The EAW in cases of problematic surrender: Causes, consequences and possible solutions

In Memoriam. To María Poza Cisneros, Senior Magistrate and Deputy National Member for Spain at Eurojust.

The European Arrest Warrant (EAW) Framework Decision (FD) 2002/584/JHA was designed to provide a speedy and efficient extradition procedure among EU Member States (MS). However, sometimes the actual surrender happens to be impossible within the legal deadlines. These cases can be of very different nature (force majeure or humanitarian reasons – including COVID-19 related cases –, deficiencies in the justice systems, prison conditions, etc.) and the practical consequences vary, sometimes bringing a significant impact for the persons subject to surrender, for the justice system in general, or even for society. Some cases can be easily solved by the mere passage of time, while others have a more complicated solution, or none at all, so legislative reforms might be the only way forward. In this post we will look into these different scenarios, analysing them from the viewpoint of the CJEU case law, and explore legal solutions to some of them, including the possible reform of the current EAW legal framework. Such reform seems necessary to create the tools to address some of the most serious situations.
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Case C-74/19 Transportes Aereos Portugueses: “Extraordinary circumstances” extended

This contribution discusses the recent case of Transportes Aereos, where the Court was faced with a question whether turbulent behaviour of a passenger that obstructs flight operation and leads to diverting a plane may constitute an extraordinary circumstance under meaning provided by case-law and Regulation 216/2004. The case adds to a narrow list of exceptions under which air carriers are exempted from their obligation to pay compensation since the unruly behaviour was ruled as an “extraordinary circumstance”. The judgement is helpful in providing a clear understanding of what can amount to “extraordinary circumstances” which are not formally defined in the Regulation. Moreover, supplementary information on “reasonable measures”, which are a condition to the exemption, is also provided by the Court.

The aim of this contribution is to discuss the interpretation found in current case-law and what the recently decided case adds to it. Therefore, the structure of it is as follows. Firstly, a brief description of facts and questions referred to the CJEU will be laid out. Secondly, the regulation, its interpretation and case-law will be examined as to provide background information and up-to-date interpretation. Thirdly, the concept of “extraordinary circumstances” and the significance of the case will be discussed.

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The Commission’s proposal for a European Minimum Wage – another ultra vires challenge for the EU?

Introduction
On 3 June 2020, the Commission issued the second phase of the consultation on possible EU action on fair minimum wages. The proposed action reflects the commitment made by the President of the Commission, Ursula von der Leyen to “propose a legal instrument to ensure that every worker in our Union has a fair minimum wage” within the first 100 days of her mandate. The proposal seems to have been favourably received – the European Parliament has indicated that it will support the Commission’s initiative and the European Trade Union Confederation considers that the measures are much needed, not only to repair the damage inflicted by the austerity measures but also to deal with the economic fall out of the Covid-19 pandemic. Commentators have supported the proposals by pointing out the social and economic benefits it would bring, and demonstrating that the EU was taking the ideal of a ‘social Europe’ seriously. While the Nordic Member States expressed concerns about the impact which such EU action could have on their system of collective bargaining, the outcome of the consultation was generally favourable.

In this entry, I will not engage with the question of the desirability of the minimum wage proposal, nor of its impact on national labour law. What I will consider is whether the legal basis on which the Commission seeks to rely on provides the EU with the necessary competence to enact the proposed measures. The analytical document (SWD(2020) 105 final) produced by the Commission in conjunction with the 2nd phase consultation provides quite a lot of detail about the type of measures that are being proposed, and the Treaty provisions that would form the legal basis for those measures. The argument advanced in this entry is that the Commission overestimates the degree of flexibility provided by the Treaty provisions, and that the proposed measures would likely be ultra vires.
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Macron’s Call for a European Army: Still Echoing or Forgotten?

In November 2018, French President Emmanuel Macron called for a “European army” to protect Europe from “China, Russia and even the United States of America.” This happened as a response to the withdrawal of the United States from the Intermediate-Range Nuclear Forces Treaty, a treaty signed in 1987 that helped end the Cold War.

The rise of China alongside the fear that President Donald Trump might pull the U.S. out of NATO have pushed the EU into a time of strategic instability and uncertainty. It prompted President Macron to call for a united Europe able to defend itself without relying on the U.S. Macron’s urge for a European army was later endorsed by German Chancellor Angela Merkel, though she emphasized that the army would act as a complement to NATO.

