Commission v Germany (c-377/17): Do exceptions in tariff regulation matter?

The European Law Blog will be taking a summer recess. We’ll be back end of August with new commentaries, including on key Summer developments. Please do send us on your contributions throughout this period and we will get back to you in due course. Happy Holidays to all our readers!

By Valentin Vandendaele

Lawyers, engineers, architects, and other liberal professions, i.e. ‘occupations requiring special training in the liberal arts or sciences’, tend to be subject to heavy regulation. Such regulation may preserve a high service quality or shield consumers against malpractice (see the European Commission’s Report on Competition in Professional Services (COM(2004) 83 final, paras 1 and 28). In a similar vein, Member States have adopted legislation setting minimum and maximum prices in an attempt to ensure service quality by preventing excessive competition on price or to protect consumers from excessive prices.

One example of such legislation is the German Honorarordnung für Architekten und Ingenieure, which was the matter of contention in the Commission v Germany case (C-377/17). This decree fixed minimum and maximum tariffs architects and engineers could charge for their planning services. In its judgment, the Court of Justice of the European Union (Court) ruled that these tariffs constituted requirements falling within the scope of Article 15(2)(g) of the Services Directive (2006/123/EC). This was true even though the German measure provided for multiple exceptions allowing the legal minimum and maximum tariffs to be disregarded. Advocate General (AG) Szpunar had more openly suggested that these exceptions were inconsequential under Article 15(2)(g). Finally, the Court held that the German tariff regulation did not satisfy the conditions in Article 15(3) to be compatible with the directive. Continue reading

Neues aus dem Elfenbeinturm: July 2019

Conference “EU Agencies as ‘Inbetweeners’? The Relationship between EU Agencies and Member States”

Maastricht University, 4-5 December 2019. Deadline for abstract submissions: 31 July 2019.

3rd Young European Law Scholars Conference “Shaping the Future of Europe”

University of Salzburg, 27-28 February 2020. Deadline for abstract submissions: 1 September 2019.

Conference “Application Of The Succession Regulation In The EU Member States”

University of Silesia, Katowice, 12 September 2019. Deadline for registration: 2 September 2019.

Yearbook of European Law Annual EU Law and Policy Conference “EU Law in the era of the Fourth Industrial Revolution”

University College London, January 2020. Deadline for draft paper/extended abstract submissions: 8 September 2019.

Wolves and the Habitats Directive, a misread opinion in C-674/17?

By Anna Heslop

On 8 May the CJEU issued an Advocate General’s Opinion in case C-674/17 Luonnonsuojeluyhdistys Tapiola, on the hunting of Wolves in Finland.  With the final decision of the court due in the coming weeks it is useful to analyse whether the nuance of that opinion is being lost in the public reaction by interested groups, who have taken it as a green light for hunting protected species.

The Habitats Directive (Directive 92/43/EEC on the conservation of natural habitats of wild fauna and flora) requires member states to establish a system of strict protection for animal and plant species listed in Annex IV of that Directive, including Canis Lupus – Wolves[1].  Article 16(1) allows member states to derogate from that strict protection in limited circumstances and provided certain stringent tests are met.  There must be no satisfactory alternative, the derogation must not be detrimental to the maintenance of the population at favourable conservation status in their natural range and derogations may only be applied for specific reasons, in summary:

  1. in the interests of protecting wild flora and fauna and conserving natural habitats;
  2. to prevent serious damage to crops, livestock, forests, fisheries and water;
  3. in the interests of public health and public safety, or for other imperative reasons of overriding public interest;
  4. for the purposes of research or education, for example for repopulation or reintroduction;
  5. to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens in limited numbers specified by the competent national authorities.

These derogations have been the subject of a number of legal cases over the years, and the case law of the CJEU makes it clear that any derogations should be interpreted strictly (see e.g. C-6/04, para. 111 and C-508/04, para. 110).

