Category: Institutional law

Joined Cases C‑124/13 and C‑125/13: the Court strengthens the role of the Parliament in the CFP

By Laurens Ankersmit

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’.

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Koen Lenaerts elected President of the European Court of Justice

By the editors

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

Reform of the EU’s Court System: Why a more accountable – not a larger – Court is the way forward

By Alberto Alemanno and Laurent Pech

This post originally appeared on the Verfassungsblog.

Introduction

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).

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Curtailing the Commission’s right to withdraw: Case C-409/13 Council v. Commission

By Laurens Ankersmit

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

C-81/13 UK v Council – Third time and still no charm?

By Michal Kutlík

1.       Introduction

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

Opinion 2/13 of the Court of Justice on Access of the EU to the ECHR – One step ahead and two steps back

By Stefan Reitemeyer and Benedikt Pirker

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).

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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

The AG’s opinion on the Outright Monetary Transactions Case

By Daniela Jaros

On January 14, Advocate General (AG) Cruz-Villalón issued his opinion in the reference for a preliminary ruling on Gauweiler et al. v Deutscher Bundestag on the ECB’s Outright Monetary Transactions (OMT). The OMT Programme launched in September 2012 was part of a series of measures taken by the ECB in response to the Euro crisis accompanying the loan facilities (European Financial Stability Facility – EFSF, European Stability Mechansim – ESM).

The German Constitutional Court (Bundesverfassungsgericht, “BVerfG”) had asked the Court of Justice (CJEU) two questions in what it classified as an ultra vires review of acts of the European Union. Roughly speaking, the BVerfG wanted to check whether the European Central Bank (ECB) had transgressed the limits of its powers derived from the treaties. If the ECB had, this would have consequences for the constitutional identity of Germany. Therefore, the BVerfG first wanted clarification on whether the Outright Monetary Transactions (OMT) Programme was an economic rather than a monetary measure and whether the ECB had therefore exceeded its powers by establishing it.  Second, the BVerfG raised the question whether the OMT programme was not violating the prohibition of monetary financing of Member State. Continue reading

POMFR: José Luís Da Cruz Vilaça, EU Law and Integration: Twenty Years of Judicial Application of EU Law

By Tim Corthaut

Sometimes a book wins you over, and José Luís Da Cruz Vilaça’s EU Law and Integration: Twenty Years of Judicial Application of EU Law (Oxford/Portland, Hart 2014), is such a book.

I must admit that I had some reservations at first over the concept of the book, which is in essence an overview of the legal career – both as a legal scholar and a judge – of José Luís Da Cruz Vilaça, on the basis of a series of articles on different topics written over the course of two decades. Books like this only stand out if they can avoid three traps. 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

Case C-261/13 P Schönberger v Parliament: Petitioners behold

By Michal Kutlík

A perceptive follower of the development of the case-law on access to court and justice in general might have noticed that the less willing the Court of Justice to loosen up the constraints in regard of the locus standi for non-privileged applicants, the more generous it seems to be towards the actual acts which can be amenable to judicial review. Be it for the reasons of democracy and rule of law or for the broadening of its competences, it is apparent that the Court is following this path.

This post shall provide a concise view on one of such cases, namely the recent judgment of the Grand Chamber of the Court of Justice in case C-261/13 P Schönberger v Parliament, where the Court assessed the decisions adopted by the Petitions Committee of the European Parliament (Parliament), by which a petition is either found admissible and further processed or declared inadmissible, in view of the possibility to challenge such decisions before the EU Courts. Continue reading

Requiring ‘unity first’ in relations with third states: the Court continues ERTA-doctrine in Opinion 1/13

 By Laurens Ankersmit

In last Tuesday’s Opinion (Grand Chamber) following an article 218 (11) request by the Commission, the Court confirmed that the acceptance of the accession of an non-Union country to the 1980 The Hague Convention on child abduction fell within the EU’s exclusive competence. As a consequence, the decision to accept accession of a third state can only be taken after the Council has taken a decision on the matter, and Member States can no longer decide that third countries can accede and establish bilateral obligations on their own. The Court rejected the position taken by 19 out of 20 Member States who submitted observations to the Court, and once again supported the view that EU Member States are required to act jointly first in matters which may affect the EU legal order. The judgment is particularly noteworthy because;

  • The Court’s interpretation on the scope and meaning of the article 218 (11) TFEU request;
  • The confirmation of the ERTA-case-law post-Lisbon.

This blogpost will consider both points in turn. Continue reading

Democratic scrutiny of EU foreign policy: From pirates to the power of the people (Case C-658/11 Parliament v. Council)

By Joris Larik

Opinions may differ on what is the “most dangerous branch” in the EU. However, at the moment the most ambitious institution regarding the expansion of its powers is doubtlessly the European Parliament (EP). The recent judgment in Case C-658/11 Parliament v. Council shows that even the Union’s traditionally “sovereignty-sensitive” Common Foreign and Security Policy (CFSP) is not immune to the Parliament’s advances.

