, the Commission aims at improving the enforcement of offences affecting the EU’s financial interests and thereby at increasing the deterrent effect of law enforcement. At present, those offences are investigated and prosecuted by national prosecution authorities, to be brought to trial before national courts. This approach is however deemed inadequate. Offences affecting the EU budget are usually complex cases with a cross-border dimension and ‘of secondary importance’ for national prosecutors.[1] Moreover, statistics used by the Commission show substantial differences in enforcement between the various Member States.[2] With the establishment of an EPPO, this should change significantly.[3] Most notable is the shift from administrative investigations, as they are now conducted by OLAF (i.e., the EU’s antifraud office), to criminal investigations by the EPPO, a new EU judicial body.

The idea of an EPPO is far from new. The first concrete proposals in that direction saw the light in the Corpus Juris (1997, finalised in 2000). This research project proposed an extensive harmonisation of national criminal procedure, which was politically unacceptable at the time. In 2001, the European Commission presented a Green Paper, which took an entirely different approach based on the principle of mutual recognition. The EPPO would apply national criminal procedure rules when investigating, prosecuting and bringing to trial offences against the Union’s financial interests. After a very critical public consultation, which revealed numerous pitfalls,[4] the EPPO ‘dream’ was shelved for a few years, until it resurfaced in the Lisbon Treaty. Article 86 Treaty on the Functioning of the European Union (‘TFEU’) now provides an explicit formal basis for the creation of an EPPO. It determines the applicable legislative procedure and instrument, as well as the scope and competence of the future EPPO. Other aspects are left to the wisdom and discretion of the EU legislator.[5] The current Commission proposal is based on Article 86 TFEU, and draws inspiration from the Draft Model Rules, which resulted from a triple EPPO research project funded by the Commission.

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POMFR: Proportionality Analysis and Models of Judicial Review

Proportionality is a legal principle that allows (or requires) balancing between competing values. This enables judges to decide whether a measure has gone beyond what is required to attain a legitimate goal and whether its claimed benefits exceed the costs. Originating most clearly in German 19th century administrative law, proportionality has become a standard feature of constitutional analysis: since the Second World War it has gradually spread worldwide.[1] With the work of in particular Robert Alexy a common theoretical framework has become available.[2] Yet at the same time the way in which proportionality is actually applied varies widely – not just between jurisdictions, but within them. For instance, instead of strict balancing between values a necessity test is often applied.[3]

In his book, based on his PhD thesis at the Graduate Institute of Geneva, Benedikt Pirker claims that such differences can be explained by the institutional context of the balancing. Determining the nature of the test required is done by means of pre-balancing, an exercise looking at the particular situation of the reviewing tribunal. In his opening theoretical chapter Pirker argues that this in turn leads to the adoption of either of two models: (i) equal representation review; or (ii) special interest review. The essential difference is whether the values that are balanced are a priori deemed to be of comparable significance, in which case strict balancing is feasible, or whether one of the interests is from the outset held to be of preponderant value, in which case an alternative test like necessity becomes the judicial norm.

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EU Law and MOOCs: A marriage waiting to happen

In view of the current hype on Massive Open Online Courses (MOOCs), spawning recently a grant competition of the Stifterverband für die Deutsche Wissenschaft and iversity for courses to be hosted, publicly available and free of charge, on a Europe-based MOOC platform, a few thoughts an EU law, legal education and MOOCs are in order. It should be added at the outset that the author of this post is coordinating one of the bids for a MOOC grant for a course entitled “Europe in the World: Law and Policy Aspects of the EU in Global Governance”, which makes him particularly invested in this issue. The author is grateful to European Law Blog Team that he was granted the opportunity to share his thoughts on these developments, as well as his bid, in the form of this post.

Transnational law meets transnational education

Ever since Prof. Sebastian Thrun’s historic feat of attracting more than 150,000 students to his Massive Open Online Course on artificial intelligence two years ago, MOOCs have started to shake up the landscape and minds of higher education. In a kind of “gold rush”, academics want to join this remarkable development, and companies are being founded to provide platforms for such ventures, predominantly in the US, but also more recently in Europe. Beyond subjects closer to technology, such as computer science or engineering, the social sciences and humanities have also come to feel the potential and attraction of MOOCs. Continue reading

Multi-Speed Europe: Enhanced Cooperation or Increased Litigation?