Case C-674/17 concerns a preliminary reference from the Supreme Administrative Court of Finland for guidance on the interpretation of Article 16(1)(e) of the Habitats Directive in relation to derogations for the hunting of wolves.  A final decision in the case is awaited in the coming weeks. Continue reading

Vers une intelligence artificielle « fabriquée en Europe » : pistes d’action et lignes directrices éthiques

By Alyson Berrendorf

L’intelligence artificielle (IA) est une nouvelle donnée qu’il n’est – depuis plusieurs années – plus possible de négliger. La croissance de la puissance de calcul, la maximisation ainsi que la disponibilité des données, la rapidité de traitements des informations et les progrès réalisés dans les algorithmes ont fait de l’IA l’une des technologies les plus stratégiques du 21ème siècle. Face à ce constat, l’Union européenne se doit ne pas rater cette révolution technologique, et, mieux encore, elle se doit de devenir un acteur de pointe sur la scène internationale afin de développer une IA performante, éthique et sûre, au profit tant du citoyen (dans sa vie privée et professionnelle) que de la société dans son ensemble.

A cet effet, la Commission européenne a pris plusieurs initiatives ces deux dernières années. La communication de la Commission européenne intitulée « L’intelligence artificielle pour l’Europe », publiée en avril 2018, préconisait de ce fait une stratégie européenne à l’appui de cet objectif, ainsi qu’un plan coordonné pour le développement de l’IA en Europe, présenté en décembre dernier. Plus récemment encore, en avril 2019 cette fois, la Commission a encore franchi une étape supplémentaire en souhaitant lancer sa phase pilote afin de faire en sorte que les lignes directrices en matière éthique pour le développement de l’IA sûre puissent être concrètement mises en œuvre dans la pratique (COM(2019) 168 final).

Au travers de ce bref article, nous ferons une première évaluation des diverses avancées concernant le déploiement de l’intelligence artificielle au sein de l’Union européenne. Nous analyserons notamment le fil conducteur de ce plan, ainsi que la liste d’évaluation et les lignes directrices en matière d’éthique récemment mises en avant par le groupe d’experts indépendants de haut niveau sur l’intelligence artificielle, afin de générer, selon leurs termes, « une IA digne de confiance » et « axée sur l’humain ». Face à cette dénomination, une question mérite d’être soulevée… Une IA axée sur autre chose – ou pour le dire autrement, une IA au service d’autre chose que l’humain – est-elle possible ? Continue reading

Refining transparency and responsible investment?: The case of EIB and sustainable finance

By Chrysa Alexandraki

Background

On 8 January 2019, an action was brought before the Court of Justice of the European Union (hereafter CJEU) by an environmental law charity, ClientEarth (hereafter applicant) against a multilateral development bank (hereafter MDB) and European institution, the European Investment Bank (hereafter EIB). The case concerns the financing by the bank of a biomass energy generating project in Northern Spain – Galicia -, of the cost of 60 million euros, followed by the bank’s refusal to refine its decision to finance the aforementioned investment, regardless the applicant’s request for an internal review of this decision on April 2018. The applicant bases the request for an internal review on alleged ‘errors in the assessment of the financing combined with the provision of minimal information regarding the funding decision’. The main claim brought by the applicant involves the annulment of EIB’s refusal to conduct an internal review and subject its decision to scrutiny, as requested under Article 10 of the Aarhus Regulation (hereafter Regulation), bringing into discussion implementation issues of both International and European law. Continue reading

The US, China, and Case 311/18 on Standard Contractual Clauses

By Peter Swire

On July 9, the Court of Justice for the European Union (CJEU) held eight hours of oral argument in hearing case C-311/18, on whether US surveillance practices violate the fundamental rights of EU citizens.  This case could potentially rupture the mechanisms that allow personal data to flow across the Atlantic. Should the Court so decide, it would soon be illegal for companies and services we use every day to transfer personal data from the EU to the US.  Such a determination, however, may result in an absurdity; EU citizens’ data could not travel to the US for fear of intrusive surveillance, but could flow unimpeded to China, a nation with surveillance practices ripped from the pages of a dystopian science fiction novel. Continue reading

The cross border operations Directive: wider scope but more restrictions

By Segismundo Alvarez

In an increasingly changing and global business environment, companies need to be able to reorganise, also internationally, through cross border, mergers, divisions and conversions. At the same time, these operations pose a risk to stakeholders’ rights, and international reorganisations are increasingly seen by the public, NGOs and EU institutions as a means to avoid social and tax legislation, especially for transnational companies. This tension has been obvious in the preparation of the Directive on cross-border mobility (hereinafter: the new Directive)approved by the European Parliament on April 18th –see the final text here , subject only to the corrigendum procedure– that amends Directive 2017/1132 relating to certain aspects of Company Law (hereinafter: the 2017 Directive).

