In Support of the EU Rule of Law and Advocate General Eleanor Sharpston – An Open Letter

We live in uncertain times, in times when the rule of law cannot be taken for granted anymore. Rather, to the contrary, numerous events in Europe and beyond challenge a fundamental principle of our legal culture, a milestone of the civilized world. It is therefore of the utmost importance to look after one of the most successful achievements of our modern society: the rule of law.

The EU in particular has experienced that the rule of law is under serious threat in several of its Member States. For years, the European Union (EU) has been struggling with this situation, aiming for the compliance of EU Member States with existing legal rules as a minimum requirement. Changing essential rules on the appointment of judges and undermining their independence by formal and informal practices happens far too often and is very difficult to deal with. The EU has seen first-hand how difficult it can be to achieve an improvement of the situation in Member States such as Hungary and Poland. The Court of Justice of the European Union (CJEU) has contributed, and has pushed ahead quite far, in order to protect the rule of law in EU Member States.

In order to be fully credible, a necessary condition is that the rule of law is respected on the EU level, above all by the CJEU. This credibility is at stake in cases where the Member States have to find Brexit-related solutions for the composition of the CJEU, which could interfere with the independence of the institution in general and given from the nature of the specific situation also in the mandate of Advocate General Eleanor Sharpston in particular. As Daniel Halberstam has pointed out clearly, the recent declaration of EU Member States on Brexit, which foresees the removal of AG Sharpston from office (“The ongoing mandates of members of institutions, bodies, offices and agencies of the Union nominated, appointed or elected in relation to the United Kingdom’s membership of the Union will therefore automatically end as soon as the Treaties cease to apply to the United Kingdom, that is, on the date of the withdrawal.”) lacks an undisputed legal basis.Continue reading

A First Cruise in Judicially Uncharted Waters – Mutual Recognition of Probation Measures at the CJEU

The second case filed at the CJEU in 2019 was not one to make headlines. Although “A.P.” (C-02/19,) takes place in the field of criminal law, it does not concern blood and thunder. Although Mr A.P. is convicted, he is not in prison. On the contrary: the case only arose because A.P. is not imprisoned.

Notwithstanding all of this, the A.P. case may have notable practical impact. The reason for this is that it concerns the Framework Decision 2008/947/JHA on the mutual recognition of probation measures and alternative sanctions (FDPAS). The FDPAS is one of the lesser used mutual recognition instruments in European criminal law. Therefore, a CJEU judgment could per se raise some awareness of the instrument among practitioners. Moreover, no case regarding the FDPAS has ever reached the CJEU before, making it an area of judicially uncharted waters with much space for clarifications by the CJEU. Just over a year after the case has been filed, AG Bobek has now issued his opinion on the matter.Continue reading

Dwyer: It is not possible to access that which has not been retained

Ireland is one of two Member States, the other being Poland, where electronic surveillance and in particular access to phone data can be authorised directly by the police without a Court order, but in light of the majority judgment handed down by Irish Supreme Court down on 24 February 2020 in Dwyer v The Commissioner of An Garda Síochána & Oths., that may not be the case for much longer.

The legal challenge is brought by Mr. Dwyer who was tried and convicted of the murder of Ms. Elaine O’Hara in 2012. Part of the evidence used against him in the trial was obtained by the Gardaí on foot of a s.6(1)(a) disclosure request under the Communications (Retention of Data) Act 2011, where the prosecution tendered two mobile phones showing a detailed analysis of call records during 2011 and 2012. He argues in light of the Digital Rights Ireland case and subsequent CJEU case-law that the data obtained and used in evidence against him was incompatible with European Union Law. If successful in the proceedings before the Supreme Court, he will seek to use the Court’s findings in relation to data retention as part of his criminal appeal and challenge the admissibility of illegally obtained evidence in an effort to quash his conviction.Continue reading

Shedding Light on the Role of the EU’s Chief Trade Enforcement Officer: Dispute Over Labor Commitments Under EU – Korea FTA and EU Enforcement Regulation

Chief Trade Enforcement Officer

As early as July 2019, Ursula von der Leyen, President of the European Commission (“Commission”), proposed a new role within the Commission to monitor the implementation of European Union’s (“EU”) trade agreements.  In particular, and in line with her announcement of an ambitious climate policy, the so-called “the European Green Deal”, in December 2019 to make Europe the first climate-neutral continent in the world by 2050, President von der Leyen confirmed that the EU’s efforts to enforce the sustainable development commitments of EU trade agreements would be further enhanced with the appointment of a Chief Trade Enforcement Officer. The Chief Trade Enforcement Officer would monitor and enforce environmental and labor protection obligations of EU trade agreements with third countries. The Commission officially created the post of Chief Trade Enforcement Officer on 12 December 2019, and the post is expected to be filled in early 2020.

At this point, however, it remains unclear who will be appointed as the first Chief Trade Enforcement Officer, and what exact role one in this position will play. So far, Phil Hogan, the Commissioner for Trade, stated during a hearing before the European Parliament in September 2019, that the Chief Trade Enforcement Officer will be at the level of Deputy Director-General of DG TRADE and broadly have authority to confront countries that are found to be in breach of the WTO Agreement and EU free trade agreements. Specifics are scant.

