Case C-620/16 (OTIF) – Why EU-external relation debates should remain EU-internal

By Liesbeth A Campo*

Introduction

The external relations of the EU are often subject to debate amongst the EU institutions. In particular the division of competences between the Union and the Member States can give rise to difficult discussions, not only in the various stages of the procedure for the negotiation and conclusion of an international agreement, but also in the stage of the fulfilment of the commitments entered into. Does the EU have competence with regard to a position to be taken in an international organisation? How should this position be determined? Who may present a position and on behalf of whom? Who should exercise the right to vote? These and other “mixity[1]”-related questions often lead to lengthy – sometimes heated –discussions, which are occasionally relocated from the Council Premises to the plateau de Kirchberg. People who are confronted with EU external representation issues for the first time, soon discover that the primary focus is actually often the “cuisine interne” of the EU. While these discussions usually remain “EU-internal”, they sometimes do become – painfully – visible to the outside world.  This is also happened during the events that have led to the judgment of the CJEU in Case C-620/16 Commission v. Germany (OTIF). In this case, the CJEU was called upon to give its judgment on the compatibility with Union law of the conduct of Germany at the 25th session of the OTIF Revision Committee.

A judgment which shows the importance of the principle of sincere cooperation in the context of the EU’s external relations, and sheds more light on the admissibility of infringement actions launched by the European Commission where the alleged improper conduct lies in the past. Continue reading

The Jawo case: The limits of the principle of mutual trust

By Anthea Galea

On 19 March 2019, in Jawo vs. Germany, the Court of (ECJ) the question of whether the Charter of Fundamental Rights of the European Union (the Charter) prohibits the transfer of an asylum applicant to the Member State responsible for processing the asylum application if there is a serious risk that the applicant will be subjected to inhuman or degrading treatment. The ECJ established that when deficiencies in the asylum system of a Member State put a person who has been granted international protection in a situation of extreme material poverty, in which his or her most basic needs are not met, the threshold of a high level of severity is reached. As a result, the asylum seeker may not be transferred. In contrast to previous judgments, namely N.S. and Others and C.K. and Others, the ECJ considered the applicant’s circumstances after having been transferred to the responsible Member State and granted international protection. In addition, this judgment provides another instance in which the principle of mutual trust – which is the cornerstone of the Common European Asylum System (CEAS) – can be rebutted, leading to an asylum applicant not being transferred.

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Challenging a bank’s license withdrawal by the ECB: can the bank act or can its shareholders?

By René Smits

Summary

Pending before the European Court of Justice (ECJ) is a core issue of legal protection against European Union (EU) acts – can a bank itself challenge the withdrawal of its license by the European Central Bank (ECB) even when the powers of the bank’s board have been taken over by a liquidator, or can the shareholders act for the bank or, alternatively, for the protection of their own interests?

Three years since the ECB withdrew the license of a Latvian bank, Trasta Komercbanka, in March 2016, this issue of effective judicial protection is at the centre of proceedings[1] in which the Advocate General (AG)’s Opinion is just out. This post sketches the background to the on-going proceedings and summarises the AG’s Opinion, highlighting the issue of contestation of withdrawal of a bank’s license: who can challenge the ECB in court: the bank’s board, side-lined by the liquidator, or its shareholders? Continue reading

The principle of economic continuity’s application on private enforcement: Case 724/17 Skanska

By Guilherme Oliveira e Costa

Introduction

With two major decisions, March 2019 was an interesting month with regard to the ECJ’s case-law on the private enforcement of competition law: Skanska (C-724/17) and Cogeco (C-637/17).  This post will comment on the judgment in Skanska, whereas a later post will analyse Cogeco.

Skanska is a challenging judgement that confirms that the competition enforcement system must be viewed as a coherent system where both public and private enforcement play a crucial and complementary role, which is demonstrated by the application of the principle of economic continuity to private enforcement. Moreover, it addresses one of the several issues that has not yet been harmonised regarding private enforcement: the responsibility for damages in private enforcement legal procedures. As such, Skanska may be a leading case in a private enforcement’s possible second stage of development in the aftermath of Directive 2014/104/EU. Continue reading

Neues aus dem Elfenbeinturm: April 2019

US – EU Environmental Law Colloquium

Rome, 30 May 2019. Registration necessary.