The key novelty is that the scope of regulated cross border transactions is broadened, as the new Directive adds cross-border divisions and conversions to the already harmonised regulation of cross-border mergers. The EU Court of Justice (hereinafter: ECJ) had declared that companies should be allowed to carry out cross-border transactions as a consequence of their right to freedom of establishment (cases SEVIC, Cartesio, VALE Építési and POLBUD) but the lack of regulation implied practical difficulties. Continue reading

Thickening up judicial independence: the ECJ ruling in Commission v. Poland (C-619/18)

By Marco Antonio Simonelli

On the 24 June, the European Court of Justice (‘the ECJ’ or ‘the Court’) delivered the long-awaited judgment in Commission v Poland (C-619/18). This judgment represents the most significant offspring of Associação Sindical dos Juízes Portugueses (‘ASJP’); the ECJ in fact, for the first time declared the incompatibility of a national provision on the ground that it violated Article 19 TEU. Whoever has followed the proceedings since the beginning could not be surprised by this outcome – as the interim measure of the 19 October 2018 largely anticipated it – yet the judgment is much more than a simple application of the principles set out in ASJP. The judgment indeed makes clear that the legitimacy of any restriction of the principle of judicial independence is subject to a proportionality scrutiny, but at the same time it seems to consider judicial independence as a quasi-absolute value. Also, the ECJ took the chance the define the contours of Article 19 TEU scope of applicability; thus consolidating its Article 19 TEU case law. Continue reading

The first preliminary ruling on Directive 2014/104/EU: Case 637/17 Cogeco

By Guilherme Oliveira e Costa

Introduction

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

Cogeco is, in fact, an unsurprising judgment, particularly regarding its conclusions. But the decision itself contains a lot of interesting points, and was preceded by a noteworthy Opinion of AG Kokott. Additionally, its importance must not be underestimated since it is the first preliminary ruling on Directive 2014/104/EU (‘Damages Directive’) and, as pointed out by AG Kokott, there are still several questions connected with this Directive which need clarification. Moreover, this ruling also shows a very clear example on how unsuitably some national legal systems (the Portuguese one in the case at hand) treated private enforcement before the harmonisation implemented by the Damages Directive. Continue reading

AG Opinion on C-18/18: Towards private regulation of speech worldwide

By Paolo Cavaliere

The case of Glawischnig-Piesczek v Facebook offers the opportunity for the Court of Justice to clarify the personal and material scope of monitoring obligations that may be imposed on Internet intermediaries, i.e. those private entities that ‘give access to, host, transmit and index content originated by third parties’.  The decision of the Court will determine whether domestic courts can impose monitoring obligations on digital platforms, and of what nature, and how much power courts should be given in imposing their own standards of acceptable speech across national boundaries. The opinion of the Advocate General, rendered earlier this month, raises some concerns for on-line freedom of expression because of its expansive approach to both monitoring obligations and jurisdictional limitations. Continue reading

The Court’s judgement in C-591/17 (Austria v Germany), or why the German light-vehicle vignette system is discriminatory

By Niels Kirst 

The recent judgement of the European Court of Justice in C-591/17 Austria v Germany was a Member State dispute about the enactment of a motorway charge in Germany. The Court of Justice of the European Union (hereinafter: CJEU) addressed one of the core concepts of the European legal order – the non-discrimination principle enshrined in Article 18 of the Treaty on the functioning of the European Union (hereinafter: TFEU). Questions had to be answered: (1) Can the cumulative introduction of a vignette system and a vehicle-tax relief amount to an indirect discrimination? (2) Should political considerations be taken into account by the Court? (3) Is Article 259 TFEU a suitable tool to solve Member State disputes?

