Should EU secondary legislation be reviewed against the benchmark of the provisions of an international agreement? In 2012 the General Court answered this question in the affirmative and annulled two decisions of the Commission which were based on a regulation which was deemed incompatible with the Aarhus Convention. However, the EU institutions appealed against those judgments. Consequently, in cases C‑401 to 403/12, Council e.a. v. Vereniging Milieudefensie and C-404 and 405/12, Council v. Stichting Natuur en Milieu e.a., the Grand Chamber of the Court was confronted with the same question. There is already quite some case law on the topic of review of legality within the EU legal order in light of international obligations of the EU, typically with the Court being hesitant to undertake such review. In the cases involving the Vereniging Milieudefensie and the Stichting Natuur en Milieu, the General Court and the Advocate General made, in my view, some valuable suggestions in favour of reviewing EU law against international agreements. Unfortunately, the Court decided to stick to its guns, thus continuing in the line of its own previous jurisprudence, and annulled the General Court’s judgments. The result leaves a somewhat sour taste for those who think that EU institutions and their legal acts should be amenable to judicial review under reasonable conditions. Not only is the very purpose of the EU regulation at issue to implement the obligations arising from the Aarhus Convention, but the Grand Chamber’s view also leads to a lacuna in legal protection in EU law exactly where the central aim of the Aarhus Convention would in theory be to provide individuals with access to justice. Continue reading →
At the time of writing, EU scholars and lawyers are still eagerly awaiting the Court’s verdict on the compatibility of the EU/ECHR Accession Agreement with the Union Treaties (Opinion 2/13 is to be delivered on 18 December 2014 and hopes are high that accession may proceed as smoothly as possible and without any major amendments to the agreement). In the meantime – pre-Christmas stress allowing – I can only recommend the latest academic contribution to this topic, a volume co-edited by Vasiliki Kosta, Nikos Skoutaris and Vassilis P. Tzevelekos, concisely entitled The EU Accession to the ECHR (Hart Publishing, 2014). Even though the issue of the EU’s accession to the European Convention on Human Rights is almost as old as the Union itself, this book aptly brings the debate again to the spotlight and discusses the intricate nitty-gritties of this historically unprecedented step in a clear and precise manner. And whatever the outcome of Opinion 2/13 might be, human rights in Europe undoubtedly form part and parcel of the European ‘constitutional’ public order – a development to which the case law of the Court of Justice and the entry into force of the Charter of Fundamental Rights have successfully contributed. Accession remains the missing building block in the edifice of European human rights law, which is intended to close the last gaps in the protection of individual rights by subjecting the EU and its institutions to the external supervision of the European Court of Human Rights. Thus, as the editors correctly state, ‘the post-accession order will be structured on a vertical basis confirming that the last say in human rights will rest with the Strasbourg Court’ (p. 4). Continue reading →
What is an ‘internal armed conflict’ in EU law? This was a question which the Belgian Conseil d’État referred to the Court of Justice of the European Union (CJEU), asking in essence whether this concept is to be understood as defined in international humanitarian law (IHL) or as a term with an independent meaning in the Union legal order.
On 30 January 2014, the CJEU gave its answer in the Diakité judgment, which concerns the granting of ‘subsidiary protection’ to third country nationals as well as stateless persons who seek refuge in the EU from such ‘internal armed conflicts’. By giving an autonomous meaning to the latter term in EU law, the CJEU has spoken up for a lower threshold for receiving such status throughout the 28 Member States. While this is, from a legal point of view, a highly interesting case with regard to the relationship between EU law and international law, it amounts, more practically speaking, to good news for all those in search of shelter from violence-ridden regions on a continent marked by an increasing reluctance to welcome foreigners (note most recently the successful Swiss referendum on limiting mass immigration). Continue reading →
Is the Kadi case law of the Court of Justice of the EU to public international lawyers what the acquittal of O.J. Simpson in 1995 was to conservative white people in the USA? Did the CJEU simply sacrifice the supremacy of the UN Charter because it bought into the legal tricks of a Saudi businessman and his legal team, persuading the judges in Luxembourg by arguing that, to paraphrase the late Johnnie Cochran: ‘If the legal orders don’t fit, you must acquit’?
