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A post-Brexit analysis

By the editors

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. 

Kingdom of Spain v. Council: another piece in the “Schengen puzzle”

By Angelo Marletta

The current European migratory crisis shows how politically sensitive the surveillance of the EU’s external borders is and the dramatic human consequences of the failures of that surveillance. On the one hand, border surveillance is essential to obtain situational awareness and to build an effective border policy. Border surveillance can indeed provide data and patterns to analyze and forecast migratory flows and to coherently plan actions to deal with them. Under EU Law, the surveillance of the External Borders is based on the Schengen acquis.

On the other, failures of surveillance can negatively impact the whole system of border management and, more concretely, the lives of migrants. Notwithstanding the relatively close distances between its shores, the Mediterranean is by far the deadliest sea border for migrants.

In Kingdom of Spain v. European Parliament and Council (C-44/14, 8 September 2015) the Grand Chamber of the Court of Justice (‘CJEU’) delivered its third judgement on Protocol 19 to the TFEU (‘Schengen Protocol’) addressing an essential element of the Schengen cooperation on border surveillance: the European Border Surveillance System – in short, EUROSUR. Continue reading

In the Shadows of the Data Protection Juggernaut: Bara and Weltimmo

By Orla Lynskey

Data protection policy, in particular the right to protection of personal data in Article 8 of the EU Charter, has remained firmly within the EU law limelight in recent years. This right played a key role in seminal judgments of the CJEU such as Schecke and Eifert, where for the first time a provision of secondary legislation was annulled for incompatibility with the Charter, and in Digital Rights Ireland (discussed earlier on this blog), where for the first time an entire Directive was annulled on the same grounds. Furthermore, in Google Spain (considered here) this fledgling right was ostensibly given precedence over the more established right to freedom of expression in certain circumstances, leading to a media furore on both sides of the Atlantic. 2015 was no different in this regard as much attention focused on the Court’s judgment in Schrems (discussed here), which invalidated the 15 year old Safe Harbor data sharing agreement between the EU and the US, and on the culmination of four years of negotiation on the new Proposed General Data Protection Regulation in December.

For good or for bad, the EU data protection juggernaut appears unstoppable, leaving in its wake legal instruments that do not meet its strict standards. Yet, in the shadows of these well-documented events, other noteworthy developments occurred. 2015 also saw the Dutch referring court withdraw its preliminary reference in Rease and Wullems, thereby regrettably removing the opportunity for the CJEU to pronounce upon the margin of discretion of national Data Protection Authorities (DPAs) when adopting a de minimis approach to their enforcement strategy to the detriment of individual or small group complainants. The Court did, however, deliver a number of largely overlooked yet significant data protection judgments in 2015. This contribution will focus on two significant cases which the CJEU delivered in the first week of October, immediately prior to the Schrems judgment, in Bara and Weltimmo. These preliminary references allowed the Court to clarify the interpretation of obligations and exemptions under the Data Protection Directive, as well as the Directive’s enforcement in online situations. Continue reading

Schrems vs. Data Protection Commissioner: a slap on the wrist for the Commission and new powers for data protection authorities

By Fanny Coudert

On 6th of October, in Schrems vs. Data Protection Commissioner, the CJEU, following the controversial Opinion of AG Bot, put an end to the specific regime regulating data flows to the US. The 4600 US companies using this agreement are now forced to rethink how to ensure the continuity of the protection when data are transferred from EU to the US. In this milestone ruling, the Court also reaffirmed the key role played by national Data Protection Authorities (DPAs) in the European system of data protection, and clarified the different competences of the European Commission, the DPAs and the courts –including the ECJ- in assessing the adequate level of protection offered by a third country. Continue reading

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

The seal product cases (II): Case T-526/10 Inuit Tapriit Kanatami and others

In a second round of cases in Luxembourg, a number of seal hunters failed (yet again) to convince the General Court to annul the EU-wide ban on trade in seal products. In a nutshell, the seal hunters argued that the EU acted ultra vires by adopting the ban on the basis of article 114 TFEU (harmonization of rules for the establishment and functioning of the internal market). Moreover, the applicants argued that the ban violated their fundamental rights and the principles of subsidiarity and proportionality. According to the applicants, the EU-wide ban was not aimed at improving the functioning of the internal market, but rather at safeguarding the welfare of animals, an objective for which no legal basis exists within the EU Treaties.