Wielding the all-powerful mantra of “democratic legitimacy” (on the concept in transnational context, see this recently published Special Report), the EP has a decades-long history of increasing its influence in European politics. In recent months, it could celebrate important victories by interpreting the new rules laid down in the post-Lisbon reform EU Treaties in its favour. The most prominent triumph concerned the first ever election, and no longer mere approval, of the new Commission President by the Parliament. By proposing Jean-Claude Juncker as the prevailing Spitzenkandidat, the European Council acquiesced to the Parliament and set an important precedent for the future direction of the European polity. 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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Completing the Banking Union

By Barbera Reisenhofer and Daniela Jaros

While the Eurozone crisis started as banking crisis which turned into a sovereign debt crisis simultaneously leading to the crisis of the monetary union, the first measures taken (bilateral loans to Greece, the EFSF, the ESM, the ECB’s SMP and later OMTs, the Six-Pack and the TSCG) were primarily meant to stabilize and contain the ongoing crisis. The Banking Union, however, completed through the recent agreement on the Single Resolution Mechanism (SRM), is a further, forward-looking step. More than to contain, it is meant to prevent crises of the kind just experienced. It has rightly been described as the most ambitious integration project since the creation of the single currency as it leads to its members transferring the control of their biggest banks to the supranational level.

The Banking Union consists of two pillars – the Single Supervisory Mechanism (SSM) and the Single Resolution Mechanism (SRM). Continue reading

The legal limits to ‘agencification’ in the EU? Case C-270/12 UK v Parliament and Council

This important constitutional case of last week deals with the legal limits of the proliferation of agencies within the EU and their powers imposed by EU constitutional law, and in particular with the Meroni (1958) and Romano (1981) judgments as well as the new constitutional structure created with the Lisbon Treaty with respect to delegated and implementing powers. The case presented an opportunity for the Court, as the Advocate General had put it, ‘to balance the functional benefits and independence of agencies against the possibility of them becoming “uncontrollable centres of arbitrary power”’(para 19). The Court concluded that the fears of the United Kingdom in relation to the powers of the European Securities and Market Authority (‘ESMA’) to intervene in the financial assets and securities markets were unfounded, and by doing so clarified that articles 290 and 291 TFEU do not present a closed system of delegating regulatory powers. The judgement solidifies the legality of much of the EU’s practice in having recourse to specialized agencies to deal with issues which require a certain level of expertise. In this blog post, I will highlight the three main aspects of the judgement:

  • the compatibility of the EU’s delegation of powers to ESMA with the Meroni and Romano judgments;
  • its compatibility with articles 290 and 291 TFEU;
  • its compatibility with the principle of conferral of powers in relation to article 114 TFEU. Continue reading

The recent landmark cases on the reasonable time requirement: Is the Court caught between Scylla and Charybdis?

In the landmark cases Kendrion, Gascogne and Gascogne Germany  the CJEU clarified some important procedural issues related to infringements of the reasonable time requirement. The most important legal question that the CJEU tackled is what is the appropriate remedy for infringements of the right to have the case adjudicated within a reasonable time. The CJEU had two options: the first one was to follow the Baustahlgewebe judgment in which the CJEU had concluded that the proceedings were excessively lengthy and subsequently reduced the fine the Commission had imposed upon the undertakings. The second was to follow the Der Grüne Punkt judgment where the CJEU also concluded that there had been an infringement, but required instead a separate action for damages to be lodged before the General Court. Following this path would, however, mean that the General Court itself would have to assess whether, and to what extent, the parties suffered any harm due to the  excessive length of proceedings. In the present cases, the CJEU has opted for the second solution.

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Commission v. Council: the saga over the scope of the CCP continues

This blogpost concerns probably my favorite EU law topic: the scope of the Common Commercial Policy (CCP). The scope of the CCP as a source of litigation between the Council and the Commission goes way back and most likely will continue to be so for a considerable time. The reasons are quite simple: the Common Commercial Policy is an important foreign policy tool and exclusive EU competence. As such, Member States are not entitled to act within this politically sensitive field. This is different with respect to shared competences of course, which enable Member States – subject to the Treaties – to continue to make policy that is not in violation of existing secondary legislation. In the most recent edition of this feud between the Commission and the Council, the scope of the Common Commercial Policy was at issue vis-à-vis the scope of internal market competences. Litigation in the past has usually evolved around the relationship between trade (art. 207 TFEU) and environment (art. 192 TFEU), so this case is a welcome variant to that strand of case law already explored in the Daiichi Sankyo case (commented here). In this case the Commission won yet another victory against the Council.

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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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