However, the on-going dispute between the EU and the Republic of Korea (“Korea”) over labor commitments under the EU – Korea Free Trade Agreement (“FTA”) and Regulation (EU) No. 654/2014 concerning the exercise of the EU’s rights for the application and enforcement of international trade rules (“Enforcement Regulation”) may shed light on the potential role of a Chief Trade Enforcement Officer.Continue reading

The Fundamental Rights Agency as the conscience of the EU: Is there a role for it in the UK-EU post-Brexit trade negotiations?

This piece reflects the author’s personal opinion.

On 31 January 2020, one hour before the official exit time of 11 pm, the United Kingdom’s Prime Minister, Mr Boris Johnson, announced that Brexit is not an end but it is a beginning. The latter phrase was not merely a reiteration of his electoral campaign’s slogan of ‘unleashing the UK’s potential’. He also sought to familiarise the electorate with the difficult, next phase of Brexit, namely, the negotiations surrounding the UK’s ‘trade deal’ with the EU. Mr Johnson has eleven months to secure such a ‘deal’. Continue reading

A regulatory conundrum in the platform economy, case C-390/18 Airbnb Ireland

Soon after the Uber judgments (C- 434/15 Uber and C-320/16 Uber France) Airbnb came into the spotlight as the next troublemaker of the sharing economy. As the platform was accused of hollowing out European city centres and competing unfairly with hotels, it was only a matter of time before the question whether its services must be regarded as an ‘information society service’ (ISS) under Directive 2000/31 was referred to the Court. Famous French juge d’instruction Renaud Van Ruymbeke made it happen and the European Court of Justice handed its judgement (C-390/18) in the final days of 2019.

Following a complaint from the Association pour un hébergement et un tourisme professionnel (AHTOP) that Airbnb was acting as an estate agency without a licence, breaching an act from 1970 known as the Hoguet Law, the Paris Prosecutor’s Office had issued an indictment for fund handling as well as mediation and management of real property by a person not in possession of a professional licence.

While it remained unclear before the Uber judgments whether Uber could benefit from the freedom to provide services, it was never contested that Airbnb could. The question was rather whether the service provided by Airbnb fell within the material scope of Directive 2000/31 or within that of Directive 2006/123. Although both directives provide that national requirements may only restrict the freedom to provide services of an economic operator established in another Member State if detailed conditions are fulfilled, there are major differences between their provisions. Directive 2006/123 contains no equivalent to Articles 12 to 15 of Directive 2000/31, regarding the liability of intermediary service providers. Those who are able to rely on the provisions of Directive 2000/31 benefit from a more extensive freedom to provide their services. Indeed, they must not be held liable for the information stored or transmitted, provided that certain conditions are met, and should not be subject to a general obligation to monitor this information.

Determining the exact nature of the service provided by Airbnb and the precise scope of Article 3(4) of Directive 2000/31 was thus critical both for the companies in the sharing economy market and Member States. It is particularly worth examining as the new Commission is seeking to overhaul Directive 2000/31 and strengthen the country-of-origin principle for digital companies.Continue reading

The UK/EU partnership and human rights: battle-lines and paradoxes

Confusion between the EU and the European Convention on Human Rights (‘ECHR’) is a perennial feature of British political debate: most recently, the front page of the Times confused the Strasbourg and Luxembourg Courts. Given this, many people will be surprised to learn that the United Kingdom will remain subject to the ECHR after Brexit. Those people will be still more surprised to learn that as things stand, Brexit is leading to precisely the opposite outcome: in the joint Political Declaration of October 2019, the UK committed to continued adherence to the Convention. On Monday 3 February 2020, the Commission took things a step further, in essence seeking to require that the UK retains the Human Rights Act 1998 (‘HRA’) substantially in its current form. This post seeks briefly to summarise the background and the Political Declaration (I) before outlining the sides’ opening negotiation gambits (II) and noting three paradoxes (III).Continue reading

Untangling the inextricable – Advocate General Sánchez-Bordona’s proposal for a new standard of review of Charter infringements in Commission v Hungary (C-78/18)

Introduction

In his recent Opinion Advocate General Sánchez-Bordona (hereinafter ‘the AG’) gave his assessment of a crucial question of European Union law. How should the Court of Justice of the European Union (hereinafter ‘CJEU’ or ‘the Court’) handle infringements of the freedoms of the single market which at the same time also impinge on the fundamental rights enshrined in the Charter of Fundamental Rights of the European Union (hereinafter ‘the CFR’)? This question will set the trajectory of the CFR in the EU legal order for cases to come. The Court eventually has to clarify if the CFR should apply to national laws that are not directly implementing EU law but are restricting the EU’s fundamental freedoms. In his Opinion, AG Sánchez-Bordona made a proposal to overcome this caveat and untangle the intertwined Treaty and CFR claims.

In 2009, with coming into force of the Treaty of Lisbon, the CFR, via Article 6 Treaty on European Union (hereinafter ‘the TEU’), gained legal significance. However, this legal effect is limited by Article 51 CFR, which famously proclaims that the CFR should only be applicable when EU Member States (hereinafter ‘MS’) implement EU law. The CJEU understood this provision as meaning that the CFR could only be invoked in case national law provisions, which were enacted in light of EU law provisions, conflicted with the fundamental rights guaranteed by the CFR. Subsequently, C-617/10 Åkerberg Fransson (discussed here) modeled the outer boundaries of fundamental rights protection under the CFR. However, the question is still unanswered about how the CFR interacts with the four freedoms of the single market. AG Sánchez-Bordona takes a new approach to untangle this legal ball of wool.Continue reading

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