This July, the CJEU handed down the latest – and probably final – instalment of this legal saga which has captivated both EU and international law scholars for many years. Thanks what is commonly known as the Kadi II judgment, the academic year 2013/14 starts off with the end of what was undoubtedly one of the most vividly discussed series of cases in Luxembourg, not least if you’re interested in EU constitutionalism, fundamental rights and due process, external relations, international security and the fight against global terrorism, as well as, last but not least, the supremacy of the UN Charter in international law.
Alright, we admit it, the topic of the EU’s accession to the European Convention on Human Rights is indeed intriguing us quite a bit here at the blog, as some of our recent contributions (see here and here) demonstrate. But like probably many, if not most of our readers, as EU lawyers we are drawn like moths toward lights by such an important constitutional development; there is simply no helping. I am thus again giving in to the temptation and will briefly discuss a recent book, Paul Gragl’s The Accession of the European Union to the European Convention on Human Rights (Hart Publishing 2013) which treats this phenomenon in detail. For the purpose of this POMFR, I will start by briefly outlining the structure followed by the book, to continue then with a number of points I would like to comment on.
The moment has come to deliver on this blog’s promise of looking beyond the realm of the English language. For this POMFR post, I would like to present a recently published Festschrift which contains a number of contributions of interest to EU lawyers capable of reading German.
Der Staat im Recht is a Festschrift for Professor Eckart Klein, formerly Ordinarius at the University of Potsdam, which covers a broad range of topics – constitutional law, procedural law, international and human rights law and of course EU law. Now, while there are a number of non-EU law contributions which I found thought-provoking (if you have time, read the rather grim essay on the world dominance of human rights by Isensee, ‘Die heikle Weltherrschaft der Menschenrechte’), I will focus on the EU law contributions for this blog post. Continue reading →
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 →
Scottish Independence through the Prism of European Union Law
In the previous post, we discussed Professor Crawford and Professor Boyle’s legal opinion on Scottish independence and set down the framework for state continuity, state succession and succession to membership of international organizations. In this post, we turn to the crux of their enquiry: would Scotland have to reapply to join the EU? In a word, their answer is “yes”. However, Crawford and Boyle are at pains to emphasize that this is, in legal terms, unknown territory:
“All this is not to suggest that it is inconceivable for Scotland automatically to be an EU member. The relevant EU organs or Member States might be willing to adjust the usual requirements for membership in the circumstances of Scotland’s case. But that would be a decision for them, probably made on the basis of negotiations; it is not required as a matter of international law, nor, at least on its face, by the EU legal order.” [para.164]
Monday, 11 February, may prove to be a decisive day in Holyrood’s quest for independence.
David Cameron presented a prelude of sorts on Sunday evening, issuing a statement which proclaimed: “Britain works well. Why break it?” Shortly thereafter, the UK Government announced that it would publish a legal opinion prepared by two eminent international lawyers, Professor James Crawford and Professor Alan Boyle of the Universities of Cambridge and Edinburgh respectively, on the legal aspects arising from Scottish independence. A pre-released summary indicated that the opinion would confirm the position held by the UK Government as well as the President of the European Commission, José Manuel Barroso (expressed in a letter to the House of Lords), according to which an independent Scotland would become a new state in international law and would not “inherit” any of the treaty obligations of the UK, but would instead have to renegotiate and reapply to join international organizations, including the European Union. Continue reading →
Is there such a thing as an unconstitutional constitutional amendment? And if so, does the judge have the power to declare that amendment unconstitutional?
The question seems nonsensical or paradoxical, “rather like asking whether the Bible can be unbiblical”. Yet, if it is primarily the preserve of constitutional theorists – think of the American debate about the constitutionality of a proposed flag-burning amendment – it is nevertheless an issue with practical implications, as witnessed in the recent Pringle case before the CJEU. Here, the Court was asked to assess the validity of a Treaty amendment by reference to the European Union’s (EU) own Treaties. The Court rejected the argument that it did not have jurisdiction and affirmed its power to review the validity of the amendment. Continue reading →
It finally happened: After more than a decade, Mr Yassin Abdullah Kadi is no longer ‘blacklisted’ by the UN and the EU.
