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

The European Citizens’ Initiative: no real right of initiative but at least more significant than a petition to the Parliament?

On 19 December 2019, the Court of Justice (CJEU) sitting as a Grand Chamber confirmed the General Court’s judgment in One of Us. The judgment has been eagerly awaited as it was expected to put an end to the old discussion of what a successful European Citizens’ Initiative can or cannot achieve (for the discussion see e.g. here or here).

Background

The European Citizens’ Initiative (ECI) allows one million citizens to invite the European Commission, ‘within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties’ (Article 11(4) TEU, Article 3 Regulation 2019/788). As of 1 January 2020, Regulation (EU) 2019/788, which repealed Regulation (EU) No 211/2011, lays down the concrete procedure and conditions required for an ECI. The procedure consists of three steps: (1) registration, (2) collection of support, and ultimately, (3) submission of a successful initiative, which is one that meets the threshold of one million supporters, to the Commission for examination. In C-418/18 P Puppinck and Others v Commission the Court clarified the very last of these steps – the examination by the Commission and the resultant outcome of a successful ECI.

The General Court’s ruling

Mr. Puppnick and his six fellow appellants are the organizers of the successful ECI ‘One of us’. They invited the Commission to introduce a ban on the ‘financing of activities which presuppose the destruction of human embryos’. The Commission, however, decided not to follow any of the requests submitted. The organizers thus sought an action for annulment before the General Court. The latter found Article 11(4) TEU as well as Regulation (EU) No 211/2011, which continues to apply to European Citizens’ Initiatives registered before 1 January 2020, to suggest that the Commission is not bound to follow a successful ECI, but retains discretion as to ‘the action it intends to take, if any’ (§74) [emphasis added]. The Court further clarified that the contested Commission communication had been sufficiently reasoned as it clearly outlined the reasons as to why the Commission did not intend to follow any of the organizer’s requests (§150-153). Moreover, the Court established that the Commission decision is subject to a limited review due to the broad discretion enjoyed by the institution. The review applied may therefore only verify ‘the adequacy of statement of reasons as well as the existence of a manifest error of assessment vitiating the decision’ (§170). Considering the substantive reasons relied on by the Commission, the Court did not find such a manifest error. It hence dismissed the action in its entirety.

Continue reading

What a Journal Makes: As we say goodbye to the European Law Journal

On January 31st, the Editorial and Advisory Boards of the European Law Journal resigned en masse from their positions in protest after the publisher, Wiley, decided that it was not willing to ‘give away’ control and authority over editorial appointments and decisions to the academics on the journal’s Boards. We recount our small act of resistance here because we think there may be lessons for the wider academic community. We are not looking to portray ourselves as martyrs for academic freedom or principled radicals looking to overhaul the entire system of academic publishing. Indeed, the most significant aspect of our rupture with Wiley lies in the modesty of the demands they were unwilling to meet.

In 2018, Wiley sought to appoint Editors-in-Chief without as much as consulting the Board of Editors and the Advisory Board, in a process both unfair to the prospective, excellent, new editors and in complete disregard of the integrity and autonomy of the academic community gathered in the Boards. The new editors withdrew, and the Boards resigned in protest. Wiley finally relented and agreed on an open competitive process administered by a committee of Board representatives leading to an appointment by mutual consent of the publisher and the committee. In the end, our recent negotiations with Wiley broke down on our one necessary if insufficient condition for agreeing to new terms: to simply have this process formalized in our new contract. It is a modest point, but one of vital importance: it clears the way to a model where Editors respond to the Board, not to the publisher, and where Editors work for the journal, not as remunerated contractors for the publisher. In other words, it is a fundamental condition for safeguarding academic autonomy.

To be sure, Wiley acted wholly within its rights. It ‘owns’ the European Law Journal. It has the rights to the title and associated proprietary paraphernalia, and it controls access to content. It operates the ELJ much as it and other commercial academic publishers operate other journals. It appoints and employs editors as ‘contractors’ who then organize and manage the free labor of authors and reviewers of submissions. It has articles copy-edited, type-set and produced in a low-wage country far far away. From a business perspective, academic publishing is a cool gig: labor costs are spectacularly low, the investment required is largely limited to building (or rather, buying) a proper software system for processing and storing papers, and demand has the elasticity of cast iron: journals are wrapped up and sold in packaged databases which university libraries have little choice but to gobble up. Scholarship and intellectual exchange are but ‘content’ on a ‘platform.’ Academics are but marvelously cheap service providers.

Perhaps naively, we always thought it was the other way around. We saw Wiley as a prestigious publishing house that should be generously rewarded for services rendered to the intellectual project that is the European Law Journal. We saw sales and revenue and impact factors as slightly irritating but necessary means to the end of sharing that intellectual project with the wider academic community. And yes, we thought and still think that the intellectual project of the ELJ is ‘owned’ by the academic community of editors, authors, reviewers and readers whose efforts have made the ELJ into a leading journal of European law. Founded twenty-five years ago as a review of European ‘law in context’, the ELJ has offered a distinctive platform for avowedly theoretical and critical work, for a meaningful exchange between disciplines and approaches, and for methodological pluralism. We have given importance to empirical and historical analysis, played a vital role in introducing private law debates into general EU law, and laid bare the gravity of ‘crisis law’ as a matter not just of law and governance, but as matter of European legal scholarship. If the enduring importance of, say, Heller and Schmitt, Habermas and Luhmann, Foucault and Bourdieu, or Hayek and Polanyi has been seeping through in EU legal discourse, it is surely partly the merit of the ELJ.