The case is particularly interesting due to the use of Article 259 TFEU, which Austria invoked to bring Germany before the CJEU. Article 259 TFEU is rarely used due to its blaming character of the alleged rule-breaker. Many Member States would prefer that the European Commission (hereinafter: EC), as guardian of the treaties, leads the investigations into an alleged breach of EU law by a Member States. However, Article 259 TFEU can be seen as a last resort measure by a Member State, if the Member State sees its interests or the interest of its citizens jeopardized.[1]

In the case at hand, Austria brought the measure before the CJEU since many Austrians use the German highways due to proximity and transnational road travels through Germany. Austria based its claim on two characteristics. First, (i) the new motorway charge would be payable by all users of the motorway network in Germany and second (AG opinion, para. 5); (ii) owners of vehicles registered in Germany are granted a tax relief equal to the amount of the motorway charge (AG opinion, para. 5). Austria argued that the combination of these two measure factually amounts to an indirect discrimination of EU citizens when they use German highways.

This commentary presents the relevant political backgrounds leading up to this case, discusses the Court’s judgement and reflects upon the wider implications of Case C-591/17 for the development of an EU-wide vignette system for light vehicles, the use of Article 259 TFEU and the questions of political accords between the EC and a Member State. Continue reading

The Road that divided the EU: Italy joins China’s Belt and Road Initiative

By Femke van der Eijk and Angela Pandita Gunavardana

China’s global influence has grown dramatically in recent years. Its Belt and Road Initiative (BRI) is an important manifestation of this rise. On 23 March 2019 Italy, the first G7 country, formally joined the BRI, which has caused significant tensions within the EU. This was the wake-up call for the EU, which prompted it to reconsider its policies towards the Asian superpower.

To BRI, or not to BRI?

The BRI is a transcontinental endeavour, launched in 2013, which is centred around infrastructure investment and aims at promoting projects that foster regional cooperation, development, and connectivity. Continue reading

Neues aus dem Elfenbeinturm: June 2019

Conference “The protection of economic, social and cultural rights in the age of exits”

The Hague, 21-22 November 2019. Deadline for abstract submissions: 30 June 2019.

Workshop “Judicial and extra-judicial challenges in the EU multi- and cross-level administrative framework”

Maastricht University Brussels Campus, 8-9 July 2019. Registration necessary.

Workshop “EU Trade Agreements and the Duty to Respect Human Rights Abroad”

Asser Institute, The Hague, 11 December 2019. Deadline for abstract submissions: 15 July 2019.

Conference “Constitutional interpretation in European populist regimes ‒ new methods or old tools for new purposes?”

Budapest, 5-6 December 2019. Deadline for abstract submissions: 31 July 2019.

AG Opinion on Case C-411/17: EIA for existing installations and the CJEU’s struggle with international law

By Sebastian Bechtel

Currently pending before the CJEU is a fundamental issue regarding the assessment of environmental effects of major projects: Should their impacts only be reassessed when construction takes place? Or should there also be an environmental impact assessment (‘EIA’) if an aging project is allowed to continue operation many years beyond its originally projected lifetime, without any physical alterations?

Case C-411/17 requires the Court to address its own interpretation of the EIA Directive in an earlier judgement which arguably contradicts the EU’s obligations under international law. In her Opinion published in November last year, AG Kokott has therefore urged the Court to reverse its case law.

EIA is an essential procedure to prevent environmental impacts at source and to allow for public participation in decision-making. Since many major industrial facilities, such as energy infrastructure, operate over many years, the question as to when an EIA obligation arises for existing facilities is of crucial importance. Next to posing intricate legal questions concerning the EU legal order, the case is therefore of great practical relevance to environmental protection in Europe.

This commentary presents the relevant international and EU law developments leading up to this case, discusses AG Kokott’s Opinion and reflects upon the wider implications of Case C-411/17 for the development of EU environmental law and its interaction with the international legal order. Continue reading

German prosecutors are insufficiently independent to issue European Arrest Warrants

By Johannes Graf von Luckner

It is a statement that one would more readily expect from political activists – it was, however, issued by the Court of Justice of the European Union (CJEU): Public prosecutor’s offices in Germany are not sufficiently independent to issue European arrest warrants (EAWs) (Joined Cases C-508/18 and C-82/19 PPU, OG and PI).

