LGBTIQA+ Equality Ahead of EU Elections: How Many Steps Forward?

Blogpost 30/2024

The history of EU institutions is marked by a long list of statements and political initiatives that endorse the legal claims of the LGBTIQA+ community (see, for instance, Kollman and Bell). Over the past decades, these have gradually been mainstreamed within different areas of EU law. Particularly, the current EU legislative term (2019-2024) has witnessed an increased commitment of EU institutions towards the LGBTIQA+ community. This is not only shown by the numerous and recurrent Resolutions of the European Parliament on this topic (see EPRS). It is also evident from several political and legislative initiatives that have been introduced over recent years, which (attempt to) intervene in diverse fields of EU law that are considered as relevant to individuals that identify as LGBTIQA+.

Meanwhile, most EU law scholars focus their research on narrow areas, such as non-discrimination (mainly, in the field of employment) and free movement (of same-sex couples and their children). In other words, LGBTIQA+ issues never appear as the starting point of the analysis but rather as an incidental reference in the context of other research topics (on this point, see Belavusau). This piece aims to provide a deeper overview of the EU’s direct commitment towards the LGBTIQA+ community during the EU legislative term that is now coming to an end. It will thus retrace the different political, legislative, and judicial developments occurred, which have been marked as relevant for, or targeted to, LGBTIQA+ persons. Some contextual challenges of EU law vis-à-vis LGBTIQA+ matters will also be highlighted.

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Does the EU’s MiFIR Review make single-name credit default swaps transparent enough?

Blogpost 29/2024

Regulation 2024/791 (“MiFIR Review”) was published in the Official Journal of the European Union on 8 March 2024. This newly adopted legislation requires single-name credit default swaps (CDSs) to be made subject to transparency rules, only however if they reference global systemically important banks (G-SIBS) or those referencing an index comprised of such banks.

In this blog post, I discuss the suitability of the revised transparency requirements for single-name CDSs of the MiFIR Review. On the one hand, it seems that the new requirements are limited in scope as any referencing entity that is not a G-SIB will not be majorly impacted (see, in more detail, my recent working paper). Indeed, CSDs referencing G-SIBS represent only a small fraction of the market: i.e., 8.36% based on the total notional amount traded and 5.68% based on the number of transactions (source: DTCC). It follows that a substantial percentage of the single-name CDS market will not be captured. On the other hand, this post cautions against creating even more far-reaching transparency requirements than those provided for in the MiFIR Review: more transparency could, in practice, be detrimental for financial markets as it could result in higher trade execution costs and volatility and could even discourage dealers from providing liquidity.

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From US Slavery Defence to Article 19 TFEU: Treaty Reform in the Scales of History

Blogpost 28/2024

The European Parliament’s recent proposal to remove the unanimity requirement from Article 19 TFEU (non-discrimination legislation) echoes a centuries-old US debate on voting and minority rights. James Madison, the ‘father’ of the US Constitution defended majority voting as a necessary condition for impartial law-making and minority protection in multi-state unions. Conversely, John C. Calhoun, the then Vice US President and a key advocate of slavery, sought to maintain the racial status-quo through advocating for a unanimity-based structure.

The purpose of the blog is twofold. First,  it utilises US constitutional history to show how unanimity voting can function as a tool to perpetuate the unjust status quo to the detriment of minority rights. In this regard, partial similarities are drawn between the current Article 19 TFEU and Calhoun’s voting model. Secondly, it contrasts the pragmatic nature of the travaux préparatoires of Article 19 TFEU with the principled approach of the US debate. This juxtaposition underscores the importance of anchoring the proposed treaty changes in the foundational principles of Western constitutionalism. Specifically, it highlights  the nemo judex rule — ‘not being the judge in one’s own cause’ — a principle that shaped the US constitutional debate but was surprisingly absent in the drafting history of Article 19 TFEU. The blog shows why this particular principle should be considered in the debate on the European Parliament’s proposal to amend Article  19 TFEU.  Addressing the foundational role of this principle in Western constitutional theory provides additional support for removing the unanimity requirement from Article 19 TFEU. This change could help ensure better protection of minority rights in line with the values enshrined in Article 2 TEU. It is important to clarify that the term ‘minorities’ here refers to underprivileged segments of societies based on racial or ethnic origin, religion, or belief, among the main grounds protected under Article 19 TFEU – aligning with the EU Commission’s definition.

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Access to Documents Relating to the Environment – Even in Light of Dooming Controversy?

Blogpost 27/2024

Transparency and environmental policy are two key issues in the upcoming European Parliament elections. In this regard, the General Court’s (‘the Court’) ruling on 13 March 2024 in the case of ClientEarth and Leino-Sandberg v Council provides some highly relevant insights. The Court annulled two Council decisions refusing to disclose the Council Legal Service’s opinion on the 2021 proposal to amend the Aarhus Regulation. While the Court’s critical approach to the Council’s justifications for secrecy is to be applauded, and the outcome of the case is certainly to be welcomed, this post suggests that an alternative route to reach the same conclusion would have been more desirable. The Court now seems to deliberately gloss over the document’s potential legal and political significance, turning a blind eye to the heated and ongoing debate on the Union’s (non-)compliance with the Aarhus Convention. Instead of downplaying the relevance of the document’s content, we argue that a more principled emphasis on demanding openness in the realm of environmental policy would have led the Court to the same outcome but would have also made the Union’s transparency framework more robust, in line with the objectives of the Aarhus Convention.

