I. Introduction: A New Initiative for UK nationals After Brexit?
On 11 January 2016, the European Commission registered a European Citizens Initiative to create a “European Free Movement Instrument”. The purpose of the Initiative is to lobby the European Union institutions to create a mechanism by which individuals may be directly granted the rights of free movement provided by EU citizenship, which is currently predicated upon nationality of a Member State in accordance with Article 20 TFEU. The proposers of the Initiative – the “Choose Freedom Campaign” – outline that their intention is not to reform the nature of Citizenship of the European Union; they concede that “the EU isn’t a government, and only Nation states can issue Citizenship”. Instead, their ambition is more limited – they argue that the European Union should institute a “Universal Mechanism” in order to provide individuals with a European Union passport: “we beg the Commission to delineate a method by which all Europeans of good standing may be granted a signal & permanent instrument of their status and of their right to free movement through the Union by way of a unified document of laissez-passer as permitted by Article (4) of Council Regulation 1417/2013, or by another method”.
Although the information on the Initiative on the Commission’s website and the accompanying press release do not explicitly link the putative Free Movement Mechanism to Brexit, it seems clear that such a competence for the European Union to directly issue EU passports would address the loss of rights that will be attendant to UK nationals losing the status of EU citizenship provided to them through nationality of a Member State once the United Kingdom has withdrawn in accordance with Article 50 TEU. Continue reading →
Is a harmonised technical standard (HTS) developed in response to the Commission’s mandate, a provision of EU Law? Up until recently, this issue has not been raised before the CJEU, much to academics’ surprise working in this field. Contractual litigation in James Elliott Construction became a trigger for the inquiry about the legal nature of HTS. The Court handed down its judgment on 27 October 2016, nine months after the Advocate General’s (AG) Opinion was published. Two blog posts discussed the AG’s Opinion and offered divergent analysis thereof.
The judgment, in essence, followed the AG’s Opinion resulting in the finding that an HTS is a part of EU law. The Court’s line of argumentation, as opposed to the AG’s, is remarkably cautious. In short, the Court regarded privately produced technical rule-HTS, as a provision of EU law. At the same time, the ECJ was extremely keen to prevent an HTS from having effects on a contractual relationship or on the Irish Law on Sale of Goods. Continue reading →
During her speech at the Conservative Party conference on Sunday, Prime Minister Theresa May stated that the UK would be notifying the European Council of its intention to withdraw from the EU in accordance with Article 50(1) TEU by the end of March 2017 at the latest.
“Well, it’s for the European Union, the remaining members of the EU have to decide what the process of negotiation is. I hope, and I’ll be saying to them, that now that they know what our timing is going to be, it’s not an exact date but they know it’ll be in the first quarter of next year, that we’ll be able to have some preparatory work, so that once the trigger comes we have a smoother process of negotiation.”
Shortly after this announcement, European Council President Donald Tusk took to Twitter, stating that once Article 50 had been triggered, the remaining 27 EU Member States would “engage to safeguard [their] interests” – thus suggesting that no preliminary negotiations shall be conducted prior to such notification.
This exchange raises a fundamental question about the Article 50 TEU withdrawal process that has not yet been fully considered; namely, what role will the European Council play in this process? Continue reading →
There seems to be a common assumption (see, among many others, here 3.6, here or here at 14:00) that there is a distinction between two kinds of « post-Brexit agreements », i.e. the withdrawal agreement (the divorce settlement) and the agreement regarding the future relationship between the United Kingdom (UK) and the European Union (EU). However, this distinction is, in fact, not very clear. It raises, in particular, several questions related to the legal basis and the nature (exclusive or not) of the withdrawal agreement. This contribution aims to clarify the distinction between these two agreements and identify the legal difficulties arising from their articulation. It will be argued that, due to some legal uncertainties, the negotiators of these agreements should be careful of their respective contents. Continue reading →
If the UK withdraws from the EU, then its citizens will cease to be citizens of the Union. That much is simple – Article 20 TFEU doesn’t leave any doubt that Union citizens are those who are citizens of the Member States.
Still, while that provision was once thought to make Union citizenship dependent on national citizenship, in Rottmann the Court turned it neatly around, showing how it made national citizenship equally dependent on EU law. In that case a German citizen was faced with threatened denaturalisation, which would be likely to leave him stateless. He argued that the denaturalisation, because it also deprived him of his Union citizenship, was an interference with his EU law rights, and so should be constrained by EU law.
He won on the principle, although he probably lost on the facts: the Court said that indeed, a national measure which deprives a Union citizen of their Union citizenship clearly falls within the scope of EU law, and is therefore subject to judicial review in the light of EU law rules and principles. However, it went on to say that such a measure is not per se prohibited. It must merely be proportionate. Denaturalising fraudsters probably is, in most circumstances. Continue reading →
The British people voted by a majority of just over million people to leave the EU. Some have hailed this unprecedented decision as a return to sovereignty and a reassertion of British prominence on the global stage. Others mourn the outcome, believing it to represent a lurch towards splendid isolation and irrelevance. The vote laid bare a number of hard truths for both sides. While the close margin was largely anticipated, a negative and divisive campaign has meant that there is little common ground on which both the Remain and Leave camps can build. The results also exposed the extent of the inter-generational divide within the UK. Young voters chose by a large majority to remain while older voters chose to leave. This has led to the obvious recrimination that having reaped the benefits of EU membership for decades, older voters are depriving younger generations of these opportunities and deepening existing inequalities. The EU may, however, take some hope from this vote of confidence from the British youth.