The case is sending shock waves through Germany’s judiciary, although it was not wholly unexpected after Advocate General Campos Sánchez-Bordona stated, in his Opinion preceding the judgment, that he had been waiting for an opportunity to comment on German prosecutors’ independence.

The purpose of this post is to summarise the Court’s legal reasoning and to give a brief overview of the implications the judgment might have for Germany, German EAWs, and other Member States. Continue reading

Autonomy and Opinion 1/17 – a matter of coherence?

By Francisco de Abreu Duarte

On the 30th of April this year, the CJEU handed down its highly anticipated Opinion 1/17 on the compatibility of the CETA agreement with EU law. As Ankersmit details in his blogpost, the request for an opinion had been part of a widely known quarrel within Belgian internal politics, with Wallonia demanding the Belgium government to expressly consult the Court of Justice of the European Union (CJEU) on the legal merits of that agreement. Respecting that decision from its regional parliament, Belgium asked the CJEU, among other things, whether such an agreement was compatible with the principle of autonomy of the EU.

I will circumscribe this post to the analysis of the precise question of autonomy and leave out many of the other troubling questions such as the ones raised by Schepel’s in his previous post. The argument I put forth is as simple as it is controversial: autonomy, due to its abstract characteristics, is often subject to power injections leading to incoherent interpretations depending on the subject-matter at hand.

Let us see how autonomy has been interpreted before Opinion 1/17 and then analyze it in that light. Continue reading

“Global Britain” Adopts the EU’s Normative Approach to New Trade Agreements

 By Sterre van Campen and Rebecca Poort

As for now, the United Kingdom will leave the European Union on 31 October 2019, unless a withdrawal agreement is ratified before this date. The UK aims to sign “continuity” agreements with third countries to replace existing agreements with the EU before Brexit to avoid disruptions in trade flows. With smaller market leverage and under political pressure to deliver results, there would be an incentive for the UK to adopt an approach that is more lenient than the EU’s in its negotiations of post-Brexit trade agreements. There have been reports of requests from non-EU trade partners for the UK to lower its human rights standards and to soften its food standards once it is out of the EU. However, there are indications that the UK will stick to a normative approach comparable to the EU’s when it comes to development cooperation and environmental standards, as can be seen in the UK’s first continuity agreement with a group of Eastern and Southern African States,. In this post, we argue that despite the pressures, the UK does not diverge from the normative approach that the EU takes in its post-Brexit trade agreements. Continue reading

Neues aus dem Elfenbeinturm: May 2019

5th CLEER summer school on EU external Relations law

Brussels, 24-28 June 2019. Deadline for applications: 3 June 2019.

re:constitution Fellowships

Deadline for applications: 1 June 2019.

ELGS Summer School on Comparative Law & Global Governance

Sounion, 22-26 July 2019. Deadline for applications: 21 June 2019.

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

Berlin, 21 June 2019. (Paid) registration necessary.

Seminar “Unravelling the Brexit Conundrum, Legal and Political Perspectives”

The Hague University of Applied Sciences, 27 May 2019.

Symposium “EU Citizenship 25 Years On : Civil and Economic Rights in Action”

University of Trento, 28 May 2019.

Helsinki Summer Seminar “International Environmental Law – Process as Decline”

Erik Castrén Institute of International Law and Human Rights, 26-30 August 2019. Deadline for applications: 31 May 2019.

Summer School “The Protection of Fundamental Rights in Europe”

Bertinoro, 23-28 June 2019. Deadline for application: 12 June 2019.

Workshop on counter-terrorism at the crossroad between international, regional and domestic law

Bocconi University, 13-14 June 2019. Online registration necessary.

Würzburger Europarechtstage “Die EU zwischen Niedergang und Neugründung: Wege aus der Polykrise”

University of Würzburg, 19-20 July 2019. Deadline for (free) registration: 11 July 2019.

3rd EDEN Conference “Paradise Lost? Policing in the Age of Data Protection”

Copenhagen, 19-20 September 2019. Deadline for early bird (paid) registration: 19 July 2019.

Conference “Towards European Criminal Procedural Law”

University of Nantes, 6-7 February 2020. Deadline for abstract submissions: 15 September 2019.

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.

Continue reading