Conference  From Tampere 20 to Tampere 2.0: Towards a new programme (2020-2024) for EU migration and asylum policies 20 years after the Tampere conclusions?

Helsinki, 24-25 October 2019. Deadline for submissions: 10 May 2019.

5th Annual TAU Workshop for Junior Scholars in Law – Rethinking Law and Boundaries

Buchmann Faculty of Law, Tel Aviv, 17 November 2019. Deadline for abstract submissions: 10 May 2019.

4th European Privacy Law Scholars Conference

University of Amsterdam, 24-25 October 2019. Deadline for abstract submissions: 23 May 2019.

Workshop on Feminist Data Protection

Berlin, 20 November 2019. Deadline for abstract submissions: 15 June 2019.

Academy of European Public Law

Athens/Sounion, 26 August-14 September 2019. Deadline for applications: 29 June 2019.

XXIX FIDE Congress 2020

The Hague, 20-23 May 2020. Registration opens in summer 2019.

2019 Odysseus Summer School on EU Immigration and Asylum Law and Policy

Brussels, 1-12 July 2019.

Association of American Law Schools Annual Meeting – European Law Section Works in Progress Panel

Washington, 2-5 January 2020. Deadline for abstract submissions: 1 August 2019.

EU Equality Law: Looking Ahead after 20 Years of Policymaking*

By Sara Benedi Lahuerta and Ania Zbyszewska

The adoption of the European Pillar of Social Rights (‘the Pillar’) in 2017 and the 20-year anniversary of the entry into force of the Treaty of Amsterdam in 2019 provide an auspicious moment for not only take stock of accomplishments in the field of EU equality law and critically reflect on the past, but also to look forward. The Treaty of Amsterdam expanded the legal base (current Article 19 TFEU) for adopting EU legislation to six new anti-discrimination grounds (race or ethnic origin, religion or belief, disability, age and sexual orientation) and the recent adoption of the Pillar suggests that EU equality law and policy could now be at a pivotal point. In this brief blog post, we reflect on what, in our view, is one of the key current problems of EU equality law, namely, its (in)coherence at different levels (see Figure 1), and whether the Pillar carries the potential to -at least partially- address this issue. Continue reading

Bold and Thoughtful: The Court of Justice intervenes in nationality law Case C-221/17 Tjebbes

By Stephen Coutts

Introduction

 Tjebbes is a bold and yet thoughtful judgment. It pushes the boundaries of the role of EU law in nationality matters and yet does so in a manner that both respects the primacy of the Member States in regulating this area of law, and acknowledges the genuine Union-interest in the manner in which denaturalisation decisions impact on Union citizens. It provides a follow-up and elaboration of the judgment in Rottmann, confirming the applicability of Union law in nationality law and detailing the nature of its intervention. This intervention is of both a procedural and a substantive kind, requiring an individual examination of any decision withdrawing nationality having regard to a set of consequences linked to the status of Union citizenship. Continue reading

New posts on the European Law Blog – email subscription service working again

By the editors

The European Law Blog had a software malfunction in the email subscription service for the past few posts. We have resolved the issue and would therefore draw your attention to the four posts that have been published and for which you have not received an email notification.

 

1. Will Deliveroo and Uber be captured by the proposed EU platform Regulation? You’d better watch out…

How to turn subsidiarity into an effective tool ? – Reflections on the Communication of the European Commission on the principles of subsidiarity and proportionality

By Vincent Delhomme

After its State of the Union address of 13 September 2017, in which he presented his vision for the future of the Europe Union, President Juncker announced the creation of a Task Force to reflect on the application of the principles of subsidiarity and proportionality in EU policymaking and to make propositions to strengthen their role (see the President’s Decision). After several meetings and consultations, the Task Force published its findings in a final Report and the Commission released a Communication in October 2018 in which it commits to follow several of the propositions made.