Background

The idea of a ‘multi-speed Europe’ finds its concrete expression in a range of European Union (EU) policy fields from the single currency to EU criminal law. As the product of specific treaty authorizations, these examples of ‘enhanced cooperation’ have become a familiar means by which European integration has deepened while allowing individual states to avoid being bound by measures adopted in a new field of cooperation. With the Amsterdam Treaty, a new capacity was created to deploy enhanced cooperation on a more ad hoc policy issue basis, particularly where legislative negotiations had failed to resolve disagreements between Member States.

Yet the new capacity remained unused until after the entry into force of the Lisbon Treaty, which amended the provisions on enhanced cooperation (now Article 20 TEU and Articles 326-334 TFEU). The new provisions were deployed for the first time to permit a group of states to adopt a regulation on the law applicable to divorce and legal separation. However, it was the second authorization of enhanced cooperation in the area of the EU unitary patent which was more controversial and which gave rise to legal actions by Spain and Italy seeking an annulment of the authorizing decision. Both states had objected to the proposal to restrict the languages used for submission of patent applications to English, French and German. In the absence of the unanimity required for the establishment of the language regime (Article 118 TFEU), legislative negotiations had reached a stalemate and so the decision was taken by the Member States – with the exception of Spain and Italy – to authorize enhanced cooperation. The two countries then brought legal proceedings seeking the annulment of the authorizing decision.

This post considers the implications of this litigation for the use of enhanced cooperation with a particular eye towards the legal action which has been launched by the United Kingdom challenging the use of enhanced cooperation for the adoption of the controversial Financial Transactions Tax (FTT). Continue reading

On the Rocky Road to Accession: Final Draft of EU’s Accession Agreement to ECHR Approved

“The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.” Article 6, paragraph 2, TEU

The EU took another step towards accession to the ECHR with the finalization, late last week, of the Draft Revised Agreement on the Accession of the EU to the ECHR, after almost three years of negotiations.

However, as Antoine Buyse notes over on ECHR Blog, the road to accession remains long and winding. The next hurdle will be to request an opinion from the Court of Justice on the compatibility of the agreement with the EU Treaties, pursuant to Article 218(11) TFEU. The agreement would then require the unanimous approval of the Council, in addition to the approval of all Member States “in accordance with their respective constitutional requirements” (Article 218(8) TFEU). Finally, the agreement will have to be ratified by all States of the ECHR. Continue reading

Leth: Court Rules Out Francovich Claim on the Basis of the Environmental Impact Assessment Directive

The facts of the Leth case are relatively simple. Ms. Leth bought a house close to Vienna-Schwechat Airport. However, following her purchase of that property, several works were carried out on the airport, most probably increasing the use and thus noise it produced. Probably much to miss Leth’s disliking, it further turned out that many of these works were carried out without any environmental impact assessment. The reason for this absence of an environmental impact assessment was a belief on the part of the Austrian authorities that no such assessment was necessary on the basis of the national laws implementing the Environmental Impact Assessment Directive (Currently codified in the EIA Directive). This is a widely held belief on the part of authorities that prefer executive action over cumbersome procedures that are time-consuming and costly. However, often this belief is the result more of a desired outcome than a correct interpretation of the EIA Directive, making this one of the most frequently invoked directives in EU environmental law. Indeed, significant aspects of direct effect have been established and refined on the basis of cases turning on the EIA Directive (think of Kraaijeveld and Wells).

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Casting the net of fundamental rights protection: C-617/10 Åkerberg Fransson

Today’s decision by the Grand Chamber in C-617/10 Åkerberg Fransson is a landmark decision on the scope of the Charter of Fundamental Rights, EU constitutional law, and the relationship between national and EU law in general. As I explained in an earlier post, it was not clear, until today, whether the Charter had the same scope of fundamental rights protection as under the ‘old’ regime of fundamental rights protection ensured by the CJEU. The CJEU dealt with the issue head on stating that article 51 (1) of the Charter ‘confirms the Court’s case-law relating to the extent to which actions of the Member States must comply with the requirements flowing from the fundamental rights guaranteed in the legal order of the European Union’ (para. 18).

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