One-and-a-half years have passed since the French leader’s announcement, but signs of a European army are yet to materialize. Is the plan to establish a European army simply too ambitious or is it, as tweeted by President Trump, an insult to the U.S., whose partners should focus on paying their fair share of NATO instead? In fact, President Trump recently “confirmed plans to withdraw 9,500 American troops from bases in Germany” since Germany has not met its defence spending target. Although several initiatives have been established to strengthen the European defence, the prospects of an upcoming European army seem rather bleak, as the analysis below will show.

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“Methodological Solange” or the spirit of PSPP

This contribution looks at the German Federal Constitutional Court’s PSPP judgment and its scrutiny of the methods of interpretation of EU law by the Court of Justice of the EU. Notably, the GFCC introduced a new Solange: its intention to accept the CJEU’s methodology as long as the latter does not arbitrarily disregard the principles common to national constitutional traditions. In discussing this “methodological Solange”, I will first show why the German court taking ever greater ownership in the interpretation of EU law, without engaging the CJEU and while circumscribing the preliminary rulings avenue, is the emerging “new normal”. Then I will describe how in several previous occasions the national courts’ concerns regarding the methodology employed by the Court of Justice have led the latter to gradually improve its reasoning, and how the PSPP piece might fit into this puzzle.

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Disagreement on intra-EU BITs continues: Infringement actions over intra-EU BITs

May 2020 was an interesting month for ISDS and EU law. On 5 May 2020, a majority of  EU Member States signed a multilateral treaty to terminate intra-EU Bilateral Investment Treaties (BITs). Despite longstanding reluctance, Member States were forced to act by the Achmea judgment, where the CJEU held that investment arbitration clauses in BITs between Member States have “an adverse effect on the autonomy of EU law” and are incompatible with EU law. It subsequently took Member States two years to negotiate a Termination Agreement (“TA”).  Being originally planned for December 2019, its conclusion is somewhat overdue and news of its signing was eclipsed by the controversial PSPP judgment. Nevertheless it marks an important transition, although it is not free of its own controversies. On the 14th May, the Commission already sent infringement notifications to two Member States who refused to sign it. This begs the question whether Member States have an obligation under EU law to conclude the TA. It is argued that, depending on the effectiveness of the TA under international law, they might indeed have such an EU law obligation. However, it can be questioned whether the TA really marks the (immediate) end of intra-EU ISDS as tribunals’ Kompetenz-kompetenz competes with the CJEU’s interpretative authority.
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The SAMs Report “Towards a Sustainable Food System” bites the hand that feeds us!

We live in a world of unprecedented challenges, one of which concerns the governance of our food systems. While our lives depend on the availability and healthy consumption of food, the ways in which we currently produce, sell and consume food are the subject of considerable criticism. The food system is in urgent need of transformation, particularly within the world’s largest and most impactful market: the European Union. A number of proposals for how such transitions should take place have been brought to the table. They include the Commission’s recently launched ‘farm to fork’ strategy. One major stepping stone towards the Commission’s strategy is formed by the preliminary reports developed by its scientific advisors: Scientific Advice Mechanism (SAM). One of these important reports was prepared by the Group of Chief Scientific Advisors, entitled ‘Towards a sustainable food system’ (hereinafter ‘the report’). Because of its importance, we evaluate this report carefully with regard to its underlying assumptions, potential impact on the food system and possibility of implementation. We argue that the report unfortunately falls short on each of these aspects.

We start by summarising what we regard as the content and main take-away from the report. We then assess the report’s proposals. Finally, we argue for a more nuanced approach to the existing governance of food systems, as the proposals from the SAM report both metaphorically and literally risk biting the hand that feeds us.

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The German Federal Constitutional Court’s PSPP Judgment: Proportionality Review Par Excellence

In the German Federal Constitutional Court’s PSPP judgment the FCC found essentially that the Court of Justice’ s proportionality scrutiny of the ECB’s decision on the PSPP program was ultra vires. Obviously a number of blog posts, articles and commentaries have centred on the political implications of the judgment, its impact for the Monetary Union, the social and economic implications as well as its constitutional dimension (the ever-lasting discussion of pluralism, primacy and so forth). In general EU law scholars have criticised the FCC’s judgement on various points (Davies, Sadl and Marzal) inter alia the FCC’s reading of Article 19 TEU, its conflation of conferral and proportionality (and the different principles in Article 5 TEU) and its (blunt and uncompelling) attack on the Court of Justice’s methodological competencies.

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