This commentary presents some of these recommendations and sketches some (rough) reflections on the place of the principle of subsidiarity in the EU legal order and how to improve its role as a tool to control EU legislative activity. Continue reading

Neues aus dem Elfenbeinturm: March 2019

Conference “European Union Law Enforcement: The Evolution of Sanctioning Powers”

University of Turin, 28-29 March 2019.

Young Researchers Colloquium “Enforcement Challenges in Multi-level Regulatory Systems: Mapping the Landscapes”

University of Luxembourg, 21-22 May 2019. Deadline for abstract submissions: 31 March 2019.

Conference “Diversity in Unity: The Succession Regulation in Hungary and Beyond”

Budapest, 12 April 2019. (Free) registration necessary.

Seminar “EU Blocking Regulation and extraterritorial US sanctions”

University of Utrecht, 18 April 2019. (Free) registration necessary.

Conference “10 Jahre Vertrag von Lissabon. Reflexionen zur Zukunft der europäischen Integration”

Berlin, 21 June 2019. Deadline for proposal submissions: 26 April 2019.

Call for Papers “The City in Constitutional Law”

European Yearbook of Constitutional Law. Deadline for proposal submissions: 30 April 2019.

Conference “Synergies between International Criminal Law and UN Agenda 2030”

International Nuremberg Principles Academy, 3-4 May 2019. (Free) registration necessary.

The Imminent Distortion of European Private, Company and Insolvency Law by the Introduction of Relative Priority European Style

By Rolef de Weijs, Aart Jonkers  and Maryam Malakotipour

One stone can change the current of a river. Likewise, one small seemingly technical rule can alter the entire legal system and with it the basic fabric of society.

The European Parliament is about to enact a Directive on Preventive Restructuring Frameworks. Last minute a completely new and never tested nor explained legal concept referred to as Relative Priority was inserted, probably without realizing its ramifications. This new rule is likely to distort basic private law, basic company law and basic insolvency law. Most likely, the European Parliament thinks it is saving businesses and thereby jobs and while at it, also strengthening the position of Small and Medium Enterprise (‘SME’) Businesses in Europe. It will not do that. Much more likely is that Relative Priority will turn against the interests of SME’s.

Regardless of whether one has the interest of large banks and the stability of the financial system in mind or the interest of SME’s, the Relative Priority Rule (RPR) is an untested underexplored rule that will upend general commercial law. Continue reading

Will Deliveroo and Uber be captured by the proposed EU platform Regulation? You’d better watch out…

By Pieter van Cleynenbreugel

Online platforms have become major economic players over the past decade. It is not surprising, therefore, that their business practices have captured the European Union’s attention. This attention resulted in a 2018 proposal for a Regulation on transparency and equity in relationships with online platforms, a political agreement on which has been reached between the Commission, Council and European Parliament on 13 February 2019 (see for the press release, http://europa.eu/rapid/press-release_IP-19-1168_en.htm). It is very likely that this Regulation will be adopted before the European Parliament elections of this year. Even though it may seem premature to comment on the Regulation’s content in an in-depth way (the final negotiations and fine-tuning are still in progress at this time), this contribution would like to flag an important gap that has seemingly withstood scrutiny so far. That gap concerns the fact that the proposed Regulation apparently – seemingly unintentionally – would not apply to ‘underlying service-attached intermediation activities’ offered by platforms such as Uber and Deliveroo. This is most surprising, as the Commission clearly wants them to fall within the scope of that Regulation (according to its press release mentioned above, the new instrument is to apply to ‘the entire online platform economy’ if and when adopted). This contribution uncovers that gap and proposes a way to close it. Continue reading

The Butterfly Effect of Publishing References to Harmonised Standards in the L series

By Annalisa Volpato and Mariolina Eliantonio

A small change can have big consequences. Some of these changes may be unplanned and unpredictable. Some represent welcome developments that complement and contribute to long-running narratives of progress. Arguably, the recent publication of a reference to a harmonised standard in the L series of the Official Journal of the European Union belongs to the latter category. It may yet, however, prove to have unintended consequences that go beyond that which was originally envisioned.