To recall, on 17 October 2001, the United Nations Security Council added Mr Kadi to a so-called ‘blacklist’, thus requiring his financial assets to be frozen in view of his suspected involvement in the financing of international terrorism. Two days later, the EU followed suit by adding Mr Kadi on its own list and thus subjecting him to EU measures implementing the Security Council resolutions, which Mr Kadi subsequently challenged before the EU courts. Fast forward almost eleven years: On 5 October 2012, the Security Council removed Mr Kadi from the UN list, ‘after concluding its consideration of the delisting request submitted by this individual through the Ombudsperson’. A week later, the EU followed suit once more and took Mr Kadi off its list as well.
As readers may know, the hot topic in manyinternationallaw circles this past week was the Kiobel v. Royal Dutch Petroleum Co. case currently under consideration by the US Supreme Court. On October 1, the Supreme Court heard a second round of arguments in the case specifically concerning the issue of the extraterritoriality of the US Alien Tort Statue (ATS). While this case primarily involves US and international law, EU lawyers may be interested to know that the European Commission submitted an amicuscuriae brief to the Court. The brief, which is a fascinating read for anyone interested in EU foreign policy, details the EU’s position on the extraterritoriality issue. In short, it argues that (1) the US should exercise universal civil jurisdiction only in cases for which universal criminal jurisdiction would apply, and that (2) the ATS should include an exhaustion requirement.
Have you wondered recently whatever happened to all that “fragmentation of international law” we used to worry about? Well, a 2011 volume edited by Malcolm Evans and Panos Koutrakos and published by Hart Publishing, that’s what happened. While I would like to introduce you briefly to the whole volume, there is one contribution I would particularly like to draw your attention to.
To put you in context, this is in my view a good book for those among us who were fascinated by the „fragmentation of international law“ debate starting (or at least becoming one of THE topics) in the 2000s; who have perhaps read Koskenniemi’s report for the International Law Commission or other literature on the topic (legal pluralism, Pauwelyn’s Conflict of Norms, you name it); who find themselves now stuck in one of the boxes and/or compartments of international or EU law; and who probably would love an update and overview over where we stand today. Continue reading →
Well, that came as no surprise. Today, the European Parliament officially rejected ACTA. In a vote today 478 MEPs voted against ACTA, 39 in favour, and 165 abstained. As we mentioned earlier on the blog, the Commission already requested the Opinion of the Court on the compatibility of ACTA with the Treaties and the Charter in accordance with article 218 (11) TFEU.
Now that the European Parliament has rejected ACTA, what happens to this request? The Commission could retract its request, saving the Court from a lot of headaches and drawing it into this political mud-fight. That would be kind of the Commission of course. However, since the Commission has been so determined in arguing the benefits of ACTA, as well as defusing concerns over fundamental rights issues, the Commission might be tempted to hear the Court’s Opinion anyway. The advantage for the Commission would be that it obtains legal certainty on whether ACTA is compatible with the Treaties and the Charter, possibly opening the door to ratification or renegotiation. And if the Court were to rule that ACTA is compatible, the Commission would have proven its case and save some face.
The question is: does the Court still need to give an Opinion now that the European Parliament has rejected ACTA?
In the wake of last month’s spat over Argentina’s expropriation of Spanish energy holdings comes yet another economic dispute between Argentina and the EU.
On 25 May 2012, the EU filed a WTO complaint (DS438 Argentina–Measures Affecting the Importation of Goods) against Argentina regarding its import licensing rules. Argentina requires importers to obtain certain licenses before their goods can be put into circulation on the Argentinian market. The EU alleges that approval of these licenses “is being systematically delayed or refused by the Argentinian authorities on non-transparent grounds.”
Additionally, the EU alleges that Argentina “often requires” importers to agree to limit imports, balance them with exports, increase their local investments, control prices, not transfer benefits abroad, and/or meet local content requirements. The Argentinian authorities refuse to issue import licenses if these conditions are not met.