The European Law Journal is an intellectual project we are determined to continue. This will have to happen in a new journal which will not be called the European Law Journal, will not have a pink cover, and will not carry the subtitle of the ‘review of European law in context.’ God forbid we encroach on the publisher’s proprietary interests.

Meanwhile, Wiley is looking to appoint new editors, refill its fully depleted masthead and continue something that is called the European Law Journal. New contractors, new service providers. Same name, same logo. Same paywall in front of the same thousands of pages of dedicated scholarship. Business as usual.  It is their right to do so. After all, they ‘own’ the European Law Journal. Or do they?

Formerly the editors-in-chief: Joana Mendes and Harm Schepel

Formerly on the Board of Editors: Daniela Caruso, Edoardo Chiti, Michelle Everson, Agustín Menéndez, Alexander Somek, Daniel Thym, Renata Uitz, and Floris de Witte.

Formerly on the Advisory Board: Gráinne de Búrca, Carol Harlow, Imelda Maher, Miguel Poiares Maduro, Wojciech Sadurski, Silvana Sciarra, Francis Snyder, Neil Walker, Joseph Weiler, and Bruno de Witte.

Brexit and its consequences for cooperation in criminal matters

On January 31st, 2020, the United Kingdom withdrew from the European Union, and their mutual relationship entered in a phase of transition. After 47 years of membership, the withdrawal led to a series of changes in various policy areas, in which the UK, as an EU Member State, cooperated with its counterparts. This notably concerns police and judicial cooperation in criminal matters, and the consequences of Brexit in this particular field will be our focus.

Police and judicial cooperation in criminal matters is not necessarily the most discussed areas of mutual cooperation between EU Member States. Yet the instruments elaborated in this field are often relied upon in the background of highly visible cases, among which the emission of European arrest warrants (EAWs) against Catalan politicians, like Carlos Puigdemont, or the creation of a joint investigation team between France and Belgium after the Paris attacks in November 2015. These instruments are also frequently relied upon by British authorities, such as in the course of the investigations that were launched after the macabre discovery of 39 bodies in the “Essex Lorry”. The investigators retraced its movement from Bulgaria to the UK, through Belgium, notably with the assistance of one of the EU specialized agencies, Europol, and EAWs were issued against a person residing in Ireland suspected to have been involved in the criminal operation.

The UK’s withdrawal from the EU will have an impact on its participation in such cooperation. To understand the consequences of Brexit in this field, the present contribution will retrace the role of the UK in the development of the EU area of criminal justice (1). It will then discuss the regime applicable during the transition period, and pinpoint some of the identifiable shortcomings (2). It will finally address the possible future modalities of cooperation between the UK and the EU (3).Continue reading

Brexit: In Transition

On Friday 31 January 2020 at 12a.m. CET the United Kingdom will become the first Member State to withdraw from the European Union. In accordance with Article 50(3) of the Treaty on European Union the ‘treaties will cease to apply’ and the Withdrawal Agreement will come into force. Paradoxically, however, Article 127 of this Agreement ensures that the treaties, and all EU law, will continue to apply to and within the United Kingdom until 31 December 2020.

This means that the seismic effects of Brexit will be staggered. The most immediate consequences will be institutional. Members of the European Parliament elected by UK citizens will lose their seats (and bring down their flags). The United Kingdom’s Judges at the Court of Justice and the General Court have issued their final judgments.(2). The empty seat in the Commission, following Boris Johnson’s refusal to nominate a new Commissioner, will be removed. The rotating Presidents of the Council will no longer be required to pull double-duty through the exercise of the United Kingdom’s proxy vote following the government’s decision to only send Ministers for meetings on matters of national interest.

These deconstructions will be accompanied by a new institutional innovation. The Joint Committee, which has authority over the implementation of the Withdrawal Agreement, will begin to function in 2020. The decision-making authority delegated to his institution by the new Protocol on Northern Ireland means that the Joint Committee may become subject to considerable controversy.

For individuals away from high-politics, however, the effects of Brexit will not be felt until the end of the year. Goods, capital, services, and people will continue to move freely across the English Channel, and despite the symbolic return of blue passports, UK citizens will still be able to travel freely to the coasts and capitals of the continent. Within the UK, the passage of the EU (Withdrawal Agreement) Act 2020 means that the European Communities Act 1972 has been granted an after-life as the conduit pipe whereby all ‘retained’ EU law will continue in force within the UK’s legal orders.

Brexit day does not, however, mark the end of the European Union’s voyage into uncharted territory. The first withdrawal of a Member State will be immediately followed by the first attempt to negotiate an international agreement with a ‘third country’ which is a former constituent partner in European integration. The new ‘Political Declaration’ will be the only map available to chart the breakneck 11 month course.

The EU’s international agreements usually mean the removal of barriers to economic, legal, and social integration. The negotiations with the UK will mean their construction. The intimate connection between the UK and the EU that has developed over five decades also means that this process will go far beyond the conclusion of a treaty in international law. It represents the construction of a new transnational legal order. This new voyage will continue to produce the juridical conundrums that have excited and exhausted the legal community since 23 June 2016. The European Law Blog will remain committed to providing our readers with timely and informed analysis throughout the next leg of the journey.

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