Technical standards have long played a fundamental role in the regulation of the internal market. According to the regulatory technique of the “New Approach”, EU directives establish only the essential requirements of general interest of a product, while referring the detailed definition of technical aspects to private organizations composed of experts and representatives of the business sector, i.e. the European standard-setting organisations (ESOs). To this end, the European Commission makes a request to one of these ESOs and, where a standard satisfies the requirements set out in the request and in the corresponding Union harmonisation legislation, it publishes a reference to it in the Official Journal. Through this procedure, these standards elaborated by private European standardisation bodies are granted a presumption of conformity with the secondary EU law measures they are aimed at complementing. Consequently, they are endowed with the qualification of ‘harmonised standards’.

Recent developments in EU legislation (see Regulation EU) No 1025/2012) and in the case law (see, inter alia, Case C-171/11, Fra.bo. v DVGW) have progressively changed the view of standardization as a purely non-binding, private phenomenon. In particular, the James Elliott case established the jurisdiction of the European Court of Justice with regard to the interpretation of harmonised standards in a preliminary reference under Article 267 TFEU, clarifying that harmonised standards shall be considered as “measures implementing or applying an act of EU law” and, therefore, “part of EU law”. This ruling of the Court has thus contributed to strengthen the claims of an unstoppable “juridification” of harmonized standards, fostering the debate on their legal qualification under EU law (as discussed here, here and here). Continue reading

ECJ annuls a national measure against an independent central banker

By René Smits

Case C‑202/18 (Ilmārs Rimšēvičs v Republic of Latvia) and Case C‑238/18 (European Central Bank v Republic of Latvia); Opinion of AG Kokott of 19 December 2018, ECLI:EU:C:2018:1030; judgment of the Court of 26 February 2019, ECLI:EU:C:2019:139.

A recent judgment of the ECJ underlined the increasing interweaving of EU law and national law in the area of central bank law, not only in substantive matters but, also procedurally. In the first cases since the provision providing for this anomaly was inserted in the Treaty[1] in 1993, the ECJ confirmed that review of a national legal act affecting the independence of the monetary authority lies with the European Court of Justice. Normally, only legal acts of EU institutions, bodies, offices and agencies can be challenged before the CJEU (Article 263 TFEU); national legal acts with an EU law connotation may come before the CJEU through a reference for a preliminary ruling (Article 267 TFEU) or in infringement proceedings (Article 258 TFEU). Admittedly, this is a singular and exceptional case as it concerns review of a Member State measure by which a Governor of a National Central Bank (NCB) is “relieved from office”. Together with the Executive Board of the European Central Bank (ECB), NCB Governors in the Eurosystem[2] form the ECB’s Governing Council, which has ultimate decision-making power[3] for monetary policy in the Euro Area[4]. Since monetary policy is an exclusive Union competence[5], at least for the <in> Member States[6], to be pursued in independence[7], the Court found that it has jurisdiction to assess the legality of a measure that interferes with an NCB Governor performing his functions and annulled the relevant national decision in so far as it prohibits the Governor from performing his duties as NCB Governor. There is more that’s exceptional about this case: alleged corruption at a central bank, allegations of money laundering and of a misinformation campaign…..

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Finding Comfort between a Rock and a Hard Place Advocate General Szpunar on striking the balance in copyright law

By Justin Jütte

Opinions in Funke Medien v Germany (Case-469/17), Pelham v Hütter (Case C-476/17), and Spiegel Online v Volker Beck (Case C-516/17)

In three Opinions that address the balance between copyright as a fundamental right and the right to freedom of expression, Advocate General Maciej Szpunar suggests that external challenges to exclusive rights under copyright law should be limited to extreme cases. In his view, the balance between different fundamental rights in copyright must be struck by the legislature in order to avoid undermining the efforts of EU harmonization.

Background

At a time where European copyright reform is hotly debated and the policy process is at a breaking point that might result in highly unsatisfactory rules or a persistent standstill in the development of EU copyright law (a brief summary of the current status can be found here., Advocate General (AG) Szpunar has been asked to deliver opinions in three preliminary references. All cases have been referred to the Court of Justice of the European Union (CJEU) by the German Bundesgerichtshof (BGH), the Federal Supreme Court. All three references contain similar and even partly identical questions. The essence of the preliminary references lies in the question how copyright rules should strike the balance between the interests of the right holders and users of works that are protected by copyright.