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Is this fair? The ECJ rules on prohibition of assignment and ex officio control of unfairness (C-173/23 Air Europa Líneas Aéreas)

Blogpost 26/2024

1. Introduction

Air carriers often use clauses which prohibit the assignment of passenger claims. Such clauses have a generic scope but were mainly introduced to deter the assignment of claims under Regulation 261/2004 on air passenger rights (Air Passenger Rights Regulation – APRR) to commercial companies. The fairness of such clauses under the Directive 93/13/EEC on Unfair Terms in Consumer Contracts (UCTD) has been disputed. In its judgment in C-173/23 Eventmedia Soluciones SL v Air Europa Líneas Aéreas SAU ECLI:EU:C:2024:295 (Judgment), the European Court of Justice (ECJ) ruled on some aspects of the duty of national courts to assess of their own motion the unfairness of contractual terms in the context of air carriage under the 1999 Montreal Convention on the liability of the international air carrier (MC99).

The MC99 establishes uniform rules on certain aspects of the liability of air carriers for international carriage by air. It is one of the most widespread international conventions and is also open for signature by Regional Economic Integration Organizations, such as the EU (Article 53(2)). The MC99 was signed by the (then) European Community on 9 December 1999 and entered into force on 28 June 2004. Ever since, the MC99 provisions have been an integral part of the EU legal order (C-344/04 IATA and ELFAA, para. 36), save for the provisions on cargo, for which competence rests with the EU Member States. Hence, the ECJ is competent for the interpretation of the MC99 provisions on passengers and luggage.

This post presents the judgment of the ECJ, including its legal background. Subsequently, comments are provided regarding (1) the ex officio assessment of unfairness of contractual terms under the UCTD and (2) the validity of clauses prohibiting assignment of passenger claims under the APRR, according to the case law of the ECJ and national courts. The conclusion of the post evaluates the importance of the judgment for the analysed topics.

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The Thin Edge of the Wedge: Youth Mobility between the EU and the UK?

Blogpost 25/2024

On 18 April 2024 the European Commission issued a recommendation for a Council Decision authorising the opening of negotiations for an agreement between the EU and the UK on youth mobility. This is the first time since the signing of the Trade and Cooperation Agreement (TCA) in 2021 that the EU has proposed the conclusion of a legal framework for mobility of persons between the EU and UK. Free movement of persons ceased between the two as from 1 January 2021. Since then there has been a continuing exodus of EU nationals from the UK: 87,000 more EU nationals left the UK than came to it in 2023 (COM(2024)169 p 2). EU national students coming to the UK has dropped by 50%.

In response to this changing landscape of mobility, in 2023 the UK government has been approaching some (but not all) Member States regarding the possible negotiation of youth mobility arrangements based on existing UK national law. This unilateral action has sparked the Commission to seek a negotiating mandate from the Council to block possible bilateral arrangements between the UK and some Member States to the exclusion of others. This is consistent with the Council position adopted on 23 March 2018 that any future partnership between the EU and the UK on mobility of persons should be based on full reciprocity and non-discrimination among Member States.

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Choosing the Right European Commissioners: Politicians vs. Technocrats?

Blogpost 24/2024

The coming of spring promises many changes, including a newly elected European Parliament and a new college of Commissioners leading the European Commission. The re-opening of the Spitzenkandidaten system has also stirred the debate on the democratic legitimacy of the EU institutions. Focusing on the European Commission, one question that needs answering is about its members: are the European Commissioners creatures of the world of politics or instead independent experts of a technocratic ‘government’?

Looking at it from a constitutional perspective, the Commission is a unicum, with no one-to-one equivalent in nation states. The only substantive provision in the Treaties regarding the work of Commissioners is included in Article 17(3) TEU, which specifies that Commissioners shall be appointed ‘on the ground of their general competence and European commitment from persons whose independence is beyond doubt.’ However, that does not mean that Commissioners must be completely apolitical:  indeed, the Guidelines of the Commission provide for the possibility of Commissioners taking part in the campaigns and elections of the European Parliament (see Article 10).  While political standing helps to set the wheels in motion, there should also be a sense of democracy and direct responsibility to the electorate of Commissioners, if the Commission is to resemble a ‘European Government’. If priority is to be given to Commission duties over party commitment (Article 10(1) Commission Guidelines), then Commissioner candidates are hardly going to act in their neutral and professional capacity, if that would simultaneously mean kicking away the ladder that puts them in their current position. In other words, if Commissioners belong to political parties, this inherently puts them into a precarious conflict between party affiliation and their work as independent public officials (Gehring and Schneider p. 1). Continue reading

Following through on the Union’s values: The role of international law in setting legal limits on supporting Israel in its war on Gaza

Blogpost 23/2024

For six months, Israel has been waging a brutal offensive on Gaza, killing over 30.000 Palestinians, destroying more than 60% of the homes in Gaza, and making Gazans account for 80% of those facing famine or catastrophic hunger worldwide. High Representative Borrell described the situation as an ‘open-air graveyard’, both for Palestinians and for ‘many of the most important principles of humanitarian law’. Yet, the Union and its Member States seem unwilling to use their capacity to deter Israel from further atrocities. European leaders continue to express steadfast political support for Israel and to provide material support for the war by upholding pre-existing trade relations, including arms exports. This blogpost examines to what extent this continued support displayed by the Union and its Member States constitutes a violation of Union law. It does so in light of two recent rulings, both delivered by courts in The Hague, which suggest support for Israel in the current context might be problematic not just from a moral, but also from a legal standpoint. The central argument developed in this post is that Union law, when interpreted in a manner that respects – or at least does not undermine – the fundamental norms of international law, establishes sufficiently concrete obligations that the Union and its Member States currently do not meet given their continued support for Israel.

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