In dismissing the arguments put forward by the seal hunters, the General Court made a number of interesting statements regarding the EU’s ability to severely restrict trade of an ‘exotic import’ (a product not made within the EU) within the EU’s internal market on grounds of protecting the welfare of animals living outside the EU. In this post I will focus on the competence issue by discussing the particularities of EU constitutional law and the (modest) challenge a ban on the sale of exotic imports such as seal products poses for EU legislative competence.

  Continue reading

Scottish Independence: a Question of International Law or of the EU’s “New Legal Order”? (Part II)

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]

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POMFR: Greening EU Competition Law and Policy

Is EU competition law ‘special’? Should it be insulated from other EU policies? Should we Europeans follow the neoliberal teachings of Chicago scholars like Bork who claim that American antitrust policy ‘cannot properly be guided any goal other than consumer welfare’ and that ‘distribution of (…) wealth or the accomplishment of noneconomic goals are the proper subjects of other laws’?   These questions are particularly relevant to EU environmental policy, where we have seen an increase in reliance on market based instruments (the emissions trading scheme for instance). The central argument of Suzanne Kingston’s new book ‘Greening EU Competition Law and Policy’ is that EU competition law is not special and that it should take greater account of EU environmental policy and goals.

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Typo in the TFEU

Hi folks, I know there has not been going on much on the blog over the last few weeks, but August is really not the busiest time in EU law land. Anyway, since I wanted to share something with you, I thought it would be fun to write about a pretty random discovery I made in the Treaty on the Functioning of the European Union. There is a typo in the English version of the Treaty! Yes, can you believe that? I thought they would check the thing a number of times before sending it to the presses, but nonetheless article 28 (2) TFEU as available on the eur-lex website is translated incorrectly.

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Case C-176/11 HIT & HIT LARIX v. Bundesminister für Finanzen

On 12 July 2012, the  ECJ handed down a new ruling on gambling advertisements. The judgment in C-176/11 HIT and HIT LARIX clarifies that a country may restrict advertisements for foreign casinos on the ground that the casino’s home state does not provide equivalent protection for gamblers. However, they cannot require identical regulation, and the restriction must be directly related to protecting consumers.

At the same time, however, the judgment raises once more the question of what regulations should be found proportional in gambling cases. The disagreement over proportionality is evident in the differences between the opinion of the Court and that of Advocate General Mazák, and will no doubt lead to further debate regarding the exact scope of Member State freedom in this area.

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What happens to the request for the Court’s Opinion now that ACTA has been rejected by the European Parliament?

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?

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Rome I and third-party aspects of voluntary assignment

Under Article 27(2) of the Rome I Regulation (Regulation (EC) 593/2008 on the law applicable to contractual obligations), the Commission is charged with the task to submit to the EP, the Council and the European Economic and Social Committee a report on the proprietary aspects of voluntary assignment. The Commission report under Article 27(2) Rome I will be based on a comprehensive study that has just been released titled “Study on the question of effectiveness of an assignment or subrogation of a claim against third parties and the priority of the assigned or subrogated claim over a right of another person”. This study shall serve as a potential future proposal to amend Art. 14 Rome I Regulation to provide for a new harmonized conflict of laws solution for the third-party aspects of assignment. Why was this necessary?

The rule in art. 14 Rome I Regulation is concerned with the law applicable to assignment of debt and subrogation. As far as the third-party aspects are concerned however, no uniform solution to a conflict–rule could be agreed upon in the drafting process of Rome I and, consequently, the Rome I Regulation (save a reference in recital 38) doesn’t regulate the proprietary aspects of assignment. As a result, Member States currently adopt different approaches. The current incomplete conflict of laws solution in Article 14 Rome I gives rise to various problems, as described in the study. To end this situation, the Commission has to deliver a report (which, incidentally, was due 17 June 2010) accompanied with, if appropriate, a proposal to amend the Rome I Regulation and an impact assessment.

When the Commission will deliver its report is unclear at this point but there is no doubt that it will rely heavily on this study. We will go into more detail in subsequent posts.