Copyright grants the author of a work the exclusive right to authorise or prohibit a number of protected acts. Such acts include, most importantly, to make reproductions of the work and to make the work available to the public (in physical and intangible form). An overly broad application of these rights could be used to completely control the use of the work, which is why copyright law foresees exceptions and limitations to the exclusive rights for certain purposes. For example, works protected by copyright, or at least parts thereof, can be used for the purposes of quotation and news reporting. At EU level, these rights and exceptions are mainly harmonized by the Information Society Directive (Directive 2001/29/EC, also ‘InfoSoc Directive’). Article 5 of the InfoSoc Directive contains one exception which Member States (MS) are obliged to implement into their national laws and 20 optional exceptions which MS are at liberty to implement. As a general rule, MS are not allowed to maintain in their copyright laws exceptions or limitations that are not contained in Article 5 (special exceptions exists for certain types of works, such as computer programs in Article 5 of Directive 2009/24/EC and original databases in Article 6 of Directive 96/9/EC); recital 32 of the Directive states that the list in Article 5 is exhaustive. There also exist so-called related rights, or neighbouring rights, which do not protect the author, but rather individuals who create, for example, sound recordings. For instance, the InfoSoc Directive and the Directive on rental and lending rights and on certain rights related to copyright in the field of intellectual property (Directive 2006/115/EC) grant producers of sound recordings similar rights to those enjoyed by authors.

This year the InfoSoc Directive turns 18, and although technology and society and the way we interact with works protected by copyright have changed, the elementary rules of copyright have remained unchanged. The longer Article 5 matured the less palatable it became for those who longed for more flexibility in the EU copyright rules. Technological developments, the Internet, social media and other modern phenomena made the list seem outdated. Exceptions and limitations struggled to  accommodate new business models and the application of new technologies that implied the reproduction, even if only for purely functional purposes, of works protected by copyright. European scholars looked with moderate envy to the US where the US fair use doctrine constitutes a flexible moderating norm that can balance the interests of right holders and users on a case-by-case basis.

Many also turned to fundamental rights as a last resort to force open the exhaustive list of Article 5. The right to freedom of expression, in particular, was used as an argument to suggest that exceptions to the exclusive rights must exist beyond the limited list of copyright exceptions of the InfoSoc Directive.

This post does not discuss in detail the analyses of AG Szpunar that pertain exclusively to the interpretation of exclusive rights and exceptions and limitations. They have already been discussed here for Pelham and here for Funke Medien  and here  and here for Spiegel Online. Instead, this contribution focuses on the balance the Advocate Generals strikes between the right to freedom of expression and the right to property within copyright law.

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European Data Protection and Freedom of Expression After Buivids: An Increasingly Significant Tension

By David Erdos

On 14 February the Court of Justice of the EU (CJEU) handed down its decision in Buivids, a case which pitted an amateur individual online publisher against the Latvian Data Protection Authority (DPA).  This important case raises fundamental questions concerning the scope of European data protection, the ambit of the personal/household exemption, the legal definition of journalism and the role of data protection as regards to this and also related academic, artistic and literary expression.  The Court’s answers to these questions highlight the close and tense interface between European data protection and freedom of expression.  At the same time, they provide only relatively limited insight as to how the serious tension between data protection, special expression and freedom of expression more broadly should be resolved.  What they do suggest, however, is that not only national legislators but also courts and regulators have active and important roles toplay within this space.  The full implications of this, as well as further guidance on how to balance data protection and special expression, should be provided in the forthcoming case of Stunt which will require the Court to consider whether national courts should disapply the ban on pre-publication injunctions against special expression processing which is set out in UK data protection legislation.  In addition, Grand Chamber CJEU judgments on internet search engines and data protection are awaited both in relation to sensitive data and the geographical reach of any remedy here.  In sum, slowly but surely, an albeit messy corpus of European jurisprudence on data protection and freedom of expression is in the process of gestation. Continue reading

Neues aus dem Elfenbeinturm: February 2019

Radboud Economic Law Conference “New Directions in Competition Law Enforcement”

Radboud University, 24 May 2019. Deadline for abstract submissions: 22 February 2019.

