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
By Theodore Christakis
Last week, the European Court of Human Rights (ECtHR) issued an important, highly anticipated judgment, condemning the United Kingdom for its mass surveillance program.
Following Edward Snowden’s revelations regarding the United States-United Kingdom intelligence surveillance and intelligence sharing programme, 16 organizations and individuals (including the NGO Big Brother Watch) filed an application against the United Kingdom before the ECtHR. The 212page-long judgment published on September 13, 2018 is rich and deals with a great variety of important issues. Several among them are directly linked to some major legal questions examined in the past by the Court of Justice of the European Union (CJEU) or currently pending before it – not to mention the ongoing debate about whether the EU-US data transfer agreement known as Privacy Shield provides an “adequate level of protection”. The objective of this piece is to provide some first thoughts focusing on the strategic place of this judgment in the European legal landscape. Continue reading
Limits to EU Powers: A Case Study of EU Regulatory Criminal Law by Jacob Oberg (Hart Publishing 2017, ISBN 9781509903368) £64.99
By Christopher Harding
In these days of burgeoning specialist discussion and publication of what is now firmly embedded under the title ‘EU criminal law’, Jacob Oberg’s book stands out as a distinctive contribution to the debates, with some real potential to drive forward policy and law. Broadly speaking, this work presents a strategy for a project which is in some respects bold and inventive – the legal (and hence constitutional) testing of policies and legal measures of criminalisation. And here we are talking about criminalisation in a novel and different context, that of EU policy and law. It is also a response to the significant, but still unheralded and poorly appreciated entry of the EU into that domain. So there is a real need for outward looking and engaging accounts of a subject on which debate is still really confined to a small quarter. Continue reading
Note by the editors: we will take a short break over the summer and resume blogging in the week of 16 August
By Vanessa Franssen
On 19 July, Advocate General (AG) Saugmandsgaard Øe delivered his much awaited opinion on the joined cases Tele2 Sverige AB and Secretary of State for the Home Department, which were triggered by the Court of Justice’s (CJEU) ruling in Digital Rights Ireland, discussed previously on this blog. As a result of this judgment, invalidating the Data Retention Directive, many Member States which had put in place data retention obligations on the basis of the Directive, were confronted with the question whether these data retention obligations were compatible with the right to privacy and the right to protection of personal data, guaranteed by Articles 7 and 8 of the EU Charter of Fundamental Rights (Charter). Hence, without a whisper of a doubt, several national legislators eagerly await the outcome of these joined cases, in the hope to get more guidance as to how to apply Digital Rights Ireland concretely to their national legislation. The large number of Member States intervening in the joined cases clearly shows this: in addition to Sweden and the UK, no less than 13 Member States submitted written observations. The AG’s opinion is a first – important – step and thus merits a closer look. Continue reading
By Uladzislau Belavusau and Ivana Isailović
In April 2015, the EU Court of Justice delivered its judgment in Léger v. Ministre des Affaires sociales, de la Santé et des Droits des femmes; Etablissement français du sang. The case addressed the compatibility of national measures – here the French 2009 Ministerial Decree – permanently banning blood donations by men who had or have sexual relations with other men (further ‘MSM’) with EU law. The Court found that these health policies could be justified in some circumstances, in light of the specific context prevailing in the Member State and the scientific knowledge and techniques available for detecting HIV in the early stages of contamination.
This judgment triggers a myriad of socio-legal questions pertaining to the EU multi-level health governance, including the rising area of sexual risk regulation, as well as questions regarding EU sexual citizenship, and more particularly the discrimination of Lesbian Gay Bisexual Trans (LGBT) individuals. The case, moreover, sheds light on the role scientific expertise plays in domestic and supranational courts, and the interplay between legal discourse, scientific knowledge, rights and identity politics. In this blog post, we offer a brief outline of the Court’s decision and highlight some of its controversial legal and normative aspects. Continue reading
By Orla Lynskey
In its eagerly anticipated judgment in the Digital Rights Ireland case, the European Court of Justice held that the EU legislature had exceeded the limits of the principle of proportionality in relation to certain provisions of the EU Charter (Articles 7, 8 and 52(1)) by adopting the Data Retention Directive. In this regard, the reasoning of the Court resembled that of its Advocate General (the facts of these proceedings and an analysis of the Advocate General’s Opinion have been the subject of a previous blog post). However, unlike the Advocate General, the Court deemed the Directive to be invalid without limiting the temporal effects of its finding. This post will consider the Court’s main findings before commenting on the good, the bad and the ugly in the judgment. Continue reading
In what circumstances is it possible for the EU to introduce a directive which limits the exercise of fundamental rights guaranteed by the EU Charter? This is just one of the many questions of constitutional significance which the Court is asked to address in Joined Cases C-293/12 and C-594/12. In his Opinion delivered on 12 December 2013, Advocate General (AG) Cruz Villalón provides plenty of food for thought for the Court. For instance, the Opinion offers interesting yet contestable insights into the relationship between the rights to privacy and data protection in the EU legal order.
Fundamental rights review by the Court of Justice of the European Union has frequently been criticized for its rather terse reasoning. In its decision in Sky Österreich, however, the Court engaged in a remarkably comprehensive review of the compatibility of a provision of a directive with the freedom to exercise a profession. Continue reading
On 16 October 2012, the CJEU delivered its Grand Chamber judgment in the infringement procedure (Case C-364/10 Hungary v Slovakia) which was initiated by Hungary against Slovakia for refusing the Hungarian President entry into Slovakian territory. It is already quite rare that Member States initiate infringement procedures against each other. Normally the Commission takes up this task, as guardian of the Treaties, but it refused to do so in this case.
Mr Sólyom, the President of Hungary, was invited to a ceremony for the inauguration of a statue of Saint Stephen of Hungary (a Medieval Hungarian King) in the Slovakian town of Komárno. The ceremony was planned for 21 August 2009. 21 August is a sensitive date in Slovakia, since Warsaw Pact troops, among which were Hungarians, invaded Czechoslovakia on 21 August 1968. Therefore, Slovakian authorities found the planned visit inappropriate.