Beyond the political, economic and social implications of the result within the UK and for the EU, the vote will have significant legal consequences. In the coming months, we will attempt to identify the legal questions that Brexit will entail. A few spring to mind: Is the UK bound to invoke the Article 50 procedure? (The political establishment in the UK appear to think not.) What happens to the international (trade) agreements concluded jointly by the EU and the UK? How will the border between Northern Ireland – which voted to Remain but will become an external border of the EU – and the Republic of Ireland be policed and what impact will this have on the Good Friday Peace Agreement? What – if any – immediate implications will this have for British MEPs, the CJEU, Commission officials, for the Council and – of course – for the British Presidency of the Council in 2017? Will Assange no longer have to fear for extradition to Sweden? What will happen to the more than one million UK citizens living and working in Europe? And what will happen to EU citizens living and working in the UK (including, for instance, professional football players)? How will the UK’s environmental law and policy be affected, as, for instance, REACH will no longer be applicable in the UK? How will the Brexit vote affect the development of the digital single market or the future funding of scientific research?
A particularly worrying feature of the UK referendum campaign, visible in the US Presidential Elections and elsewhere – is the vilification of ‘experts’ and the willing disregard of evidence. Nevertheless, as lawyers we must continue to rely on such evidence and expertise to negotiate the legal issues this vote will raise. All contributions to this blog on these legal implications are very welcome – informed expert opinion matters.
The James Elliott Construction case brings before the Court of Justice (ECJ), for the first time, the issue of whether it is within the Court’s jurisdiction to give preliminary rulings on harmonised technical standards (HSs). This contribution will analyse Advocate General (AG) Campos Sánchez-Bordona’s Opinion in this case, in particular its potential effects on the legal status and copyright protection of HSs. It will also discuss, more generally, the legality of the delegation of rule-making powers to the European Standard Bodies (ESBs). If the Court follows the AG’s opinion it will most certainly craft a New Approach to the New Approach.Continue reading →
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 →
In this Grand Chamber judgment the Court gave important guidance on the interpretation of the new TFEU provisions 43 (2) and (3). These provisions provide a legal basis for the Common Agricultural Policy (CAP) and the Common Fisheries Policy (CFP) and replace the old article 37 EC. Significantly, article 43 (2) TFEU makes the CFP subject to the ordinary legislative procedure and thus gives the Parliament a new and important role in the CAP and the CFP. Under the old article 37 EC the Parliament was only consulted. Article 43 (3), on the other hand, provides that the Council shall adopt measures ‘fixing and allocation of fishing opportunities’ without any role for the Parliament.
In this judgment, the Court found a clear hierarchical relationship between the two provisions in the context of the CFP which was already addressed by the Court in the Venezuela judgment (2014). Article 43 (2) is reserved for policy decisions whereas article 43 (3) TFEU is to be used mainly for measures implementing those policy decisions. Policy decisions also encompass determining the mechanism for calculating fishing limits. However, the Court did not accept the analogy between article 291 (2) TFEU and article 43 (3) TFEU. The judgment is an important victory for the European Parliament and strengthens and shapes its role in the determination of the Common Fisheries Policy, one of the major policy areas of the Union. Indeed, as the Advocate General pointed out, ‘in constitutional terms, the importance of the present cases can hardly be overestimated’.
On Wednesday Koen Lenaerts was elected President of the European Court of Justice by the Judges of the Court for the term of three years. Mr Lenaerts succeeds Vassilios Skouris who had been president for the last twelve years. Mr Lenaerts is the second Belgian President of the Court after Josse Mertens de Wilmars (1980-1984) and had been Vice-President for the past three years. Also elected: Mr Tizzano as the new Vice-President of the Court and the Presidents of the different chambers.
[Edit: there is an interesting interview with Mr Lenaerts by Wall Street Journal journalist Valentina Pop. You can find it here.]
We take this opportunity to congratulate Mr Lenaerts, Mr Tizzano and the other elected Presidents and discuss some of the institutional and historical aspects of today’s elections. Continue reading →
Recent media coverage of the EU Court of Justice suggests that the period of ‘benign neglect by the powers that be and the mass media’ – once described by Professor Eric Stein – may well be truly over once and for all. The most unexpected aspect of this rather unique level of media attention is that it does not directly concern any particular judicial ruling by a Court, which, since it decided its first case in 1954, has issued more than 28,000 judgments and orders. Instead, the Court of Justice (CJ) and its President, Mr Vassilios Skouris, have been subject to unprecedented media scrutiny following intense internal infighting about a contentious proposal which officially aims to ‘reinforce the efficiency of justice at EU level’ by doubling the number of judges working at the General Court (GC).
This post concerns an interesting case (commented on by Steve Peers a while ago) on one of the main powers of the Commission that accompanies its right to initiate legislation: its right to withdraw a proposal. In Case C-409/13 Council v. Commission the Grand Chamber of the Court had to decide on the limits of this power to withdraw and its judgment has important implications for the balance of powers among the EU’s institutions. In a nutshell, the Court required the Commission to state reasons for an act of withdrawal and even assessed the Commission’s actions on the merits. While this means that withdrawals by the Commission may be challenged on both procedural and substantive grounds, the Court did nonetheless exercise deference towards the Commission. The case may have implications for the Commission’s controversial policy to ‘improve’ EU rules by inter alia withdrawing proposals for ‘unnecessary’ legislation in the future, although the deadline for challenging the withdrawal of the circular economy legislative package has already passed. Continue reading →
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 →
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).