Doctoral Workshop “Bilateralism versus Multilateralism”

University of Geneva, 19-20 September 2019. Deadline for abstract submissions: 15 March 2019.

Summer School “Human Rights in Theory and Practice”

University of Leipzig, 1-7 September 2019. Deadline for early bird registration: 31 March 2019.

American Society of Comparative Law Annual Meeting “Comparative Law and International Dispute Resolution Processes”

University of Missouri, 17-19 October 2019. Deadline for abstract submissions: 20 May 2019.

Henry VIII arrives in Florence: The UK’s withdrawal from the Convention establishing a European University Institute

By Oliver Garner

Brexit has been a personal matter for many British and European academics. In the last week, however, Brexit became even more personal for UK researchers based at the European University Institute in Florence. The UK government published its draft European University Institute (EU Exit) Regulations 2019 on 7th February. This is a Statutory Instrument promulgated under the executive power conferred by the ‘Henry VIII clause’ of section 8(1) of the European Union (Withdrawal) Act 2018. The manner in which the UK’s withdrawal from the Convention establishing a European University Institute has been communicated seems to vindicate concerns expressed during the reading of the Withdrawal Bill. Grievances were expressed that the provision of wide-ranging executive power would undermine the quality of decision-making. This seems to be borne out by the Regulations, which explicitly confirm no impact assessment has occurred. This post will consider the serious legal and political concerns regarding the withdrawal from the Convention. The Regulations may be predicated upon a misinterpretation of international treaty law. This seems to have arisen from the idiosyncratic way in which the Convention is treated in UK domestic law. The post will conclude with some reflections on the implications of such a retreat from European co-operations outside the auspices of the EU institutions. Continue reading

A Parallel Universe: Advocate General Bot in Opinion 1/17

By Harm Schepel

Introduction

All is clear, then: CETA’s Investment Chapter is perfectly compatible with EU Law. According to Advocate General Bot, the agreement is wholly separate from the normative (as opposed to the factual) universe of EU law, and merely protects readily identifiable ‘foreigners’ investing in the EU in the same way as it protects readily identifiable ‘European’ investors in foreign lands. From what we know of the hearing, the Advocate General provides not much more than a useful summary of the talking points offered by the Council, the Commission and the vast majority of the 12 intervening Member States, remarkably united in a bid to save the EU’s new external trade and investment policy. Clearly, the pressure on the Court to follow suit will be enormous. And yet. It is true, CETA builds strong fences to make good neighbors. But let spring be the mischief in me: CETA cannot wall out what EU Law walls in.[i]

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AG Bot in Opinion 1/17. The autonomy of the EU legal order v. the reasons why the CETA ICS might be needed

By Szilárd Gáspár-Szilágyi

  1. Background

The EU’s exercise of its post-Lisbon competences over foreign direct investment (FDI) has been anything but smooth. In Opinion 2/15 the CJEU clarified the EU and Member State competences over the EU’s new generation free trade and investment agreements, resulting in the splitting of the EU‑Singapore agreement into a separate trade and investment agreement. Then, in Achmea the Court found investor-state arbitration (ITA) clauses under intra-EU BITs to be incompatible with EU law, which will result in the termination of almost 200 intra-EU BITs and the non-enforcement of ITA awards rendered under them within the EU. Now, everyone is anxiously awaiting the outcome of Opinion 1/17 – requested by Belgium under the insistencies of Wallonia – and whether the Investment Court System (ICS) under CETA is compatible with EU law. This opinion will not only affect the entry into force and conclusion of the trade and investment agreements with Canada, Singapore, Vietnam and Mexico, but it will have broader implications for the multilateral ISDS reform process and the EU’s investment policy.

Therefore, Advocate General Bot’s extensive opinion delivered on 29 January 2019 (first commentaries here and here) in which it found the CETA ICS to be compatible with EU law deserves scrutiny. I will only focus on the AG’s arguments concerning the exclusive jurisdiction of the Court of Justice over the definitive interpretation of EU Law. In a separate post, Harm Schepel will focus on the AG’s arguments on non‑discrimination. Continue reading